Millsom v Pioneer Construction Materials Pty Ltd

[2003] HCATrans 359

[2003] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S339 of 2002

B e t w e e n -

GEOFFREY THOMAS MILLSOM

Applicant

and

PIONEER CONSTRUCTION MATERIALS PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 10.13 AM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC:   If it please the Court, I appear with MR J.C. HENNESS for the applicant.  (instructed by Maatouks Law Group)

MR J.E. MACONACHIE, QC:   If it please the Court, I appear with MR J.F. BURN for the respondent.  (instructed by P.W. Turk & Associates)

GLEESON CJ:   Yes, Mr Morrison.

MR MORRISON:   Thank you, your Honour.  Your Honours, the applicant seeks special leave on two grounds.  First, in the interests of justice in the particular case, and second, in order that immediate appellate courts have guidance on the level of proof required to establish facts not seriously in issue at first instance.  Your Honours will recall in this case that ‑ ‑ ‑

GUMMOW J:   There has been endless guidance as to that question.

MR MORRISON:   The particular circumstance of this case, your Honour, we would say, clearly requires some additional guidance.  Your Honours will recall that the applicant was a 61 year‑old employee, whose task was to train and supervise drivers, and part of his duties included attending the scenes of accidents in which they were involved.  He attended some 60 accidents, involving people seriously injured, many of whom he knew very well.  He suffered post‑traumatic stress disorder.  That was accepted by the trial judge.  Indeed, it was not the subject of contention at the trial.

The only issues at the trial were whether, we would say, first of all, there was a duty to provide counselling to the applicant, and, secondly, whether or not he was guilty of contributory negligence in not seeking counselling in a more active way.

The trial judge, having accepted the applicant’s evidence in full, found that the failure to provide counselling and appropriate debriefing sessions meant that the employer failed to ameliorate the risk of harm to its employee.  This is scarcely surprising, given that the employer spent, obviously, substantial sums of its shareholders’ money on providing just such counselling to other employees.

It is the applicant’s case that the usefulness and the desirability of counselling, and therefore its useful effect, in respect of the applicant, was never seriously in contention at first instance.

GLEESON CJ:   Was the question of the relationship between counselling – or absence of counselling – and the condition from which your client suffered the same question, whether you looked at it from the point of view of breach of duty of care, or whether you looked at it from the point of view of causation?

MR MORRISON:   We would say, no, because the manner in which it was addressed – and this appears in the submissions which were made – really addressed and confined the submissions to the question of whether or not there was a breach of the duty of care.  That appears at 47, at about line 30.

GLEESON CJ:   There was an expert’s report, tendered by the defendant, as I understand it ‑ ‑ ‑

MR MORRISON:   There was.

GLEESON CJ:    ‑ ‑ ‑ that, in effect, said ‑ Judge Delaney thought this was not persuasive – there is no connection between not being counselled and having post‑traumatic stress disorder. 

MR MORRISON:   It did not quite say that.  What it said was, generally speaking, in the genesis of a post‑traumatic stress disorder, debriefing has not been found to be helpful and has little, if any, impact on outcome.  His Honour did not accept that.  His Honour rejected that expert, and preferred the plaintiff’s experts, both of whom had provided the plaintiff with counselling, subsequent to his injury.  Now, the issue then was ‑ ‑ ‑

GLEESON CJ:   Did they give evidence that counselling would or may have prevented his condition?

MR MORRISON:   No.  They were not required for cross‑examination and they gave no oral evidence.

GLEESON CJ:   What was the evidence on which Judge Delaney based his finding that counselling would have or may have prevented his condition?

MR MORRISON:   The evidence appears to be that, working back from the fact that those experts provided counselling subsequent to the accident, and were of the view that such counselling was of utility in at least ameliorating the effect of post‑traumatic stress disorder, we would contend that it was open to his Honour to draw an inference from that that such counselling would have been of utility prior to or during the development of the post‑traumatic stress disorder.  After all, it is not merely a question of prevention; it is a question of whether it would have ameliorated the onset of the disorder.

