Shorey v P T Limited as Trustee for McNamara Australia Property Trust & Ors S212/2002

[2002] HCATrans 569

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S212 of 2002

B e t w e e n -

ROSE SHOREY

Appellant

and

P T LIMITED AS TRUSTEE FOR McNAMARA AUSTRALIA PROPERTY TRUST

First Respondent

CIC INSURANCE LIMITED (In liquidation)

Second Respondent

VENTURE STORES (RETAILERS) PTY LIMITED (In liquidation)

Third Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 2002, AT 10.22 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends MR A.S. MORRISON, SC and MR A.C. CASSELDEN for the appellant. (instructed by Maurice Blackburn Cashman)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.S. JONES for the first respondent. (instructed by PriceWaterhouseCoopers Legal)

GLEESON CJ:   Thank you, Mr Walker.  There is a certificate from the Deputy Registrar to the effect that she has been informed by the liquidator of the second respondent that the second respondent will not be playing an active role in this appeal and also that she has been informed by the liquidator of the third respondent that the third respondent does not wish to play an active role in this litigation.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I say just one thing before moving to the substance of the appeal and something about the basic facts.  This is a case where the appellant’s body and her mind, a perhaps dated but convenient distinction for present purposes, tell her different things.  Her body would let her stand, sit, move about, look after herself and to be a grandmother to her grandchildren and do the other very ordinary things that a women who is 71 might do at her age, but her mind tells her she is a cripple in a wheelchair and, your Honours, the mind prevails, although it is not possible to identify physical reasons for the disability which the activities of the mind compel.  Your Honours, at first instance, a suggestion was made by the respondents that what she said about the effects of the mind was something that was fabricated but, your Honours, the trial judge was not so persuaded and found against it.  Your Honours will see that finding in volume 6 at page 1456, about line 27.

Your Honours, could I interpolate that his Honour did so after a lengthy consideration of the evidence and it is clear that a factor was his view of the appellant and her daughter, Tracey, as they gave evidence.  Your Honours will see that in

volume 6 at page 1456 where your Honours will see in the paragraph commencing about line 26, his Honour said:

I have come to the conclusion on the balance of probabilities that the plaintiff is not malingering.

You will see he based that on various factors, and at the conclusion of that paragraph said:

I also take into account the way the plaintiff presented in court and the evidence of her daughter Tracey in coming to the conclusion that she is not malingering.

KIRBY J:   That was a real issue at the trial, was it not?

MR JACKSON:   Indeed, your Honour.

KIRBY J:   Were there any films or anything of that kind that were tendered to support the malingering theory or not?

MR JACKSON:   Your Honour, there were various matters put to her.  I do not think there were any films, but there was evidence that some of the things that she said she could not do were ones that, looking at her physically, she could do.

McHUGH J:   The lack of muscle wasting was a significant thing.

MR JACKSON:   Yes, so there was a very significant issue involved.  Indeed, your Honours will see that one of the features was to determine that question:  was she or was she not someone who believed that she had the condition?  Some of the doctors thought she was malingering but the view taken in the end by the judge was that she was not.  The ruling that she was not fabricating her perception of her condition was attacked in the Court of Appeal but that attack failed.  Your Honours will see where it failed, if I could give your Honours two relevant passages:  the first of Justice Handley, again volume 6 at page 1493 in a passage which goes from paragraphs 12 to 16 of his reasons.  Your Honours will see in paragraph 15 that the attack failed – he refers to Abalos, I am sorry, in paragraph 15.  In paragraph 16 he refers to the fact that the appeal should fail.  That is Justice Handley; Justice Davies in the same volume at page 1515, paragraph 72.

KIRBY J:   That attack is not renewed in this Court.  It is accepted.

MR JACKSON:   I was just going to say that, your Honour.  In answer to your Honour Justice Kirby about the film, some film was taken but it was not shown.  Your Honours will see that referred to at page 390, about line 20, except that there was some video which was taken with her knowledge but which was inconclusive.

