Kingsman v Health Administration Corporation
[2000] NSWSC 136
•31 March 2000
CITATION: Kingsman v Health Administration Corporation [2000] NSWSC 136 FILE NUMBER(S): SC 13327/93 HEARING DATE(S): 01/02/00, 02/02/00, 03/02/00, 04/02/00, 07/02/00, 08/02/00, 09/02/00, 10/02/00 11/02/00 JUDGMENT DATE: 31 March 2000 PARTIES :
Walter Frederick Kingsman v Health Administration CorporationJUDGMENT OF: James J
COUNSEL : In Person - Plaintiff
S Woods - DefendantSOLICITORS: - - Plaintiff
Lynn Boyd - Defendant
DECISION: Verdict for the Defendant
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
Friday 31 March 2000
013327/93 - Walter Frederick Kingsman v Health Administration Corporation
JUDGMENT
1 HIS HONOUR: This is an action for damages for personal injuries brought by the plaintiff Walter Frederick Kingsman, formerly known as Sean Walter Frederick Mordaunt, against the defendant, the Health Administration Corporation. The plaintiff claims that he suffered personal injuries as a result of treatment he received while he was a patient in the Chelmsford Private Hospital (“Chelmsford”). The plaintiff, who was born on 7 March 1946, was a patient in Chelmsford for five separate periods in 1968 or 1969, namely between 17 March 1968 and 7 April 1968, between 16 July 1968 and 3 August 1968, between 19 January 1969 and 13 February 1969, between 22 April 1969 and 9 May 1969 and between 7 July 1969 and 8 August 1969. While he was a patient in Chelmsford, the plaintiff was a patient of the late Dr H R Bailey and of Dr J Herron. It was not disputed by the defendant that during the periods he was a patient in Chelmsford the plaintiff was subjected to forms of treatment known as deep sleep therapy (“DST”) and electroconvulsive therapy (“ECT”). It was however disputed that the defendant had any liability to the plaintiff or that the plaintiff had suffered the physical injuries he claimed he had suffered.
2 The present proceedings were commenced by the plaintiff in 1993. An application by the plaintiff for an extension of the limitation period for bringing the proceedings was not opposed by the defendant and was granted by the Court.
3 The Health Administration Corporation was the sole defendant at the hearing of these proceedings. It was not, however, the only person or body against whom Mr Kingsman had at some time brought proceedings. There was admitted into evidence a transcript of an interlocutory hearing on 13 February 1996 before Badgery-Parker J. On 13 February 1996 before Badgery-Parker J Mr Kingsman, who was appearing for himself, stated that he was discontinuing proceedings he had brought against the New South Wales Medical Defence Union and other insurers and other proceedings he had brought against Dr Bailey’s estate, Dr Herron and the Medical Defence Union.
4 The Health Administration Corporation is a Corporation sole, which was created by the Health Administration Act 1982 No 135 and which was accordingly not in existence when the plaintiff was a patient in Chelmsford. How the Health Administration Corporation could be liable for any personal injuries suffered by the plaintiff while he was a patient in Chelmsford in 1968 and 1969 is a question which will have to be addressed later in this judgment.
5 There are a large number of documents in the court file in this matter. However, on the first day of the hearing it was agreed that a document described as “proposed amended statement of claim”, which was filed on 9 May 1996, should be taken to be the statement of claim, that a document described as “amended statement of defence of the defendant to proposed amended statement of claim”, which was filed on 17 May 1999, should be taken to be the defence and that a document described as a reply filed on 13 May 1996 should be taken to be the reply. Out of more abundant caution, I made orders that these documents stand respectively as the statement of claim, the defence and the reply.
6 The plaintiff appeared in person at the hearing. The plaintiff’s brother, Mr George Mordaunt, was permitted, without any objection by counsel for the defendant, to sit alongside the plaintiff at the bar table and to assist the plaintiff in the conduct of the case. During the hearing the plaintiff frequently consulted his brother.
7 The plaintiff informed me that at certain earlier stages of proceedings he had brought he had been legally represented. He had had a number of solicitors and a number of barristers “off the top of my head, four barristers and about six legal firms”. The plaintiff informed me that every solicitor he had had had been a “liar” and “cheat” and no solicitor or barrister he had had could be relied on to act on instructions given to him by Mr Kingsman. After I had suggested to Mr Kingsman that he should obtain legal advice and asked whether he had made any enquiries at the Law Society or the Bar Association about whether some arrangement could be made for him to receive legal advice, he told me that he would rather lose the case himself than have a solicitor lose it for him. The plaintiff had obviously devoted a great deal of time to the preparation of his case. He addressed written and oral arguments to the Court on such subjects as Crown immunity, vicarious liability, absolute liability, res ipsa loquitur, exemplary damages and the decision of the High Court in Sue v Hill (1999) 73 ALJR 1016. He relied on an array of documents, including the Charter of the United Nations and the Covenant of the League of Nations. He handed up to the bench legal text books on which he relied, many parts of which had been highlighted by him and which he had obviously read assiduously.
8 The plaintiff tendered the following documentary evidence at the hearing:-
9 1. An affidavit by him sworn 15 September 1999. This affidavit was admitted into evidence but, apart from some annexures, only as containing submissions or arguments by the plaintiff.
10 2. An affidavit by the plaintiff sworn 4 December 1995, to which were exhibited three volumes described as a report by V L Kingsman and three volumes described as a report by Michelle L McLean. V L Kingsman is a daughter of the plaintiff. Michelle McLean is a sister-in-law of the plaintiff. The plaintiff expressly disclaimed any suggestion that either Ms Kingsman or Ms McLean had any relevant special expertise or that he relied on any expressions of opinion in their reports by either Ms Kingsman or Ms McLean. Counsel for the defendant objected to the tender of most parts of the two reports.
11 I admitted into evidence parts of volume 2 of Ms Kingsman’s report, consisting of the hospital notes of Chelmsford for the plaintiff’s five admissions, accounts from Chelmsford for the plaintiff’s admissions, letters from the Archives Office of New South Wales relating to whether there was any written consent by the plaintiff to his treatment in Chelmsford in the documents of the Royal Commission into Chelmsford which was held between 1988 and 1990, the records of the Royal Brisbane Hospital and the psychiatric unit at the Prince Charles Hospital in Queensland relating to admissions of the plaintiff in 1967, a report of a psychological assessment of the plaintiff by a psychologist Mr Ivison on 24 July 1992, a completed request for medical details in relation to an application by the plaintiff in 1992 for a Disability Support Pension, a report of a psychiatric examination of the plaintiff by a psychiatrist Dr Field of 4 March 1994 and a report of a chiropractor Mr Andrew Vincent, which is undated but which was apparently prepared in late 1993.
12 I upheld counsel for the defendant’s objection to the tender of any part of volumes 1 and 3 of Ms Kingsman’s report. Volume 1 consisted of extracts from the report of the Chelmsford Royal Commissioner, interspersed with comments or submissions by Ms Kingsman, some of them apparently being based on what she had been told by the plaintiff. During the hearing I gave a judgment giving my reasons for holding that the extracts from the Royal Commissioner’s Report containing findings by the Royal Commissioner were not admissible.
13 Volume 1 also contained schedules prepared by Ms Kingsman purporting to record the dosages of drugs received by the plaintiff during his admissions to Chelmsford. This information was said by the plaintiff to have been extracted by Ms Kingsman from the Chelmsford Hospital notes. It was disputed by counsel for the defendant that the information had been accurately extracted and the columns of the schedules headed “date” and “dosage received” were admitted only on the basis of being the plaintiff’s summaries of the information in the hospital notes. The third column in the schedules, which was headed “maximum recommended dose in 24 hours (MIM 1994)”, was rejected.
14 Volume 3 of Ms Kingsman’s report consisted of articles published in medical journals at various times between the 1960’s and the 1990’s and parts of the 1994 MIMS Annual dealing with various therapeutic drugs and also tearsheets from a newspaper published in April 1995. I rejected all of the documents in Volume 3, apart from two articles which were admitted as being capable of being relevant to showing the state of scientific knowledge at the times the plaintiff was a patient in Chelmsford.
15 I did not admit any part of any Volume of the report by Ms McLean. Volume 1 consisted mainly of submissions by Ms McLean, with some extracts from medical works. Volume 2 reproduced many of the documents in Volume 2 of Ms Kingsman’s report, which I had already admitted. Volume 3 contained extracts, apparently from some edition of MIMS, concerning various pharmacological drugs.
16 I told Mr Kingsman at the hearing that his case was in danger of failing for lack of necessary evidence and that his case required evidence from a qualified pharmacologist and a qualified psychiatrist. The plaintiff replied that he had tried to get experts to give evidence but “they won’t do it”.
17 3. Some miscellaneous documents, which were admitted into evidence, consisting of a medical report by Dr Cedric Swanton of 13 June 1969, a letter from the Health Insurance Commission sought to be relied on in support of the plaintiff’s claim for damages for out of pocket expenses, some correspondence in March 1970 concerning the settlement of a claim by the plaintiff for damages arising out of a motor vehicle accident and a copy of a Queensland Industrial Award sought to be relied on in support of the plaintiff’s claim for damages for loss of earning capacity.
18 Apart from the tendering of documentary evidence, the plaintiff gave oral evidence and the plaintiff’s brothers George Mordaunt and Richard Mordaunt also gave oral evidence. As the plaintiff was unrepresented, much of the evidence of the plaintiff and of his brothers, before they were cross-examined by counsel for the defendant, was given in response to questions asked by me.
19 The defendant tendered a number of documents, which were admitted, consisting mainly, but not entirely, of medical reports. The defendant did not call any oral evidence.
20 On 21 June 1996 Professor P E Mullen, the Professor of Forensic Psychiatry at Monash University and the Director of the Victorian Forensic Psychiatry Services, was appointed as a court expert pursuant to Pt39 r2 of the Supreme Court Rules. The terms of the subsequent appointment of Professor Mullen were explained in a letter of 24 May 1996 to Professor Mullen from the Registrar of this Court. Professor Mullen furnished a report relating to the plaintiff which is dated 12 June 1996. The Registrar’s letter, Professor Mullen’s report and the materials which had been placed before Professor Mullen for the purpose of preparing his report were admitted into evidence.
21 It is convenient first to summarise the documentary evidence in the case and then to summarise the oral evidence.
The Documentary Evidence22 On 16 July 1966 the plaintiff was involved in a motor vehicle accident. There were admitted into evidence at the hearing handwritten notes purporting to be notes made by Dr Bailey of a consultation the plaintiff had with Dr Bailey on 14 March 1968, in which a history of the motor vehicle accident is recorded. On the following day, 15 March 1968, Dr Bailey wrote a letter to Mr L Weir, the solicitor acting for the plaintiff on a claim for damages for injuries suffered by the plaintiff in the accident. In this letter Dr Bailey repeated almost verbatim the history recorded in his notes of the previous day.
23 According to the account given by the plaintiff to Dr Bailey on 14 March 1968, the plaintiff had been the front seat passenger in a semi-trailer travelling from Sydney to Maryborough in Queensland. Unbeknown to the plaintiff two other semi-trailers were travelling behind the first semi-trailer. The first semi-trailer, in which the plaintiff was a passenger, went off the road into a valley. Dr Bailey’s letter to Mr Weir continued:-
“Kelly (the driver of the first semi-trailer) was killed and Mr Mordaunt thought he got out and flagged another car.
He was told much later when he met Marsden (the driver of the second semi-trailer that in fact Marsden and Berendoff (the driver of the third semi-trailer) had dragged him out of the vehicle in an unconscious state.
Mr Mordaunt was taken to the Windsor Hospital and he has a vague memory of travelling somewhere in an ambulance. He remained in the Windsor Hospital for some two weeks.
He stated that he suffered as a result of the accident:-
1. a fractured skull in the vertex area
2. injury to the right shoulder.
3. abrasions to the hips
4. sundry abrasions to the thighs, right shin, left hand, both elbows, right wrist and face”.
24 In October 1967 the plaintiff was admitted to the Royal Brisbane Hospital. He was complaining that his right shoulder was still painful. At the hospital the plaintiff received some orthopaedic treatment for his right shoulder. According to the notes of the Royal Brisbane Hospital the plaintiff was “depressed” on 4 November 1967 and arrangements were made for him to see a psychiatrist. The plaintiff was admitted to a psychiatric ward at the Prince Charles Hospital in Brisbane. Unfortunately when in 1993 a request was made by the plaintiff for the production of his hospital records, the only record of the Prince Charles Hospital relating to the plaintiff which was still in existence, was an index card. The index card recorded that the plaintiff was admitted to a psychiatric ward on 9 November 1967 and discharged on 21 November 1967. According to the index card the plaintiff was diagnosed as having symptomatic depression.
25 In March 1968 the plaintiff was referred by his local medical practitioner, Dr K J Dalgleish, to Dr Shearer, an orthopaedic specialist practicing in Sydney. In his letter of referral Dr Dalgleish referred to the plaintiff’s motor vehicle accident and the trouble the plaintiff had had with his right shoulder since the accident. Dr Dalgleish continued:-26 On 11 March 1968 Dr Shearer wrote a report to the solicitor then acting for the plaintiff, with copies to Dr Dalgleish and Dr Bailey:-
“He’s had various treatments including drugs, massage, physiotherapy, injection of steroid into the joints and finally Dr Tuffley in Brisbane explored his shoulder joint.
Over and above all this he’s had a reactive depression with an anxiety state and he is on Amytal and Tryptanol. He hasn’t done any regular work for eighteen months and he has tried playing as a drummer in the local ‘pop’ group, but he finds that after twenty minutes drumming, he gets a lot of pain and has to stop. Altogether, he’s having a bad time, …”.
27 On 14 March 1968 the plaintiff was seen by Dr Bailey. I have already referred to some of the notes made by Dr Bailey of his consultation and to the letter Dr Bailey wrote to Mr Weir on the following day. Other parts of the letter of 15 March 1968, which accurately repeat parts of the notes made by Dr Bailey on 14 March 1968, include:-
“He was told (at Windsor Hospital) that an x-ray of his skull showed a linear fracture. When he was discharged from hospital, he returned to Queensland. He has not worked since then. He has tried drumming, but is unable to use his arm for longer than about ten or fifteen minutes. His shoulder then ‘goes on fire’. He attended Dr Dalgleish in Pialba, and was subsequently referred to Brisbane General Hospital, where on 19.10.67, after an arthrogram on his shoulder, the shoulder was opened by Dr Tuffley. The exact nature of this operation, or what was done, he was not told. He said since that time, however, there has been no improvement, and if anything the shoulder is getting worse.
His complaints to-day were of pain at the right sterno-clavicular joint if he sits up straight, and pain in his shoulder especially if he puts any weight on it. He has been attempting to do his drumming practice every day, but the pain becomes so severe after a short time that he is unable to continue. His other injuries have all settled, except for his head, and he continues to have shocking headaches, especially if he is in the glare or if there is much noise or if he is in traffic. He can only watch television for about half to one hour without getting confused. He is taking Amytal Tryptanol”.
* * *
Opinion: This boy gave his story in a long roundabout circumstantial way, with occasionally great detail of varying events. He is fairly clear for names and events, but he speaks as though he were talking through a fog.
* * *
I regarded his head injury and his mental condition, however, as being in urgent need of attention, and I managed to get an urgent appointment with Dr Harry Bailey, psychiatrist…”
“Mr Mordaunt stated that at the time of the accident, his parents lived in Harvey Bay and he was on his way home there to line up hotel work for the Band with whom he was playing as a drummer (The Heartbeats).
Since the accident, he has not been able to work and he is now unemployed.
Mr Mordaunt stated that he consulted Doctors in Brisbane, and that on 18.10.67, he was in the Brisbane General Hospital, where he spent some time in the orthopaedic ward and some time in the psychiatric ward, being discharged on 22.11.67. He was there placed on anti-depressant medication (Tryptanol), and he still continues to take this.
Mr Mordaunt stated that his marriage had been deteriorating for some time before the accident, and has, in fact, gone further into decline since then.
He has been married for three years and has one child aged 3.
* * *
Mr Mordaunt stated that since the accident, he has been in a state of chronic depression with irritability, ideas of suicide and the constant feeling of confusion. He cries easily and has difficulty in planning for the future.
2. Impairment of Sleep Pattern
Mr Mordaunt states that he can no longer hold a reasonable sleep pattern and he suffers from early morning insomnia.
3. Impairment of Appetite.
He has lost several stone and is now 111/2 stone, whereas his previous weight before the accident was 16 stone.
4. He has difficulty in speaking.
He now stammers and has difficulty finding the right words.
5. Vague, generalised headaches.
6. Intolerance of Noise.
He can no longer tolerate the sound of drums.
7. Difficulty in relating to people, whereas previously he was rather extroverted and was easily able to make contact with people - he now tends to withdraw and prefers to sit by himself.
8. He cannot make contact with girls and things that previously he would never give a second thought to, become a major source of worry now.
* * *
Clinical Examination.
Mr Mordaunt had great difficulty in expressing himself during the examination. He fumbled for words, and stammered and he had difficulty in naming simple objects, indicating that there was a mild degree of aphasia present. He was overtly depressed and cried several times during the interview, and he expressed a strong desire for help and assistance.
It was considered that Mr Mordaunt was suffering from a fairly severe post-traumatic depressive illness and that this was complicated by the presence of some possible underlying brain damage.
I carried out an electroencephalogram on Mr Mordaunt on 15.3.68, and this recording showed a well marked build up of 3cps slow waves which were maximal over the frontal region in the midline. These slow waves at 3cps build up to seizure intensity during hyperventilation.
This record was considered to be grossly abnormal and consistent with some previous head injury.
28 Dr Bailey concluded that he would like to have the plaintiff admitted to hospital.
29 Between 17 March 1968 and 7 April 1968 the plaintiff was a patient at Chelmsford. According to the hospital notes the plaintiff was subjected to “routine deep sedation”. The notes for 20 March 1968 record that the plaintiff was very restless and was attempting to get out of bed and that he was shackled. The notes also record that on another occasion the plaintiff was also shackled. On 27 March 1968 the plaintiff was seen by Dr Herron and electroconvulsive therapy was given. The notes for 6 April 1968, the day before the plaintiff’s discharge, read “good day, up and about. Out for drive with family this afternoon. Dr Bailey confirmed discharge”.