In addition to that, his Honour had the fact that the employer provided such counselling to every other employee, 60‑odd in number, who suffered trauma and it was only this employee who, through his supervisory role, was omitted from such counselling.  Now, we would say that those were circumstances from which his Honour was entitled to draw the inference that the utility of counselling was not seriously in issue.

GLEESON CJ:   Was he the person in the organisation in charge of deciding whether counselling should be provided?

MR MORRISON:   No, he was not, and, indeed, he sought counselling himself.  The criticism that was made of him at the trial – and the only criticism that was made – was that he did not seek counselling actively enough, that is, he did not press his employer hard enough to get it.  That was the way the case was run.

GLEESON CJ:   Were the other people counselled only after they got post‑traumatic stress disorder?

MR MORRISON:   They were, that is, the evidence was that it was the practice to provide such counselling after they had been involved in an accident.

GLEESON CJ:   The allegation of negligence against the respondent here was that they had failed to provide counselling before he developed post‑traumatic stress disorder, was not it?

MR MORRISON:   Or had failed to provide counselling, generally, because post‑traumatic stress disorder is not something which occurs instantaneously, and presumably the counselling that was being sought and the absence of which was complained about at the trial, including counselling right up until judgment, so that the employer’s obligation was an ongoing obligation, on the applicant’s case.  The obligation to provide counselling would have been an obligation to try and avoid the onset of post‑traumatic stress disorder.  If that is not to be avoided, to at least ameliorate its effects, and then subsequently to try and remedy what had occurred. 

So it is not quite as simple a process of simply saying, would it have avoided post‑traumatic stress disorder or not?  All that had to happen was ‑ the applicant says – that such counselling would have had utility, and the question for the trial judge was whether there was evidence upon which it was open to him to find that there would have been utility in counselling there.

The applicant’s case is simply that the way in which the case was run, the fact that it was never put in submissions at any time that there was no evidence upon which his Honour could make such a finding, and the fact that the only attack upon the applicant’s credibility was the failing to seek counselling more actively than he did – all of that speaks volumes about the way in which his Honour was entitled to approach the evidence.  We would simply say that Mr Justice Foster’s dissenting judgment in the Court of Appeal was correct, and that what the majority in the Court of Appeal did was, in effect, to permit, by amendment to the appeal very late in the piece, the respondent to run a case which was, in effect, exactly the opposite of that which it had run at first instance, namely, a case that counselling would have been of no utility.

True, it is, that at first instance they did not make any concession about that, but the reality of the way in which the case was conducted, the way in which cross‑examination was conducted, the way in which submissions were put, simply indicates that Dr Lovell’s report was discussed purely in relation to quantum and in relation to future out‑of‑pocket expenses, and the argument in respect of Dr Lovell was, “We should not have to pay for further counselling”.  It was not an argument on causation, seen properly in context.  Those are our submissions.

GLEESON CJ:   Yes, Mr Maconachie.

MR MACONACHIE:   At page 108 of the application book, Justice McClellan observes that counsel for the defendant at the trial made this submission, at line 5:

“It’s certainly a difficult evidentiary burden your Honour but we say generally as I’ve put, and I won’t put it again that there’s no breach of duty, secondly, there’s no clear sequelae from the breach of duty…” –

Nothing can be plainer but that counsel for the defendant at the trial submitted to his Honour that the causation issue was relied on.  Secondly, your Honours, I hope, were provided yesterday with that which was omitted from the book, ie, the report of Dr Lovell, attached to which is the paper written by Mr Deahl. 

GLEESON CJ:   What is the relevant part of that?

MR MACONACHIE:   The relevance of that is ‑ ‑ ‑

GLEESON CJ:   No, what is the relevant part of it?

MR MACONACHIE:   I beg your pardon, your Honour.  It is set out in the judgment appealed from, but the relevant part of it is to be found on page ‑ ‑ ‑

GLEESON CJ:   On page 6?