KIRBY J:   There are all sorts of things that doctors can do, as I recollect it, from getting people to get into prone positions, to put their legs in situations that they say they cannot do, and there are tests that the medical profession carry out in these cases.  Presumably that was a big issue at trial but determined in your favour.

MR JACKSON:   Quite, your Honour.  As I submitted at the start of our submissions a moment ago really – perhaps I could say two things.  This is a case where it was in effect established that she could physically, absent the condition of the mind, do various things but the mind prevents her. 

Your Honour will see at the conclusion of the primary judge’s reasons that what he said was that he thought that her condition would improve and awarded damages in respect of a period of about 10 years that he thought improvement might take.

Now, your Honours, the position then in relation to the finding of no fabrication was one that left a situation where the appellant had a condition which made her believe that she could not act, to put it shortly, normally and, your Honours, that then gave rise, as the primary judge said – and I will give your Honours the reference in just a moment – to some further issues.  Your Honours will see those issues referred to at page 1445 in volume 6 lines 21 to 41 to, in effect, three issues.

Your Honours will see he referred, first between lines 30 and 35 to the “malingering” condition.  The second thing was he said if the condition is genuine what is the prognosis, but importantly he said the third question is, if it is genuine is it attributable to the fall on 2 April 1988.  Your Honours, that question, the question which perhaps I would describe as causation, was the basis upon which the Court of Appeal set aside the judge’s findings.

Now, your Honours, if I could just pause there:  it is clear that the judge was dealing with the question of causation in relation to an assessment of damages.  Before I go to the detail of our submissions in relation to that, may I mention one matter which arises from our learned friend’s written submissions and, in particular, it is paragraph 54 of those submissions where it is said that:

The trial judge appears to have incorrectly concluded that having determined “liability” and found for the Appellant, he would simply move to assessment of damages –

and your Honours will see a reference to page 1444 about line 10 where he says:

I now proceed to consider and assess damages.

That is in the light of the preceding paragraph of his reasons where he says:

I was invited to determine liability issues separately and did so –

Your Honours will see that the course of proceedings appears from volume 2 at page 299 and what happened, to put it shortly - your Honours will see, in effect, the commencement of oral evidence at page 299 when the appellant’s daughter gave evidence.  What took place there, your Honours, goes through to page 302, and it is apparent that the judge is dealing with the evidence in relation to the question of liability.

You will see cross-examination of her daughter commencing at page 302 and then that goes on and, finally, at page 312, your Honours will see at about line 17 the judge giving judgment on this issue and on the preceding two pages, pages 310 and 311, at the top of the page, my learned friend, Dr Morrison, saying “At this stage I will press on with liability”.  Then line 14 there is the close of the case for the plaintiff on liability.  Line 15, the first defendant not calling evidence in respect of liability.  Line 32, the other defendant not calling any evidence on liability.  Counsel address on liability and the judge gives judgment the next day, or the next sitting day.

KIRBY J:   As I understand the written submissions of the respondent, the contention is that the error which was made by the primary judge that authorised the Court of Appeal to intervene and reach its own conclusion on the facts was that the primary judge went, as it were, directly from a finding of duty to a calculation of damages and he omitted attention to the contention of causation which was in issue between the parties.  Am I correctly understanding (a) what the respondent is saying, and (b) what the Court of Appeal majority thought?

MR JACKSON:   Your Honour, so far as the respondents’ submissions are concerned, your Honour’s interpretation of them may well be what is sought to be argued.  So far as the Court of Appeal’s approach to it, your Honour, that really is not so, with respect.  The Court of Appeal simply seems to have found that the judge was wrong on the question of causation.  Your Honour, as to the first of those things, what the judge did, it is plain, with respect, if one goes back to page 1444 in volume 6 ‑ ‑ ‑

KIRBY J:   I am missing the page.

MR JACKSON:   Page 1444 in volume 6, your Honour, top of the page.  He says:

I was invited to determine liability issues separately and did so, finding in all respects in favour of the plaintiff.

There is no doubt the plaintiff slipped in a pool of dripping water and was injured, and your Honour will see that but for the limitation provided for by the various statutes she would have obtained an award of damages in respect of that and, indeed, the Court of Appeal made an award of damages in the order of $60,000.