30 On 11 May 1968, that is after the plaintiff’s first admission to Chelmsford but before any subsequent admission, Mr Binks, a psychologist, prepared a psychological appraisal of the plaintiff. In his report Mr Binks said that the plaintiff had an intelligence quotient of 83. His memory for recent events was very poor and his memory for remote events was below average. The plaintiff’s powers of concentration were very poor. Mr Binks considered “there is evidence of a reactive depression due to his reduced capacities and anxious state. The total impairment of intellectual functioning is in the vicinity of thirty percent”.
31 On 27 May 1968 the plaintiff was seen by Dr Bailey. Dr Bailey noted “has slipped back, withdrawn, dysphasic”.
32 Between 16 July 1968 and 3 August 1968 the plaintiff was again a patient in Chelmsford. The notes of 16 July 1968 record that the plaintiff was admitted “for routine deep sedation (and) ECT”. The notes record that on several days ECT was given to the plaintiff by Dr Herron.
33 On 13 August 1968 the plaintiff was seen by Dr Bailey. Dr Bailey’s notes state “disch(arge) ex Chelmsf(ord) was well on disch(arge)). Went straight back to work at Kog(arah) RSL. Brother got engaged while he was in hospital. Headaches”.
34 On 18 September 1968 the solicitors then acting for the plaintiff on his claim for damages arising out of the motor vehicle accident wrote to Dr Bailey, asking Dr Bailey for a report. Following this request from the plaintiff’s solicitors for a report, Dr Bailey saw the plaintiff on 14 October 1968. Dr Bailey made notes of this consultation, including:-35 On 21 October 1968 Dr Bailey furnished the requested report. The early parts of this report virtually repeat Dr Bailey’s earlier report of 15 March 1968. Later in the report of 21 October 1968 Dr Bailey expressed the following opinions:-
“Has a job winding welding wire. Gets worried by noise of the machinery - when machine is noisy he gets a headache… still sees double - can’t read music--- hasn’t taken any girls out - they get sick of me - gets headache when sexually aroused o/e disconnected - dysphasic sleep erratic but better”.
Dr Bailey then recorded the plaintiff’s performance on a serial sevens test. He then wrote “brain damaged”.
As a result of his accident, Mr Mordaunt suffered a fractured skull, and injuries to the shoulder, hips and limbs.
Mr Mordaunt’s present state is consistent with one of contusional brain injury, and his present symptoms appear to be related to the impairment of mental function flowing from this, together with a chronic post-traumatic depression.
Part of this depression is undoubtedly due to Mr Mordaunt’s inability to cope with even simple life-situational problems”.
36 On 11 November 1968 Dr Bailey made a note “Bro George interviewed; complete reversal of pre-accident personality”.
37 On 15 November 1968 the plaintiff was seen by Dr Bailey. Dr Bailey noted:-
“‘Getting depressed - not as much as before’ - still feels tired in a.m. - inarticulate, inhibited. Headaches on and off. Just get fed up if I get annoyed I get a headache. I wish I could explain it - it just seems sort of blank - no girls I can’t talk to them - no alcohol. I don’t know where it will end or whether it will end”.
38 On 9 December 1968 the plaintiff was seen by Dr Bailey. On this occasion Dr Bailey noted that the plaintiff had quit his job or had got sacked. Dr Bailey also noted the plaintiff as saying “I know I’m getting brother George down - I embarrass them you know”.
39 On 17 January 1969 the plaintiff was seen again by Dr Bailey. Dr Bailey noted:-40 Between 19 January 1969 and 13 February 1969 the plaintiff was a patient at Chelmsford for a third period. The hospital notes of 19 January 1969 include:-
“Feels very much the same - has not been doing anything. No job. Not sleeping in spite of medication. Feel exhausted all the time… Getting occasional bad headaches. Agrees to re-enter hospital”.
“Would like nurses to please leave dentures in situ as they are too hard to replace - gums swell. Please DO NOT CUT beard”.
41 On 20 January 1969 the plaintiff was seen by Dr Bailey, who instructed that deep sedated level be maintained. The hospital notes recorded that ECT was administered to the plaintiff by Dr Bailey on 24 January 1969 and by Dr Herron on 26 January 1969, 29 January 1969, 31 January 1969 and 1 February 1969. On 4 February 1969 Dr Bailey gave orders to “lighten out”, that is reduce the level of sedation. The notes from 7 February 1969 onwards record that the plaintiff was having a number of good days and as being “bright”.
42 On 3 March 1969 the plaintiff was seen by Dr Bailey. Dr Bailey’s notes of this consultation include:-43 On 21 April 1969 Dr WJ Burke, a consultant physician, furnished a report about the plaintiff to the solicitors acting for the defendant in the proceedings brought by the plaintiff for damages arising out of the motor vehicle accident. According to Dr Burke’s report, when Dr Burke saw the plaintiff the plaintiff was accompanied by “his brother”. The name of the brother is not given in Dr Burke’s report. Information given by the plaintiff’s brother at the consultation included:-
“Was ++++ on disch(arge) - talkative, cheerful - no difficulty in interpersonal rel(ations). Concept hunting good - now becoming depressed again - tearful… Fa(father) accompanying him - expressing regret over previous attitudes and willing to take Walter home and support him”.
“His brother said that when he first saw him the day after the accident he was lying pale and still with his head bandaged… his brother said he will take a long time to do things, will sit without speaking for hours at a time, although he is able to bath, dress and look after himself and has been improved since being under treatment in the past few months. He has been in hospital on about two occasions for drug therapy. He also had frontal headaches, recurring daily. His brother said he was easily flustered when given some task to do…”
44 Dr Burke concluded in his report that further neurological investigation of the plaintiff was not indicated but that there should be further psychometric examination to assess the degree of possible intellectual impairment. Dr Burke added that the plaintiff would also be reporting to Dr Bailey for further psychiatric supervision.
45 On 22 April 1969 the plaintiff was seen by Dr Bailey. Dr Bailey noted inter alia “general depressed, retarded, weeping… feels life has nothing… hospitalisation indicated”.
46 Between 22 April 1969 and 9 May 1969 the plaintiff was a patient at Chelmsford for a fourth period. The notes of 22 April 1969 include “for routine deep sedation”. The notes record that ECT was given to the plaintiff on 23 April 1969, 26 April 1969, 27 April 1969 and 29 April 1969. On 28 April 1969 the plaintiff was seen by Dr Bailey. On 30 April 1969 the plaintiff was seen by Dr Herron and the notes continue “to be lightened out”. From 1 May onwards the plaintiff was fairly consistently said to be “bright” and “cheerful”.
47 On 20 May 1969 Dr Bailey noted:-
“Has been discharged ex Chelmsford c/o R sided ulnar neuritis last 1/52 - … played drums x 1 against advice headaches started whole cycle. Now demonstrates blocking and verbal difficulties as before c/o depersonalisation. Has no friends - can only go where George goes. Can’t communicate with people”.
48 On 29 May 1969 Dr Bailey recorded “has slipped back to chromic depression. Discussion c (with) W(alter) arrange for Mo(ther) to come in & discuss further. Conceptual thinking ++ Preservative ++ tearful”.
49 On 2 June 1969 Dr Bailey saw the plaintiff’s mother. His notes read:-50 On 10 June 1969 Dr Bailey wrote a letter to Dr Cedric Swanton. In this letter Dr Bailey referred to a pattern he said had been repeated on each admission of the plaintiff to Chelmsford that after a few days sedation and ECT the plaintiff had made a good response and at the time of his discharge from Chelmsford had been happy, talkative and considerably transformed but that after the plaintiff had been discharged he had drifted back into a state of chromic depression. Dr Bailey concluded:-
“Mo interviewed. Walter never like this ante accident. Discussion re cingulectomy refer to Cedric Swanton re opinion”.
“I think there is little doubt that this boy is brain-injured.
My major problem is how to keep him well, and so far, I have not succeeded very well for any length of time. I have had thoughts in my mind about the possibility of a Cingulectomy on the grounds that he has shown a repetitive and consistent, but temporary, response to ECT - sedation”.
51 Dr Bailey asked Dr Swanton for his opinion “about how one should proceed further” with the plaintiff.
52 Dr Bailey sent copies of this letter of 10 June 1969 to the plaintiff’s solicitors and to Dr Shearer.
53 Dr Swanton wrote to Dr Bailey on 13 June 1969, after having seen the plaintiff. Parts of Dr Swanton’s letter are as follows:-
“This is a very interesting but difficult case, both from the point of view of diagnosis and future management. His accident in July 1966 was an extremely traumatic experience both mentally and physically. It does suggest to me that he has some residual brain damage (post-contusional) which would appear to be confirmed by his electroencephalogram. At the same time there is no question that he is also suffering from a post-traumatic, psychoneurotic, anxiety depressive disturbance. It would seem that this latter anxiety depressive disturbance is more important and more responsible for his symptomatology than the traumatic organic damage. This would appear to be quite evident according to your history of his post-E.C. Therapy responses, but until this overlayer is relieved it is quite impossible to assess the extent of any organic damage.
I feel that his is not a true Ganser syndrome, as his response to interrogation in relation to elementary knowledge and experience is not too bad…
Whilst taking to him he sat continually in a bowed position with his head in his hands, did not look at me once directly and I feel sure he could not tell you whether I wear glasses or not. Following our interview he wept copiously in the waiting room before he left. I did feel that this emotional release was genuine”.
Incidentally, he told me of his stay in the Brisbane Hospital, where he said they did nothing whatsoever for him, told him there was nothing wrong with him and laughed in his face. He stated that this was also the attitude of his own personal doctor.
I was unable to really assess this man’s previous temperament and personality, as his wife did not accompany him and I had no access to any earlier history. He informed me that he did not like his wife any more and that he had left her some time towards the end of 1965, he had not seen her since and that they were divorced, and in April of this year he had to attend court on a maintenance charge, which was adjourned until July.
I do not feel that this man is capable of being gainfully employed at the present time.
Opinion: I feel Mordaunt probably had some organic brain damage, but the major factor in his present condition is a traumatic psychoneurotic and anxiety depressive state and more than likely compensation could be quite a factor in the perseveration of his symptoms; and for this reason I cannot feel sure what lasting benefit would be derived from a Cingulectomy Further, he cannot make up his mind at present to give permission for this to be done. His positive transference to you is very apparent and I think perhaps it might be worth trying a more prolonged period of E.C. Therapy before this was done.
Once again, I feel very strongly that delay in litigation procedures is mitigating very considerably against his hope of immediate recovery”.
54 On 19 June 1969 Dr John Ellard, psychiatrist, furnished a report about the plaintiff to the solicitors who were acting for the defendant in the proceedings brought by the plaintiff for damages for the injuries suffered by him in the motor vehicle accident. Dr Ellard had in fact seen the plaintiff on 9 April 1969 but there was a delay in furnishing the report.
55 In his report Dr Ellard noted the history about the motor vehicle accident he had been given by the plaintiff. This history was broadly consistent with the history which had earlier been given to Dr Bailey. The history given to Dr Ellard included that the plaintiff had a memory of yelling out for the driver of the semi-trailer and a memory of a fire. Further parts of Dr Ellard’s report are as follows:-
“Before his accident he had played with bands for two years. Three weeks before it he had decided to become a professional and had then decided to go to Queensland to arrange for a six week booking which he knew would come up at Christmas. Before making this decision he had usually done casual work as a waiter so that he could fit in his lessons and his occasional professional engagements.
Since his accident he has tried to play with a band, lasting as long as half to three quarters of an hour, but sometimes no more than five minutes. His inability to play longer is not so much due to his arm as to the pain in his head: the volume of noise makes his head ache and then he cannot think”.
* * *
He has also tried working as a storeman and as a machine operator winding wire. Neither job lasted as long as a month and on both occasions the noise stopped him.
His present complaints are:
1. He is intolerant of noise
2. He forgets simple things such as posting a letter or appointments. The memory disorder is unusual in that he has forgotten things such as getting married and going to school.
3. He sleeps poorly: his insomnia has no particular pattern.
4. He has nightmares which sometimes concern a fire or the dead driver.
5. He had a dull headache all the while…
6. He has a visual disturbance which I could not quite sort out…
He said that about a year ago he saw Dr Bailey. At that time his headaches were permanent and much worse and he was confused. People used to stare at him and overall he was worse than he is now. He has been in hospital under Dr Bailey’s care on three or four occasions for some weeks, but he cannot remember what has happened. This is reasonable since Dr Bailey commonly used deep sedation in the treatment of psychiatric disorders. Mr Mordaunt said that he feels better but it does not last. He was also in the psychiatric section of Brisbane General Hospital for four or five weeks after a shoulder operation but he said that he could remember nothing at all about this period.
56 Dr Ellard had been supplied with a statement purportedly made by the plaintiff two days after the motor vehicle accident. Dr Ellard said in his report “if indeed he made it (the statement) it is obvious that he was clear in his mind on that day. He was having no trouble with his memory and I think that one can certainly say that he did not have a head injury of any severity. In particular he did not have head injury of the kind which would produce confabulation… this being so, I cannot understand how it could be asserted that any of Mr Mordaunt’s residual symptoms could be due to the effects of a brain injury”.
57 Between 7 July 1969 and 8 August 1969 the plaintiff was a patient at Chelmsford for a fifth period. According to the hospital notes he arrived “very depressed”. He was “for routine deep sedation ECT”. According to the nursing notes ECT was given to the plaintiff on 7 July, 9 July, 10 July, 13 July, 17 July, 20 July, 21 July, 22 July, 30 July and 5 August, that is a total of ten occasions. On a page of the nursing notes someone has written “Mr W Mordaunt discharged 8.8.69 ECT” followed by a number in brackets. In his submissions to the Court and in histories given by him in the present decade the plaintiff asserted that the number which had been written was 80 and that he had had 80 sessions of ECT on his fifth admission to Chelmsford or at any rate 80 sessions of ECT altogether. However, it appears to me that the number “8” was first written and that the number “10” was then written, with the vertical stroke of the “1” over the “8”. As I have stated, the nursing notes record 10 instances of ECT on the plaintiff’s fifth admission to Chelmsford.
58 The nursing notes record that the plaintiff was shackled on a number of occasions during this fifth admission. On 26 July 1969 he was “hallucinating wishing to leave the hospital hands feet shackled”. On that day Dr Bailey gave orders to maintain deep sedation ECT. On 4 August 1969 Dr Bailey gave orders to “lighten out”.59 The plaintiff “appeared well” when discharged on 8 August 1969. According to the nursing notes the plaintiff was seen by Dr Bailey on the night of 6-7 August 1969 and the notes continue “for discharge on Friday (8 August)”. There is no subsequent reference in the nursing notes to Dr Bailey seeing the plaintiff.
60 On 5 September 1969, that is four weeks after he had been discharged from Chelmsford, the plaintiff wrote a letter to Dr Bailey. He gave as his address his parents’ home at Hervey Bay, Queensland. The first paragraph of the letter was as follows:-
“I suppose by now that you were beginning to think that I wasn’t going to write to you although I have been thinking of you quite a lot over the last couple of weeks particularly since I left Sydney and I hope you don’t think I’m an idiot but I can’t help the way I feel about as I know that whenever I’m near you I seem to change its difficult for me to explain but that’s how it is and I want you to be proud of me and so as I said to Mum I get better even if it kills me I make it”.
61 In the letter the plaintiff reported that the weather had been very hot in Queensland and that there had been water restrictions. He said that one of his younger brothers had “come up with a brilliant suggestion” of using bath water to water the plants in the garden.
62 The plaintiff said in the letter that he had been fishing. The day before writing the letter the only thing he had “caught” was sunburn. However, the previous week the plaintiff had been fishing four times with a friend of his father’s and the fish had been biting so well that two refrigerators had been filled with the fish they had caught and the rest of the fish had been sold to a fish and chip shop. The last paragraph of the letter reads:-
“Well Dr Bailey there’s only one thing left for me to say at the moment is that I’ll all ways look upon you as my fried, and that I realize if you don’t answer my letter straight away that you are a very busy man, so I’ll say cheerio for now and till I hear from you, all my love and best wishes, Walter”.
63 Dr Bailey wrote a short letter on 29 September 1969 to the plaintiff, thanking him for his letter.
64 There was also admitted into evidence an undated card sent by the plaintiff to Dr Bailey. The printed words on the card were “to express deep appreciation for your kindness and sympathy”. On the card the plaintiff wrote “Dr Bailey I love you, Walter”.
65 The proceedings by the plaintiff for damages for the injuries sustained by him in the motor vehicle accident were settled in about March 1970 for a total amount of $11,000 inclusive of costs. The solicitors for the defendant asserted in a letter of 20 March 1970 to the solicitors then acting for the plaintiff that they held evidence which established that the plaintiff had recovered from the injuries he had suffered in the accident. It seems likely that this assertion was based on the report from Dr Ellard.
66 On 4 March 1972, while he was working, the plaintiff suffered a crush injury to his left foot, involving compound fractures of bones in the foot. Between 25 January 1973 and 9 February 1973 the plaintiff was a patient at the Maryborough Hospital in Queensland. At the hospital an operation being a “flexor/extensor transplant of the left foot” was performed. The hospital notes record that on examination the plaintiff was found to be “a healthy looking 26 year old”.
67 The plaintiff brought a claim for damages for the injuries sustained by him in the work accident on 4 March 1972. On 8 April 1976 he gave an authority to Dr Bailey, authorising Dr Bailey to supply to his solicitors any report or other information “relating to my injuries arising out of an accident which happened in 1966”.
68 On 14 February 1986 the plaintiff signed a personal statement in connection with a proposal for life and/or disability insurance to the National Mutual. In the statement the type of work the plaintiff was then doing was described as “builder”. The questions in the form “have you ever had any … mental or nervous complaint… disorder of joints, bones or muscles… back complaint?” were all answered “No”. Particulars of hospitalisation undergone by the plaintiff which were given in the statement were as follows:-
1972 Maryborough - 18 months off work”.
“1966 Windsor Hospital Fractured scull (so spelt) Right Shoulder, elbow, wrist, hips - 4 years hospital - clear since.
69 The plaintiff denied that the handwriting on the statement was his. However, he admitted that he had signed the completed statement and the handwriting on the statement does not appear to be the same handwriting as that of a medical examiner on a medical report which accompanied the statement.