MR MACONACHIE:   My numbers ‑ ‑ ‑

GLEESON CJ:   You see where there is “specific questions”, and then there is question 3, and an answer to question 3.

MR MACONACHIE:   Yes, your Honours.  I was looking more particularly at the attached paper, but page 6 of Dr Lovell’s report, commencing, “Generally speaking”.  He says in the last sentence:

It is unlikely as such that the provision of any counselling would have made any great difference to his current condition.

Without taking ‑ ‑ ‑

GLEESON CJ:   That is the part that Judge Delaney reacted to?

MR MACONACHIE:   As Justice Handley said in the Court of Appeal, possibly his Honour was entitled to reject that material, but there was no other material upon which a causal connection could be based.  Accordingly, the principle that just because you reject proposition A does not mean that, by reason of rejecting proposition A, you can find the obverse, proposition B.  If there is no evidence to support proposition B, then there is no evidence, and that which the plaintiff needs to prove has not been proved.

There was a yawning gap in the plaintiff’s case at trial.  The plaintiff sought to rely on the case of Seedsman in the Court of Appeal as curing or supplying the causative element in his case.  For the reasons demonstrated by Justice McClellan, that just could not be so.  There was no evidence.

GUMMOW J:   This is paragraph 12 of Justice Handley at page 88?

MR MACONACHIE:   Yes, your Honour.

GUMMOW J:   After paragraph 11.

MR MACONACHIE:   Yes, your Honour, and at paragraph 13, on page 89, his Honour refers to:

the conduct of the trial by counsel for the employer.  I agree with his conclusion that causation was an issue at the trial, and that counsel for the employer did submit that a finding of causation should not be made.  However it does appear that he did not submit that there was no evidence to support a positive finding.

Before I go to that point, your Honours, can I invite your attention to a further matter of importance at page 13 of the application book.  My learned friends told your Honours that Mr Millsom sought counselling.  That is not so.  At page 12, line 55, Mr Millsom was asked by Judge Delaney:

Q.  Did you ever ask after you first started to have these symptoms that you have referred to, did you ever ask your employer to provide you with any counselling?
A.  No.

Q.  Did you after you first started to have these symptoms that you’ve referred to, ever ask your employer to pay for any medical treatment for you?
A.  No.

Mr Henness was asked whether there was, “Anything arising out of that?”  And he asked this question, at line 10:

Q.  Mr Millsom why didn’t you?
A.  Well it was born in us all the time about duty of care to our drivers.  We was never mentioned on staff – 

and these are the important words – 

and I’ve come from the hard times, we was brought up hard and I thought I was strong enough but obviously I’m not.

Not only was there no evidence that counselling would have been of any benefit to this gentleman, there was no evidence that, if it had been available, he would have cooperated in participating in it.  The evidence is to the contrary.  So that, even on his own case, on the evidence that he did call, he was out of court on the causation issue, we would submit.  That, we would respectfully submit, is the ‑ ‑ ‑

GLEESON CJ:   It looks as though, on the causation issue, counsel for the defendant put his case higher than saying there was no evidence.  He said, on the evidence, you should make a positive finding, but it would have made no difference.

MR MACONACHIE:   I would accept that, your Honour, but, even if it was not put, the longstanding authority of this Court is that a no evidence point can be taken for the first time on appeal.  My case is stronger than that because the issue of causation was flagged seven months before the trial by the service of Dr Lovell’s report.  Dr Lovell’s report was put into evidence; Dr Lovell was not cross‑examined.  The burden of Dr Lovell’s evidence was, it would not have made any difference, generally, and it would not have made any difference, more probably than not, in the case of this man. 

It can be put even higher, from the respondent’s point of view, because that which appears at paragraph 13 is positive evidence, we would submit, that, more probably than not, this gentleman would not have participated in counselling, and it would necessarily require his participation in order for it to be undertaken, let alone to be effective.

GLEESON CJ:   This trial took place at Campbelltown?

MR MACONACHIE:   I think so.

GLEESON CJ:   Where were the doctors?

MR MACONACHIE:   The doctors, I think, are city‑based.

