Maddalena v CSR Ltd
[2004] WASCA 231
•13 OCTOBER 2004
MADDALENA -v- CSR LTD & ANOR [2004] WASCA 231
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 231 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:7/2003 | 17 AUGUST 2004 | |
| Coram: | STEYTLER J TEMPLEMAN J WHEELER J | 13/10/04 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | ARTURO DELLA MADDALENA CSR LTD (ACN 000 001 273) MIDALCO PTY LTD (ACN 008 671 396) |
Catchwords: | Negligence Employer's liability Inhalation of asbestos fibres Psychiatric injury from fear of contracting mesothelioma Effect of delay between trial and judgment Whether re-trial Whether findings of credibility sustainable |
Legislation: | Nil |
Case References: | CSR Ltd v Thompson (2003) 59 NSWLR 77 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Napolitano v CSR Ltd, unreported; SCt of WA (Seaman J); Library No 94087; 30 August 1994 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Tame v New South Wales (2002) 211 CLR 317 Abalos v Australian Postal Commission (1990) 171 CLR 167 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Bonnington Castings v Wardlaw [1956] AC 613 Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 Chambers v Jobling (1976) 7 NSWLR 1 Chappel v Hart (1998) 195 CLR 232 Cobham v Frett [2001] 1 WLR 1775 CSR Ltd v Culkin, unreported; FCt SCt of WA; Library No 940570; 18 October 1994 Fairchild v Glenhaven Funeral Services Ltd (2002) 3 WLR 89 Goose v Wilson Sandford & Co, unreported; England and Wales Court of Appeal (Civil Division); 13 February 1998 Hadid v Redpath [2001] NSWCA 416 Jaensch v Coffey (1984) 155 CLR 549 Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 March v E & MH Stramare Ltd (1991) 171 CLR 506 McGhee v National Coal Board [1973] 1 WLR 1 Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383 Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 Naxakis v Western General Hospital (1999) 197 CLR 269 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 Nicholson v Atlas Steel Foundries Ltd [1957] 1 WLR 613 Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] CH 246 Shorey v PT Ltd (2003) 77 ALJR 1104 Simpson v Midalco Pty Ltd, unreported; FCt SCt of WA; Library No 7421; 7 December 1988 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588 Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MADDALENA -v- CSR LTD & ANOR [2004] WASCA 231 CORAM : STEYTLER J
- TEMPLEMAN J
WHEELER J
- Appellant
AND
CSR LTD (ACN 000 001 273)
First Respondent
MIDALCO PTY LTD (ACN 008 671 396)
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
File Number : 2002 [WADC] 260
(Page 2)
Catchwords:
Negligence - Employer's liability - Inhalation of asbestos fibres - Psychiatric injury from fear of contracting mesothelioma - Effect of delay between trial and judgment - Whether re-trial - Whether findings of credibility sustainable
Legislation:
Nil
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr M J McCusker QC & Mr T Lampropoulos
First Respondent : Mr M J Buss QC & Mr J G Mengler
Second Respondent : Mr M J Buss QC & Mr J G Mengler
Solicitors:
Appellant : Slater & Gordon
First Respondent : Jackson McDonald
Second Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
CSR Ltd v Thompson (2003) 59 NSWLR 77
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Napolitano v CSR Ltd, unreported; SCt of WA (Seaman J); Library No 94087; 30 August 1994
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
Tame v New South Wales (2002) 211 CLR 317
(Page 3)
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bonnington Castings v Wardlaw [1956] AC 613
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Chambers v Jobling (1976) 7 NSWLR 1
Chappel v Hart (1998) 195 CLR 232
Cobham v Frett [2001] 1 WLR 1775
CSR Ltd v Culkin, unreported; FCt SCt of WA; Library No 940570; 18 October 1994
Fairchild v Glenhaven Funeral Services Ltd (2002) 3 WLR 89
Goose v Wilson Sandford & Co, unreported; England and Wales Court of Appeal (Civil Division); 13 February 1998
Hadid v Redpath [2001] NSWCA 416
Jaensch v Coffey (1984) 155 CLR 549
Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462
March v E & MH Stramare Ltd (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383
Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501
Naxakis v Western General Hospital (1999) 197 CLR 269
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1
Nicholson v Atlas Steel Foundries Ltd [1957] 1 WLR 613
Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] CH 246
Shorey v PT Ltd (2003) 77 ALJR 1104
Simpson v Midalco Pty Ltd, unreported; FCt SCt of WA; Library No 7421; 7 December 1988
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588
Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
(Page 4)
1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of Templeman J. I agree with it and with his Honour's conclusions. There is nothing I wish to add.
TEMPLEMAN J:
Introduction
2 The appellant, Arturo Della Maddalena, brought an action in the District Court against the respondents, CSR Ltd and Midalco Pty Ltd claiming that while employed by one or other of the respondents at an asbestos mill in Wittenoom, Western Australia, between about 1961 and 1996, he had been "negligently exposed to and inhaled dust containing blue asbestos fibres, particles and dust". As a result, the appellant claimed (in par 7 of his amended statement of claim) he had suffered and would continue to suffer injuries and disabilities including:
"(a) asbestosis
(b) pleural disease
(c) respiratory degeneration
(d) pain and breathlessness
(e) psychological reaction"
- The respondents denied liability.
3 The action was tried between 2 and 9 April 2002. On 17 December 2002, the learned trial Judge delivered a judgment dismissing the appellant's claim.
4 Although the appellant claimed to have suffered a "psychological reaction", the trial was conducted on the basis that the appellant had in fact suffered a psychiatric injury.
5 In essence, that claim was based on the diagnosis of anxiety and depression made by a number of psychiatrists. The diagnosis was founded substantially on the appellant's history as he described it.
6 One of those psychiatrists, Dr Salvatore Febbo, revised his opinion after seeing surveillance video recordings of the appellant engaging in various activities which, the doctor thought, were inconsistent with the earlier diagnosis.
(Page 5)
7 Two other psychiatrists who also viewed the video recordings did not regard the appellant's activities as inconsistent with that diagnosis.
8 The trial Judge expressed his concern about "the absence of any objective evidence" to support the appellant's complaints. In all the circumstances (to which I will refer in more detail below) his Honour came to the conclusion that Doctor Febbo's opinion was to be preferred. Thus, the appellant failed to prove his case.
9 The central issue in this appeal is whether the trial Judge erred in his assessment of the evidence, so as to permit this Court to reverse his Honour's decision and remit the matter to him for an assessment of damages.
Background
10 The appellant was born in Italy in 1943. He lived in Montagna, a village which had less than 1,000 inhabitants at the time. He attended school until he was about 14 years old. When he left school, he was employed in the building industry as a labourer.
11 The appellant had a number of relations who came to Australia in the early 1950's including an older brother (or step-brother) named Walter. Much later, the appellant decided to migrate to Australia also. He arrived in 1961, at the age of 18. Walter, who had previously worked at Wittenoom, was then working on a farm. He took the appellant to the offices of Australian Blue Asbestos in Perth and helped him to obtain employment at Wittenoom.
12 In about mid September 1961 the appellant went to work at the Wittenoom asbestos mine where he was involved in bagging asbestos.
13 In about January 1962 the appellant returned to Perth and worked for three or four months at a timber mill in Manjimup. He returned to Wittenoom in about September 1962 again, working as a bagger. Apart from a short period working at Tom Price, the appellant continued to work at Wittenoom until the end of 1966, when the mine closed.
14 It is not necessary to refer to the evidence of the appellant's employment at Wittenoom, nor the extent of his exposure to asbestos dust. As he says in his notice of appeal, there was no dispute at trial that:
"Excluding two periods of a few months, the Appellant worked variously in the mill and mine at Wittenoom until it closed at the end of 1966. His duties included bagging asbestos and
(Page 6)
- cleaning equipment. He later worked at the mill and the mine as a maintenance worker, machine miner and shift boss;
In the course of his employment the Appellant was heavily exposed to asbestos dust and fibre;
On two occasions, the Appellant was the winner of an asbestos shovelling competition, which involved being the fastest competitor to fill a 44 gallon drum with raw asbestos tailings."
15 After the Wittenoom mine closed, the appellant moved to Perth where he was married. He then went to the south-west of the State and worked in a timber mill until November 1968 when he commenced employment with the State Electricity Commission. He remained with that organisation through its transition to SECWA and AlintaGas.
16 The appellant started this part of his working life as a labourer, assisting a gas fitter. He then became a fitter himself and worked on shift as a gas faults man. In that role, he was required to undertake heavy work, such as digging, and to attend after-hours emergencies. The appellant worked as a gas faults man for nearly 25 years until 1995.
17 The appellant said that from just after 1990 he was becoming short of breath, especially when bending down and digging. He claimed also to have experienced chest pain and tiredness. From 1990 onwards he went steadily downhill to the point where he was no longer able to cope (AB 69-70). He resigned from AlintaGas in September 1995, and retired from the workforce.
18 The appellant alleged in par 8 of his amended statement of claim, by way of particulars of his loss and damage that he became "increasingly unable to cope with the physical demands of his job and has therefore been forced into an early retirement" (AB 42).
The medical evidence
19 In about 1988, the appellant consulted his General Practitioner, Dr Gregory Deleuil, who referred him to Professor Arthur William Musk, a specialist respiratory physician.