70 The next documents which were admitted into evidence came into existence after the plaintiff had decided to make a claim for damages arising out of his treatment in Chelmsford.
71 On 17 July 1991 Dr Margaret Franklin, a general practitioner, referred the plaintiff to Dr J McIntyre, a psychiatrist practicing in Toowoomba. Dr Franklin asked Dr McIntyre to assess the plaintiff’s case for compensation for his “apparently dubious treatment” at Chelmsford. She remarked that the plaintiff was now in possession of his medical records “which have been obtained for him by his brother”.
72 On 31 July 1991 Dr McIntyre wrote to Dr Franklin. He said that he had so far been unable to complete taking a history from the plaintiff. Dr McIntyre said “Walter told me his recall for these admissions was confused and fragmentary… he told me in some distress of a number of experiences he recalled at the hospital… he said he did not have dentures before his admissions. He says he eventually escaped by travelling to north Queensland with a mate while on therapeutic sick leave from the hospital”.
73 On 30 August 1991 Dr McIntyre wrote a brief letter to Dr Franklin in which he reported that he had completed taking a history from the plaintiff, that a Dr Saines had reported that an electroencephalogram of the plaintiff was “well within normal range” and that the plaintiff’s IQ was in the 85-98 band.
74 On 12 December 1991 Dr McIntyre reported further to Dr Franklin. Dr McIntyre reviewed some of the history. Dr McIntyre said “I can find nothing suggestive of current organic deficit and have reassured him about this”.
75 On 24 July 1992 Mr D J Ivison, a psychologist, reported on a psychological examination of the plaintiff on 22 July 1992. Mr Ivison reported that there was a great variation in the plaintiff’s performance on various psychological tests. Mr Ivison said:-
“Whilst these findings might suggest the presence of brain damage (perhaps involving the right temporal lobe), the picture is complicated by Mr Kingsman’s affective state. On the Beck Depression Inventory he reports himself as being in the most depressed 5% of the population, while his habitual level (trait) of anxiety puts him in the most anxious 1%, and his report of his current state puts him in the most anxious 2% of the population.
As high levels of anxiety and depression are known to affect attention and concentration and to impair especially tasks involving unfamiliar material, it is not possible to state with certainty whether Mr Kingsman’s cognitive impairment (which is undoubted and severe) is the result of physical brain damage or is a consequence of his emotional state (which, itself, might possibly be viewed as a form of post-traumatic stress disorder).
Referral to a neurologist for MRI scan or equivalent of his brain might help to resolve this issue, as would successful psychological treatment of his affective state, followed by a further psychological assessment”.
76 On 17 August 1992 Dr Franklin completed a request for medical details with reference to an application by the plaintiff for a disability support pension. In her answers she said that she had been the plaintiff’s treating doctor for two years. She diagnosed the plaintiff as having “severe chronic depression and post-traumatic anxiety state secondary to probable brain damage aged 22”.
77 On 25 October 1993 the plaintiff completed a confidential patient case history for the Vincent Chiropractic Centres in Brisbane. He said that he had previously been treated by a chiropractor in Toowoomba for “mainly (atlas area neck) + spinal adjustment”. He had had “several treatments”, “about once every three to four months”, “the last treatment being in approximately April 93”. In the form the plaintiff wrote that he had sustained “brain damage due to massive doses of barbiturates (DST) combined with 80 doses of ECT”.
78 Mr Vincent furnished a report, after he had seen the plaintiff on two occasions only, on 25 October 1993 and 22 November 1993. The plaintiff complained to Mr Vincent of neck tension, mid back pain and lower back pain. Mr Vincent said in his report that examination of the plaintiff had revealed a loss of movement in his spine. Mr Vincent expressed the opinion “Walter’s repeated history of incarceration and ECT done without muscle relaxants has obviously deeply affected him” and the plaintiff would require chiropractic care at three to four weekly intervals for the rest of his life.
79 On 4 March 1994 Dr Peter Field, a Brisbane psychiatrist, furnished a report about the plaintiff. The plaintiff had first consulted Dr Field on 1 February 1994 “regarding psychological problems which he says resulted from admissions to Chelmsford hospital between 1968 and 1969”. At the time of furnishing the report Dr Field had seen the plaintiff on four occasions.
80 In his report Dr Field said that the plaintiff’s memory for events which occurred after he was referred to Dr Bailey was “very vague. He says that he is not aware of any psychological or emotional problems prior to this referral and as far as he was concerned the only reason for the referral was for investigation of the pain in his right shoulder”. The plaintiff told Dr Field that he had received a total of eighty ECT treatments.
81 Dr Field said in his report:-
“He can remember the frightening experience of being woken up to be given unmodified ECT. Even to-day he has vivid memories of the room where he received the ECT and of the various doctors and nurses who were in the room at the time. He would be woken up to see the doctor standing above him and then almost immediately after this receiving the shock. He describes it as horrendous. He describes what felt like fireworks in his eyes and a burning painful sensation going down the back of his neck, right down to the base of his spine. For some time he felt as if he was unable to breathe and then eventually he says after he was unable to ‘hang on any longer’ he would pass out. He recalls that at some stages during the therapy he would receive two unmodified ECTs in the one day.
During the time that he was in Chelmsford Hospital he felt very confused, bewildered and helpless. Now when he remembers the episodes he becomes very angry, resentful, tense and at times very emotional. (Some of his memories are very vivid, particularly the ECT room)”
82 In his report Dr Field described the main problems the plaintiff had had since he was admitted to Chelmsford as being:-
83 1. Memory problems, including memories of the plaintiff’s childhood, memories of the time he was in Chelmsford and current memory problems.
84 2. Recurrent nightmares “these tend to be about Chelmsford and other frightening themes. Frequently at night while he is asleep he becomes very stiff and arches his back and becomes very restless and agitated. (This is substantiated by his wife). These episodes tend to occur when he dreams of Chelmsford and the ECTs”.
85 3. Back Pain. “After one of these arching episodes he tends to suffer from severe stiffness and pain in his neck and back and has needed chiropractic treatment for this”.
86 4. Blackouts “His wife has given a very good description of these episodes which used to occur early in their marriage but have not occurred for some years. She said that frequently he would fall into a very deep sleep which she would be unable to arouse him from”.
87 Dr Field concluded that “I feel that he is suffering from a post traumatic stress disorder” and that the plaintiff needed to be seen for some time for therapy.
88 As stated earlier in this judgment, on 21 June 1996 Professor P E Mullen, the Professor of forensic psychiatry at Monash University and the Director of the Victorian Forensic Psychiatry Services, was appointed as a court expert pursuant to Pt39 r2 of the Supreme Court Rules. The terms of the subsequent appointment of Professor Mullen were explained in a letter of 24 May 1996 to Professor Mullen from the Registrar of this Court. Professor Mullen was to be furnished with the material relating to five former patients at Chelmsford, including the plaintiff. His function as a court appointed expert was to inquire and report upon the following questions:-
“1. What, if any, psychiatric problems the plaintiff had at the time of admission to Chelmsford Private Hospital for DST/ECT.
2. What effect did the administration of the treatment have on the plaintiff in terms of:
(a) any immediate effect on the plaintiff’s physical and/or mental health;
(b) any long term effect on the plaintiff’s physical and/or mental health; and/or
(c) the plaintiff’s earning capacity.
* * *
3. If the plaintiff had not undergone DST, what would have been the likely outcome of the plaintiff in terms of:
(a) the short term and long term prognosis of the psychiatric illness from which he/she suffered prior to undergoing DST;
(b) the treatment he/she would have required for any such psychiatric illness; and
(c) the effect of the psychiatric illness on his/her earning capacity”.
89 In her letter of 24 May 1996 the Registrar asked Professor Mullen to “please note that the terms of reference by the Court do not seek your opinion on the appropriateness of the treatment either generally or in any particular instance but rather the aetiology of the plaintiff condition(s) and in particular as to whether or not it was caused wholly or in part by any treatment administered to the plaintiff at Chelmsford”.
90 Professor Mullen furnished a report relating to the plaintiff which is dated 12 June 1996. In his report Professor Mullen noted that he had had access to the hospital notes of the plaintiff’s five admissions to Chelmsford, Dr Bailey’s file, documents produced by the Maryborough Hospital, Dr McIntyre’s reports of 31 July 1991 and 12 September 1991, the psychological assessment prepared by Mr Binks (in his report Professor Mullen says that the psychological assessment had been prepared by a Mr Davies but this is clearly an error), Dr Ellard’s report, Dr Dalgleish’s letter of referral of March 1968, Dr Field’s report and Mr Ivison’s report.
91 Professor Mullen had seen the plaintiff on 31 May 1996. Professor Mullen stated in his report:-
“Mr Kingsman was seen together with his brother, Mr George Mordaunt. Mr Kingsman wore dark sunglasses throughout the interview. He appeared to have some difficulty answering a number of my enquiries and his brother, Mr Mordaunt took the initiative on many occasions answering for Mr Kingsman. Although this was doubtless intended to assist both Mr Kingsman and myself, it made it difficult at times to distinguish Mr Kingsman’s view on the inquiry from his brother’s interpretation of what that view is or should have been. Mr Kingsman and Mr Mordaunt made clear their suspicions of the process and their sense of having been, not just unfairly treated, but actively harassed and intimidated by the various parties to the litigation. It is perhaps a manifestation of this unease that Mr George Mordaunt surreptitiously recorded the interview”.
92 In his report Professor Mullen then addressed the questions he had been asked.
93 1. The psychiatric problems the plaintiff had at the time of his admission to Chelmsford.
94 Professor Mullen noted that “Mr Kingsman reported that as a result of memory loss he is unable to provide any account of his emotional and psychiatric problems, if any, prior to seeing Dr Bailey”. In his report Professor Mullen then referred to a number of the materials he had been provided with. Professor Mullen concluded:-
“In summary it would appear that following an accident in July 1966, Mr Kingsman had developed a number of physical and psychological symptoms which had rendered him incapable of work. He would appear, from Dr Bailey’s notes and from the fact that he was admitted to the Brisbane General Hospital Psychiatric Unit, to have developed a significant degree of depression with anxiety features. There would also appear to be the opinion of Dr Bailey, Dr Swanton and Mr Binks that Mr Kingsman had suffered a degree of brain damage in this accident. The electroencephalographic recordings taken at this time would appear to give support to this supposition as do the results of the psychological tests by Mr Binks. Mr Kingsman was certainly complaining of a variety of symptoms including forgetfulness, nightmares and anxiety”.
95 2. The effects of the treatments administered at Chelmsford on the plaintiff.
96 In his report Professor Mullen referred to a number of hospital notes which in his opinion indicated distress and disturbance in the plaintiff in response to the procedures to which he was subjected. Professor Mullen continued:-97 With respect to question 2(c) Professor Mullen said in his report:-
“These five episodes of treatment involved extended periods of unconsciousness and multiple electroconvulsive treatments and would have left Mr Kingsman vulnerable to brain damage from a number of sources. Someone rendered deeply unconscious for long periods is at risk of obstruction to their airways which can lead to anoxia and this in its turn to brain damage. No specific episodes suggestive of anoxia are recorded, but this in no way excludes such episodes. Mr Kingsman was also subjected to a wide range of powerful drugs and to multiple electroconvulsive treatment in less than ideal circumstances. These again could impact on the integrity on the brain in a variety of ways. Thus in my opinion Mr Kingsman was at least placed at risk of brain damage by the procedures of which he was the subject during his five admissions to Chelmsford Private Hospital.
Mr Kingsman’s recollections of his admissions to Chelmsford Private Hospital consist of vague memories interspersed with vivid recall for isolated events. He remembers Dr Herron standing over him, he believes with the electrodes from the ECT machine, and then a flash of overwhelming pain. Mr Kingsman became tearful and distressed when talking about his recollections of Chelmsford. He also recounted what must have been hallucinatory experiences and of choking. He also remembers an incident where he appeared to be outside of himself looking down on what was happening to him in the bed. There were also vivid recollections of struggling to free himself from shackles. Mr George Mordaunt reports that when his brother, Mr Kingsman, left Chelmsford Private Hospital for the last time he ‘was like a zombie’. He felt that he had totally changed in his personality as a result of what had occurred at Chelmsford.
Mr Kingsman reports that in the months and years following his admissions to Chelmsford Private Hospital he had recurrent nightmares which often harked back to his out of body experience when he seemed to be watching himself from a height. These nightmares were terrifying and have continued, though less frequently, to the present day. Mr Kingsman also gave a description of what he called flashbacks. The description was somewhat vague and these events did not seem to be stimulated by any specific triggers as is usual in the forced memory or flashback experience. What Mr Kingsman appeared to be describing was more like periods of brief dissociation or trance-like states which occur intermittently.
Mr Kingsman states that he has lost most of his memories for events prior to his treatment at Chelmsford Private Hospital. He stated that he had no memories of having been a musician and had forgotten how to play the drums which was his instrument. This, he insisted, was not simply a loss of motivation or a loss of technique, but a forgetting of the knowledge and skills of his musicianship. He also stated that he had forgotten his family and only remembers those members of his large family with whom he has had contact since 1990. He says he retained no memories of either his mother or father during his childhood and that his family were ‘complete strangers after Chelmsford, it was weird’. Mr Kingsman also referred to some problems with concentration, attention and memory since the admissions to Chelmsford Private Hospital. In July 1992 Mr Kingsman was assessed by a clinical psychologist, Mr D J Ivison, who found evidence for poor attention and concentration and for very poor memory functioning. Mr Ivison was uncertain whether the results of the testing were the result of physical brain damage or the consequences of what appeared to be Mr Kingsman’s depressed and anxious state at the time of the assessment. This testing, when examined however does provide some objective support for Mr Kingsman’s complaints of difficulty concentrating and difficulty with learning new material and recall.
Mr Kingsman reports that in the months and years following treatment at Chelmsford Private Hospital he suffered from intrusive episodes of hypersomnia when he would suddenly fall into a deep sleep and could not be woken. This history was apparently confirmed by his wife in an interview with Dr Field in 1994. The episodes of hypersomnia have decreased over the years and apparently are not a continuing problem.
Mr Kingsman believes that he underwent changes in his personality as a result of the events at Chelmsford Private Hospital. This was strongly supported by his brother, George Mordaunt. Mr Kingsman reports that he has become more irritable and aggressive, that this led to considerable difficulties in his marriage, particularly with coping with his two children. He states that he now easily becomes hostile and that his irritability and ‘short fuse’ lead to problems both at home and at work. He attributes part of his tendency to angry outbursts to his ‘mind going black’ which he says makes him ‘very very very angry’. This mind going black appeared, on exploration, to be a function of Mr Kingsman having difficulty finding the right words. Mr Kingsman reports that his irritability and difficulty in interpersonal relationships has improved in recent years due, he believes, to his active involvement in the church, a commitment he shares with his wife and two children.
The difficulty Mr Kingsman experiences recalling the events of his multiple admissions to Chelmsford Private Hospital are entirely compatible with the disorganisation in state of mind produced by deep sleep treatment and multiple electroconvulsive therapies. The frightening islands of memory and the nightmares are of a type to be expected following such experiences. Mr Kingsman’s accounts of his other memory problems are however more problematic. The claim that, as a result of the treatments at Chelmsford Private Hospital, he now has little or no recall of the first 22 years of his life is unusual. In particular it would be rare following any level of brain damage which did not leave the sufferer completely disabled. It is unusual for memory loss prior to brain injury (retrograde amnesia) to be of extended duration and it is said to rarely exceed 2-4 years (Leishman 1987 Organic Psychiatry - Published Bloackwells, page 29). The combination of an extensive amnesia for prior events combined with a relatively normal ability to retain new information subsequent to the brain trauma is usually encountered in the so-called psychogenic amnesia. In Mr Kingsman’s case his current ability to learn and recall new material is impaired, but to a lesser degree than his claimed amnesia for events prior to his treatment at Chelmsford. In fairness to Mr Kingsman, it is probably best to focus on the current memory problems and problems with attention and concentration. Mr Kingsman does describe some increased forgetfulness and difficulty learning new material. He complains of problems with concentration and attention. All of these complaints find some support in the objective measures carried out by Mr Ivison. The situation is somewhat complicated by the existence of a report prepared by Mr Binks in May 1968 which also refers to difficulty with recent memory and poor attention and concentration. The level of impairment in these tests seems similar to that reported by Mr Ivison, although one cannot be certain of this given the different tests employed. Again to be fair to Mr Kingsman, the tests carried out in May 1968 were subsequent to his first period of treatment at Chelmsford Private Hospital.
Mr Kingsman and his brother, George Mordaunt, place considerable emphasis on the personality changes undergone by Mr Kingsman since his treatment in Chelmsford Private Hospital. It should perhaps be noted that on the 14/10/68 Dr Bailey interviewed George Mordaunt who claimed at that time that his brother, Mr Kingsman, had undergone a complete reversal in his personality following the accident in 1966. This had apparently left him withdrawn and irritable. Again to be fair to Mr Kingsman, it might have been argued that the personality changes commenced by the accident in 1966 were compounded and extended by the effects of his treatment at Chelmsford Private Hospital”.
“The assessment of the impact of the multiple admissions to Chelmsford Private Hospital on Mr Kingsman’s earning capacity is complicated by the previous head injury which occurred in 1966. Mr Kingsman, at the time he was admitted to Chelmsford, was apparently suffering considerable disruption to his work capacity as a result of the impact of the previous accident. In his interview with Dr Ellard on the 9/4/69, Mr Kingsman reported that he had been unable to work in his profession as a musician since the July 1966 accident. In his interview with Dr Bailey on the 14/10/68, he apparently reported that he was now unable to read music. He is also reported to have been disabled by his arm injury with reference to his drumming. Other than his work as a professional musician, which in his interview with Dr Ellard he reported to have started full time only three weeks prior to the 1966 accident, Mr Kingsman appears to have supported himself by casual work as a labourer or waiter. Mr George Mordaunt informed me that his brother had been training as a drummer for some considerable time and was just beginning to enter on his professional career having obtained a thorough proficiency as a drummer. What does not seem in dispute is the Mr Kingsman was unable to pursue any form of gainful employment between July 1966 and his treatment at Chelmsford Private Hospital in 1968. Mr Kingsman’s work record since his treatment at Chelmsford Private Hospital has been somewhat erratic. He estimates that he has probably spent 40% of his time since the final discharge from Chelmsford Private Hospital on the dole. He has been on an invalid pension since 1992 which was granted on the grounds of post traumatic stress disorder related to his Chelmsford Private Hospital experiences. Prior to becoming a full time pensioner Mr Kingsman had worked in building and construction. He informed me that he had acquired a variety of skills over the years since Chelmsford, including carpenter, and that he had developed the ability to function effectively as a house builder. His brother confirmed that he had acquired good skills as a builder, but apparently the success of his business was impaired by his poor social relationships and poor business decisions.