So he proceeded to deal with the question of the quantum of damages and that is where one sees, your Honour, at page 1445, him identifying, at lines 39 to 41, that there is in doing that exercise a question of causation of the mental condition from which he was suffering.  So his Honour did not jump.  What he was doing was working out how much the damages should be and recognising that there was this issue.

GUMMOW J:   Looking at 1445, where does the primary judge then answer the question that he raises himself?

MR JACKSON:   In relation to causation?

GUMMOW J:   Yes.

MR JACKSON:   Your Honour, it is a little further on, and you will see that – I will take your Honour to the detail of it a little later, but what Your Honours will see is essentially about page 1457, commencing about line 27, after he has discussed the evidence about malingering and then goes on.

GUMMOW J:   Yes, thank you.

MR JACKSON:   Your Honours, what I was going to say was that if one –the critical question was whether the finding which he made, at page 1458 in volume 6 at lines 25 to 27 was to be set aside.  Your Honours will see there – he said:

I find that the plaintiff’s conversion disorder caused by a variety of factors, including the fall in 1988 in respect of which the plaintiff sues.

Now, your Honours, in relation to this, your Honours will see that the findings made by the judge commence relevantly at page 1457, and he says at about line 26:

I find that the plaintiff suffered severe back pain as a result of the fall, probably mainly at the sites of previous surgery, and I find that this pain due to physical factors continued to some degree for approximately twelve months after the fall.

Then, your Honours, in the same paragraph, he says that:

I also find . . . that she had continued to experience back pain and leg pain from time to time as a result of degenerative disease of the lumbar spine –

which he finds was aggravated by the 1988 fall.  Then, your Honours, in the next paragraph, he deals specifically with the question whether the effects of the fall were spent, and he said that:

The defendants argue that the effects of the fall are spent when the back pain due to physical causes ceases.  As I have found, it recurs from time to time.

Then your Honours will see that in the remainder of that paragraph on page 1548 he goes on to say that:

the plaintiff’s slide into her now full‑blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 –

Your Honours will recall the fall was April 1988, husband died:

1 January 1989 . . . the psychological and physical factors then became intertwined.  The psychological factors would not have manifested as they did without the back pain.  While it may be true to say that had she not had back pain the plaintiff’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point.  She did have back pain.

Your Honours will see then the remainder of that paragraph.

KIRBY J:   Could I ask you for your help on this.  We had a number of criminal and Family Court appeals where the Court has said that Courts of Appeal in Australia should not, as it were, reinvent the wheel and rediscover the facts unless they can get through the gateway of establishing an error.  Now, the error can be a misunderstanding of the entirety of the evidence.  It does not have to be a legal error.

MR JACKSON:   No, your Honour.

KIRBY J:   Is it your suggestion that the Court of Appeal here acted in an orthodox way in approaching the conception of its own function or do you say it acted in an unorthodox way?

MR JACKSON:   It is capable, I suppose, of classification both ways.  What we would say is that the Court of Appeal felt that it was going about things the right way, if I could put it that way, but what one did see was that the majority in doing that themselves made errors and it was a case where they made errors in relation to a number of specific matters about what the judge had decided or purported to decide or what the evidence was.

KIRBY J:   The difficulty is that, from this Court’s point of view, the Court of Appeal obviously considered that if it went into the whole detail of the facts that were so strongly against the conclusion that the trial judge reached that it was authorised to intervene.  The only way we are going to do fairness to the parties and to the Court of Appeal is ourselves, in a sense, to get a feel and an understanding of all of the facts that led the majority when they looked at the history of your client, at her very longstanding back/leg troubles and her supervening psychiatric troubles it was looking at the whole that apparently the Court of Appeal felt that the trial judge had reached an erroneous conclusion in fact.  If that is their conclusion, then they are entitled, unless there is some impediment, to give effect to that conclusion, as I understand the law.