20 Professor Musk saw the appellant in 1989 and on several occasions thereafter. He carried out various tests and procedures on the appellant. These showed that the appellant had been exposed to asbestos and had some non-calcified pleural plaques on his diaphragm. However, there
(Page 7)
- was no pulmonary abnormality and no evidence of interstitial lung disease. On 25 March 1994, Professor Musk wrote to Dr Deleuil saying:
"I am concerned that he has some organic disease that we have failed to recognize but also concerned that he is depressed. His depression index however was only 20/63." (AB 580)
He went on to say:
"He is keen to pull out of work because he feels that he is not coping with it but I am unable to provide him with medical evidence to support this at the moment. I will see him again following his CT scan." (AB 581)
"When I saw him today he said that he is still very tired and lacking in energy such that he takes days off work frequently including a week off work about three weeks ago. He is short of breath if he digs or bends over to repair gas pipes when working and does very little in the way of activity during his leisure time. At the most he walks to the shops, about 5 minutes away occasionally. He says he is unable to keep up with others of his own age walking along level ground at a normal pace. He denies cough or sputum.
He was recently seen at my request by Dr Michael Quinlan who could find no physical explanation for his symptoms and considered that he was depressed. He has suggested anti-depressant medication.
…
I have reviewed his CT scan and report from 13 September. I can not dispute the very minor changes suggested but not diagnostic of 'very early' interstitial disease. In the absence of crackles on auscultation of his chest or significant impairment of lung function I do not feel that he has a significant degree of asbestosis and certainly insufficient evidence of any abnormality to account for his symptoms."
22 Dr Musk's opinion – that the appellant's symptoms could not be explained by the extent of his physical degeneration – was shared by all the respiratory physicians who gave evidence at trial. It is not necessary
(Page 8)
- to review the evidence for the purposes of this appeal. It is sufficient to note that the evidence was summarised by the trial Judge, who related it to the heads of damage pleaded in the amended statement of claim. His Honour's findings were:
" … the (appellant) has not established on a balance of probabilities that he suffers from asbestosis." (AB 22)
"Neither the Professor [Musk] nor any other expert expressed the opinion that the (appellant's) complaint of chest pain … was due to his plural plaques and in my view such a contention has not been made out." (AB 22)
"In my opinion the evidence does not justify the view that as the result of exposure to asbestos (the appellant) has suffered any physical injury." (AB 25)
24 In the context of his consideration of the appellant's claim to be suffering from respiratory degeneration, pain and breathlessness, the Judge declined to accept the appellant's claim that he suffered from breathlessness and chest pain. That finding is challenged in the appeal.
25 Despite Professor Musk's opinion, Dr Deleuil wrote to AlintaGas on 29 August 1995:
"Investigations by the Department of Pulmonary Medicine at QEII Medical Centre over the past several years have confirmed some pleural disease but, however no interstitial disease was diagnosed until recently when he developed noises in his lungs suggesting asbestosis and a high resolution CT scan confirmed interstitial fibrosis.
He has for many years been disabled with pain in his left chest wall, particularly on exertion. This would correspond to the position of scarring of the pleural surfaces (pleural plaques).
These latest changes have increased what has been recognised as a major depressive disorder which is related to the fear of developing asbestos related malignancies. (Mr Della-Maddalena's brother passed away 5 years ago after developing lung cancer due to the asbestos exposure at
(Page 9)
- Wittenoom). He has also been closely associated with other Wittenoom colleagues who have been dying with alarming frequency.
Due to the above factors Mr Della-Maddalena has found it increasingly difficult to cope with his job at SECWA. With his symptoms of acute chest pain, dyspnoea (shortness of breath), lethargy and sleep disturbance it has become evident that he is no longer able to perform his required duties.
I therefore recommend that he cease work and be retired on medical grounds forthwith as he will require ongoing management." (AB 643-4)
26 The "major depressive disorder" to which Dr Deleuil referred was the subject of evidence by the appellant at trial. He said that many of his friends, relatives and workmates from Wittenoom had died from asbestos related disease. His brother was among them. Thirteen people had come from his home town in Italy to work at Wittenoom and only four had survived (AB 68). The appellant said his brother Walter had spent some four to six years working at Wittenoom. The appellant said he spent as much time as he could with his brother during the final twelve months of his life: he found that a traumatic experience (AB 65-6). He was worried he would suffer the same fate as his brother.
27 Dr Deleuil referred the appellant to a psychiatrist, Dr Gidley who prescribed anti-depressants. However, the appellant took them for only a short time because he felt they were doing more harm than good. In particular, the medication made him feel very tired in the mornings.
28 Dr Gidley's diagnosis and the extent of his treatment of the appellant is not clear: he was not called to give evidence.
29 The appellant's principal treating psychiatrist was Professor G Allen German, to whom Dr Deleuil first referred him in March or April 1998 and who treated him until the trial. Professor German saw the appellant approximately six-weekly, over a period of four or five years.
30 Professor German gave evidence, as did three other psychiatrists. They were Dr John Penman, who saw the appellant on 9 September 1997; Dr Paul Skerritt, who saw him on 13 and 27 November 2000, and Dr Febbo, who saw him in September and November 1996, twice in January 2001, and again in January 2002. Previously, the appellant had
(Page 10)
- seen a clinical psychologist, Mr George W Burns, on eight occasions from December 1996 to about March 1997, and again on 6 March 2002, for a review. Mr Burns also gave evidence.
31 The consensus of the relevant expert witnesses (other than Dr Febbo) was that the appellant was suffering from a psychiatric injury. Although the witnesses expressed themselves in different ways, the essence of the diagnosis was that as a result of the appellant's exposure to asbestos and of the traumatic effect on him of the death of his brother and others close to him, he had become so anxious about his own fate that he had developed physical symptoms to an extent far greater than those caused by the relatively minor degeneration of his respiratory system. In other words, the appellant believed himself to be affected by asbestosis to a far greater extent than he actually was. The true diagnosis was anxiety or depression, or both, to such an extent as to constitute what Professor German described as "a recognisable psychiatric injury – of some substance" (AB 637).
32 Professor German is well known to the Court as an eminent psychiatrist of over 40 years' standing. That is not to say he is infallible. However, a diagnosis and prognosis given by Professor German undoubtedly carries considerable weight. That is particularly so in the present case, having regard to the extent of Professor German's involvement with the appellant.
33 Professor German's opinion was set out in a number of reports and confirmed in his evidence at trial.
34 In a comprehensive report dated 16 October 1998, to the appellant's solicitors, Professor German said as follows:
"Overall these reports and observations indicate a man with some degree of mild lung disease, particularly on the left side involving the lower pulmonary pleura, with some mild interstitial disease, which has only become detectable in the time between 1993 and 1995. The disease does not explain the full extent of his breathlessness and pain. The last specialist opinion does not indicate severe asbestosis.
Nevertheless Dr Deleuil who has been his family doctor for many years expresses clearly the statistical expectation that Mr Maddalena will develop severe asbestosis and probable malignancy. This clearly is Mr Maddalena's expectation also and I put this quite baldly at this stage because that is a major
(Page 11)
- burden of his statements to me on a continuing basis, and has been so since he first saw a doctor. This man is terrified that he will die from a very rapidly fatal malignancy, his death being one which will be extremely painful and unpleasant.
When he presented to me he described symptoms, which in brief, were those of chronic severe anxiety with associated milder and secondary depression. In specific DSM4 terms he showed a chronic anxiety state and an adjustment disorder of depressive type (previously called a reactive depression). In addition he showed a pattern of psychological and physical collapse in the face of major trauma, in which he identified closely with the symptoms of his dying brother and dying workmates, and believed that excessive involvement in activity, work or leisure, would hasten his demise. From my contact with him I have no doubt that he believes these things totally. Thus he has come to adopt an appropriate sick role consistent with his beliefs. He is not in my opinion malingering, nor is he in my opinion suffering from what DSM4 calls a 'factitious disease'. The best description of his psychological, emotional and mental states is not contained in DSM4 as a diagnosis but is simply that this man is terrified.
…
… It is clear from Dr Gidley's reports that he had come to believe that the progression of his presumed disease would be less rapid were he to take it easy and avoid excessive work and activity. …
…
… the manner in which he lives, with minimum expenditure of energy and effort, in an attempt to conserve and husband his life.
It should be noted that although he has been a hard-working and energetic man he is unsophisticated and of a basically credulous cultural background. He has a vivid imagination and has had no shortage of input to that imagination. To make matters worse, there has, in fact, in recent years, been evidence of slowly developing lung disease albeit still described as mild. There was progression between 1992 and 1995 and since 1995 I have no further information. There may well have been further
(Page 12)
- significant progression. I do not know, but I am certain that Mr Maddalena sincerely believes that there has. I would complete this section by stating that it is the power of what he believes that dictates his mental state, not the realities as described by his medical attendants. Whilst technically he could be said to be deluded, I doubt that close dissection of that concept would be anything more than an academic exercise. He does however believe that his plight is very much worse than has been medically observed to date.