In summary Mr Kingsman has had an erratic employment record subsequent to his admissions to Chelmsford Private Hospital. How much of this can be attributed to any damage sustained during those admissions is difficult to decide with any degree of certainty. Prior to seeing Dr Bailey, Mr Kingsman’s work record has been somewhat chequered and he had had an extended period of 18 months out of any form of gainful employment, either as a musician or as a labourer. It may be, had not Mr Kingsman experienced the psychological and physical disruptions to his mental function consequent on his admissions to Chelmsford, that he may have re-established a more effective pattern of work. In my opinion giving the benefit of the doubt to Mr Kingsman, one could attribute the subsequent employment difficulties equally between the accident and head injury in 1966 and the events at Chelmsford Private Hospital between 1968 and 1969.
98 3. The prognosis of the disorders from which the plaintiff suffered prior to admission to Chelmsford Private Hospital.
99 In answer to this question Professor Mullen said in his report:-
“Mr Kingsman, at the time of his admission, was apparently suffering from depression and anxiety and there was evidence, both on examination on EEG and on the basis of the clinical opinions of Dr Bailey, Dr Swanton and Mr Binks evidence for a degree of brain damage impairing attention and memory. If these assessments were correct it is likely that the depressive and anxiety symptoms would, with proper management, have been ameliorated, but the problems with attention, concentration and memory were likely to have been permanent. There was a question about how much of Mr Kingsman’s disabilities at this time were tied up with his battle for compensation for the injuries sustained in the 1966 accident. Whatever may have been the contribution of that factor, it is likely with settlement of the case and appropriate anti-depressant treatment, Mr Kingsman would have returned to a reasonably normal psychological and emotional state, but have remained somewhat impaired as a result of the brain damage.
The long terms effects on Mr Kingsman’s earning capacities are difficult to evaluate given that the current difficulties and disabilities complained of appear very similar to those reported prior to the Chelmsford admissions. It is likely, in my opinion, that the disabilities apparently present in Mr Kingsman prior to seeing Dr Bailey in 1968 would have continued to impair his earning capacities and may well have made an equal contribution with the damage sustained at Chelmsford to his subsequent difficulties and disabilities. In conclusion it would be my opinion that Mr Kingsman’s disabilities over the last 17 years may be attributed in part to the treatment administered to him at Chelmsford Private Hospital”.
100 Apart from the reports I have already referred to, there were admitted into evidence a report by Corrinne Roberts, neuro-psychologist, of 7 August 1996, a report by Dr J D G Watson, neurologist, of 30 July 1996 and a report by Dr C Selby-Brown, orthopaedic surgeon, of 2 August 1996, all of whom had then recently seen the plaintiff for medico-legal purposes on behalf of the defendant.
101 Ms Roberts concluded that “overall Mr Kingsman’s performance on neuro-psychological testing was well within the normal range. He demonstrated average to high average intellectual ability, which is consistent with his estimated premorbid ability. He was able to learn and retain new information, to generate problem solving strategies and to shift from one idea to another (it is worth noting that his performance on intellectual testing on this occasion was better than that reported by (Mr Binks) in May 1968. However, depression and possible effects of recent ECT might have adversely affected Mr Kingsman’s performance at that time”.
102 Dr Watson concluded that the plaintiff did not appear to have major cognitive dysfunction or brain damage. In his report Dr Watson noted that in the Chelmsford Hospital notes there were records of ECT being performed a total of thirty times over the plaintiff’s five admissions (respectively 2, 5, 9, 4 and 10 times).
103 In his report Dr Selby-Brown expressed the opinion that it was quite possible that spinal pain the plaintiff complained of was due to degenerative changes at all levels in his spine and that such changes were an age-related phenomenon.
Evidence in Chief
The Plaintiff’s Oral Evidence
104 The plaintiff was born on 7 March 1946. He was married for the first time when he was quite young and he had separated from his first wife before the motor vehicle accident happened. The plaintiff married his present wife, with whom he is still living, in August 1970. They have had three children.
105 The plaintiff became “a born again Christian” in 1974. Since 1974 he has been a member of one or other church of the Assembly of God denomination.
106 The plaintiff said that in the motor vehicle accident he had received a bang on the head and some bruising. His injuries were minor. He had stayed a very short time in the Windsor Hospital. The plaintiff said that he had obtained a job as a professional drummer shortly before the motor vehicle accident and the accident had occurred when he was going home to his parents’ place for a holiday before taking up the drumming position.
107 The pain in the plaintiff’s shoulder did not go away and he sought medical treatment at the Royal Brisbane Hospital. He recalled being sent to the Prince Charles Hospital for a psychiatric assessment but could not recall why.
108 The plaintiff said that he had gone to see Dr Shearer. Dr Shearer had told him that he had a friend, Dr Bailey, who was a neurosurgeon. The plaintiff had a meeting with Dr Bailey. Dr Bailey said to the plaintiff, “I’ll put you into hospital for some rest and we will do some tests”.
109 When asked whether he remembered any of the treatment he had received at Chelmsford the plaintiff replied:-
“Q. What do you remember?
A. I remember I’d wake up. Dr Bailey would be there. I don’t recall any words and it would be just tremendous pain, like being whacked in the head, a flash and then blackness and I’d wake up another time or on other times I can remember waking up. Dr Bailey would be there, the same thing, then another man came into the picture. He had a white coat.
* * *
I remember his face. I could always remember his face but it was like an aura around his face and he was fair, short fair hair, and I do remember some words, some words from him were, ‘It’s time to go to sleepy-bys’. I’d have the same effect, the same whack in the head, the same flash, burning flash sensation and then nothing. Then at different times there would be Dr Bailey and this man and at a given time, which I don’t know when, Bailey moved out of the picture and it was always this man, always this man”.
110 The plaintiff said that he remembered his fear of the man with this golden aura and that the face had haunted him for many years.
111 The plaintiff gave further evidence of his recollections of being in Chelmsford. He said that he remembered sitting on the top of a locker near his bed and looking down at himself in his bed. He recalled seeing his head on a tray and telling people from on top of the locker “stop, stop. You can’t do this. Leave me alone”. The plaintiff recalled waking up in bed with straps on his wrists and feet and he recalled being on the floor, holding on to a leg of the bed, believing that “they were taking me to the guillotine”.
112 The plaintiff said that for a long long time he had had nightmares. He was frightened of going to sleep and when he did go to sleep he had nightmares. The plaintiff had had experiences of being in one place and then being in another place, not really knowing where he was or how he had got to the second place.
113 The plaintiff had no idea whether he had made any complaint about how he was being treated, while he was in Chelmsford. He did not recall giving any consent to any of the treatment he received. He did not recall any explanation being given to him of the treatment he was receiving in Chelmsford.
114 The plaintiff had no separate recollection of the different periods of hospitalisation he had in Chelmsford.
115 The plaintiff said that in about 1973 the bad nightmares had abated. “Normal” nightmares continued up to about 1990 but he now has them only occasionally. When he has nightmares, he has experienced bodily pain after waking up.
116 Since the plaintiff was discharged from Chelmsford he has not had any out of body experiences. Now he only occasionally has the experience of finding himself in a particular place, without having any recollection of how he got there.
117 Since the plaintiff was in Chelmsford he has had “lots of difficulty with my memory”. The plaintiff said that he did not know whether he had any actual memories of his childhood.
118 The plaintiff used to have problems with blurred and double vision after he was a patient in Chelmsford but these problems with his vision have abated.
119 In the 1970’s the plaintiff had “blackouts”, that is experiences of falling fast asleep.
120 The plaintiff believed that there had been a change in his personality after he had been in Chelmsford but there had then been a further change. The “rage” and “uncontrollable anger” he said he had experienced had ceased in about 1974.
121 The plaintiff gave some evidence about work he had done since he was discharged from Chelmsford. No written records were produced and the oral evidence given by the plaintiff was lacking in precision.
122 The plaintiff could not recall whether he had done any paid work as a drummer before the motor vehicle accident. He did a little bit of paid work as a drummer in 1974.
123 In the early 1970’s the plaintiff had worked at Gladstone in Queensland erecting scaffolding, for a period of six to twelve months. It was while he was working on this job that his foot was crushed. After this accident the plaintiff was off work for twelve to eighteen months.
124 The plaintiff then worked as a labourer in the building industry and decided to become a builder himself. In about 1977 or 1979 he became a builder in Queensland and worked as a full-time builder. The plaintiff worked for two periods in Papua-New Guinea as a construction supervisor. He then worked at Gladstone supervising the building of units and doing some sub-contracting work on high rise buildings. He then worked for a waterproofing company in Brisbane as a sub-contract supervisor. He worked at Toowoomba laying landscape tiling pavers. He worked with a sub-contract carpenter doing small building renovations and extensions. He then formed a partnership doing building work. The last tender his partner submitted was not checked by the plaintiff “and it was the contract that sent me bankrupt”. The plaintiff became bankrupt in 1990. In his evidence in chief the plaintiff said that he did not work again after he became bankrupt.
Cross-examination
125 In cross-examination the plaintiff claimed that the evidence he had given in his evidence in chief was based on an actual recollection of the events he had given evidence about.
126 The plaintiff had no recollection of having told Dr Bailey a number of the things recorded in Dr Bailey’s notes of 14 March 1968 as having been told by the plaintiff to Dr Bailey.
127 The plaintiff agreed that he did not remember what Dr Bailey had told him about the treatment he would be receiving in Chelmsford or whether the plaintiff had consented to that treatment. The plaintiff did not remember agreeing with Dr Bailey on 17 January 1969 that he should re-enter Chelmsford.
128 The plaintiff could recall taking tablets after he had been in hospital in Queensland in 1967 but according to his recollection the tablets were pain killing tablets.
129 The plaintiff did not recall telling Dr Shearer a number of the matters recorded in Dr Shearer’s letter of 11 March 1968 as having been told to Dr Shearer by the plaintiff.
130 The plaintiff did not recall having seen Dr Bailey on 23 August 1968, after his last discharge from Chelmsford, or of saying what Dr Bailey recorded in his notes of 23 August 1968.
131 In many parts of the cross-examination when something was put to the plaintiff as having been said by him on a previous occasion or as having happened, the plaintiff gave an answer to the effect that he could not deny it and could not admit it, because he could not remember it.
132 The plaintiff was cross-examined about the letter of 5 September 1969 which he had written to Dr Bailey. He had no recollection of what concerns he might have had at the time of writing the letter or of whether at the time of writing the letter he suffered from nightmares or hallucinations.
133 The plaintiff said he had no recollection of having seen Dr Ellard or of telling Dr Ellard a number of the matters recorded in Dr Ellard’s report of 19 June 1969 as having been told to him by the plaintiff on 9 April 1969.
134 The plaintiff was cross-examined about the personal statement of 14 February 1986 submitted to the National Mutual. The plaintiff did not recall the document but admitted that the signature on the document was his and that he would have read through the document before signing it. The plaintiff was cross-examined about the answer “No” which he had given to the question “Have you ever had any… mental or nervous complaint?” He denied that at the time he gave this answer he knew that the answer was untrue. On 14 February 1986 he had genuinely believed that he had never had any mental or nervous complaint. He also said that he used to hide the fact that he had been in Chelmsford, “because as soon as you mention the word ‘psychiatry’ people would shy away from you”.
135 The plaintiff was also cross-examined about the particulars of hospitalisation undergone by the plaintiff which were given in the personal statement. The plaintiff agreed that the words “clear since” in the entry relating to Windsor Hospital were intended to convey that after he had returned to work after suffering the crushed foot, there had not been any medical reason for him to be out of work.
136 The plaintiff was cross-examined about the answer he had given in the personal statement to the effect that he had never had any disorder of joints, bones or muscles. The plaintiff asserted that he had in fact had lots of pain in his joints and in his back on waking up after having had a nightmare. He could not recall when the pain in his joints and back had started. The pain the plaintiff experienced was intermittent. At the time he was giving evidence he felt fine “but I can have a nightmare tonight and I can’t move tomorrow morning”.
137 Later in the cross-examination the plaintiff denied that, at the time the personal statement to the National Mutual was completed, he had never had a “back complaint”. He asserted that he had understood the question “have you ever had any… back complaint?” as meaning “have you ever complained to anyone about your back?” and he had never up to 14 February 1986 complained to anyone about his back.
138 The plaintiff asserted that he had not mentioned his hospitalisation in Chelmsford in the personal statement to the National Mutual, because he had not wanted anyone, including the insurer, to know that he had been a patient in Chelmsford.
139 The plaintiff could not offer any explanation of the item “four years hospital” included in the entry relating to Windsor Hospital.
140 The plaintiff accepted that if he had not gone bankrupt he would have continued to work. He would have been physically able to continue to do building work after he went bankrupt. However, he claimed that the stress he had felt when he first found out what had happened to him in Chelmsford “overtook me during my inquiries into what happened to me at Chelmsford”.
141 The plaintiff had told Professor Mullen on 31 May 1996 that he had forgotten how to play the drums. The plaintiff said that at the time he saw Professor Mullen he had started playing the drums again. He had bought a kit of drums in November 1992 and had started playing them three or four months later.
142 The plaintiff agreed that in 1991, after becoming bankrupt, he had worked at the Fatima Children’s Home in Toowoomba for about twelve months, doing house cleaning and supervising children.
143 The plaintiff was asked whether he would have been aware, at least in general terms, of problems relating to his treatment at Chelmsford, soon after he was discharged from Chelmsford. He replied, “I probably was, I could have been, I am uncertain”.
144 The plaintiff agreed that it was about 3 August 1990 that he first became aware, after receiving records of his treatment at Chelmsford which his brother George had obtained, that he might be able to make a claim in regard to Chelmsford.
145 Before 3 August 1990 the plaintiff had not told any medical practitioner that he was suffering from nightmares or hallucinations relating to Chelmsford. Since being discharged from Chelmsford the plaintiff had not received any orthopaedic treatment (apart from the treatment for his crushed foot) or any psychiatric treatment.
146 The plaintiff denied that he had first seen a chiropractor in about 1991. He asserted that he had been seeing chiropractors “for years” for his back, shoulders and neck. He asserted that he had had problems with his spine for years and he attributed these problems to his hospitalisation at Chelmsford. He had referred to his treatment at Chelmsford in the confidential patient case history for the Vincent Chiropractic Centres, notwithstanding his earlier reluctance to disclose to anyone that he had been in Chelmsford, because “once I knew what had caused my problems, I had less and less fear of what it was all about”. The plaintiff accepted that he would have told Mr Vincent that he needed a report for the purposes of his litigation.
147 The plaintiff agreed that it was possible that he had first seen Dr Margaret Franklin after he had made a decision to commence litigation against those responsible for the treatment he had received in Chelmsford.
148 The plaintiff had not himself given evidence at the Royal Commission into Chelmsford. However, after receiving his hospital records, the plaintiff started doing research. He read the report of the Royal Commission into Chelmsford and in doing so he read summaries of evidence given at the Royal Commission by some former patients at Chelmsford.
149 It was put to the plaintiff, and he denied, that what he had done was to take the stories of patients whose evidence was summarised in the report of the Royal Commission and make those stories his own. It was put to the plaintiff that he had no actual recollection of what had happened in Chelmsford and he said “that’s not true. I have a limited, very limited, memory of what happened to me at Chelmsford”. In a later part of the cross-examination it was put to the plaintiff, and he denied, that he had read a lot of information about Chelmsford “and had made that information his own”. The plaintiff was asked “and you have used parts of the Royal Commission to fill up your memory, that’s right, isn’t it? And he replied “yes” but added the qualification “I did use the Royal Commission report but only within terms that were relevant to myself and my admission in Chelmsford”.
150 The plaintiff denied that over the last eight to nine years he had become obsessed with his legal case arising out of his hospitalisation in Chelmsford.
George Mordaunt’s Evidence
151 The plaintiff’s brother George Mordaunt gave evidence in the plaintiff’s case. George Mordaunt was born on 11 November 1944, so that he is approximately sixteen months older than the plaintiff.
152 As previously stated near the beginning of this judgment, George Mordaunt was permitted to assist the plaintiff in the conduct of his case in Court. George Mordaunt sat next to the plaintiff at the bar table and was in Court throughout the whole of the hearing, including when the plaintiff gave his evidence. No order was made by me at any stage for witnesses to leave the courtroom. Before calling George Mordaunt as a witness, the plaintiff had told me more than once that he did not intend to call George as a witness. In assessing the weight to be given to George Mordaunt’s evidence I take into account that he was in Court when the plaintiff gave evidence, including when the plaintiff was cross-examined.
153 George Mordaunt said that on the morning after the motor vehicle accident he and another brother Richard Mordaunt went to the Windsor Hospital to see the plaintiff. At the hospital he saw the plaintiff sitting up in bed. The plaintiff had abrasions to his head and his arm was in a sling. However, he was talking normally and “everything was fine”.
154 George Mordaunt had no further contact with the plaintiff, until he picked up the plaintiff from Chelmsford on what George Mordaunt said was the plaintiff’s discharge after his fifth, and last, admission to the Hospital. At the Hospital he met Dr Bailey. George Mordaunt’s evidence continued:-
“He (Dr Bailey) said the treatment was finished and you can take him home. I was myself personally quite shocked because my brother stood and looked at me like a zombie; his hands by his side. He didn’t blink. He actually didn’t recognise me. He said ‘you can take him out to the car’. I took him out to my car and I came back into the office and I said to Bailey, I said, ‘I don’t understand’. I said, ‘what is this?’ He said, ‘oh that’s the treatment’ and I said, ‘but when the morning after, several hours after the accident when I had been to see my brother, he was just normal’, he said, ‘that’s part of the treatment’. And I said, ‘does he get better?’ And he said, ‘no’. He said, ‘that’s the treatment’. He said, ‘however if you want, you can bring him back for another treatment’. Basically I decided there and then, I said ‘no’ and I took him home to my house.