MR JACKSON:   Well, your Honour, we do not dispute that the Court of Appeal was entitled to engage upon the statutory function of rehearing the matter – rehearing the matter in the more or less accepted sense, if I can put it that way.  But, having said that, this is a case where, so far as the Court of  Appeal was concerned, the majority – and I will deal with the minority in just a moment – the majority themselves made errors in arriving at the conclusion at which they did. 

GLEESON CJ:   On your argument, as I understand it, a specific error they made was in their understanding of the finding on page 1457 in the paragraph commencing with the words “I find”. 

MR JACKSON:   Yes, your Honour, and there are several errors, a degree related.  An immediate error and one going to the core of the matter was that they do not appear to have appreciated that the finding was that the aggravation of the degenerative disease was still operating.  The judge specifically found that at page 1457, line 36.  He speaks of “continued” and then makes it absolutely clear in the next paragraph, at the bottom of page 1457 and the top of page 1458, “recurs from time to time”.  But, in addition, it is a case – and I will come to the detail, if I may, in just a moment, of the various errors – but the one thing that is apparent, we would submit, is that the majority of the Court of Appeal does not seem to have appreciated – and this comes to performing the statutory function – it does not seem to have appreciated, with respect, that the findings of the judge were, in significant measure, based on his estimate of the witnesses and the evidence that they gave. 

In particular, I refer to four witnesses:  the appellant, her daughter, and two doctors, Dr Yeo and Dr Phillips.  I will come to that in just a moment.  Your Honours, the other feature about it is that this is not a case where one sees a unanimous decision of the Court of Appeal dealing with this issue.  What one sees is, in the judgment of Justice Davies in dissent, in our submission, a perfectly orthodox approach to the matter in which he takes the view that the judgment of the primary judge was one which was entirely justified upon the evidence. 

KIRBY J:   What is the point of that?  I mean, in our democracy, both in Parliament and in courts, it is the majority that carries. 

MR JACKSON:   Your Honour, I am quite familiar with that, with respect.

KIRBY J:   But at least you have a leg in, because you have a dissent.  Is that the point? 

MR JACKSON:   Yes.  Well, your Honour, it is not just a leg in, as it were.  What we would seek to demonstrate is, by going to his approach to it in due course – and I do not intend to take an enormous amount of time with it – to seek to demonstrate that the approach that he took was the one that was the true performance of the function of the Court of Appeal. 

If I could just say, first of all, that if one looks at the central question in the case, which really is that encapsulated in setting aside the judge’s finding on page 1458, lines 25 to 30, where he found that the conversion disorder was “caused by a variety of factors, including the fall”, there was evidence, if I could just put it in the very shortest compass for the moment, to be found in some brief passages in the evidence of both Dr Yeo and Dr Phillips.  Could I say, your Honours, Dr Yeo – and I am going to volume 2 in relation to his evidence – at page 453 said at about line 10: 

Q.  Is it your view that in a psychosomatic case of this nature there is usually a physical trigger of some sort, physical in the sense of some traumatic injury of some degree? 

Then at page 454, lines 25 to 32, he said ‑ ‑ ‑

KIRBY J:   I am sorry.  I did not get the next ‑ ‑ ‑

MR JACKSON:   It is the next page, your Honour, 454, 25 to 32: 

the main trigger point for this present level of serious disability is the fall that she had –

Dr Phillips’ evidence in volume 3 at page 519 said at about line 34:

I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically . . . 

Professor Yeo on Friday made the interesting comment that in his view physical trauma usually – not always but usually – played a role in precipitating problems of this sort in his experience.  Does that accord with your general view?
A.  Yes.

GLEESON CJ:   I understand it to be put against you that these witnesses made their assessment of your client and gave their evidence‑in‑chief without knowing something material concerning what occurred relating to the death of her husband.

MR JACKSON:   Yes.

GLEESON CJ:   It may be that I do not understand sufficiently well the concept of a conversion disorder, but what was your client’s case as to the nature of the causal connection between the fall and her condition at trial?