GLEESON CJ:   We have seen this time and time again, Mr Maconachie.  Problems are arising out of the fact that doctors are not called for cross‑examination in circumstances where the reason they are not called for cross‑examination is perfectly obvious – the trial is being conducted a long way from where they work.

MR MACONACHIE:   Your Honour, I have appeared in cases in Lismore, where doctors from Sydney have been called, and given evidence, and been cross‑examined.  There was a positive ‑ ‑ ‑

GLEESON CJ:   I am not criticising anybody for this.  It is the profession’s practical response to a practical problem.

MR MACONACHIE:   Well, it is not only the profession, in the sense of the Bar’s reaction, but also the judge’s reaction.  They have busy lists, and often it is difficult to accommodate the court’s docket, as it were, with the availability of doctors who have things to do other than to talk to lawyers.  But, in this case, a positive decision, we would submit, was made by the plaintiff to rely on the Seedsman Case.  The medical evidence that was put in by the plaintiff did not address the causation issue, notwithstanding that seven months beforehand, before the trial, Dr Lovell’s report was served and, as plain as day, put causation in issue.

GLEESON CJ:   What was the principle for which Seedsman stands?

MR MACONACHIE:   It was put that Seedsman decided that the causation issue was resolved in favour of the plaintiff.  As a matter of law, it did not; it was misunderstood.  Seedsman was a case that turned on its own facts.  The principal issue litigated in Seedsman, a case of a police officer who had been exposed to some harrowing experiences with young children in criminal situations, was whether or not it was foreseeable that she would suffer a psychiatric problem.  It had nothing to do with this case.  It was a case that turned on its own facts, but was understood by those appearing for the plaintiff at the time of the trial that it satisfied the causation requirement.  Nothing could be further from the truth.  That left a yawning hole in the plaintiff’s case, which was exposed in the Court of Appeal and led the Court of Appeal to determine, by a majority of two to one, that there was no evidence from which ‑ ‑ ‑

GUMMOW J:   What is the flaw in Justice Foster’s judgment?

MR MACONACHIE:   The flaw in his reasoning, we would submit, is that he determined that one could infer from that which had been done, ie, the provision of counselling to drivers, but not to this accident investigator,  that was done because it was obviously effective.  That is how he reasoned it.  He thought there was sufficient material upon which the court could draw the factual inference that this problem for Mr Millsom was preventable.

The other two judges determined that that material was insufficient to draw the relevant inference, a question that judges, exercising their powers under section 75A of the Supreme Court Act, deal with all the time.  It is a factual inquiry.  Two thought there was no evidence sufficient to draw an inference, and one thought that there was.  The fact of the matter is, no evidence of any direct kind was tendered by the plaintiff to satisfy the causation issue, and then when that hole in the plaintiff’s case was exposed in the Court of Appeal, there was an attempt to fill it by asking that inferences be drawn, notwithstanding that there had been a tactical decision, apparently, to rely on the Seedsman Case.  It was wrong.

GLEESON CJ:   At the trial, was the failure to provide counselling or debriefing the only act of negligence relied on?

MR MACONACHIE:   Yes, that is as I understand the papers – I was not at the trial – and that is as I understand the judgment of Mr Justice Handley.  That was the way in which the case was fought in the Court of Appeal, where I was present:  “You did not counsel, the failure to counsel exposed this man to a risk that was capable of being prevented or ameliorated by counselling, therefore, you are liable in negligence”.  There was no

evidence in the plaintiff’s case that it would have helped, generally, or that it would have helped this man, in particular.

There was evidence in the plaintiff’s case to the effect that he thought he was strong enough to deal with it, but obviously was wrong ‑ hindsight material.  Would he have participated in any event, but, more importantly, seven months before the trial, the defendant flagged, through Dr Lovell and the attached academic paper, that it took the position that counselling, generally, and, more particularly, counselling for this man, more probably than not would not have been effective.  That two judges in the Court of Appeal refused to infer the causal link is unexceptional.  The fact that one was is just a product of different minds drawing different issues on factual issues.

