Manly Municipal Council v Skene - [2002] NSWCA 385

NEW SOUTH WALES COURT OF APPEAL

CITATION: Manly Municipal Council v Skene [2002] NSWCA 385

FILE NUMBER(S):
41022/01

HEARING DATE(S): 22/08/02

JUDGMENT DATE: 02/12/2002

PARTIES:
Manly Municipal Council (Appellant)
Cameron Skene (Respondent)

JUDGMENT OF: Heydon JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2652/97
DC 503/94

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
Mr S T White (Appellant)
Mr P Menzies QC/Mr J G Stewart (Respondent)

SOLICITORS:
Phillips Fox (Appellant)
Mark Kennedy & Co (Respondent)

CATCHWORDS:
Tort - negligence - duty of care - breach - damages - quantum - psychiatric damage - whether finding of causal contribution of psychiatric damage to plaintiff's state of being open on the evidence - liability not in issue - ND

LEGISLATION CITED:

DECISION:
The appeal is dismissed. The appellant is to pay the respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41022/01
DC 2652/97
DC 503/94
HEYDON JA
SANTOW JA
2 December 2002

MANLY MUNICIPAL COUNCIL v SKENE

Tort – negligence – duty of care – breach – damages – quantum – psychiatric damage – whether finding of causal contribution of psychiatric damage to plaintiff’s state of being open on the evidence – liability not in issue

The plaintiff was present on a balcony when the balcony collapsed. In District Court proceedings he alleged inter alia that the defendant’s negligence contributed to him suffering psychiatric damage involving depression and other symptoms associated with bipolar disorder. The trial judge found that the defendant owed and had breached a duty of care to the plaintiff, and awarded damages calculated to include the alleged psychiatric damage. He did so on the basis of oral testimony and the written reports of experts who were not called for oral examination. The defendant appealed alleging that the calculation of damages should not have proceeded on the basis that the plaintiff’s psychiatric condition was caused by or contributed to by the fall suffered when the balcony collapsed because the trial judge’s findings of fact as to psychiatric damage were not open on the evidence. The Court was constituted in accordance with s 46A of the Supreme Court Act 1970 (NSW).

Held (Heydon JA, Santow JA agreeing), dismissing the appeal,

It is common in the District Court in cases of personal injury where written expert reports were relied upon by both parties for there to be no cross-examination of expert witnesses. In those circumstances the absence of cross-examination to test experts’ testimony meant that potentially difficult questions resolving apparent conflicts between experts’ testimony may be left to the trial judge. The judge is left to arrive at some conclusion without real assistance from experts who, though they have a much superior background in the relevant discipline, have different and inferior access to factual material and a relatively restricted range of factual assumptions compared to those with which the judge is working. The factual findings in this case were made in these circumstances and did not exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 385
Decision Date: 2 December 2002

CaseChat Overview and Summary

Manly Municipal Council (appellant) appealed a decision of the District Court of New South Wales concerning damages awarded to the respondent, Mr Skene, for psychiatric injury. The appeal concerned the appellant's contention that the trial judge erred in preferring the evidence of the respondent's medical experts over its own, particularly in relation to the causal link between the respondent's fall and his subsequent psychiatric condition. Liability for the fall was not in dispute.

The central legal issue before the Court of Appeal was whether the trial judge was justified in accepting the medical opinions that attributed the respondent's psychiatric deterioration in 1998 to the fall, despite a period of apparent stability between the accident and that deterioration. The appellant argued that the respondent's psychiatric reaction to the fall had resolved by 1994, and that the subsequent decline in 1998, occurring after his physical disabilities had resolved, could not be causally linked to the original incident. This involved a determination of whether the trial judge had made a significant error of primary fact in assessing the respondent's psychiatric symptoms and their progression over time.

The Court of Appeal dismissed the appeal, affirming the trial judge's decision. The Court held that an appellant faces a difficult task in persuading an appellate court to overturn a trial judge's findings of fact, especially when the judgment is carefully reasoned, balanced, and does not exhibit significant error. The Court noted that the appellant's criticism of the respondent's medical experts for failing to explain the link between the 1998 deterioration and the fall might have been addressed through cross-examination, which was not undertaken. Furthermore, the Court found that there was sufficient evidence, including the testimony of the respondent's mother, to support the trial judge's view that the respondent exhibited symptoms of a similar order both shortly after the accident and in 1998, despite the appellant's arguments regarding a period of stability. The Court concluded that the trial judge's assessment of the evidence, including the evaluation of Ms Martin's report and the conflicting expert opinions, was sound.

Orders

Orders of the court

The appeal is dismissed. The appellant is to pay the respondent's costs of the appeal.