He initially presented as a stocky Italian man, not evidently unwell. He was a little overweight, and he did show furrows of anxiety facially. As he got to know me better however it became apparent that although his affect was mainly dominated by anxiety, he could be distracted from this and could make gentle jocular remarks and comment with appreciation on the view from my window. He clearly has potential to continue to find pleasure in simple things when his morbid and fearful trains of thought are temporarily disrupted.
…
With regard to depression as part of the diagnosis, I do not think he has a primary depressive illness in the sense of major affective disorder, although I think that could be arguable. Rather I see him as depressed in a secondary manner, and the DSM4 nomenclature for this is probably covered by the category 'adjustment reaction (depressive type)' which is a more complicated way of describing a reactive or secondary depression where depression of mood is secondary to a life situation characterised by stress beyond the abilities of the individual to cope or adjust.
In my opinion Mr Maddalena lives in fear of death from mesothelioma as a result of his undoubted heavy exposure to asbestos some 25 or so years ago. He has watched his brother and numerous colleagues die severe, painful and lingering deaths. He suffers from chronic fear. Technically he has a severe chronic anxiety state; a secondary depressive illness of he adjustment disorder type; and in my opinion is enmeshed in a sick role driven by his total belief in his ongoing and progressive pathology with death not far off. He cannot be described as cancerphobic because the term phobic implies no
(Page 13)
- real reason for such a belief. I believe that he has compelling reality and emotional reasons for his belief.
…
… There has been further accretion of anxiety and fear since the objective demonstration of left lung pathology in the early 1990s. These assaults are just as savage as the more sudden one and are highly instrumental in the production and maintenance of severe anxiety with associated depression. One could make an academic case for regarding his symptoms as amounting to the post-traumatic stress disorder, but here the trauma has been gradual, and although associated with considerations of death, does not precisely meet the rather artificial criteria of DSM4. It is also a term which devalues the reality of these disorders through overuse.
…
I have no doubt that your client's experiences and conditioning that has been ongoing since asbestosis was first mentioned, is sufficiently serious to constitute recognisable psychiatric injury – of some substance. It has been reinforced repeatedly by the continuing series of deaths of people he knows well and with whom he has had personal contacts. There is nothing transient about his state nor initial. It is a very serious emotional response to overwhelming trauma.
…
His prognosis is for a continuance of the present state with probable worsening, partly because as he grows older he becomes increasingly conscious that his time left is reducing (and he attributes this to asbestos) and partly due to the possibility that he does show early stages of what will eventually be a severe asbestos deterioration. That cannot be forecast at this juncture other than in statistical terms. He will therefore continue to live as presently with fluctuations in the extent to which he can do things or enjoy things reflecting responses, mainly to medication, and to other possible forms of psychological therapy such as described by Mr Burns in his report in your booklet. I do not believe he has any prospect whatsoever of improvement or getting better." (AB 634-8)
(Page 14)
35 Professor German wrote a further report on 9 October 2000 in which he said:
"Since (the previous) report was written there has been some slight improvement in his psychiatric circumstances from time to time. His state remains fragile, but with Aropax, an antidepressant, in a dose of 40mg daily, together with psychotherapeutic support and assistance he has been able to be more sociable, attending his Italian club regularly during the past 9 months, and actually getting out to the soccer grand final at the end of the season this year. He enjoyed that very much.
Unfortunately, when he does go to the Italian Club he seems to spend most of his time discussing asbestosis with 'interested' friends, and continues to repeat his morbid account of colleagues and acquaintances who have died from asbestosis and related disorders. His emotional adjustment remains extremely fragile and his moments of well being are less frequent than moments of sadness and despair. He works around his home and that of his son - sporadically, and gets very tired. Does this on occasional days.
I would estimate the progress he has made since my report of October 1998 as being of the order of 5%-10%, almost exclusively in the social arena, and limited to 'within culture' club and sporting events.
Otherwise, my report of October 1998 remains as relevant now as when I wrote it.
In whatever he does he can be overtaken by panic and fear, and many of his social occasions have been interrupted by this. His state of mind when these fears threaten is very sad indeed. It is not, in my opinion, compatible with employment, and from a psychological point of view I believe he is quite incapable of being employed." (AB 639-40)
36 Dr Skerritt is also well known to the Court as an eminent psychiatrist of some 30 years' standing. He reviewed the appellant on 13 and 27 November 2000 and reported on 16 January 2001 (AB 645). In his report Dr Skerritt said:
"In my opinion, we need to start in the understanding of his case by the observation of Professor Musk that he has asbestosis but
(Page 15)
- not of a degree consistent with symptoms that he has subsequently demonstrated. Many of his symptoms are of a type which might be described as psychophysiological that is the several symptoms around the body, many of which are in the respiratory system, consequent on severe anxiety. The prominence of worry and the long-standing nature of much of his symptomatology suggests that the formal diagnosis is generalised anxiety disorder although he possibly comes quite close to panic disorder because of the nocturnal panic attacks and the few that occur during the day. Anxiety and depressive disorders coincide frequently and I think that he had one or other variety of depressive disorder, such as major depressive disorder. I think that his symptoms do go further than the designation of adjustment disorder with depressed mood, suggested by Dr German.
I think that there are several factors increasing the impact of relatively mild asbestosis in Mr Della Maddalena. Breathlessness, which is ultimately due to hyperventilation, with tightness across the chest and pounding heart, are very typical symptoms of anxiety which are interpreted as features of asbestosis according to Mr Della Maddalena's understanding of it. The symptom of worry is very prominent in anxiety disorders and particularly in his case. It is little more than commonsense to say that the more one worries about a symptom the worse it gets. For example, in any normal person the experience of a toothache is worse at night than it is in the day. I think that his phenomenon is projected to a much greater extent in Mr Della Maddalena and, coupled with his relatively poor understanding of the situation for cultural and educational reasons, he now finds himself in the position of complaining of massive physical symptoms quite out of proportion to the physical pathology.
This is well described in the concept of abnormal illness behaviour. Unfortunately, the handicap that proceeds from an illness depends on the illness behaviour. In his case, he has very little awareness of the whole complicated process generating the abnormality of his illness behaviour and indeed of the frank psychiatric symptoms of anxiety and depression which he suffers.
(Page 16)
- There is further room for improvement and his antidepressant treatment is at a relatively early stage. Were I treating Mr Della Maddalena I would pursue the treatment somewhat more intensively. In view of his perception of the situation, however, I would still be very cautious about the possibility of ever achieving a work rehabilitation and I think it is very unlikely, whatever happens, that he will achieve his previous capacity, or indeed any work capacity in the future. This is because of the heavy degree of somatisation leading to physical symptoms, which may well persist even if the anxiety and depressive symptoms which underlie them are removed. The various individual and cultural factors will, of course, not be removed by treatment." (AB 647-8)
37 Dr Skerritt's evidence was to the same effect.
38 In contrast to Professor German and Dr Skerritt, Dr Febbo was a much less experienced psychiatrist. I say that without intending the slightest disrespect to Dr Febbo but simply to record the fact that as at the trial, he had been a specialist in that field for three years, albeit a psychiatric registrar for some years previously (AB 441).
39 Dr Febbo reviewed the appellant for the respondent's insurers on 3 and 26 November 1996. Dr Febbo said in his evidence that he conducted two interviews because the first was not completed and he wanted to reconfirm his view formed during that earlier interview (AB 420).
40 Another reason given by Dr Febbo for seeing a person twice was that:
"you might be seeing someone on a bad day or a good day, and that sort of removes that particular problem too." (AB 420)
41 It may be noted that this probably was a problem in the appellant's case. On the day before the second interview (Dr Febbo seemed unsure which but thought it was probably the second) the appellant had been to the funeral of one of his friends who was an asbestosis victim. Before leaving the cemetery at Karrakatta, the appellant had purchased for himself a grave site adjacent to his brother's grave.
42 Professor German referred to this in two of his reports. In the report of 16 October 1998, he said it reflected the appellant's "acceptance of inevitability": that is, the inevitability of his death from asbestosis.
(Page 17)
43 It seems, therefore that the appellant was in a particularly low state when he saw Dr Febbo on (probably) the second occasion.
44 Dr Febbo reported to the respondents' solicitors on 23 December 1996. In his report, he summarised the history to the appellant's physical and psychiatric problems, as the appellant described them. This included the following:
"Mr Della Maddalena said that he experiences pain on both sides of his chest. He said that the pain is present continuously but 'worse when the weather changes'. He added that, 'If I start doing something, the pleural plaque rubs against the ribs and I get more pain'. He said that although the pain is present all the time, it is made worse by learning forward. He went to say, 'I am not doing anything because of pain'. In addition he said that on doing minor tasks he starts 'puffing, sweating and getting out of breath'.
Mr Della Maddalena said that he first experienced shortness of breath in 1988 while he was helping lay a footpath. He then said that his condition has gradually deteriorated to the point that he is now significantly incapacitated. For example, he is unable to go to the football because he cannot walk from the car park to the field. He said, 'It is two years of not going to the football'. He added that he has ceased other activities such as fishing because, although he used to enjoy it, he now gets tired 'casting and walking backwards and forwards'. He believed that his asbestosis was very severe and said, 'Once they say it is the end of the line, it's too late' and, 'It can only get worse'. On this point he said, 'I saw my brother, he collapsed, there was nothing left. He ended up one and a half years sitting in a chair'. (I understand that Mr Della Maddalena's brother died from asbestosis in 1988.)