In my respectful submission, if this Court were to grant special leave in this case, it would have to grant special leave in every case when there was a successful appeal in the Court of Appeal.  There is no special point, and there is no particular injustice in this case.  It arises because of a tactical decision, apparently made at trial, and which failed in the Court of Appeal.

To answer something which Justice Gummow or perhaps the Chief Justice mentioned, at page 90, line 35 to line 40, Justice Foster outlines the way in which the case was put about the trial in the Court of Appeal by the applicant.  They are my submissions.

GLEESON CJ:   Thank you.  Yes, Dr Morrison.

MR MORRISON:   Thank you, your Honour.  Your Honours, there was material suggesting that it was likely that the applicant would have utilised counselling.  That appears in the transcript at page 16, commencing at line 38, and referring back to the passage my learned friend referred to:

Q.  And you have acknowledged to his Honour that you never asked the company for counselling?
A.  That’s right.

Q.  You never complained to the company or to any other person as to how it was affecting you?
A.  Nope.

Q.  You went along, troubled yourself but without letting the company know that you were troubled?
A.  True.

Q.  That’s correct, isn’t it?
A.  Yep.

Q.  You have said that on two occasions you made the point that while drivers had counselling after accidents other staff didn’t?
A.  That’s true.

Q.  But apart from those two comments, you made no complaint on your own behalf did you?
A.  No.

Q.  And those were general complaints were they not, along the lines of “Driver’s are getting this concession, we don’t get it”?
A.  That’s true.

Then, in submissions at page 47, commencing at line 29, submission on behalf of the respondent:

Yes, and your Honour in arguing that there is no shown or demonstrated breach of duty we would put that its common ground that there was no complaint by him to anyone in Pioneer and particularly to the two most likely personnel whom your Honour has heard evidence from that he was failing to cope with the work that he was directed to do.

That is not quite the same thing as talking about counselling, but then further down at line 37:

The issue therefore proceeds – 

that is, proceeds from demonstrated breach of duty – 

to whether they should have counselled him because he was an accident investigator and also whether he asked for it.  Now in the first place, he acknowledges that he never asked for counselling.  The most he can say is that on one or two occasions he said generally that it was unfair that drivers got counselling and staff didn’t and it seems likely that he may have said that in one or two of these luncheon gatherings that Mr Brown was describing.

Mr Brown being his superior.  So there was evidence upon which it was open to find, as is acknowledged in those submissions, that he thought counselling was appropriate and would have been likely to submit to counselling.  Otherwise, why would he have been critical of the failure to provide counselling to himself?

The criticism, and the whole thrust of the employer’s case, was not that there was no utility in counselling.  Indeed, how could they say that? 

How could they run their case that way?  They are providing it to 60 other employees.  They merely overlooked this one.  The thrust of the employer’s case, at first instance, was simply that he was guilty of contributory negligence in failing to seek counselling, or seek it more actively. 

It is only just before the Court of Appeal by amended submissions, which went back on admissions made in the previous submissions to the Court of Appeal, that this point – the no evidence point – was taken for the very first time.  It was never clearly taken at first instance, and, in effect, puts entirely the opposite case to the one that was being run.  In those circumstances, we contend that it is a manifest injustice to the applicant.

GLEESON CJ:   Before you sit down – I could have asked Mr Maconachie this, just as easily – page 51, line 33, what is that a reference to?

MR MORRISON:   That is a reference to the availability and utility of counselling, generally.  Apparently, there is counselling provided to barristers, as I understand that.

GLEESON CJ:   A bit late, in my case.

MR MORRISON:   And, indeed, in mine, but that is what I understand that to be about.

GLEESON CJ:   The outcome in the Court of Appeal turned upon the facts and evidence in this particular case and the manner in which the trial was conducted and the case, for that reason, raises no issue suitable to a grant of special leave.  In addition, we are not persuaded that the interests of justice require a grant of special leave and the application is refused with costs.

AT 10.42 AM THE MATTER WAS CONCLUDED