To get him into the motor car, my car, first I had to take him by the hands and lead him out to the car and I had to open the car door. I had to physically manoeuvre him into the car. Put his head down, so I could get him into the front seat. I had to put his seat belt on. I drove him home. He wasn’t even talking. And I had him living with me at my house for 6 to 8 weeks”.
155 George Mordaunt said that he telephoned their mother in Queensland and asked her to pick up the plaintiff. Their mother came down from Queensland, picked up the plaintiff and took him back to Queensland.
156 George Mordaunt gave evidence that each Christmas for a few years he went to the family home in Queensland. When he went to the family home, there were arguments and fighting between the plaintiff and other family members.
157 With reference to the settlement of the plaintiff’s claim for damages arising out of the motor vehicle accident, George Mordaunt referred to “statements by Dr Bailey in court that he had no brain damage, just a shoulder injury”. I disallowed this evidence of what Dr Bailey allegedly said as evidence of the truth of what Dr Bailey allegedly asserted but it is relevant in determining George Mordaunt’s credibility. George Mordaunt said that this evidence was not a “current invention”, because he had repeated it to different barristers “nine years ago”.
158 George Mordaunt spent many years abroad in the United States. After he returned to Australia he saw a television programme about Chelmsford and listened to someone’s story of their experiences in Chelmsford. He then telephoned his mother in Queensland and succeeded in tracing the plaintiff, who had split from the rest of his family. George Mordaunt spoke on the telephone to the plaintiff and asked him about his treatment in Chelmsford. “I make that clear, because it was not my brother that asked me, it was myself that asked my brother”. George Mordaunt said that the plaintiff was breaking down on the telephone during the conversation. “It was not my brother that started this affair, it was myself”. George Mordaunt made inquiries of a Chelmsford Victims’ Group and obtained the plaintiff’s hospital records.
159 George Mordaunt asserted that when the plaintiff was young he was “a very very good drummer. He had just passed an audition for the St George Leagues Club”. Recently he had encouraged the plaintiff to play the drums as a form of therapy but the plaintiff’s proficiency as a drummer bore no relationship to what it had been before he was a patient in Chelmsford.
160 The plaintiff and George Mordaunt have lived together for the last few years “very harmoniously”.
161 George Mordaunt was cross-examined.
162 In cross-examination George Mordaunt denied that at the Windsor Hospital the plaintiff had had a bandage around his head or had looked pale. George Mordaunt denied going to any medical appointment with the plaintiff in the late 1960’s, including going to an appointment with Dr Burke in April 1969. He “categorically” and “absolutely” denied giving a history to Dr Burke that on the day after the motor vehicle accident the plaintiff was lying pale and still with his head bandaged.
163 George Mordaunt denied categorically that he had in 1968 or 1969 gone with the plaintiff to any doctors’ rooms. He insisted that he had met Dr Bailey once only. He said that he had not seen the plaintiff from just after the motor vehicle accident until he picked up the plaintiff at Chelmsford when the plaintiff was discharged for the last time, except that he might have seen the plaintiff once for about an hour when the plaintiff was staying at their brother Richard’s place.
164 George Mordaunt agreed that he had accompanied the plaintiff when the plaintiff went to see Professor Mullen. He asserted that Professor Mullen had noticed the tape recorder and had said “that’s not a problem”. George Mordaunt then said “actually I can’t recall that” (Professor Mullen saying that the tape recorder was not a problem). He denied that he had attempted to tape the consultation without Professor Mullen being aware of it.165 The plaintiff’s brother Richard Mordaunt gave brief evidence. Richard was born in August 1943. Richard Mordaunt agreed that he had gone to Windsor Hospital after the motor vehicle accident to see the plaintiff. He said that his recollection of the event was very limited. He had no recollection of accompanying the plaintiff to see Dr Burke in April 1969.
Richard Mordaunt
166 It is necessary to assess the reliability of the documentary and oral evidence, parts of which I have summarised and all of which I have taken into account. It is convenient to deal firstly with the documentary evidence in the documents brought into existence up to 1970, then with the oral evidence of the plaintiff and his brother George Mordaunt, then with the documentary evidence in documents brought into existence from 1991 onwards (apart from Professor Mullen’s report) and lastly with Professor Mullen’s report.
Assessment of the Evidence
Documents Brought into Existence up to 1970
167 These documents mainly consist of hospital notes and of notes and reports made by medical practitioners. In my opinion, I should accept these hospital and medical notes and reports, which were made contemporaneously, or substantially contemporaneously, with the matters to which they relate, as being accurate on matters of fact and, insofar as they contain opinions, as containing opinions which were actually held by the persons expressing the opinions and which are likely to have been correct. Matters of fact on which the notes and reports are likely to be accurate include things recorded as having been said by the plaintiff.
168 Mr Kingsman, understandably, mounted a strong attack on the credibility of Dr Bailey. Dr Bailey, he said, was notorious for being a liar (there was in fact no evidence before me to support this assertion). However, whatever criticisms might be made of the forms of treatment practiced by Dr Bailey, I consider it unlikely that in contemporaneous notes Dr Bailey made for his own file or in reports he provided about the plaintiff to the plaintiff’s legal advisers and to other medical practitioners he would have misstated any matter of fact or would have expressed any opinion which he did not genuinely hold. Furthermore, there is some confirmation of the observations and opinions in Dr Bailey’s notes and reports in the hospital notes of the Royal Brisbane Hospital and the Prince Charles Hospital, in the Chelmsford Hospital notes kept by the nursing staff and in the documents prepared by other medical practitioners, including Dr Dalgleish, Dr Shearer, Dr Burke, Dr Ellard and Dr Swanton.
169 I also consider that there is some confirmation of Dr Bailey’s observations and opinions in Mr Binks’ report of 11 May 1968. It is true that Mr Binks made his appraisal of the plaintiff on 11 May 1968, after the plaintiff had already been a patient in Chelmsford. However, at the time that Mr Binks made his appraisal, the plaintiff had been admitted to Chelmsford for one period only, during which he had had only two sessions of ECT, and more than a month had elapsed since the plaintiff had been discharged from Chelmsford. In these circumstances, I consider that Mr Binks’ findings would not have been affected to any substantial degree by the plaintiff having been a patient at Chelmsford and that Mr Binks’ findings reflect the condition the plaintiff was in as a consequence of the motor vehicle accident.
170 My conclusions about the reliability of the evidence in the documents brought into existence up to about 1970 has important consequences for the credibility of the plaintiff and George Mordaunt.
The Plaintiff
171 If the documents brought into existence up to 1970 are accepted as accurate, then it follows that many parts of the plaintiff’s evidence have to be rejected. For example, it is not the case that the plaintiff received only minor injuries of an orthopaedic nature in the motor vehicle accident, that the medication the plaintiff was taking after he was discharged from the Prince Charles Hospital in 1967 was only for pain relief or that Dr Shearer referred the plaintiff to Dr Bailey in Dr Bailey’s capacity as a neurosurgeon or that the plaintiff had obtained a job as a professional drummer in Sydney before the motor vehicle accident and when the motor vehicle accident happened was going to Queensland for a holiday.
172 I do not accept that the plaintiff has any real recollection of having had the terrifying experiences in Chelmsford, especially of ECT, which he claimed in his evidence he had had. In my opinion, I should accept counsel for the defendant’s submission that the plaintiff’s evidence and what he told medical practitioners from about 1990 onwards about the experiences he had allegedly had in Chelmsford were based, not on the plaintiff’s actual recollection, but on what the plaintiff had read about Chelmsford from August 1990 onwards.
173 In reaching these conclusions I have taken into account the letter the plaintiff wrote to Dr Bailey on 5 September 1969 and the undated card the plaintiff sent to Dr Bailey. I accept that the letter and the card suggest that Dr Bailey had exerted a strong influence on the plaintiff. However, I find it highly improbable that four weeks after he had been discharged from Chelmsford and after he had been living at his parent’s home in Queensland for some time, the plaintiff would voluntarily write a letter to Dr Bailey in the terms of the letter of 5 September 1969, if he then had any recollection of such horrendous experiences as are alleged in his evidence and I find it highly improbable that, if he had had such experiences, he would not have had some recollection of them four weeks after he was discharged.
174 I note that the plaintiff did not assert that the recollections he now claims to have of what happened in Chelmsford had been somehow completely suppressed and had only been revived when he started reading about Chelmsford from 1990 onwards or that his symptoms had commenced or worsened after his recollections of Chelmsford had been revived. On the contrary, the plaintiff asserted in his evidence that the face of the other doctor who had administered ECT to him - the man with the “aura” (apparently Dr Herron) - had haunted him “for many years” and that a number of his worst problems after being in Chelmsford, including his worst nightmares and his “uncontrollable anger,” had actually abated in the early 1970’s.
175 I do not accept that the plaintiff has suffered all of the symptoms and disabilities, which he claims he has suffered as a result of his treatment at Chelmsford. A number of the doctors the plaintiff has seen have queried some of his reported symptoms and disabilities. For example, Professor Mullen noted that the “flashbacks” reported by the plaintiff did not seem to be stimulated by specific triggers, as would be usual. Professor Mullen considered that the plaintiff’s claim that he had little or no recall of the first twenty-two years of his life was “unusual” and “problematic”.
176 Many of the symptoms or disabilities which the plaintiff claimed he has suffered from as a result of his treatment at Chelmsford, including nightmares, headaches and problems with his memory, are symptoms or disabilities which the plaintiff was suffering from, after the motor vehicle accident and before he was admitted to Chelmsford.
177 The plaintiff has a tendency to exaggerate. He insisted in his evidence, and he had told a number of doctors who prepared reports, that he had been subjected to eighty sessions of ECT but this figure was obviously taken by him, not from any actual recollection of his own, but from the altered figure on the notes of his fifth admission to Chelmsford, and is contradicted by the actual Chelmsford Hospital notes.
178 I have concluded that the plaintiff is an unreliable witness.
The plaintiff’s brother George Mordaunt
179 The credibility of George Mordaunt is important. He was the only witness called by the plaintiff, apart from the plaintiff himself (and Richard Mordaunt). On his own account it was he, and not the plaintiff, who had “started this affair”, that is it was he who had been instrumental in having these proceedings brought. As Professor Mullen stated in his report, it was George Mordaunt who supplied Professor Mullen with much of the history on which Professor Mullen had to rely.
180 In his evidence George Mordaunt said that he saw the plaintiff at the Windsor Hospital the day after the motor vehicle accident and (with the possible exception of a brief visit to Richard Mordaunt’s place) he next saw the plaintiff when the plaintiff was discharged from Chelmsford for the last time on 8 August 1969, that the plaintiff lived with him for six to eight weeks after he was discharged, that he saw the plaintiff a few times around Christmas and that after spending many years abroad he next had contact with the plaintiff after seeing the programme about Chelmsford on television. George Mordaunt denied that in 1968 or 1969 he had gone with the plaintiff to see any doctor, including Dr Bailey.
181 George Mordaunt’s evidence that his contacts with the plaintiff were so limited is contradicted by a number of parts of the documentary evidence, which explicitly refer to “George” and which, I am satisfied, are referring to George Mordaunt. On 11 November 1968 Dr Bailey made a note “Bro George interviewed, complete reversal of pre-accident personality”. On 9 December 1968 Dr Bailey noted the plaintiff as saying “I know I’m getting brother George down”. On 20 May 1969 Dr Bailey noted “(the plaintiff) has no friends - can only go where George goes”.
182 I am also satisfied that where in his report of 21 April 1969 Dr Burke refers to “the plaintiff’s brother”, without naming him, he is referring to George Mordaunt. It is true that the plaintiff’s brother Richard Mordaunt also went to the Windsor Hospital on the day after the motor vehicle accident. However, having heard Richard Mordaunt give evidence, I am satisfied that it was not Richard Mordaunt who gave the information recorded in Dr Burke’s report. The role which Dr Burke records the plaintiff’s “brother” as having played at the consultation on 21 April 1969 is very much in keeping with the role that George Mordaunt has admittedly played at other consultations with the plaintiff’s doctors.
183 My conclusion that it was George Mordaunt who attended the consultation with Dr Burke is important, because, accepting as I do that Dr Burke’s report is accurate, I find that George Mordaunt told Dr Burke on 21 April 1969 that on the day after the motor vehicle accident the plaintiff was lying in Windsor Hospital “pale and still with his head bandaged”, that the plaintiff had been seriously incapacitated by the motor vehicle accident and that the plaintiff had improved after being treated in hospital “in the past few months”, which I take to be a reference to the plaintiff’s treatment in Chelmsford. George Mordaunt’s evidence that on the day after the motor vehicle accident “everything was fine” with the plaintiff must be rejected.
184 George Mordaunt gave dramatic evidence, which I have quoted, about what he said was the condition of the plaintiff, when the plaintiff was discharged from Chelmsford on the last occasion, and about what he said was the conversation he had with Dr Bailey.
185 I do not accept this evidence. That the plaintiff was “a zombie” is difficult to reconcile with the plaintiff’s friendly, lucid letter written to Dr Bailey four weeks after his discharge. That the plaintiff lived with George Mordaunt for six to eight weeks after he was discharged is contradicted by the plaintiff’s letter written four weeks after his discharge, when he had already been living for some time at his parent’s home in Queensland. I have already found that it was not the case that when George Mordaunt saw the plaintiff some hours after the motor vehicle accident the plaintiff was “just normal” or that George Mordaunt believed that the plaintiff was “just normal”.
186 It seems to me incredible that Dr Bailey would have spoken in the terms alleged, including denying that the plaintiff would get better.
187 With reference to the settlement of the plaintiff’s claim for damages arising out of the motor vehicle accident, George Mordaunt gave evidence about “statements by Dr Bailey in court that he (the plaintiff) had no brain damage, just a shoulder injury”. However, it is clear that the plaintiff’s claim was settled out of court and that Dr Bailey did not give evidence in court. Furthermore, it is highly improbable that Dr Bailey would have said that the plaintiff had no brain damage, when Dr Bailey’s records indicate that from the time of his consultation on 14 March 1968 he considered that the plaintiff had some brain damage, together with a psychiatric condition.
188 On 11 November 1968 George Mordaunt told Dr Bailey that the plaintiff had suffered a complete reversal of his personality after the motor vehicle accident. On 31 May 1996 he told Professor Mullen that the plaintiff had suffered a change of personality as a result of his treatment in Chelmsford.
189 I consider that George Mordaunt is an unreliable witness.
The Plaintiff’s Medico-legal Reports from 1991 Onwards
190 Dr Margaret Franklin, a general practitioner, first saw the plaintiff in about 1990, after the plaintiff had made a decision to commence this litigation. In the request for medical details completed on 17 August 1992 she diagnosed the plaintiff as having “severe chronic depression and post-traumatic anxiety state secondary to probable brain damage aged twenty-two”. I infer that, in making this diagnosis, she relied heavily on a history supplied to her by the plaintiff, which I consider was likely to have been unreliable in important respects. I do not consider that Dr Franklin was equipped to make such a diagnosis or to attribute the condition she diagnosed to probable brain damage suffered more than twenty years previously.
191 Dr McIntyre informed Dr Franklin that he had had difficulty in obtaining a history from the plaintiff. Some of the history Dr McIntyre did obtain from the plaintiff was clearly wrong. For example, the plaintiff told Dr McIntyre that he did not have dentures before his admissions to Chelmsford. This is contradicted by the Chelmsford Hospital notes of 19 January 1969 recording the plaintiff’s request to nurses to leave his dentures in his mouth, apparently because previously the plaintiff’s dentures had been removed and he had then found it difficult to put them back in his mouth.
192 The plaintiff also told Dr McIntyre that he had eventually escaped from Chelmsford by travelling to Queensland with a friend, while on therapeutic sick leave from Chelmsford. This is contradicted by the Hospital notes and even by George Mordaunt’s evidence and I am satisfied that it was sheer fantasy on the plaintiff’s part.
193 I note that in any event Dr McIntyre found “nothing suggestive of current organic deficit”.
194 Mr Ivison, a psychologist, found that the results of the tests administered by him in 1992 disclosed a cognitive deficit but he was unable to say whether this was due to brain damage or was a consequence of the plaintiff’s then depressed and anxious state. It would appear that none of the further steps suggested by Mr Ivison were taken. Mr Ivison’s conclusions differ from those of Ms Roberts in 1996.
195 As regards chiropractors, I am satisfied, on the basis of the plaintiff’s confidential case history completed for the Vincent Chiropractic Centres, that the plaintiff first consulted a chiropractor only in about 1990. The plaintiff first saw Mr Vincent in October 1993, more than twenty-four years after the plaintiff had last been discharged from Chelmsford. I am satisfied that the plaintiff would have given Mr Vincent a highly coloured and unreliable history of his “incarcerations” in Chelmsford and of the “80 doses” of ECT administered to him. There is nothing in Mr Vincent’s report to suggest that he was told by the plaintiff, and I infer he was not told by the plaintiff, that, after being discharged from Chelmsford, the plaintiff had worked, at least for substantial periods, over a total period of about twenty years, as a labourer and as a builder. I note that Dr Selby-Brown considered that the spinal pain the plaintiff complained of was due simply to degenerative changes in a man of his age, particularly a man who had done years of physical work.
196 I would place little weight on Mr Vincent’s report.
197 Dr Field first saw the plaintiff in 1994, more than twenty-five years after he had been discharged from Chelmsford for the last time. Dr Field noted that the plaintiff’s memory of events which occurred after he was referred to Dr Bailey was “very vague”. Dr Field relied on a history given by the plaintiff, that the plaintiff was not aware of having had any psychological or emotional problems before he was referred to Dr Bailey and that while he was in Chelmsford the plaintiff had had eighty sessions of ECT. This history given by the plaintiff to Dr Field was inaccurate.
198 The history given by the plaintiff to Dr Field of his experiences of ECT was similar to the evidence the plaintiff gave before me of his experiences of ECT and I have already found that I do not accept that the plaintiff has any actual recollection of such experiences. The memory problems and recurrent nightmares of which the plaintiff complained to Dr Field and which the plaintiff attributed to his treatment in Chelmsford, were matters of which the plaintiff was complaining after the motor vehicle accident and before he was admitted to Chelmsford for the first time.