In terms of psychiatric and psychological issues, Mr Della Maddalena said that he still enjoys watching football on television with his wife and children. He said that his sleep is disturbed in that he is 'up and down all night'. He said that he goes to sleep about 1.00 am and then wakes two or three times at night. He said that he is woken by problems with his breathing and 'a dry throat'. In terms of concentration he said that he is able to read the newspaper but thought that he was unable to retain as much information as he could in the past. He
(Page 18)
- said that he was able to follow television programmes. At this point Mr Della Maddalena said, indicating that he felt constantly tired, 'I was doing two jobs, now I can't even do my gardening'. He said that his eating and appetite depends on his mood but that his weight has gone up by about 5 kg. He expressed some guilt 'because I can not look after my family' and added 'I was looking forward to looking after my family' and then compared his situation to an Italian expression that translates as 'I have made the bird-cage, but the bird has died'. He said that he becomes teary about 2-3 times a week and also described some irritability saying, 'I get nervous sometimes'. He said that he saw no particular future because of his physical condition, and then he went on to say, 'Yesterday I bought a plot of land in Karrakatta, next to my brother'. Mr Della Maddalena did not describe significant somatic symptoms of anxiety.
…
… he started working for what is now Alinta Gas in 1968. He said that he worked continuously until September of last year, having been there for 27 years. He said that he enjoyed his work with Alinta Gas but had to stop work because of physical problems related to the asbestosis. He said, 'I couldn't dig a trench, I had to come up to breathe, there was pain in the chest when I was digging'.
Mr Della Maddalena married in 1967 after returning from Wittenoom. He and his wife have two sons in their mid to late 20's. He said that his wife has worked for the last 11 years at the Re Store but that she is 'now thinking of leaving work to stay home and look after me', and then said again 'If I try to do anything, like gardening, I get breathless, start sweating'.
…
I believe that Mr Della Maddalena's view of his physical state is critical in understanding his presentation and particularly the level of incapacity he described. My psychiatric interview certainly revealed a number of depressive symptoms and, from the history given, they probably reach the level required for a Major Depression according to the Diagnostic and Statistical Manual of Mental Disorders 4th edn (DSM IV). Mr Della Maddalena was probably predisposed to the
(Page 19)
- development of this disorder and I note the family history of psychiatric disorder. However, when one considers my findings on mental state examination, which are certainly not in keeping with a severe depression, the severity of this disorder falls far short of that required to explain the high level of incapacity described by Mr Della Maddalena. It is my view that Mr Della Maddalena has, in fact, for the reasons I mentioned earlier, adopted the sick role to a much greater degree than can be explained by his Depression or, from reading the documentation you provided, by his physical status. Dr Gidley touches on this in the second last paragraph of his letter to Slater Gordon dated 31/8/95 where he states, 'Following proposed retirement from work, his plan was to avoid undue physical activity and to develop a more relaxed lifestyle, which he believed would provide the optimum circumstances for slowing down the progression of his lung disease'. Although Dr Gidley may have concurred with this view, Mr Della Maddalena has taken this point to somewhat of an extreme.
Unfortunately, because Mr Della Maddalena's level of incapacity relates to more complex factors than simply a diagnosis of Major Depression, I am not optimistic about his response to medication and, indeed, I note that this has been minimal in the past.
…
From his history, it seems that Mr Della Maddalena started developing depressive symptoms, followed by an escalating level of incapacity, after he experienced physical symptoms while working for Alinta Gas and after the death from asbestosis of various people to whom he had been close.
…
This is a complex issue. Certainly Mr Della Maddalena's level of incapacity was the major cause of his retirement. However, only part of this incapacity can be explained by his Depression." (AB 689-693)
45 Dr Febbo gave evidence in which he was asked to explain and clarify his reports. In essence, he confirmed the views he had expressed.
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46 It may be noted that Dr Febbo said the appellant had "adopted the sick role" to a greater degree than could be explained by his depression of his "physical status". However, Dr Febbo said also that the appellant had not described "significant somatic symptoms of anxiety".
47 Although Dr Febbo was not cross-examined on this aspect of his report, it seems he did not at that stage consider whether the appellant's reported pain and breathlessness might have resulted from what Professor German diagnosed later as a "severe chronic anxiety state", to which his depression was secondary: see Professor German's report of 18 October 1988 to which I have referred above.
48 As Dr Skerritt said in his report of 16 January 2001 (also referred to above) many of the appellant's respiratory system symptoms were "consequent on severe anxiety".
49 Dr Febbo did refer to this issue in later reports, but after he had formed an adverse view about the appellant's credibility, following his consideration of the surveillance evidence.
The surveillance evidence
50 The psychiatrists were shown video recordings of the appellant made in the course of covert surveillance carried out by Mr Alan Gordon Dyer, an enquiry agent instructed by the respondents. Mr Dyer, who gave evidence at the trial, carried out about 150 hours of surveillance between February 1997 and July 2001. His video recording consisted of a series of short observations amounting to some 82 minutes in total.
51 In the main, the recording showed the appellant standing, walking and driving motor vehicles. However, on two occasions he was seen digging for a short time, apparently in the course of maintaining a reticulation system. He was also seen lifting a refrigerator into a rubbish bin, with the assistance of another man, pulling a wheelbarrow and loading some materials into a trailer.
52 Neither Professor German nor Dr Skerritt regarded this evidence as significant. Dr Skerritt, in a letter dated 2 April 2001 to the respondents' solicitors, said:
"This film was as unimpressive as I have ever seen." (AB 649)
53 After summarising the appellant's activities shown on the recording, Dr Skerritt said:
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- "None of this is inconsistent with a man with moderate respiratory distress, which is what Mr Della Maddalena believes himself to be. Nor does it seem to be particularly inconsistent with the descriptions that he gave to my colleagues. None of the behaviour on film has any relevance whatsoever to his psychiatric symptoms as described." (AB 649)
54 Professor German, in a letter dated 5 July 2001 to the appellant's solicitors, said:
"I do not think there was anything in these video passages that sheds any light on his fundamental mental state and the state of mind which I have described in my previous reports." (AB 641)
55 Dr Febbo took a different view. He wrote to the respondents' solicitors on 31 August 2000, saying:
" … assuming that there had not been a considerable improvement in Mr Della Maddalena's condition between the time of my assessment and the time over which the video surveillance tapes were filmed, I am unable to reconcile what I observed on the tapes with the history with which I was provided during those interviews in 1996.
…
I have considerable concerns about the veracity of the history with which I was provided in relation to Mr Della Maddalena's ability to undertake physical activities, and it follows that the history with which I was provided in relation to symptoms, both physical and psychiatric, also raises concern in relation to veracity. As I have said in my report, my mental state examination findings did not indicate any impairment and, in arriving at a psychiatric diagnosis, the history is of course critical. I can no longer hold the opinion I expressed in my report dated 23 December 1996 with an acceptable degree of certainty. (AB 687)
56 Dr Febbo did not mention his concerns to the appellant when he saw him in January 2001, after viewing the video recordings. However, in a report dated 16 April 2001, Dr Febbo said the appellant had told him he was able to do less in the way of physical activity in January 2001 than in 1996.
(Page 22)
57 In his evidence, Dr Febbo said:
"The video material really worries me. It really, really, worries me because I remember my own emotional response when I saw it. I was very much surprised to the point that I felt that the diagnosis I had made was – lacked substance. So I'd have to say that I have concerns about his veracity, concerns about the reliability of the history and because of that I'd be unwilling to make a diagnosis." (AB 455) (my emphasis)
58 However, Dr Febbo appeared to accept, in the following part of his evidence, that the appellant had "significant depressive symptoms":
"Well, I mean, he still had significant depressive symptoms. He was on an antidepressant, Aropax. I mean, consideration could be given to increasing that antidepressant. I mean, he's still not on the maximum dose of Aropax. Then if there's no response to that medication, perhaps the use another one, so there could still be some improvement in his depressive symptoms per se." (AB 451-2)
The trial Judge's conclusions
59 The trial Judge regarded the video recordings as significant. He said:
"Having closely watched the video tapes I am satisfied that they demonstrate that the (appellant) is capable of a much greater level of activity than that claimed by him. Against this background I find the views of Dr Skerritt and Professor German puzzling."
60 The Judge went on to refer to "the instruction" given by the appellant to Mr Burns and Dr Penman, that he felt guilty about the death of his brother Walter. His Honour appears to have regarded this as reflecting adversely on the appellant's credibility, because if he had spoken in those terms to Mr Burns and Dr Penman, he could not have been truthful. That is because Walter came to Australia well before the appellant, who had no part in bringing him to Wittenoom.
61 There was a further credibility issue which the Judge regarded as significant. Both Professor German and Dr Skerritt apparently relied on the appellant's assertion that he had first experienced breathlessness after Walter's death in 1988. The Judge did not accept that. He noted that the records of the Perth Chest Clinic: "establish beyond doubt that he
(Page 23)
- complained of breathlessness many years before the death of his brother and of course he continued to work, notwithstanding those complaints" (AB 38).