MR JACKSON:   The essential nature of it was this, your Honour ‑ and perhaps if I could put it in layman’s rather than medical language ‑ she was a person who had, I suppose, a kind of predisposition to her suffering from some kind of mental disorder if certain conditions arose and that the conditions which arose in her case were a combination of her injury to her back and the aggravation of the pre‑existing condition and whilst that was continuing, there being other events occurring such as the death of her husband which brought about a situation where the combination of those causes produced her mental condition and the consequences of it.  That is it in essence.  I will endeavour to get if your Honour wishes me to a better description of it but that is ‑ ‑ ‑

GLEESON CJ:   Thank you.  In your argument here, what is the significance of the fact that these witnesses, at the time they assessed your client and the time they gave their evidence‑in‑chief, did not know this fact?

MR JACKSON:   I would say two things about it.  First, the weight to be given to their evidence once they had become aware of that was very much a matter for the judge seeing them but if one looks at the evidence which was given, it is just not right to say, as Justice Handley said, that their evidence had been destroyed.

GLEESON CJ:   How did the trial judge deal with that problem?

MR JACKSON:   What the trial judge did was essentially – and it is right to say his reasons were in the end relatively brief.  What he said, if I could just take your Honours to volume 6, was this.  Your Honours will see at pages 1443 through to – I pause to say at page 1452 your Honours will see a reference to Dr Yeo’s evidence and then at 1453 reference to Dr Phillips’ evidence.  What your Honours will then see is the evidence of other ‑ ‑ ‑

KIRBY J:   Does the judge expressly accept those two witnesses?

MR JACKSON:   Yes, your Honour.  I am just about to indicate where that is.  Your Honours will see at page 1456 he sets out in the first new paragraph on the page that there has been a lot of material and he says:

those to which I have referred represent the range of views and reasons for coming to those views.

Your Honours will see in the next paragraph that he deals with the malingering question, relying particularly on the evidence of the plaintiff and her daughter.  He then comes at page 1457 to saying, at about line 17:

Is this condition caused by the fall in 1988?

And he refers to the evidence of Dr Yeo and Dr Phillips particularly.  Now, it is right to say that he does not, I think, deal with the detail of their evidence, but it is plain that he ‑ ‑ ‑

GLEESON CJ:   But does he address the fact that they made their assessment of the plaintiff without being aware of the matter that was first brought to their attention in cross‑examination?

MR JACKSON:   Well, your Honour, he does not say so specifically but what he does do ‑ ‑ ‑

McHUGH J:   It was not the case with Dr Yeo anyway; it was put to him in‑chief, the question of the death.

MR JACKSON:   Yes, I am sorry, your Honour.

McHUGH J:   And he still maintained that it was the trigger.

MR JACKSON:   Yes.  Could I just answer your Honour the Chief Justice first.  What I was going to say was this, that at page 1457 you will see in the paragraph immediately above that that he refers to it arising “from unresolved psychological conflict”.  He describes the nature of it and you will then see in the very next paragraph he refers to the evidence of Dr Yeo and Dr Phillips.  Now, it is perfectly right to say that he did not refer specifically to the matter your Honour is putting to me, but it seems apparent enough that he would take into account and would expect the fact that this had been put to the doctors and they had given evidence about it.

GLEESON CJ:   What is the meaning of the expression “conversion disorder”?

MR JACKSON:   Well, your Honour, an older name for it was “functional overlay” and a form of hysteria, where the effects far beyond the physical effects are brought about by injury.  Your HonourS, I remember a case in which a man who had been a freedom fighter in Poland who worked as a bricklayer and was hit on the head by a brick and suffered a minor injury and never worked again; that kind of thing, your Honour, and the various types of it, but, your Honour, it is common.

KIRBY J:   That is not my recollection.  “Functional overlay”, as I remember it, was something on top of a physical condition that is not explained and often a bit suspect, whereas your talking conversion seems to be a trigger hits and suddenly something apparently trivial becomes very significant, like the eggshell skull theory.

MR JACKSON:   Your Honour, I am sorry, “conversion disorder” is a big expression covering a lot of cases where one has someone who has suffered an injury and appears, for whatever reason, to be much worse afterwards, assuming the person is not malingering.