199 I have concluded that I should place little reliance on the plaintiff’s medico/legal reports as assisting the plaintiff’s case.200 I consider I should give more weight to the reports of Ms Roberts, Dr Watson and Dr Selby-Brown (and especially the parts of their reports which I have summarised in this judgment), which were not based to the same extent as the plaintiff’s medico/legal reports on inaccurate and incomplete histories.
Defendant’s Medico-legal Reports
Professor Mullen
201 Professor Mullen was, of course, appointed by the Court itself as an expert. He is an eminently qualified forensic psychiatrist.
202 Professor Mullen was supplied with a number of written materials, which I have listed earlier in this judgment, but he had to rely to a considerable extent on the oral history he was given at the interview on 31 May 1996. Professor Mullen found some of the plaintiff’s complaints unusual or problematic, including the plaintiff’s complaints of “flashbacks” and of having little or no recollection of the first twenty-two years of his life. I have found that the plaintiff in giving evidence before me was an unreliable witness and I am satisfied that in providing a history to Professor Mullen, including his purported recollections of the ECT he had had in Chelmsford, the plaintiff would have been an unreliable historian.
203 Furthermore, as Professor Mullen records in his report, much of the history Professor Mullen was given was supplied, not by the plaintiff, but by his brother George Mordaunt, including that when the plaintiff was discharged from Chelmsford for the last time he was “like a zombie”. I have already found that I do not accept this assertion by George Mordaunt and I have found that George Mordaunt is generally an unreliable witness. I consider that he would have been an unreliable historian, when speaking to Professor Mullen on 31 May 1996.
204 I accept Professor Mullen’s assertion in his report, in preference to George Mordaunt’s denial in his evidence, that George Mordaunt attempted surreptitiously to tape the interview on 31 May 1996.
205 Professor Mullen thought that there was some support for the plaintiff’s complaints in Mr Ivison’s report. Professor Mullen accepted that the position was “complicated” by Mr Binks’ report in May 1968, which also referred to the plaintiff having poor recent memory, attention and concentration. Professor Mullen thought that Mr Binks’ results might be explained by the fact that Mr Binks had seen the plaintiff after the plaintiff’s first admission to Chelmsford.
206 I have already stated my conclusion that Mr Binks’ findings would not have been affected to any substantial degree by the plaintiff having been a patient in Chelmsford for one period only, during which he received ECT on only two occasions. Mr Ivison’s results, which Mr Ivison himself thought might be explained by the depression and anxiety to which the plaintiff was subject at the time he was seen by Mr Ivison, are different from Ms Roberts’ conclusions after seeing the plaintiff in 1996. I do not myself consider that Mr Ivison’s report lends much support to the plaintiff’s complaints.
207 It is to be noted that the questions which Professor Mullen was asked were limited. In effect, Professor Mullen was asked what psychological problems the plaintiff had had before he was admitted to Chelmsford, what effect the treatment the plaintiff received at Chelmsford had had on his health, immediately and in the long term, and on his earning capacity, and what would have been the likely outcome of the plaintiff’s psychiatric problems and the plaintiff’s likely earning capacity, if he had not been treated in Chelmsford.
208 It is apparent from Professor Mullen’s report that he found the questions he was asked difficult to answer. It is also apparent from Professor Mullen’s report that he endeavoured to be as favourable as he could to the plaintiff. His report includes expressions such as “to be fair to Mr Kingsman” and “giving the benefit of the doubt to Mr Kingsman”.
209 The conclusions Professor Mullen expressed in his report tended to be guarded and qualified. For example, he considered that extended periods of unconsciousness induced by drugs and multiple ECT’s would have made Mr Kingsman “vulnerable” to brain damage and would have placed Mr Kingsman “at risk of brain damage” but he does not express an opinion that the treatment would probably have caused brain damage.
210 Professor Mullen’s final opinions about any loss of earning capacity suffered by Mr Kingsman contain qualifying expressions such as “it may be”, “could” and “giving the benefit of the doubt to Mr Kingsman”. Professor Mullen’s opinions about any loss of earning capacity sustained by Mr Kingsman were partly based on an estimate from Mr Kingsman that he had probably spent 40 per cent of his time since his final discharge from Chelmsford on the dole. Mr Kingsman did not give any evidence before me to this effect and such an assertion seems inconsistent with the evidence he did give about the employment he had had since leaving Chelmsford.
211 I have decided that in assessing Professor Mullen’s report I should take into account particularly that he relied on histories supplied by the plaintiff and by George Mordaunt which were unreliable, that he, quite understandably, had difficulty in answering the questions he was asked, that he endeavoured to be as “fair” as he could to the plaintiff and that his conclusions were guarded and qualified.
The Plaintiff’s Case against the Defendant
212 As previously remarked, the defendant, and the only defendant, named in the pleadings, including the statement of claim (that is the proposed amended statement of claim of 9 May 1996), is the Health Administration Corporation, a corporation sole created by the Health Administration Act 1982 No 135.
213 A number of submissions, which were not all mutually consistent, were made by Mr Kingsman about the defendant to the proceedings, including that there was no defendant; that there was an obligation on the body sued, the Health Administration Corporation, to “provide” a defendant (presumably an individual), who should have signed the defence, who should have made an affidavit verifying the defence or at least some affidavit and who should have been available for cross-examination by Mr Kingsman; that, as the defendant had failed to “provide” a defendant, the proceedings were undefended or the defendant was in default, so that Mr Kingsman was entitled to a default or summary judgment; that the defendant was the Minister for Health, that under the doctrine of ministerial responsibility the Minister for Health was in control of everyone in his “Department” and that the Minister for Health was “responsible for every last thing that everybody under his control does or does not do, from the tea lady to the brain surgeon”.
214 I do not consider that any of these submissions by Mr Kingsman should be upheld. There is a defendant to the proceedings, being the defendant named in Mr Kingsman’s own statement of claim. The Health Administration Corporation is a corporation sole and hence a non-natural legal person which is liable to be sued. There was no obligation on the Health Administration Corporation to “provide” some individual as the “defendant”. Under the Supreme Court Rules there was no requirement for the defence to be verified and the defence could validly be signed by a solicitor on behalf of the defendant. There has not been any default by the defendant, such that Mr Kingsman would be entitled to a default or summary judgment. There was no obligation on the defendant to file an affidavit or to call any witness. The Minister for Health is not named as a defendant and is not to be identified with the body which Mr Kingsman sued.
215 It is necessary to enquire how the Health Administration Corporation, as the only defendant, could be liable to pay damages to the plaintiff for any personal injuries sustained by him as a result of his treatment in Chelmsford, when the Health Administration Corporation did not come into existence until 1982, long after the plaintiff was discharged from Chelmsford for the last time. This question is addressed to some extent in pars3 and 4 of the statement of claim.
216 In par3 of the statement of claim it is alleged that by virtue of legislation including the Health Administration Act 1982 the defendant is the successor to the Department of Health, the Hospitals Commission and the Health Commission.
217 In par4 of the statement of claim it is alleged that the defendant “in its present capacity” and as “successor” to the Department of Health, the Hospitals Commission and the Health Commission was responsible for the exercise of functions conferred under the Private Hospitals Act and the Private Hospitals Regulations.
218 To assess these allegations and to determine whether any claim could lie against the Health Administration Corporation, it is necessary to examine a number of pieces of legislation. It is convenient to work backwards in time, rather than forwards.
219 I have already noted that the Health Administration Corporation is a corporation sole created by the Health Administration Act 1982. By s9 of the Health Administration Act the Director General (or the Secretary) of the Department of Health was incorporated as a corporation sole with the corporate name “Health Administration Corporation” for the purpose of exercising the functions conferred by the Health Administration Act on the “corporation”. By s31 of the Act the Health Commission constituted under the Health Commission Act 1972 was abolished. Section 32 of the Act provided that the savings, transitional and other provisions in Sch2 of the Act should take effect. Clause 5 of Sch2 made provision for the property rights and liabilities of the Health Commission. Pars(g) and (h) of subcl(1) of cl5 provided in effect that all claims for which the Commission would have been liable would be claims for which the Health Administration Corporation would be liable.
220 It is clear then that the Health Administration Corporation succeeded to the liabilities of the Health Commission.
221 The Health Commission, to the liabilities of which the Health Administration Corporation succeeded, was constituted as a corporation by s4 of the Health Commission Act 1972 No63. By s16(2) of the Health Commission Act the Hospitals Commission constituted under the Public Hospitals Act 1929 and the Board of Health constituted under the Public Health Act 1902 were dissolved and the Department known as the Department of Health or the Department of Public Health was abolished.
222 By s16(3)(h) it was provided that all claims for which the Hospitals Commission or the Board of Health would have been liable would be claims for which the Health Commission would be liable. No provision was made for the Health Commission to become liable for claims for which the Department of Health or the Department of Public Health would have been liable. The Health Commission accordingly succeeded to the liabilities of the Hospitals Commission and the Board of Health and the Health Administration Corporation would in turn have succeeded to these liabilities.
223 Of the two bodies, the Hospitals Commission and the Board of Health, the Hospitals Commission can be disregarded. It was a body which under the Public Hospitals Act had functions in respect of public hospitals, whereas it is clear that Chelmsford was at all material times a private hospital. Accordingly, the only way in which the Health Administration Corporation could be liable to the plaintiff would be, if the Board of Health had incurred a liability, which had been transmitted first to the Health Commission and then to the Health Administration Corporation.
224 The statement of claim (that is the proposed amended statement of claim of 9 May 1996) runs to many pages and is, with all respect to whoever drafted it, prolix and confusing.
225 Many allegations are made in the statement of claim, which, if it is accepted that the defendant, and the only defendant, is the Health Administration Corporation, that the Health Administration Corporation did not come into existence until 1982 and that the Health Administration Corporation could be liable, if at all, only as a successor to a liability of the Board of Health, are obviously ill founded. To take just two examples, it is alleged in pars9 and 10 of the statement of claim that the plaintiff, while a patient in Chelmsford, was assaulted by the defendant “personally” and was falsely imprisoned by the defendant “personally”.
226 There are many references in the statement of claim to the defendant’s “servants or agents” and it would appear to be alleged that the defendant (or rather its predecessor the Board of Health) is vicariously liable for the acts and omissions of Dr Bailey, Dr Herron and the staff of Chelmsford. At the hearing, apparently in an attempt to substantiate these allegations, Mr Kingsman said that when he was a patient in Chelmsford Dr Herron was employed in the Public Service and was “moonlighting” at Chelmsford.
227 However, there was no evidence before me to support this assertion by Mr Kingsman and in particular no evidence that Dr Herron was employed by the Board of Health, as distinct from the Department of Health or some public hospital.
228 In his final submissions Mr Kingsman referred at some length to the decision of the English Court of Appeal in Cassidy v Ministry of Health (1951) 2KB 343. However, Cassidy is authority for the proposition that a hospital authority, in the sense of an authority which conducts or runs a hospital, is vicariously liable for the negligence of doctors employed by it, arising in the course of their professional duties. That the defendant in Cassidy was ultimately the Ministry of Health depended on s6 of the National Health Service Act 1946 (UK), which provided that on an appointed day all liabilities to which the governing body of a hospital to which the Act applied were subject, should be transferred to the Minister of Health.
229 I do not accept that the Board of Health became subject to any vicarious liability for the acts of Dr Bailey, Dr Herron or the staff at Chelmsford.
230 It was also submitted by Mr Kingsman that the defendant was absolutely liable for the acts of Dr Bailey and Dr Herron. However, this submission appeared to depend on identifying the defendant as the Minister of Health and then submitting that “the constitutional doctrine of ministerial responsibility is that every member of the Cabinet who does not resign is absolutely responsible for all that he has done at Cabinet meetings; that is, Ministers are collectively responsible to Parliament but the individual Minister is responsible for all the acts of his/her own department” (the plaintiff’s affidavit of 15 September 1999 p85). I reject the submission that the defendant (or the Board of Health) incurred any absolute liability to the plaintiff.
231 Claims are made in the statement of claim for assault and false imprisonment. However, whether or not such claims could have succeeded against Dr Bailey or Dr Herron, if they had been sued, they could not succeed against the Board of Health, either on the basis that it “personally” committed each tort or, as I have held, on the basis that it is vicariously liable for torts committed by Dr Bailey and Dr Herron. I also reject claims apparently based on alleged misfeasance in office.
232 Other claims made against “the defendant” in the statement of claim included claims that the defendant (which must be read as meaning its predecessor, the Board of Health) was in breach of its statutory obligations under the Private Hospitals Act and also in breach of a duty of care it owed the plaintiff. In my opinion, these are the only claims made in the statement of claim which require further consideration. In order to consider these claims, it is convenient to examine the Private Hospitals Act.
233 The Board of Health is referred to in a number of places in the Private Hospitals Act 1908, as in force in 1968 and 1969.
234 Section 6 of the Act provided that no private hospital should be carried on, except under the authority of a licence granted by the Minister of Health on the recommendation of the Board of Health.
235 Section 8 provided that no licence should be granted in respect of a private hospital not previously licensed, unless the house and the buildings and the provision made for the accommodation of the staff had been approved by the Minister, on the recommendation of the Board of Health.
236 Under s8(4) every licence was required to specify the class of private hospital in respect of which it was issued.
237 Under s9 every licence granted under the Act continued in force until it was revoked.
238 Section 14 provided that every private hospital should at all times be open to inspection by the President of the Board of Health or any person authorised by the Board of Health.
239 By s15 of the Act a private hospital during the currency of its licence was not to be used for any other purpose than that for which it was licensed or as a private hospital of a class not specified in the licence. If this section was not complied with, the licensee was guilty of an offence under the Act.
240 Under s16 the Minister of Health could cause an inquiry to be made as to the management of any private hospital and the Minister might after such an inquiry revoke the licence in respect of the private hospital. No licence could be revoked unless the licensee had been given an opportunity of giving and producing evidence at the inquiry.
241 Section 16A provided in part as follows:-242 Section 16B provided in part as follows:-
“(1). The Minister may, on the recommendation of the Board of Health, revoke the licence granted in respect of any private hospital… if -
(a) the licensee has been convicted of any offence against this Act…
(d) in the opinion of the Board of Health the premises of the private hospital… are insanitary, or insufficiently equipped, or the private hospital… is managed or conducted in such a manner that the revocation of the licence is necessary in the public interest…
(2). Before making a recommendation that any licence be revoked under this Section the Board of Health shall serve notice in writing upon the licensee that it proposes to make such a recommendation.
Any such notice -
(a) shall specify the grounds upon which it will be recommended that the licence be revoked;
(b) shall appoint a time within which the licensee may show cause why the recommendation should not be made”.
“A revocation, pursuant to s16 or s16A of the Act, of the licence granted in respect of a private hospital… shall not take effect until the expiration of a period of twenty-one days after notification in the prescribed manner by the Minister to the licensee, of such revocation.
If within such period the licensee gives due notice of appeal to a District Court, such revocation shall not take effect unless and until the revocation is confirmed by the District Court or the appeal is for any reason dismissed by that court”.
243 Section 16C provided that there should be a right of appeal to a District Court against a revocation of a licence pursuant to s16 or s16A of the Act.
244 Section 18 conferred a power on the Governor on the recommendation of the Board of Health to make regulations and regulations were made under the Private Hospitals Act.
245 Under reg5 of the Regulations made under the Private Hospitals Act the prescribed classes of private hospitals included (a) medical (b) post-operative and (e) psychiatric.
246 Regulation 6 prescribed the qualifications required to be held for appointment as the manager or resident assistant of the several classes of private hospitals. The qualification required to be held in the case of a medical or post-operative private hospital was ‘registered general nurse”. The qualifications required to be held in the case of a psychiatric private hospital was “registered mental nurse”, that is a lesser qualification.
247 The Regulations then made provision for new buildings and alternations and additions to existing buildings (reg7), structural requirements of private hospitals (reg8), physical requirements of operating theatres (reg9), floor area of wards (reg10), accommodation for staff (reg11), furniture (reg12), equipment for a surgical hospital (reg13), staffing (reg14), cleaning and disinfection (reg15), communicable diseases (reg16), bathrooms (reg17), disposal of refuse (reg18), overcrowding (reg19), visiting hours (reg19A), birds and animals (reg20), moribund or seriously ill patients to be transferred to a single room or to be screened from other patients (reg21), cleanliness (reg22), surgical operations (reg23), prevention of flies and destruction of vermin (reg24), storage of food (reg25), eating and drinking utensils (reg25A), register of patients (reg26).
248 Having made this examination of the Private Hospitals Act and the regulations made under the Private Hospitals Act, I conclude that no provision of the Act or of the Regulations imposed an obligation on the Board of Health for the breach of which a person such as the plaintiff could have sued the Board of Health for damages. It remains to consider whether under the Act or the Regulations the Board of Health had some function, such that it owed a common law duty of care to the plaintiff in exercising or not exercising the function; if so, whether the Board of Health breached that duty of care; and if so, whether the breach by the Board of Health of its duty of care owed to the plaintiff caused damage to the plaintiff.
249 In my opinion, the only functions conferred by the Private Hospitals Act or the Regulations on the Board of Health which could conceivably have given rise to a cause of action in the plaintiff were the power of inspection of a private hospital conferred by s14 of the Act and the power to recommend to the Minister of Health that the licence of a private hospital be revoked, which was conferred by s16A of the Act.
250 As regards s6 of the Act, it can be inferred that the Board of Health originally recommended that a licence be granted by the Minister of Health for the carrying on of Chelmsford as a private hospital. However, there is nothing in the evidence before me to suggest any lack of care on the part of the Board of Health in recommending to the Minister for Health that a licence be granted for the carrying on of Chelmsford as a medical and post operative private hospital. There is nothing in the evidence to suggest that there was any deficiency in the house or buildings in which the hospital was to be carried on or in the provision made for the accommodation of the staff of the hospital (s8). Once a licence had been granted, the licence did not need to be renewed but continued in force until it was revoked. Any inquiry under s16 of the Act would be initiated by the Minister for Health, without the need for any recommendation by the Board of Health, and a decision by the Minister, after an inquiry had been held, to revoke the licence of a private hospital did not depend on any recommendation by the Board of Health.