62 The Judge went on to say that much of the appellant's history involved complaints of a subjective nature, involving symptoms such as pain, sleeplessness, lack of energy, loss of appetite, anxious and depressive thoughts and a pre-occupation with death. A finding that the appellant had these symptoms must therefore depend on his reliability as a witness. As the Judge said:
"All the psychiatrists who gave evidence accepted that in forming their opinions they were dependent upon what the (appellant) told them. Even Professor German, who was perhaps more reluctant than others agreed that an accurate history was important." (AB 39)
- His Honour continued:
"In my opinion the absence of any objective evidence to support the (appellant's) complaints in this case is a real cause for concern. In addition, in my view, the evidence of the video tapes, the results of the lung function tests, the notes from the Chest Clinic and the evidence of inaccuracies in the history given by the (appellant) concerning the death of his brother and the onset of symptoms of breathlessness add weight to that concern. Against this background the conclusion to which I have come is that the opinion of Dr Febbo is to be preferred. In my view the (appellant) has not established that he has suffered any psychiatric injury." (AB 39)
The grounds of appeal
64 There are 17 grounds of appeal. However, the first simply sets out some background facts relating to the appellant which, it is said, were not in dispute at the trial. I have included references to these matters earlier in these reasons and need not repeat them.
65 In fact, there was one small issue. The records of the Perth Chest Clinic show the appellant's year of birth as 1941 and not 1943. There was no explanation for that. The appellant denied in cross-examination that he had given his employers at Wittenoom a false birth date in order to assist him in securing employment. The appellant said that at the time he was
(Page 24)
- unable to speak English (AB 85). This seems to me to be the most likely explanation for the error in his records. In any event, this is not a matter to which the trial Judge referred in considering the appellant's credibility. It may therefore be assumed that the Judge believed the mis-statement was due to error or misunderstanding and placed no weight on it.
66 The remaining grounds overlap to a considerable extent.
67 In ground 2 (which I shall set out in full below) the appellant challenges the Judge's finding that "the claim that (the appellant) now suffers from breathlessness and chest pain should not be accepted". As I have noted above, that finding was made in the context of his Honour's consideration of the claim that the appellant had suffered respiratory degeneration, pain and breathlessness.
68 In relation to that matter, the Judge referred in the following passage of his reasons to the appellant's evidence that he had not suffered from breathlessness until after his brother died in 1988:
"The plaintiff made it very clear in his evidence that he did not suffer from breathlessness until after his brother died in 1988. He said in evidence in chief that while the death of his brother caused him to worry that he might meet a similar fate he was not suffering any other symptoms at that stage. This was confirmed a little later in his evidence when he said that it was just after 1990 that he started getting short of breath when doing work which required a lot of bending down and digging. In cross-examination he was asked and said:
'The breathlessness, when do you become breathless?---That's after 1990 I think.
After 1990, that was the first time you experience breathlessness?---Yes.
When was the first time you experienced this pain in your chest or the back area you have mentioned?---In the same – same time.
So the first time that you complained about chest pain and breathlessness was in 1990 is that right?---Yes around there 1990.
That's your evidence?---That's my evidence.
(Page 25)
- And you didn't experience those symptoms before your brother died?---No.
You were fit and healthy before then?---Yes'." (AB 24)
- His Honour continued:
"Despite the firmness with which this evidence was given the fact is that the records of the Perth Chest Clinic disclose that the plaintiff complained of shortness of breath and chest pain as early as 1968 and that he continued to complain regularly thereafter. The clinic's notes dated 17 April 1968 read in part:
'… volunteers because he is dyspnoeic on exertion especially at work.'
The noted dated 29 April 1971 reads:
'Keeps quite well though dyspnoeic.'
The entry dated 29 October 1977 reads in part:
'… occasional chest pain.'
That for the 14 May 1979 reads:
'Pain left side of chest.'
The note dated 2 June 1983 appears to read in part:
'SOB upstairs.'
SOB stands for 'shortness of breath'.
The note dated 16 March 1987 also refers to shortness of breath when climbing stairs.
It is clear that the plaintiff has been complaining of breathlessness and chest pain for a very long time and yet he continued to work as a gas faults man until 1995 sometimes engaging in very strenuous physical activities. Against this background and the objective evidence of the video tapes and the lung function tests I have concluded that the claim that he now suffers from breathlessness and chest pain should not be accepted." (AB 25)
(Page 26)
69 In my view, three points arise from that passage in his Honour's reasons. First, I do not think, with respect, that he was justified in finding that the appellant "complained" about breathlessness and chest pain before 1989. The records of the Perth Chest Clinic do not record complaints: only symptoms, presumably described in response to enquiry. The appellant did not attend the Clinic because he wanted to complain: only for an (approximately) annual check. It was not until some time before 1980, that the appellant became aware that his exposure to asbestos might have been dangerous (AB 64).
70 Secondly, there is no suggestion that the appellant had difficulty with his work until after 1988. He said that although in 1985, the doctor at the chest clinic told him he had "a bit of asbestosis", he felt fit and strong and carried on with his work without thinking about it (AB 66).
71 Thirdly, the notes from the Chest Clinic for the years 1970, 1972, 1973, 1975, 1976, 1981, 1985 and 1988 all referred to the appellant as keeping well or keeping fit. On 31 March 1989 – the last entry – the note records "Has not suffered" (AB 548-551).
72 Although there are regular references in the notes to the appellant being worried about his exposure to asbestos, it seems that he made no real complaint about his symptoms until 1989, when he consulted Dr Delieul. It is to be inferred from Dr Delieul's evidence that the appellant was referred to him by the Asbestos Disease Society (AB 325).
73 The Judge's ultimate finding in relation to breathlessness and chest pains was as follows:
"It is clear that (the appellant) has been complaining of breathlessness and chest pain for a very long time and yet he continued to work as a gas faults man until 1995 sometimes engaging in very strenuous physical activities. Against this background and the objective evidence of the videotapes and the lung function tests I have concluded that the claim that he now suffers from breathlessness and chest pain should not be accepted."
74 For the reasons set out above, I do not think the finding that the appellant had been complaining was justified on the evidence. It is therefore necessary to consider the significance of the video evidence. The lung function tests, are not significant because as I have noted above, Professor Musk's opinion that the appellant's symptoms could not be
(Page 27)
- explained by the extent of his physical degeneration was shared by all the respiratory physicians who gave evidence at trial.
75 Insofar as the Judge's adverse credibility findings are based on the video recordings, they are challenged in grounds 2 and 9.
76 Ground 2 is in the following terms:
"The learned trial Judge erred in fact and law in finding that the Appellant did not suffer from chest pain and breathlessness either directly or indirectly as a result of his exposure to asbestos. The learned trial Judge should have accepted the evidence of the appellant and objective evidence from other experts that he did suffer from such symptoms."
77 The following particulars are relied on:
"a. Professor Musk was of the opinion that the activity in which the video showed the Appellant engaging was consistently within what he would expect from a person with the Appellant's condition (AB 594). The learned trial judge should have accepted this evidence.
b. The Appellant was the subject of 150 hours of surveillance over a period of more than 4 years, from 7 February 1997 until 24 May 2001; (see AB 475B, 493B, 501D, 514E, 524A, 530A). The sum total of video evidence captured was 82 minutes (AB 541E) and the vast majority of the footage shows the Appellant engaged in very low level physical activity. It was not the Appellant's case that he was incapable of such activity.
c. The video evidence was equivocal, was given undue weight, and establishes no more than that the Appellant was capable of fairly limited activity on some specific occasions.
d. The video, viewed objectively, does not provide support for the conclusions reached by the learned trial judge. The learned trial judge should have accepted the Appellant's evidence and the evidence of the expert witnesses to the effect that the Appellant did suffer from the symptoms in question."
(Page 28)
78 Although this ground refers to "objective evidence from other experts", there was no truly objective evidence that the appellant did suffer from breathlessness and chest pain as he claimed. The fact that the appellant's activities were consistent with those which could be performed by a man who suffered breathlessness on exertion did not prove, of itself, that the appellant would become breathless if he exerted himself to a sufficient degree. In short, the evidence was equivocal.
79 It is, I think, to be implied from the trial Judge's reasons that he would have accepted Professor German's diagnosis (and therefore his assessment that the appellant was credible and genuine) but for his Honour's perception that there was inconsistency between the appellant's activities as shown on the video recordings and as described to his doctors.
80 The Judge's finding of inconsistency arising from the video recordings is challenged more specifically in ground 9, which is as follows:
"The learned trial Judge erred in fact and law in finding that the video evidence was substantially inconsistent with the levels of physical capability the Appellant described to his doctors. The video evidence was equivocal, given undue weight, and established no more than that the Appellant was capable of fairly limited activity on certain specific occasions. There were no relevant or significant inconsistencies between the activities shown on the video and the Appellant's history and psychiatric condition as diagnosed by Professor German and Dr Skerritt. To the extent that inconsistencies do exist between the video footage and the histories given by the Appellant, these inconsistencies are insignificant and do not provide adequate basis for the findings which the learned trial judge based on them. On proper viewing, the video evidence does not support the conclusion reached by the learned trial judge."