McHUGH J:   They may have no pathological or organic basis for it at a later point of time.  I once had a client who had all sorts of problems in her arm.  You could stick needles in her, she could not feel any pain, but there was no organic basis.  Where she claimed was not referable to the distribution of nerves and so on, but nobody suggested for a moment that she was not genuine; she just had some idea that she had all this pain in her arm and her arm was limp.

MR JACKSON:   Yes, exactly.

GLEESON CJ:   Now what is the question of causation that arises?  Is it, what is the cause of the “conversion disorder”?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Let me rephrase that, of course; is this a cause of the “conversion disorder”?

MR JACKSON:   Was it a cause; it did not have to be the only cause, but was it a cause?  Your Honour, was it a cause of her condition?

GLEESON CJ:   Well, words like trigger and sentinel are metaphors.  If you look at page 1458 at line 20, that finding in the sentence beginning with the word “While” seems to be saying that if you apply the “but for” test you cannot say that but for the fall she would not have the conversion disorder; she would have something wrong with her whether she had had the fall or not.  So, what is the test of causation that is being applied?  Do not say commonsense.

GLEESON CJ:   Your Honour, what the judge is saying and the test that he was saying was this:  if one looks at her condition, was one of the causes of it the fall which she had on, whatever date it was, in April 1988?

GLEESON CJ:   Well, now we know that she would have had it even if she had not had the fall.

MR JACKSON:   She would have had something.  Your Honour, she may have had some.  What he is saying is that while it may be true to say that had she not had back pain, her psychiatric disorder would have displayed itself in some other way.  Now, your Honour, that may go to the question of the amount of damages that she would be awarded because of the possibility that some other event might have brought it on, but one is looking at the situation that, in fact, it was brought on and, in fact, it was brought on by a combination of things, one of which was the fall.

CALLINAN J:   Mr Jackson, did you refer to Purkess v Crittenden?

MR JACKSON:   I do not think so, your Honour, no.

CALLINAN J:   Well, I thought that might be relevant.  It might even assist you, Mr Jackson.  There is another case following Purkess v Crittenden which picks up the same sort of issue.

MR JACKSON:   Your Honour is not thinking of Watts v Rake?

CALLINAN J:   Yes.

MR JACKSON:   Yes.

CALLINAN J:   Now, I may have the order wrong, but it is for the defendant generally – and I put it broadly – to disentangle the causes.

MR JACKSON:   Yes.

CALLINAN J:   I would have thought that was very relevant to your case.

MR JACKSON:   Your Honour, I suppose the way in which it arose in this case was that an issue was whether the conversion disorder was caused at all by the fall.  I am sorry, your Honour, can I just finish by saying once it is established that there were two causes then the extent to which the damages would be affected would be a matter for the defendant to show, but this is probably an anterior question.

CALLINAN J:   Yes.  Well, it is certainly an alternative way, I would have thought, of putting your case, Mr Jackson – at least an alternative way.

MR JACKSON:   Yes, thank you, your Honour.

KIRBY J:   Is this the line of territory of McGhee, the case in the House of Lords?

MR JACKSON:   Is your Honour thinking of the ‑ ‑ ‑

KIRBY J:   McGhee v The Coal Board, I think it is.  I only say that because I received a note of an article by Professor Stapleton on that line of law and it mentions a recent decision.

McHUGH J:   No, it is not Fairchild.  It is not a McGhee or Fairchild.

MR JACKSON:   Your Honour, that leads one, in modern terms, into the kind of mesothelioma and so on cases.  Your Honour, it is not really that, in our submission.  It is simply a case of a person who had, in a sense, a predisposition really, I suppose, to two things.  One is that she had a predisposition to some recurrent back condition on the one hand.  On the other hand she had a predisposition to some psychiatric disorder.

Now, in assessing the number of dollars she should ultimately get the predispositions have to be taken into account, but, your Honour, in determining whether the manifestation of those conditions is something attributable to the accident is something that is, in a sense, a question of causation.  If the accident was a cause of her current condition, she is entitled to recover in respect of it.

KIRBY J:   A cause is clear authority of this Court, is it?  Because if one looks at the tort, it has to be the breach of the duty which causes damage.