251 It would appear to me that the plaintiff’s case, insofar as it was based on an allegation that the Board of Health had been negligent, was that the Board of Health had owed a duty to the plaintiff to use reasonable care in the exercise of its function under s14 to inspect Chelmsford and that the Board of Health had owed a duty to the plaintiff to use reasonable care in the exercise of its function to recommend to the Minister for Health that the licence to carry on Chelmsford be revoked, either on the ground that Chelmsford had been carried on for a purpose other than that for which it was licensed, namely that it had been carried on as a psychiatric hospital, or on the ground that the Board of Health should have formed an opinion that Chelmsford was being conducted in such a manner that revocation of its licence was necessary in the public interest.
252 It is necessary to inquire whether the Board of Health did owe any such duty of care to the plaintiff.
Duty of Care
253 It is convenient first to deal with a particular allegation made by the defendant in its defence and a submission made by the plaintiff which was based on that allegation.
254 In paragraph 14 of its defence the defendant alleged inter alia that at the time any cause of action accrued “the defendant was in truth an emanation of the Crown in the right of the state of New South Wales and entitled to Crown immunity”.
255 It is clear that in making this allegation in paragraph 14 of the defence, the defendant was seeking to rely on “Crown immunity” in the sense of a principle which might negate the existence of any duty being owed by the defendant to the plaintiff. However, the expression “Crown immunity” in par 14 of the defence was apparently read by the plaintiff as being a reference to “Crown privilege” or “public interest immunity”, being a principle or set of principles which can provide grounds for withholding information or documents in the giving of evidence or the production of documents. The plaintiff’s legal researches then took him to such cases as Duncan v Cammell Laird & Co (1942) AC 624 and Conway v Rimmer (1968) AC 910, both of which he cited to me, in which statements were made that a claim for Crown privilege in the sense of a claim for public interest immunity should usually be supported by an affidavit by the minister of the relevant department of state or by the permanent head of the department. The plaintiff complained in his submissions about the absence of any such affidavit.
256 That the plaintiff, as a lay person, misunderstood what was meant in par 14 of the defence by the expression “Crown immunity” is quite understandable. However, the misunderstanding led to the making of submissions which were quite misguided and which I reject.
257 A further argument put by the plaintiff was that the doctrine of “Crown immunity” had been abolished by the decision of the High Court in Sue v Hill.
258 In Sue v Hill it was held that the United Kingdom was to be classified as a “foreign power” within the meaning of that expression in s44(i) of the Commonwealth Constitution. The plaintiff argued, as I understand his argument, that the effect of Sue v Hill was that there was no longer any “Crown” in Australia and that with the disappearance of any Crown in Australia “Crown immunity” had also disappeared as part of the law in Australia.
259 I do not consider that this argument should be accepted. I have a number of reasons for forming this conclusion. One is that, while it is true that the High Court held in Sue v Hill that Australia is an independent country and that the United Kingdom is to be regarded as “a foreign power” within the meaning of that expression in s44(i) of the Constitution, that does not mean that Australia has ceased to be a monarchy with a crowned head of state. At par 96 Gleeson CJ, Gummow J and Hayne J said:-
“…the circumstance that the same monarch exercises royal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s44(i) of the Constitution”.
260 I turn now to the general question of the circumstances in which a statutory authority owes a duty of care, for the purpose of determining whether in the present case the Board of Health owed a duty of care to the plaintiff.
261 The assistance which the plaintiff, as a lay person, was able to give the Court on this difficult question was limited. The plaintiff, did however, refer to Donoghue v Stevenson (1932) AC 562 and to the requirement of “proximity” for finding a duty of care.
262 Counsel for the defendant, in wide ranging written and oral submissions, referred to many authorities in England and Australia, including the decisions of the High Court of Australia in Sutherland Shire Council v Heyman (1985) 157 CLR 424; Pyrenees Shire Council v Day (1998) 192 CLR 330; Perre v Apand (1999) 73 ALJR 1190; Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 and the decisions of the House of Lords in X (Minors) v Bedfordshire County Council (1995) 2AC 633 and Stovin v Wise (1996) AC 923.
263 I consider that I can properly concentrate on the decision of the High Court in Crimmins. It is a recent decision of the High Court constituted by all seven members of the Bench, in which some of the justices gave detailed consideration to the circumstances in which a statutory body will be held to owe a duty of care in exercising, or not exercising, a statutory function.
264 Counsel for the defendant accepted that Crimmins contained a useful discussion of the general principles to be applied, while submitting that Crimmins was distinguishable from the present case on its facts.
265 Crimmins clearly was very different on its facts from the present case and I do not consider that any purpose would be served by any examination of the facts in Crimmins.
266 Of the various judgments in Crimmins I consider that I should give particular weight to the judgment of McHugh J. McHugh J gave the most detailed consideration to the question of the circumstances in which a statutory body will be held to owe a duty of care and Gleeson CJ agreed with McHugh J’s judgment. Their Honours were two of the five judges who formed the majority in the determination of the appeal.
267 In his judgment McHugh J said that Crimmins (like the present case) was “a case where the plaintiff claims that a statutory authority owed him a duty to take affirmative action to protect him” (par 71).
268 At par 77 his Honour noted that there was no longer any one underlying principle for the determination of whether a duty of care is owed. In the same paragraph of his judgment his Honour decried deciding the question by reference to a “checklist” of factors. Instead, the High Court should seek to arrive at a limited number of principles capable of general application. McHugh J then made criticisms of the decisions of the House of Lords in X (Minors) v Bedfordshire CC and Stovin v West.
269 At pars93 and 94 of his judgment McHugh J stated his conclusions as follows:-
“93. In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
94. If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.”
270 Kirby J, who was another member of the majority in Crimmins, said that it was necessary to begin by examining the scheme of the particular act of parliament in question in order to determine whether the provisions of the act were so inconsistent with the existence of a common law duty of care that the argument, that a common law duty of care should be recognised, should be rejected at the threshold (pars 203, 213).
271 If there was not such inconsistency, then the proper approach was the three stage approach referred to by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC at 739, namely:-272 In determining the third question, relevant factors in Crimmins included:-
“Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care?”
(i) The vulnerability of persons in the position of the person to whom the duty was allegedly owed.(ii) That the defendant had specialised expertise and knowledge.
(iii) That the group of persons who were at risk were a defined class, much narrower than the community at large.
273 It is to be noted that McHugh J had included some of these factors in his list of questions.
274 Gaudron J, who was also in the majority, examined the particular act to determine whether the powers and functions conferred on the statutory authority by the act were compatible with a duty of care. That having been done, it was then necessary to determine whether “there was a relationship of the kind between it (the statutory authority) and them (the class to which the beneficiary of the alleged duty belonged) that gave rise to such a duty”. (par 36).
275 In deciding whether there was such a relationship “recent decisions of this Court have tended to focus on the vulnerability of the person who suffers injury on the one hand and, on the other, the knowledge of risk and the power of the party against whom the duty of care is asserted to control or minimise that risk” (par 43).
276 Callinan J, the last member of the majority, would appear to have reached his decision in Crimmins on the basis that it could be seen from an examination of the act of parliament in question that the defendant had a large measure of control over a class to which the beneficiary of the alleged duty belonged and that on the evidence the defendant had in fact exercised a large measure of control over that class.
277 I return to the questions formulated by McHugh J at par 93 of his judgement. A number of the factors referred to by Kirby J and Gaudron J are subsumed in the questions formulated by McHugh J.
278 1. It is at least arguable that it was reasonably foreseeable that an omission by the Board of Health to inspect, or properly inspect, Chelmsford or to recommend to the Minister for Health that the licence to carry on Chelmsford be revoked, might result in injury to persons who were or might become patients at Chelmsford (“patients at Chelmsford”).
279 2. Insofar as the Board of Health had power, the power it had could be regarded as power to protect a specific class, that is patients at Chelmsford, rather than the public at large. The Board of Health had specialised expertise and knowledge. On the other hand, its powers were confined to the limited powers conferred on it by the Private Hospitals Act.
280 3. The class to which the plaintiff belonged, consisting of patients at Chelmsford, was vulnerable in the sense that the members of the class could not be expected adequately to safeguard themselves.
281 4. Whether this fourth question should be answered “yes”, might depend on how specific the defendant’s actual or constructive knowledge is required to be. In a general way, the Board of Health ought to have known of the risk of harm to patients at any private hospital, if it did not exercise its functions. However, that leaves open whether before, or while, the plaintiff was a patient at Chelmsford, the Board of Health knew, or ought to have known, of a risk of harm to patients at Chelmsford presented by Dr Bailey’s methods of treatment, including DST and ECT.
282 5. It was submitted by counsel for the defendant that a finding of a duty of care would impose liability with respect to the Board of Health’s exercise of “core policy making” or “quasi-legislative” functions but I would not be disposed to accept this submission.
283 6. It was submitted by counsel for the defendant that, even if the first four questions were answered “yes” and the fifth question answered “no” (which counsel disputed), the last question should be answered “yes”.
284 It was submitted inter alia by counsel for the defendant that an examination of the Act and the Regulations showed that the Board of Health’s functions in regard to private hospitals were limited to matters of a kind expressly referred to in the Act and the Regulations and did not extend to methods of medical treatment used by medical practitioners in private hospitals. It was submitted that, at the relevant time, methods of medical treatment would have been governed by the Medical Practitioners Act 1938.
285 It was pointed out by counsel for the defendant that the Board of Health itself could not decide that a licence to carry on a private hospital should be revoked. All the Board of Health could do was to make a recommendation to the Minister for Health, who would have had an independent discretion to exercise.
286 It was also submitted that, in performing or not performing all of its functions under the Act, the Board of Health should have been free to make decisions on how it should act, in a disinterested, frank way without fear of incurring any legal liability.
287 I do not propose to form a definite conclusion on the question of whether the Board of Health owed a duty of care to the plaintiff. The question is a difficult one and I have not had the benefit of receiving proper argument on the question from the plaintiff. In the view which I take on the further questions of breach and causation, it is unnecessary for me to reach a conclusion on the question of duty of care.
Breach of Duty
288 If the Board of Health did owe a duty to the plaintiff to take reasonable care in exercising or not exercising its power of inspection under s14 of the Private Hospitals Act or in exercising or not exercising its power under s16A of the Private Hospitals Act, it is necessary to determine whether the plaintiff has established that the Board of Health breached its duty of care in any respect. The question of whether a duty of care was owed by a statutory authority and the question of whether, if a duty of care was owed by the statutory authority, there was a breach of that duty of care are separate questions, although it can be debatable whether some factor should be taken into account, at the stage of deciding whether there was a duty of care or at the stage of deciding whether there was a breach of any duty of care. See Crimmins at par 5 (per Gleeson CJ), at par 133 (per McHugh J) and at par 238 (per Kirby J).
289 On the question of whether there was a breach of duty the plaintiff sought to rely on the doctrine of res ipsa loquitur. The plaintiff referred particularly to the decision of the English Court of Appeal in Cassidy v Ministry of Health.
290 Counsel for the defendant submitted that the doctrine of res ipsa loquitur can play only a very limited role in cases of medical negligence or negligence analogous to medical negligence. Counsel cited the unreported decisions of the New South Wales Court of Appeal in Youkhana v Western Sydney Area Health Service (10 October 1995) and Australian Capital Territory Health Authority v Moorby (25 June 1997).
291 A recent case involving alleged medical negligence in which the New South Wales Court of Appeal held that the doctrine of res ipsa loquitur was inapplicable is Elliott v Bickerstaff (1999) NSWCA 453.
292 In Cassidy, the case particularly relied on by the plaintiff, the plaintiff Mr Cassidy had entered hospital for an operation on his hand. He remained in the hospital for post-operational treatment. During this post-operational treatment the plaintiff was under the care of medical and nursing staff, all of whom were employed by the hospital. At the end of the period of post-operational treatment the plaintiff’s hand was “useless”.
293 As noted earlier in this judgment, it was held by the English Court of Appeal that the hospital authority, that is the body which controlled and operated the hospital, was liable for the negligence of medical and nursing staff employed by it. It was further held by the Court of Appeal that the doctrine of res ipsa loquitur applied, so that the onus lay on the hospital authority to prove that there had not been any negligence on its part or on the part of the staff employed by it for whose acts or omissions the authority would be vicariously liable. The Court of Appeal held that this onus had not been discharged.
294 I note in passing that, insofar as it was decided in Cassidy that the effect of the doctrine of res ipsa loquitur, where it applies, is to cast a legal onus of proof on the defendant, Cassidy is at variance with Australian authority. See for example Nominal Defendant v Haslbauer (1967) 117 CLR 448.
295 More importantly, Cassidy was a case in which, given the Court of Appeal’s finding that the hospital authority was liable for any negligence of its staff, the requirements for the application of the doctrine of res ipsa loquitur were satisfied. These requirements are stated in Fleming the Law of Torts (8th ed) 1992 at p 316 as follows:-
“It is impossible to catalogue res ipsa loquitur cases: every accident is in some respects singular and proof of facts by facts incapable of reduction to a formula. Nonetheless, it is feasible to indicate in general terms the conditions which must subsist to call the maxim into operation. Clearly, the occurrence must bespeak negligence and that negligence be the defendant’s; it must be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody”.
296 In Cassidy the rendering of the plaintiff’s hand useless during the post-operational treatment gave rise to an inference that someone in the medical or nursing staff of the hospital had been negligent and that accordingly the hospital authority (and its successor the Ministry of Health) was liable for negligence, because the hospital authority was legally responsible for any negligent act or omission of any member of its medical or nursing staff.
297 In the present case the doctrine of res ipsa loquitur is, in my opinion, inapplicable. The requirement for the application of the doctrine that what occurred to the plaintiff while he was a patient in Chelmsford should of itself give rise to an inference that the Board of Health was negligent is not satisfied. The Board of Health was not in control of Chelmsford, in the way in which the hospital authority was in control of the hospital in which Mr Cassidy was a patient.
298 I will now seek to determine whether, without any resort to the doctrine of res ipsa loquitur, the plaintiff should be held to have succeeded in establishing that the Board of Health breached a duty of care, which for present purposes I am assuming it owed to the plaintiff, in failing to exercise its functions under either s14 of the Private Hospitals Act or s16A of the Private Hospitals Act.
299 I am not satisfied that I should find that the Board of Health failed to exercise reasonable care in not inspecting or not properly inspecting Chelmsford. There is indeed no actual evidence before me as to whether the Board of Health (the President of the Board of Health or a person authorised by the Board of Health) did or did not inspect Chelmsford at any time before the plaintiff was last a patient at Chelmsford.
300 In any event, even if the Board of Health did not inspect Chelmsford and was negligent in not inspecting Chelmsford, or did inspect Chelmsford but was negligent in carrying out the inspection, any such negligence would be significant in the present case, only if, had the Board of Health inspected Chelmsford with reasonable care, it would have acquired knowledge about Chelmsford, such that it should have made a recommendation that the licence to carry on Chelmsford as a private hospital be revoked. It is likely that unless the licence to carry on Chelmsford was revoked, Chelmsford would have continued to operate and the plaintiff would still have become a patient at Chelmsford.
301 As regards the function conferred on the Board of Health by s16A of the Act, I am prepared to assume in favour of the plaintiff that the Board of Health did not recommend to the Minister for Health, at any time before the plaintiff was discharged from Chelmsford for the last time, that the licence to carry on Chelmsford as a private hospital be revoked. Whether it was negligent of the Board of Health not to make a recommendation under s16A at any time before the plaintiff was discharged from Chelmsford for the last time, depends on whether the Board of Health then knew or ought to have known of matters such that the Board of Health ought to have made such a recommendation.
302 The plaintiff asserted in submissions to me that, before he became a patient at Chelmsford for the first time and during the period within which he was a patient at Chelmsford, there had been deaths of patients in Chelmsford, there had been coronial inquiries into deaths of patients in Chelmsford and there had been police investigations into deaths of patients in Chelmsford. However, these submissions were unsupported by any evidence before me.
303 It may be that, on the evidence before me, it can be inferred that in 1968 and 1969 the Board of Health knew, or at least ought to have known, that Chelmsford, which was licensed only as a medical and post-operative private hospital, was being used as a psychiatric hospital and that the methods of treatment of DST and ECT were being used at Chelmsford on psychiatric patients.
304 Even if the Board of Health did acquire knowledge, actual or constructive, that Chelmsford was being used as a psychiatric hospital, that is as a private hospital of a class not specified in its licence, I do not consider that the acquisition of such knowledge would of itself have rendered it negligent for the Board of Health not to have made a recommendation that Chelmsford’s licence be revoked.
305 That a private hospital was being used as a private hospital of a class not specified in its licence was not in terms a ground on which the licence of the private hospital could be revoked under s16A.
306 It is true that if a private hospital was used as a private hospital of a class not specified in its licence, the licensee would be guilty of an offence under the Act (s15) and a conviction for that offence could then constitute a ground for revoking the private hospital’s licence (s16A(1)(a)). However, the Board of Health did not have any power to recommend that a licensee of a private hospital be prosecuted for an offence under s15 and there was no evidence before me that the licensee of Chelmsford had been convicted of an offence under s15.
307 The mere fact that Chelmsford was being used as a private hospital of a class not specified in its licence, namely as a psychiatric hospital, would not, in my opinion, have made it negligent for the Board of Health not to form an opinion that Chelmsford was being conducted in such a manner that the revocation of its licence as a private hospital was necessary in the public interest. Dr Bailey and Dr Gill, the doctors who were attending the psychiatric patients at Chelmsford, were qualified psychiatrists and hence qualified to care for patients in a private hospital being used as a psychiatric hospital. The only relevant distinction made in the Regulations between the different classes of private hospitals was that the prescribed qualifications required to be held by a nurse for appointment as manager or resident manager of a private hospital which was a psychiatric hospital were less than the prescribed qualifications required for appointment as the manager or resident manager of a private hospital which was being used as a medical or post-operative private hospital, that is for the purposes for which Chelmsford was licensed.
308 Whether it was negligent of the Board of Health not to make a recommendation under s16A at any time before the plaintiff was discharged from Chelmsford for the last time depends on whether the Board of Health then knew or ought to have known that the methods of treatment being used at Chelmsford involved a risk of harm to patients at Chelmsford of such a magnitude that the Board of Health should have formed the opinion that the revocation of the licence to carry on Chelmsford as a private hospital was “necessary” in the public interest.