- Particulars are given, which are substantially the same as those provided in relation to ground 2. It will therefore be convenient to deal with these grounds together.
81 Although ground 9 refers to an error "in fact and law", the appellant's complaint can be referable only to an error of fact: that the trial Judge was wrong to conclude that the appellant's activities as shown in the video recordings were inconsistent with the degree of disability as described to the various medical practitioners.
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82 Although the trial Judge said he was satisfied that the video recordings showed the appellant was capable of a much greater level of activity than he had claimed, his Honour did not give any reasons for reaching that conclusion.
83 With all respect to his Honour, this was a serious omission. As the Court said in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, at par [27] to par [30]:
"Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the Judge "must enter into the issues canvassed before him and explain why he or she prefers one case over the other": Flannery, at 382.
Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444.
(Page 30)
- Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell, unreported; CCA SCt of NSW; 23 December 1998. Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve. In Maxwell, a delay of the order of 10 months was said to have been 'such as to require a more comprehensive statement of the evidence than would normally be required in order to manifest, for the parties and the public, that the delay has not affected the decision': at 25, per Spigelman CJ, Sperling and Hidden JJ."
84 In the present case, judgment was reserved for a little over eight months. That is an unacceptably long delay, particularly in a case of this kind, where much may depend on the Judge's impression of a plaintiff. With the passage of time and the need to deal with many other cases in the interim, such an impression is likely to fade significantly.
85 Despite that reservation, I consider this to be a case in which it is not necessary to order a re-trial. That is because the Court is in as good a position as the trial Judge to assess the evidence, and to analyse the video recordings in the light of the appellant's history as he described it to his doctors.
86 In so doing, it is necessary to have regard to Professor German's opinion (which was not challenged) that the appellant's mental state fluctuated: that he could be distracted from his anxiety and that when his "morbid and tearful trains of thought" were disrupted, he had the potential to find pleasure in simple things. Further, the appellant told Professor German that he gained some relief from Aropax, the anti-depressant medication which had been prescribed for him.
87 In these circumstances, I do not think it appropriate to compare the appellant's activities as shown on the video recordings with everything he had ever said to the doctors who had examined him. In my view, the better approach is to compare the appellant's description of his symptoms at or as close as possible to the relevant periods of surveillance.
(Page 31)
88 As I have noted, surveillance was carried out at intervals between February 1997 and July 2001, although there was no surveillance between 17 November 1999 and 25 May 2001 (AB 525-9). The first medical practitioner to see the appellant in the relevant period was Dr Penman, whom the appellant consulted on 9 September 1997.
89 The video recording shows that on 1 September 1997, the appellant went to a BBC Hardware store in the early part of the morning. He then went to a house in Walter Road, Dianella owned by his son and brother-in-law where he checked a meter box and removed items from his vehicle which he took inside. He returned home at 10 am. At 10:17 am, the appellant left and went to his brother-in-law's house in Noranda.
90 In cross-examination, the appellant said he had bought a washer for a tap or water sprinkler at the BBC Hardware store and that at the house in Dianella he had probably fixed a tap. He said the items he had taken out of his vehicle would have been a box with some spanners or a bucket and a mop.
91 On 2 September 1997, the appellant was observed driving to a residential building site at 22 Flinders Street, Yokine, a property owned by his son.
92 On 10 September 1997, the appellant was observed attending a Bunnings hardware store where he bought reticulation piping which, a little later that day, he was seen to remove from his car at 22 Flinders Street, Yokine, a house owned by his son. On the following day, the appellant was seen at 22 Flinders Street where brick paving was being carried out, apparently by tradesmen. The appellant left in his car, attended the Asbestos Diseases Society for a short period and then went to the Italian Club where he spent at least four hours.
93 On 19 September 1997, the appellant left his house at 9.20 am and went to 22 Flinders Street where he was seen pushing a wheelbarrow. It was alleged that he had removed bricks from the premises but this could not be seen in the video. In his cross-examination, the appellant denied that the wheelbarrow contained anything other than a light box or boxes.
94 At 10.15 am the appellant went to the Middle Swan Trading Store at Bayswater. He left at 10.51 am and went to his Aunt's house in East Perth for a short time. He then went to a friend's house in Noranda which he left at 11.27 am and returned home.
(Page 32)
95 At 11.53 am the appellant left his home and went to the Italian Club. He was there for about an hour before surveillance ceased. The appellant agreed in cross-examination that it had been a busy day.
96 On 20 September 1997, the appellant was seen to arrive at 22 Flinders Street, at 9.21 am, where he removed some materials from his vehicle. He then walked to the Dog Swamp Shopping Centre. As Mr Dyer said in his evidence, that was a very short distance, being virtually opposite the property at 22 Flinders Street (AB 491). The appellant returned to the premises which he left shortly afterwards. He then went to the Asbestosis Diseases Society, where he arrived at 9.33 am. He remained there until 10 am when the surveillance ceased.
97 The surveillance was resumed at 1.15 pm at the appellant's home. He left at 1.45 pm when he drove his wife to the Noranda Square Shopping Centre. The appellant remained in the vehicle while his wife was shopping.
98 As I have noted above, on 9 September 1997 the appellant attended on Dr Penman having been referred by Dr Deleuil. Dr Penman reported on 16 September 1997 (AB 563). He said:
"Over the past two years (the appellant) has become increasingly frustrated as he is not able to do the things that he used to because of his breathing and pain. To make matters worse his wife had threatened to leave him because he wasn't doing the things that he used to do and she initially found it difficult to believe him. However, this has changed and she stopped work at Easter 1997 to be with him more."
99 A little later in his report, Dr Penman said, in relation to the appellant's mental state and mood:
"He feels down in his mood particularly when he wants to do something and cannot as he was such a handyman in the past. It feels 'like a ton of bricks on me'. …"
100 Dr Penman's diagnosis was that the appellant had symptoms of depression and particularly of anxiety relating to his asbestosis.
101 In his evidence, Dr Penman was asked whether the appellant had given any examples of his inability to do things he had been able to do previously. Dr Penman said:
(Page 33)
- "One of the things that he couldn't do is walk very far, including going to watch the footy which he used to do before. He now watched it on television. It interfered with his ability to do his work, particularly where it was initially physical work, bending at work, and it affected his ability to relate with his wife." (AB 221)
102 In relation to the appellant's mood, Dr Penman said his report had been based on his notes which, relevantly, read:
"Down, when he wanted to go out and can't. He was such a handyman. 'It's like a ton of bricks.' Thinks would rather be dead a lot of the time, especially after he reads someone has died of asbestosis and he's got to go through the pain."
103 In my view, the extent of the appellant's lack of capacity to carry out work is not entirely clear from Dr Penman's reports and evidence. However, I do not understand Dr Penman to have reported a claim by the appellant of an inability to do anything: rather, a complaint that he was unable to work or undertake any handyman-type activities to the extent he could previously.
104 The appellant saw Professor Musk on 5 November 1997. According to Professor Musk's report of that date, the appellant complained that his breathlessness had increased and that he could only walk about 200 metres before slowing down. The appellant told Professor Musk that he walked about half a kilometre in about 20 minutes to the shops every morning but stopped when he arrived because of breathlessness and tiredness. The appellant said he had a cough. He complained also of general tiredness and sweating on exertion. He complained of pains across his lower chest posteriorly which were unrelated to exertion and worse on bending forwards (AB 589).
105 Just over one month later, on 9 December 1997 the appellant was observed arriving at a property in Palmerston Street, North Perth, owned by his wife, brother and sister. He was observed to be on a ladder carrying out some maintenance to the guttering or eaves.
106 Then on 11 December, the appellant was seen attending at a BBC Hardware store and then at 2 Kiddie Street, Morley, owned by his son. The appellant was there seen carrying out some maintenance to a reticulation system, including some shallow digging.
(Page 34)
107 In cross-examination, the appellant said he had carried out the work for his son and that "Even if I feel crook after, I'll do it for me family" (AB 153). The appellant said that afterwards he had felt "crook" and that "all the time I do things, afterwards I feel crook" (AB 151).
108 Moving forward to 1998: the appellant was observed on 13 March collecting a trailer from 182 Widgee Road, Noranda, his brother-in-law's house. The appellant later placed a stove and some copper and plastic piping into the trailer and went to a friend's house at 157 Flinders Street, Yokine. He left with another male person and went to 216 Flinders Street, where he unloaded the trailer. Later, the appellant returned to 157 Flinders Street, where he lifted a mower into the trailer.
109 Some two weeks later, at the end of March or on 1 April, the appellant attended Professor German for the first time, having been referred by Dr Deleuil.
110 Professor German reported on 1 April 1998 that the appellant had described his symptoms as including "dyspnoeic [ie breathless] on exertion, feels chronically fatigued and experiences intercostal pain around the costal margin. In addition, he shows characteristic symptoms of significant depression. His sleep is disturbed with early morning awakening. When he tries to do something which he at one time could do he becomes extremely anxious and agitated and trembles …" (AB 631).
111 Professor German said it was not clear whether the appellant had derived any benefit from the antidepressant Zoloft. He advised strongly that the appellant change to Aropax. It is, I think, significant that when Professor Musk saw the appellant on 16 September 1998, the appellant said he had been "not too bad" but "not doing much" and had been feeling better since he retired from work. Professor Musk reported that the appellant had been taking the antidepressants supervised by Professor German "and feels that these have helped".