MR JACKSON:   We have given, your Honour, in our written submissions in ‑ ‑ ‑

KIRBY J:   I saw you cited three cases, I think.

MR JACKSON:   Yes, your Honour, March v Stramare, Medlin.  In Medlin 182 CLR 1 at 6 to 7 – I am sorry, your Honours, I have just lost the actual passage – may I come back to that – but in our submission it is established that that is the case.

KIRBY J:   I ask the question because in the end negligence has to get back to the general principle of, I suppose, what it is reasonable to impose upon another person in liability to and it seems this may have been behind the Court of Appeal majority thinking that your client had a susceptibility, it is true, but she had a long preceding period of various disabilities and then she had the death of her husband and if you just look at it as a whole, it does seem a very great burden to place all of this at the door of one fall.

MR JACKSON:   Your Honour, may I say a few things in response to that.  The first is a pure technical matter.  Could we add to those references the Court’s recent decision in I & L.  That was in relation, of course, to the Trade Practices Act provision but it seems to be along exactly the same lines, namely that all you have to have is it be a material cause, not the only cause.  That is the first thing.  The second thing, your Honour, is that the Court of Appeal’s function was to determine whether there was error in the judge’s conclusion that it was a cause.

One has a distinct suspicion, your Honour, reading the Court of Appeal majority’s reasons that their disquiet with the unsuccessful attack on the “no malingering” finding really flowed over into their findings into their approach to the other aspects of it and were not prepared, with respect, to approach the case on the basis that there was a finding that she was not fabricating what she said.

KIRBY J:   I think that is being a bit unfair to the Court of Appeal.  The impression I got was that they kept clearly in their mind a difference between malingering, which is deliberately and in a sense for monetary gain, trying to trick the system, and there being a multitude of possible causes in a vulnerable person, one only of which was this fall and which on one view had only a limited duration.  More significant was the death of her husband and the morphine injection and things of that kind and that you had to look at the particular incident on which she sued in the commonsense environment of all the other factors in her life which made her a vulnerable person.  That does not necessitate a conclusion of malingering; it just necessitates looking at the whole picture.

MR JACKSON:   Yes, but the picture was not one that was really in a sense two dimensional in the sense of just looking at it on paper.  What I mean by that is that it was a case where the issue had been dealt with by the judge in the first place and the issue was one that was itself much affected by the judge’s view of, for example, the daughter’s evidence – I will take your Honours to that in a moment – where she said that there was a deterioration from the time she got out of hospital, in effect, and it kept on going and that the death of the husband, or the husband’s illness and death, was not really something that was itself the point that made her worse but she was on the downslide before that and kept on going.

McHUGH J:   The daughter said, did she not, that because of her mother’s love for the husband she did things for him and ignored her own pain?

MR JACKSON:   Indeed, your Honour, I was just going to mention that.  That, in fact, there was a slight up when her husband was sick because she was disregarding her own disability, or assumed disability, and helping her husband.

McHUGH J:   But is not one of the most powerful points in your case that somebody as eminent as Dr Yeo, at 453, had put to him all these episodes about death and cancer and so on, and then at 454 at line 20 he said that:

The three main psycho‑social episodes that you describe could well have sensitized this lady to becoming more profoundly disabled –

But he says:

In my opinion the main trigger point –

was before.

MR JACKSON:   I propose to come to it, your Honour, but we endeavour to say this was a case where the judge had before him evidence of persons qualified to say so, which he was entitled to accept and did.  Your Honours, in those circumstances, the Court of Appeal was in error in doing what it did.  Your Honour, could we also say it is not just a question of the Court of Appeal having adopted an unorthodox approach in that regard.  In fact, they made mistakes in dealing with what the evidence and finding were.

Your Honours, I have lost myself when I was referring to Medlin.  It is at 182 CLR, particularly at the bottom of page 6, the last three lines, and going over to the first new paragraph on page 7, and in particular in that first new paragraph on page 7 in the third line.

KIRBY J:   Why is that so in principle?  What is the principle that lies behind that?  Why should a party not only be liable for that which it actually causes, as distinct from for which its causative action is one element, and the law of negligence being a law of reasonableness?