309 There is no expert evidence before me on the basis of which I could find that, at any time before the plaintiff was discharged from Chelmsford for the last time, the Board of Health, in the state of medical knowledge then existing, knew or ought to have known that the methods of treatment being used at Chelmsford, after taking into account any advantages they had, involved a risk of harm to patients at Chelmsford of such a magnitude that the Board of Health should have formed the opinion that the revocation of the licence to carry on Chelmsford as a private hospital was “necessary” in the public interest. In her letter of 24 May 1996 to Professor Mullen the Registrar asked Professor Mullen to note that his opinion was not being sought on the appropriateness of the methods of treatment which had been used at Chelmsford.
310 I do not consider that, in the absence of expert evidence, I should find that the methods of treatment being used at Chelmsford obviously involved such a risk of harm to patients at Chelmsford. The methods were being practiced by an eminently qualified psychiatrist in Dr Bailey. Even on the very limited evidence before me, it is apparent that Dr Bailey was not the only person in the history of psychiatry to advocate or practice these methods. A number of doctors whose reports made in 1969 were admitted into evidence, including Dr Burke, Dr Swanton and Dr Ellard, were clearly aware of the methods of treatment being used in Chelmsford but none of them in their reports expressed any disapproval of these methods. Dr Swanton, admittedly a colleague of Dr Bailey, actually recommended that the plaintiff have “a more prolonged period” of ECT.
311 As stated earlier in this judgment, the report of the Royal Commission into Chelmsford was not before me. The Royal Commissioner, of course, had the great advantage of hearing evidence and preparing a report approximately twenty years after the plaintiff was hospitalised in Chelmsford.
312 I find that the plaintiff has not established any breach of any duty of care the Board of Health may have owed him.
Causation
313 Even if the Board of Health owed a duty of care to the plaintiff in exercising its functions under s16A,which it breached by failing to form an opinion that Chelmsford was being conducted in such a manner that the revocation of its licence was necessary in the public interest or in not recommending to the Minister of Health that Chelmsford’s licence be revoked, the plaintiff could not succeed in these proceedings, unless he established that such damage as he may have suffered as a result of his treatment in Chelmsford was caused by the Board of Health’s negligence.
314 Any negligence by the Board of Health in not forming an opinion under s16A (1)(d) or in not recommending to the Minister for Health that the licence to carry on Chelmsford be revoked, would have caused damage to the plaintiff, only if, had the Board of Health been reasonably careful, the licence to carry on Chelmsford would have been revoked pursuant to a recommendation made by the Board of Health, with the consequence that Chelmsford would have ceased functioning as a private hospital, at some time before the plaintiff became a patient at Chelmsford or at least at some time before the plaintiff was discharged from Chelmsford for the last time.
315 I am not satisfied that any causal link between any negligence on the part of the Board of Health and any damage to the plaintiff has been established.
316 Under s16A of the Act the Board of Health could merely make a recommendation to the Minister for Health. Any decision that the licence to carry on Chelmsford be revoked would have had to have been made by the Minister, who would have had to have exercised the independent discretion reposing in him.
317 Furthermore, even if it is accepted that any recommendation made by the Board of Health would have been acted upon by the Minister, by the Minister making a decision in accordance with the recommendation, it has not been shown that, if the Board of Health had been reasonably careful, the Board of Health would have made a recommendation and the Minister would have made a decision to revoke the licence and the revocation of the licence would have become effective, prior to the plaintiff becoming a patient at Chelmsford or at least ceasing to be a patient at Chelmsford.
318 It is necessary to bear in mind the long drawn out process contemplated by the Act for the revocation of a licence pursuant to s16A and the taking effect of such a revocation. Even before making a recommendation, the Board of Health would have had to have served notice on the licensee for Chelmsford that it proposed to make a recommendation that the licence be revoked and would have had to have given the licensee an opportunity to show cause why such a recommendation should not be made. In my opinion, it is likely that, if such a notice had been served, the licensee would have endeavoured to show cause why such a recommendation should not be made.
319 If a recommendation had been made by the Board of Health, the Minister would have had to have made a decision to revoke the licence. Notification would have had to have been given of the Minister’s decision. The revocation would not have taken effect until after notification of the revocation had been given. The licensee would then have had a right to appeal to the District Court against the decision by the Minister revoking the licence. If an appeal to the District Court had been lodged, the revocation would not have taken effect, unless and until the revocation had been confirmed by the District Court or the appeal to the District Court had been dismissed.
320 It seems to me likely that if at any time before the plaintiff was last discharged from Chelmsford the procedure under s16A of the Act had been invoked, the licensee of Chelmsford would not have submitted to the closing down of Chelmsford and would have contested any revocation of Chelmsford’s licence. Accordingly, it is likely that there would have been a considerable delay between any recommendation by the Board of Health and the taking effect of any revocation of Chelmsford’s licence pursuant to the recommendation.
321 On this alternative ground also, I consider that the plaintiff’s claim fails.322 In my opinion there should be a verdict for the defendant.
Determination of the Case
Damages
323 As I have found a verdict for the defendant, it is strictly unnecessary for me to assess damages or to make any findings with respect to the plaintiff’s claims for damages. However, as there was considerable argument about damages and in case an appeal is brought against my decision on liability and the appeal is successful, I should at least make some findings with respect to damages.
324 Earlier in this judgment I assessed the reliability of the documentary evidence and of the evidence of two of the witnesses who gave oral evidence, that is the plaintiff and his brother George Mordaunt. I found inter alia that both the plaintiff and his brother were unreliable witnesses and that the reliability of the medical and paramedical evidence on which the plaintiff relied was adversely affected by inaccurate and incomplete histories which I am satisfied the medical and paramedical practitioners were given by the plaintiff or his brother.
325 Many findings of fact I have made are explicit, or at least implicit, in earlier parts of this judgment. I will, however, summarise some of the findings of fact I have made, which are relevant to the plaintiff’s claims for damages.
326 The plaintiff was involved in a serious motor vehicle accident on 16 July 1966. He was rendered unconscious in the accident. He sustained a head injury and some brain damage. The brain damage was, however, less important than a serious post-traumatic reactive depression with an anxiety state, which the plaintiff sustained as a result of the accident. This psychiatric condition was aggravated by the plaintiff’s concern about obtaining compensation for the injuries he had suffered in the motor vehicle accident.
327 The plaintiff was admitted to a psychiatric ward in a hospital in Queensland in 1967 and was diagnosed as suffering from depression. This state of depression was caused by the motor vehicle accident.
328 In March 1968 the plaintiff was referred to Dr Bailey in his capacity as a psychiatrist. When he was first seen by Dr Bailey on 14 March 1968 the plaintiff was suffering from the symptoms and disabilities recorded by Dr Bailey in his notes of 14 March 1968 and his letter of 15 March 1968.
329 The plaintiff had not worked at all between the time of the motor vehicle accident and the time of his first admission to Chelmsford and was incapable of working during that period.
330 Mr Binks’s appraisal of the plaintiff on 14 May 1968 reflected the plaintiff’s condition as a result of the motor vehicle accident, not the plaintiff’s condition as a result of any treatment at Chelmsford.
331 While he was a patient in Chelmsford the plaintiff was subjected to DST and ECT. Over the five admissions the plaintiff had a total of thirty, not eighty, sessions of ECT. I do not accept that the plaintiff has any real recollection of having had the terrifying experiences in Chelmsford, especially of ECT, which he claimed in his evidence he had had. I consider that his evidence about these experiences was derived, not from any actual recollection of his own, but from his reading about Chelmsford from August 1990 onwards.
332 However, on the basis of other evidence including the hospital notes, I do accept that the plaintiff did at times suffer pain, discomfort and distress, when ECT was administered to him and at other times while he was a patient in Chelmsford. I also accept that he was physically restrained by shackles on a number of occasions. For much of the time the plaintiff was a patient in Chelmsford, he was heavily sedated and unconscious. For some of the time the plaintiff was a patient in Chelmsford he was, as recorded in the hospital notes, alert and in a cheerful frame of mind. There is nothing in any of the hospital notes to which I was directed to suggest that the plaintiff was not well attended to by the nursing staff at Chelmsford.
333 I am not satisfied that the plaintiff suffered any brain damage as a result of his treatment in Chelmsford. I have already found that he suffered some brain damage as a result of the motor vehicle accident. In his report Professor Mullen went no further than saying that in his opinion the plaintiff had been placed at risk of brain damage by reason of the procedures to which he was subjected while he was a patient at Chelmsford. In 1991 Dr McIntyre found “nothing suggestive of current organic deficit”.
334 The plaintiff claimed that he had suffered serious psychiatric injury as a result of his treatment in Chelmsford. He complained that he had been the victim of “menticide”, a word which he used frequently. “Menticide” is a word of recent origin. It has been defined as meaning “the methodical attempt to alter radically an individual’s beliefs and value systems through the employment of such techniques as torture, use of drugs and sustained questioning; brain washing”. I reject the claim made by the plaintiff that Dr Bailey or anyone else at Chelmsford made an attempt to alter the plaintiff’s beliefs or value systems or engaged in “menticide” against the plaintiff.
335 I am not persuaded that the plaintiff’s psychiatric condition was made any worse by the treatment he received in Chelmsford. The plaintiff was already suffering from a severe psychiatric condition when he was first admitted to Chelmsford.
336 Dr Bailey was of the opinion that the plaintiff had actually improved as a result of each period of hospitalisation in Chelmsford but had then suffered a relapse, after he had been discharged from Chelmsford.
337 It can, of course, be argued that any opinion from Dr Bailey about the effects on the plaintiff of the kinds of treatment Dr Bailey was using would be unlikely to be unbiased. However, Dr Bailey’s opinion that the plaintiff’s psychiatric condition had actually improved, even if only temporarily, as a result of the treatment he received in Chelmsford was an opinion shared by the plaintiff himself, for example in the history he gave to Dr Ellard, and by George Mordaunt, for example in the history George Mordaunt gave Dr Burke on 21 April 1969. That the plaintiff considered that Dr Bailey had helped him is suggested by the terms and tone of the plaintiff’s letter to Dr Bailey of 5 September 1969.
338 When the precise terms of Professor Mullen’s carefully worded report are taken into account, together with the qualifications I have stated earlier in this judgment about Professor Mullen’s report, I do not consider that Professor Mullen’s report precludes me reaching the conclusion I have expressed, that is that I am not persuaded that the plaintiff was made any worse, psychiatrically, by the treatment he received in Chelmsford.
339 Professor Mullen expressed the opinion in his report that the plaintiff’s problems with attention, concentration and memory, which he already had before he was admitted to Chelmsford, were likely to be permanent.
340 I do not accept that the plaintiff underwent a complete change of personality as a result of his treatment in Chelmsford, as was alleged by the plaintiff and his brother at their interview with Professor Mullen. As Professor Mullen noted in his report, George Mordaunt had made a similar allegation to Dr Bailey in 1968 but had on that occasion attributed the complete change of personality to the motor vehicle accident.
341 After he was discharged from Chelmsford for the last time the plaintiff still suffered from a serious psychiatric condition. However, I find that the plaintiff had made a substantial recovery from this psychiatric condition by the early 1970’s. This recovery was assisted, and indeed marked, by the settlement of the long outstanding claim for damages in March 1970, by his marriage in the same year to his second wife, by his obtaining regular employment at least six to twelve months before the accident on 4 March 1972 and by his religious conversion in 1974.
342 During the two decades, the 1970’s and the 1980’s, the plaintiff worked for at least substantial periods. The plaintiff became a qualified builder and ceased working as a builder in 1990, not because he was physically or mentally incapable of continuing to work as a builder, but because he was made bankrupt, as a result of an imprudent quotation by his business partner. After the plaintiff was made bankrupt he worked at the Children’s Home in Queensland.
343 In 1990 the plaintiff’s brother George Mordaunt acquired information about Chelmsford and transmitted information to the plaintiff. The plaintiff read parts of the Report of the Royal Commission into Chelmsford. At the instigation of his brother, he decided to bring court proceedings claiming compensation on the basis of his treatment in Chelmsford.
344 Before the plaintiff made his decision to bring court proceedings, the plaintiff had not sought any medical or paramedical treatment or investigation for many years.
345 After deciding to bring court proceedings the plaintiff set about obtaining medical and paramedical reports which would assist his claim. The histories he gave to these practitioners were inaccurate and incomplete. For example, he said that he had received eighty sessions of ECT while he was a patient in Chelmsford.
346 I consider that the plaintiff’s performance on the tests administered by Mr Ivison was probably affected by the stress of the proceedings for compensation the plaintiff was contemplating.
347 I do not accept that any causal connection has been shown between the condition of the plaintiff’s spine in 1993, as diagnosed by Mr Vincent, and the plaintiff’s treatment in Chelmsford.
348 Apart from what I have already written, I have reached the following conclusions concerning the various heads of damages claimed by the plaintiff.
General Damages
349 The plaintiff made a claim for past and future general damages totalling $10m.
350 If the plaintiff had been entitled to damages, I would have awarded the plaintiff some damages to compensate him for pain, discomfort and distress suffered by him while he was a patient in Chelmsford and for having been subjected to physical restraint while he was a patient in Chelmsford.
351 I would not have awarded the plaintiff any damages on the basis that he suffered brain damage while he was a patient at Chelmsford or that his psychiatric condition became worse as a result of the treatment he received in Chelmsford or that his problems with attention, concentration and memory became worse as a result of the treatment he received in Chelmsford or that he suffered a change of personality as a result of the treatment he received in Chelmsford.
352 I would not have awarded the plaintiff any damages on the basis that the plaintiff suffered physical injuries as a result of the treatment he received in Chelmsford. I am not satisfied that there is any causal connection between any spinal condition of which the plaintiff has complained and the treatment he received in Chelmsford. In my opinion, any such spinal condition is probably attributable to natural degeneration in the spine of a man of the plaintiff’s age, who has worked as a labourer and a builder. The plaintiff did not consult a chiropractor until about 1990.353 Interest should be awarded on the amount of past general damages.
Interest on Past General Damages
Out of pocket expenses
354 The plaintiff made a claim for damages for past out of pocket expenses of $705,000.
355 Most of this claim ($650,000), which was said to be an “estimate”, was for “legal fees”. No attempt was made to substantiate this claim, either in principle or in amount.
356 An amount of $40,000 was claimed for medical fees but there was documentary evidence, in the form of a letter from the Health Insurance Corporation, for only $4,261.55. I am not satisfied that any of the medical services for which there is documentary evidence were required as a result of the plaintiff’s treatment in Chelmsford.
357 A claim was made for future out of pocket expenses consisting of the cost of fortnightly consultations with a chiropractor.
358 I would not allow any of the claims for past or future out of pocket expenses.
Past and Future Economic Loss
359 The plaintiff made a claim for damages for past and future economic loss, on the basis that if he had not been admitted to Chelmsford he would have been employed continuously as a professional drummer for twenty-one days a month, twelve months a year, from March 1968 to the year 2009.
360 I would not have awarded the plaintiff any damages for loss of earning capacity.
361 The plaintiff had not worked, or had done very little work, as a professional drummer before the motor vehicle accident. I do not accept George Mordaunt’s estimate of the prowess of the plaintiff as a drummer, particularly having regard to my general assessment of the quality of George Mordaunt’s evidence. At the time of the motor vehicle accident the plaintiff had not obtained a job as a professional drummer in Sydney. At the time of the accident he was travelling to Queensland, with a view to obtaining work as a drummer in Queensland.
362 The plaintiff did not work as a drummer at all between the time of the motor vehicle accident and the time of his first admission to Chelmsford. The plaintiff was incapable of working as a drummer, not merely because of the injury to his right shoulder but also because in consequence of his psychiatric condition he was unable to tolerate the noise of drums.
363 The plaintiff was employed, briefly, on a couple of jobs during the period within which he was a patient at Chelmsford. Generally, however, he was incapable of working during this period and his incapacity was due, not to his treatment at Chelmsford, but to the psychiatric condition caused by the motor vehicle accident.
364 When the plaintiff was discharged from Chelmsford for the last time, he was incapable of working. In my opinion, this incapacity was due to the psychiatric condition caused by the motor vehicle accident.
365 The plaintiff became employed no later than six to twelve months before his accident at work on 4 March 1972. By the time he became employed his psychiatric condition had improved. After the accident at work on 4 March 1972 the plaintiff was incapacitated from working for eighteen months, because of that accident.
366 Subsequently, although no records were produced, the plaintiff gave oral evidence before me of having worked in a number of jobs for apparently extensive periods. The plaintiff gave no oral evidence before me of having been unemployed between the time when he resumed working after the accident on 4 March 1972 and some time in 1990. The plaintiff became a qualified builder and worked as a builder.
367 In 1990 the plaintiff stopped working as a builder, not because he was physically or mentally incapable of working as a builder, but because he was made bankrupt as a result of an imprudent quotation by his business partner.
368 About this time the plaintiff’s brother spoke to him about Chelmsford and the plaintiff under the influence of his brother decided to bring legal proceedings for the recovery of damages.
369 The plaintiff obtained a disability pension on the strength of medical opinions from his general practitioner Dr Franklin. Dr Franklin first saw the plaintiff in about 1990 and based her opinions on an inaccurate and incomplete history supplied to her.
370 I am satisfied that since he decided to bring legal proceedings the plaintiff has devoted much of his time to researching his claim.
Exemplary damages
371 The plaintiff made a huge claim for what he described as “aggravated special exemplary damages”. He alleged that “the defendant” had acted intentionally, in a brutal and barbaric way and “with full knowledge and aforethought”. The plaintiff claimed damages under this head of $83,250,000. In support of his claim the plaintiff referred to Lamb v Cotogno (1987) 164 CLR 1 and to a number of biblical texts.
372 It may be that the plaintiff is entitled to a moderate award of aggravated damages. However, whatever may have been the position if the plaintiff's proceedings had been brought against other defendants, for example Dr Bailey or Dr Herron, I do not consider that any amount of exemplary damages should be awarded against the Board of Health or the Health Administration Corporation.
373 In Lamb v Cotogno the High Court in the judgment of the Court quoted with approval Mayne & McGregor on Damages 12th ed (1961) at p 96:-374 This condition of an award of exemplary damages is not satisfied in the case of the Board of Health and the Health Administration Corporation.
“Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights”.
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