112 On 17 March 1999, the appellant was reviewed by Dr Richard Andrew Tarala, a respiratory physician. In his report of 23 April 1999, Dr Tarala said the appellant had reported feeling tired and breathless and that he had felt more breathless during the past three or four months. The appellant told Dr Tarala that he was unable to breathe when bending down to his shoes and that he continued to have dizziness and pain in his chest with breathing (AB 668).
113 A week later, on 23 March 1999, the appellant was observed pushing a trolley containing an old washing machine to a rubbish bin on the verge
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- outside 46 Camboon Road, Morley, a house belonging to a friend. He was seen lifting an old hot water system and a washing machine into the bin.
114 In his cross-examination, the appellant said he had gone to help his friend at his request. The appellant said he could not refuse:
"It doesn't matter even if I feel sick I'm the type of person always got the heart in the right place." (AB 114)
115 The appellant said it was the kind of thing he could do once but not all day: hence his problem with work.
116 On 16 November 1999, between 10.06 and 10.30 am, the appellant was observed at the Kiddie Street property checking the reticulation. He was bending and crouching and, for a few minutes, using a shovel to do some shallow digging in the lawn.
117 There was no medical examination proximate to 16 November 1999. The next examination was on 23 February 2000, by Dr Julian Lee, a thoracic physician. In his report dated 23 March 2000, Dr Lee said of the appellant:
"He has not been able to dance for seven years and apart from watering the garden he claims not to be able to undertake any form of physical activity." (AB 658)
- Dr Lee was asked about this report in his examination-in-chief. He referred to the notes he had made during the examination where he had recorded:
" … says he doesn't or wasn't able to go to the Italian Club anymore and that for more than one year all he had done in terms of activities was water the garden." (AB 366)
This evidence was not challenged in cross-examination. However, I regard it as being of doubtful value. To say that a man is incapable of any form of physical activity is to classify him as a vegetable, which clearly the appellant was not. Further, without knowing the question which prompted the answer that "all" the appellant had done was to water the garden, that answer is of little weight.
118 As I have noted above, in October 2000, the appellant told Professor German that occasionally, he worked around his and his son's home. He did so sporadically and became very tired.
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119 The video surveillance did not commence until after the appellant had seen Dr Febbo in November 1996. The occasions on which the appellant was seen digging were approximately one and two years later respectively. In November 1996, the appellant told Dr Febbo "I am not doing anything because of pain". In addition, the appellant said that when he undertook minor tasks he would start "puffing, sweating and getting out of breath" (AB 689).
120 Then in January 2001, the appellant told Dr Febbo that he was unable to "do anything" to fix a house his son had purchased recently.
121 In my view, the appellant's statement that he was not doing "anything", should be regarded as a figure of speech: not a literal statement. The appellant had retired from the workforce some 10 months earlier and led a life in which he exerted himself very little. His activities were limited by the pain he experienced when he tried to exert himself.
122 For that reason, and in that sense, the appellant was not doing anything: that is, he was not engaging in regular activity. I think his inability to "do anything" to fix his son's house probably reflected a comparison between his then current level of ability and his previous capability as a hard-working jack of all trades (as the appellant described himself).
123 Alternatively, the appellant's statement that he was unable to do anything may have been a reflection of his low state at the time. That was the explanation he gave in cross-examination, for a similar statement he made to Dr Tarala in August 1996 (AB 132).
124 From my analysis of the video recordings, it appears that during the entire period of the surveillance, the appellant's activities were minimal. He exerted himself very little: and on the only occasions when he exerted himself to a greater extent – the two digging incidents – he did so for only a short time. There was much standing and moving slowly about.
125 It must, I think, be kept in mind that the appellant's activities were not limited by his physical condition, but by his perception of his condition. Given a fluctuating mood, and a capacity to be distracted from his morbid thoughts, it is not surprising that he occasionally undertook tasks which at other times he would not feel able to tackle.
126 It should not be overlooked that Dr Febbo's report of 31 August 2000, written after he had viewed the video recordings made between 1977 and 1999, must have been based on the impression he had formed of
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- the appellant nearly four years earlier. In the intervening period, the appellant had been under the care of Professor German. He had been taking Aropax, from which he derived some benefit, as he did from his consultations with Professor German.
127 Furthermore, (and this is relevant to ground 2 above) there were no inconsistencies between the appellant's evidence and the video recordings.
128 In his evidence, the appellant claimed a loss of interest in sexual activity and an inability to walk from his car to the football ground, to play darts, to play bocce, to go dancing at the Italian Club, to mow the lawn or to carry out household painting. Further, the appellant said he could no longer fish from the beach: that his fishing activities were confined to sitting on a chair near the water at Mandurah – close to where he had parked his car – and dropping a line into the water from a short rod. None of this was contradicted by the video evidence.
129 The appellant gave evidence also about the way he spent his time. He said "Just lazing around the house" (AB 79).
130 When asked whether he did any kind of work about the house or on his son's house or houses, the appellant said he might change a washer on a leaking tap or fix a sprinkler: "little things" (AB 79).
131 A little later in his evidence, the appellant said that before he became unwell his friends referred to him as a jack of all trades and would ask him to help them at the weekends. But now, the appellant said, "I can hardly do anything" (AB 82).
132 The appellant was asked in cross-examination about the extent of his ability to undertake physical work. He said he experienced significant difficulty when actually carrying out work and that the limit of his endurance was "10 minutes, half an hour" (AB 92). The appellant said that when he carried out any work he would start sweating and experience pains in his chest and breathlessness. He said he would try to avoid physical activity in order to prevent the pain, sweating and breathlessness. But although his family and friends were aware of his problem they would sometimes come and ask if he would help them. He said "If I feel like it, I may be give a hand. If I don't feel like it, I don't give them a hand" (AB 93). When asked to explain why he would not decline requests of this kind he said "Because I used to be a good worker" (AB 93).
133 Later in his cross-examination, the appellant was asked what he had meant when he said he spent his days "lazing around the house".
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- Although he explained that expression as meaning "sitting around all day … do nothing" (AB 100), the appellant said that he might go shopping with his wife to keep her company. This would involve driving the car and walking around the shops.
134 In addition, the appellant said he would go to the Italian Club and play cards or talk to his friends there. It may be noted that Professor German had encouraged the appellant to visit the Italian club.
135 The appellant said he would fix a leaking tap for himself or for his son or for the tenants of properties owned by his son and his wife. In addition, the appellant said he would fix a sprinkler in a reticulation system. This might involve digging around the sprinkler but not "digging down" (AB 102). By this evidence, I understand the appellant to be distinguishing between the kind of light digging required to locate and remove a sprinkler and the kind of digging he was required to undertake in his work as a gas faults man.
136 When questioned further, the appellant said he had done a little maintenance work on a property part-owned by his wife and some gardening for his brother-in-law. This involved "a bit of pruning, a bit of a clean up" (AB 105). The appellant said he could not do anything "really physical" in the way of lifting heavy objects. He said he might be able to lift something: that he would do so on the spur of the moment "and then after I'm buggered … I'll do it, but then I get pain" (AB 106). The appellant said he would do these kinds of jobs because he was not the type of person to lie down. He said again, that he might work for 10 minutes or half an hour but not carrying out what he described as hard work: clearly a reference to his previous employment (AB 107-8).
137 The appellant then gave evidence about his occasional visits to an auction in Fremantle, on his way to visit Mandurah where his son had a house and where his family encouraged him to spend some time relaxing (AB 118). He would drive to and from Mandurah on a regular basis (AB 119).
138 The appellant was then cross-examined about various statements he had made to doctors who had examined him over the years about the extent of his ability to engage in physical activities. For example, the appellant had told Mr Burns he could no longer fish. He explained that he saw Mr Burns before he went to Mandurah and before he engaged in the kind of sedentary fishing he now undertakes occasionally. In addition, the appellant had told Mr Burns he no longer played bocce. The appellant
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- said he was unable to pursue that activity because it involved bending down. When put to him that it was necessary to bend down to repair reticulation he said, in substance, that playing bocce involved games which would last all afternoon (AB 130).
139 My conclusion in relation to grounds 2 and 9 is that the appellant's evidence was internally consistent and was not inconsistent with the video recordings. With all respect to the trial Judge, I do not accept that the video recordings disclose that the appellant was capable of greater activity than he claimed, or than he described to the medical practitioners who examined him. The video recordings therefore provide no basis for doubting the appellant's credibility.
140 Before reaching a conclusion about the trial Judge's credibility findings, it is necessary to consider the other grounds in which challenges are made to those findings. Ground 8 raises an additional matter. Grounds 10 to 15 inclusive also raise credibility issues, but they overlap to such an extent with grounds 8 and 9 that they do not require separate consideration.
141 Ground 8 is in the following terms:
"8. The learned trial judge erred in fact and law in making an adverse finding with regard to the Appellant's credibility.