Background

Background to the litigation

Finally, the appellant contended that the trial judge should not have preferred the reports of Drs Dent and Parmegiani because:“they did not attempt to grapple with the significant issue that from about 1994 the respondent’s psychiatric reaction to the fall resolved and he was able to engage in the activities set out in paragraph 12 above without apparent difficulty. Further, the emphasis placed by those doctors on the ‘stress’ suffered by the respondent following the fall which is said to have ‘precipitated’ the bipolar disorder likewise cannot be accepted given that from about 1994 the respondent’s psychiatric condition returned to its pre-accident state. No explanation is given as to how after such a lengthy period of stability the respondent’s deterioration in 1998 could be said to be related to the fall. These were matters specifically dealt with by Ms Martin and should have been preferred to the conclusions reached by Drs Dent and Parmegiani. The conclusions reached by Drs Dent and Parmegiani must also be considered in circumstances where by early 1998 the respondent’s physical disabilities had resolved.”The problem of finding disputed facts on the basis of expert evidence not subject to cross-examination This case is typical of those in which parties to personal injury proceedings in the District Court in which significant sums may be at stake and which raise potentially complex issues turning on a contest of well-qualified experts decline to offer the court whatever assistance might be obtained by cross-examination of those experts. The respondent had two medical experts to support his case on the issue which is crucial to the appeal. The appellant had three medical experts to support its. On key aspects they collided. Yet no attempt was made to confront the experts with the collision, to seek explanations for the collision, or to test the colliding opinions. The appellant, for example, criticised Drs Dent and Parmegiani by saying that no “explanation is given as to how after … a lengthy period of stability the respondent’s deterioration in 1998 could be said to be related to the fall”. Had they been cross-examined, they might have had an explanation. And if, on cross-examination, they admitted they had no explanation, the competing body of medical opinion would have been strengthened. In this appeal there were also debates about what particular doctors meant and about what they had or had not assumed which could have been cleared up in cross-examination. To the extent that civil litigation – a law suit – attempts to arrive at a just resolution of the dispute by a rational approach to the underlying facts, it tends towards the irrational that the law suit should be decided on imperfect materials which could have been improved – expert reports having deficiencies, both in their manner of expression and in their being based on a fragmented set of factual assumptions. A trial judge will usually have a much sounder grasp of the evidentiary materials than any medical expert. That is so if only because medical experts – whether they be doctors who were engaged for the purpose of treating the plaintiff or other doctors engaged solely for the purpose of giving evidence about the plaintiff – sometimes see the plaintiff at a relatively early stage and sometimes at much later periods.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In these circumstances an appellant who complains of a particular choice by a trial judge experienced in the field for one body of medical opinion over another, which is expressed in a careful, thoughtful, balanced and detailed judgment not exhibiting any significant error of primary fact or of law and analysing all the relevant evidence, faces, and ought to face, a difficult task in persuading the Court of Appeal to jettison the trial judge’s view and substitute for that view another view. The judgment under appeal is of that character. Consideration of the appellant’s arguments The appellant contended that the trial judge had made a significant error of primary fact in relation to his conclusion that Ms Martin had erred in saying that the respondent’s “social isolation and intermittent difficulties with self care” had not occurred before 1998. The error was said to lie in overlooking passages in Ms Martin’s report revealing awareness of the respondent’s psychiatric condition immediately after the accident. Ten references were given, but only two gave real support to the argument. At paragraph 4.7 Ms Martin said that after the accident the respondent “slept a lot and seemed to have reduced motivation and level of self care. He would not talk about the accident to [his mother].” At paragraph 7.12 this was repeated:“Mrs Skene reported that Cameron had been very negative and withdrawn for 12 months after the accident and had refused to discuss it. She said that Mr Skene ‘for a time’ isolated himself in his flat, was neglectful of his appearance and disinterested [sic] in his work.” The difficulty with this line of argument is that the assessment of the respondent’s behaviour just after the accident and in 1998 must necessarily turn on words of evaluation, impression and judgment. The words which Ms Martin reports Mrs Skene as having used convey a less dramatic picture than the words which Mrs Skene used in the witness box. Whether or not the trial judge’s handling of Ms Martin’s report meets the high standards demanded by the appellant, there was evidence to support the trial judge’s view that after the accident the respondent did not just have reduced motivation and self-care, was not just very negative and withdrawn, and did not just isolate himself in his flat “for a time”, but had symptoms of the same order as those which were observed in 1998. Mrs Skene said:“Q. Now, while he was at home convalescing, did you notice any changes in him compared to how he was before the accident, leaving aside the physical disabilities that you observed?A. Yes, I noticed a lot of changes.Q. What are some of the changes that you observed?A. He was vague, he wasn’t communicating, he was sleeping a lot, he appeared to me to be depressed, he was not coming out of his room and he wasn’t taking particularly good care of his --HIS HONOUR: I am sorry I just missed that last bit.[COUNSEL FOR THE PLAINTIFF]: Q. Wasn’t taking particularly good care of his --A. He wasn’t taking particularly good care of his personal hygiene after we gave up the process.”