PARTICULARS
- a. The learned trial judge made an adverse finding with regard to the Appellant's credibility on the basis of an 'absence of objective evidence to support the Plaintiff's complaints' in combination with:
i. The evidence of the video tapes;
ii. the results of the lung function tests;
iii. The notes from the Chest clinic;
iv. Evidence of inaccuracies in the history given by the plaintiff in relation to his brother; and
v. The onset of symptoms of breathlessness.
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- b. these factors do not, in themselves or in combination, provide an adequate basis for such a finding.
c. The evidence suggested that the Appellant was in general a 'hardworking man who had lived a normal and well adjusted life' (AB 26)."
142 The additional matter is that contained in particular a(iv) above, in which the appellant challenges the trial Judge's view that the appellant misinformed Mr Burns and Dr Penman when he said he felt guilty about the death of his brother Walter.
143 The Judge regarded this as significant, because guilt was one of the factors Dr Penman and Mr Burns took into account in diagnosing depression. Although his Honour said that neither Professor German nor Dr Skerritt referred to feelings of guilt on the part of the appellant, that statement was not entirely correct. As will be seen, Professor German did refer to guilt feelings.
144 Mr Burns said in his report dated 19 March 1997 said:
"His [ie, the appellant's] stepbrother, whom he encouraged to come out from Italy and work with him at Wittenoom, died of asbestosis in 1988. (The appellant) continues to remain guilty about exposing his brother to those conditions." (AB 565)
145 Dr Penman, in his report dated 16 September 1997 said of the appellant:
"His stepbrother was 8 years older than himself but he persuaded him to come out to Australia to work at Wittenoom and feels responsible."
- In cross-examination, Dr Penman said the statement was not in his notes but that he probably took it from Mr Burns' report of 21 January 1997 which had been sent to him at the time of referral (AB 220).
146 The evidence was that the appellant had been 8 years old when Walter, who was much older, came to Australia. Thus, if there was any encouragement, it must have been Walter who later encouraged the appellant to come out from Italy and not vice versa. On the appellant's evidence, when he arrived in Australia, Walter was working on a farm, not at Wittenoom. It seems that Walter ceased working there in about 1960.
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147 It was submitted on behalf of the appellant that it is almost inconceivable that he would have told anyone he had encouraged Walter to come out to Australia and work at Wittenoom, or that he felt guilty about Walter's death. Indeed, in his cross-examination, the appellant made it plain that he would not have done. On that basis, it was submitted, the passage in Mr Burns's report must have been the result of a misunderstanding, presumably because of the appellant's inability to express himself clearly in English.
148 It may be noted that in ground 17, it is contended that the trial Judge erred "in fact and law" in failing to give sufficient consideration to the fact that the appellant was not extensively educated and was relatively inarticulate. By way of particulars, the appellant relies on the acknowledgement by Dr Febbo and Dr Skerritt of the appellant's difficulties in speaking English. However, Dr Febbo was bilingual and spoke to the appellant in Italian as well as in English. Professor German said he had no difficulty in communicating with the appellant.
149 The particulars go on to contend that the appellant's lack of fluency in English is obvious from a perusal of the transcript.
150 Having read the transcript, I accept that the appellant was not fluent in English, although it is impossible to determine, from the printed word, whether there was any lack of comprehension on his part.
151 Furthermore, the impression I have is that the appellant is a relatively unsophisticated man: an observation made also by Professor German. Having regard to the appellant's lack of sophistication, I do think it inconceivable that he would have told Dr Penman (apparently alone among the doctors who examined him) that he felt guilty about bringing Walter from Italy.
152 I note that in Professor German's report dated 16 October 1998, there is a reference to the appellant feeling guilty "in bringing some of his friends to Australia" (AB 636). In my view, that was, in all probability, what the appellant was attempting to tell Dr Penman.
153 In the light of my conclusions about the three principal credibility findings made by the trial Judge, I turn to the principal question in the appeal.
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Should the Judge's credibility finding be reversed?
154 The law relating to this issue is clear. It is stated in Fox v Percy (2003) 214 CLR 118 at [66], where McHugh J referred to his joint judgment with Brennan and Gaudron JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. It is in the following terms:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.
155 In Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, Callinan and Heydon JJ referred to the difficulty faced by an appellate court where credibility findings are in issue. At [43], their Honours said:
"'The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. ...
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity,
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- normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."
156 In the present case, the ultimate finding of fact, based on the trial Judge's assessment of the appellant's credibility is set out in the penultimate paragraph of his Honour's reasons. I have set it out above, but will do so again, for convenience:
"In my opinion the absence of any objective evidence to support the plaintiff's complaints in this case is a real cause for concern. In addition, in my view, the evidence of the video tapes, the results of the lung function tests, the notes from the Chest Clinic and the evidence of inaccuracies in the history given by the plaintiff concerning the death of this brother and the onset of symptoms of breathlessness add weight to that concern. Against this background the conclusion to which I have come is that the opinion of Dr Febbo is to be preferred. In my view the plaintiff has not established that he has suffered any psychiatric injury." (AB 39)
157 This finding is based on the appellant's credibility. However, it is a finding in which the appellant's demeanour does not appear to have played any part. I say that for three reasons. First, his Honour made no reference to the appellant's demeanour. Secondly, after so long a delay between trial and judgment, I think it unlikely that the trial Judge would have had sufficient recollection of the appellant's demeanour to justify any credibility findings on that basis. Thirdly, leading counsel for the respondent accepted that the credibility finding did not depend on demeanour, although that was "possibly an element" (TS 65).
158 Thus, the three significant elements of the trial Judge's credibility findings are based to a very large extent – if not exclusively – on an analysis of the recorded evidence.
159 For the reasons set out above, on the basis of my own assessment of the video recordings, and in the absence of reasons given by the trial Judge to explain his view, I consider that his Honour erred in concluding that there was any significant inconsistency between the degree of the appellant's claimed and actual disability.
160 In relation to the onset of symptoms of breathlessness, I consider that the Judge misinterpreted the records of the Perth Chest Clinic and the effect of the appellant's evidence directed to that issue.
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161 In relation to inaccuracies in the history given by the appellant concerning the death of his brother, I consider that the Judge's conclusion was "glaringly improbable".
162 I am therefore drawn to the conclusion that in this case, where credibility findings have been based on what I consider to be, with respect, a misinterpretation of the evidence, this Court is in as good a position as the trial Judge to determine the appellant's credibility for itself.
163 I emphasise that the trial Judge's adverse credibility finding is based only on the three matters to which his Honour referred. I infer that, but for those matters, the Judge would have accepted the appellant's evidence and, in consequence, Professor German's diagnosis and prognosis. This is not, therefore a case in which difficulties arise such as those referred to in Pledge v Roads and Traffic Authority (supra).
164 Further, it should be noted that although the trial Judge came to the conclusion that "the opinion of Dr Febbo is to be preferred", it is not clear, with respect, what Dr Febbo's opinion was. It will be recalled that in the end, having viewed the video recordings, Dr Febbo felt unable to make a diagnosis. But even Dr Febbo appears to have subscribed to the view that the appellant was suffering from depression. His opinion appears to have been that the appellant's symptoms were not as severe as he claimed.
165 In all the circumstances, I consider that the appropriate course would be to set aside the Judge's credibility findings and to substitute a conclusion that the appellant is suffering from a psychiatric injury involving anxiety and depression.
166 It is, of course, necessary for the appellant to prove that the respondents have caused his psychiatric injury. That was put in issue by the respondents in par 5(e) of their amended defence. The question of causation was not argued on the appeal but I do not think it could be said that the appellant's injury was caused by anything other than his exposure to asbestos. Furthermore, it was Professor German's evidence that in the 1960s, it was well known that the possible consequences of exposure to asbestos might lead to a psychiatric condition (AB 295). Professor German maintained his opinion in cross-examination.
167 In my view, the present case has many similarities to Napolitano v CSR Ltd, unreported; SCt of WA (Seaman J); Library No 94087; 30 August 1994. In that case, the plaintiff, who had worked at Wittenoom at about the same time as the appellant, developed a psychiatric illness as a result of his exposure to asbestos. This manifested itself as "a major
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- depressive disorder". Although the plaintiff eventually developed mesothelioma, Seaman J awarded him damages for "a very long period of misery and unhappiness and fear" from 6 October 1989 until 23 March 1994, when the plaintiff was diagnosed as suffering from mesothelioma.
168 As Ipp JA, with whom Handley and Sheller JJA agreed in CSR Ltd v Thompson (2003) 59 NSWLR 77 at 83, Napolitano v CSR Ltd (supra) fell within the class of pure mental trauma recognised by Tame v New South Wales (2002) 211 CLR 317.
169 In all the circumstances and for the reasons set out above, I would set aside the trial Judge's finding and replace it with a finding that the appellant has suffered a psychiatric injury caused by his exposure to asbestos while in the employ of at least one of the respondents at Wittenoom and that his injury was caused by the respondents' negligence.
170 It is to be noted that in the respondent's amended defence, it is admitted that at the material time, the second respondent was the appellant's employer at Wittenoom. It is denied that the first respondent "owned and/or occupied and/or managed the mine and the mill at Wittenoom". It will be necessary for the trial Judge to determine the question of liability of the first respondent.
171 I would remit the matter to the trial Judge for this question to be determined and for damages to be assessed.
172 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with those reasons and have nothing to add.
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