MR JACKSON:   Your Honour, I suppose, for a number of reasons.

KIRBY J:   Your first point is that that is the authority of the Court, which is a fair starting point, but I am just trying to understand ‑ ‑ ‑

MR JACKSON:   And I exhausted myself arguing the contrary in I & L, your Honour, to no success, except, I think, with your Honour.  The position, in our submission, is this, that a person suffers damage – damage, of course, being part of the tort – an element of the tort in negligence.  That damage may be caused by a number of things, some of them being conduct which is and some being conduct which is not negligent.

Now, there are really two elements involved, I suppose.  One is to decide which causes are relevant.  If one says the test is not simply “but for” but something more is required, having applied that test, a number of causes may be identified.  Now, your Honour, if it be that there is one cause which involves breach of duty and one that does not, then one would perhaps say an absolutely perfectly system that the person who was negligent should only be liable for what proportion of that one sees is attributable to the negligence.  It is sometimes impossible to see.  But the reality is, in most cases, that one simply has a set of circumstances involving an element of negligence, perhaps other causes superimposed, but in those circumstances, your Honour, a choice is made, the choice being, “How much should the negligent person pay?”, and the answer, in our submission, is “The damage”.

If you have a case where there are two negligent causes, each responsible for the same damage, or two negligent persons, each responsible for the same damage, there is not, in our submission, any very persuasive reason why, as between those persons and the person damaged, each should not be liable, leaving it to them to work out as between themselves who is responsible for what – who has to pay what.

McHUGH J:   Well, you are not liable unless all the damage can be traced to you.  The fact that other people may also be liable is a matter between themselves.

MR JACKSON:   Well, that is our submission, your Honour, yes, and the underlying ‑ ‑ ‑

McHUGH J:   Which makes it very difficult to understand these reforms in which a plaintiff is only going to be able to recover to the extent to which a person is responsible – not to the extent to which the person has caused it, but to which the person is responsible as between that defendant and other defendants.

MR JACKSON:   Your Honour, leaving aside statutory change, the current system, if I can put it that way, is one on which there are some statutory incrustations, if I can put it that way, one being the contributory negligence legislation, one being the provisions for contribution as between or amongst tortfeasors.  Those are both based, in our submission, upon the notion that prima facie the tortfeasor is liable for all the damage that tortfeasor was a material contributor to.  Your Honour, I do not know that I can take it beyond that.  I mean, of course, there is in the end an element of judgment, an arbitrary element saying what the law will be but has been that way for a long time.

Now, your Honours, could I say also one other thing and that is this, that your Honour the Chief Justice mentioned the evidence about the death of the husband and so on.  This was actually raised with Dr Phillips also in evidence‑in‑chief.  That is page 504, lines 30 to 45.

Your Honours, I was going to move to our written submissions and to pick up the respects in which we submit the Court of Appeal erred and I wanted, if I may, your Honours, to go to our written submissions, paragraph 22.  In particular, the passage with which I wish to deal is contained in paragraphs 22 to 28.  That is where we refer to what is, in our submission, the first of a number of errors made by the Court of Appeal majority.

Your Honours will see that the first of these concerns what was said by Justice Handley at page 1496.  Your Honours will see at page 1496 in volume 6 that after referring – I am going to paragraph 20 – to the finding by the primary judge his Honour went on to say in paragraph 20, about line 31:

If the fall only caused a temporary aggravation of the plaintiff’s degenerative condition for some 12 months or so, her pain thereafter was not caused by the accident, but by her underlying condition for which the appellant was not responsible.

Your Honours will see that Justice Handley said:

a temporary aggravation of the plaintiff’s degenerative condition for some 12 months or so –

He said that the primary judge had said that, but what in fact the primary judge said – and your Honours will see at page 1457 commencing at about line 28.  I have taken your Honours to the passage earlier.  It is 1457, line 28.  It goes through to the top of page 1458.  He said she had suffered initial:

severe back pain . . . for approximately twelve months –

but she also had continuing:

back and leg pain from time to time as a result of degenerative disease of the lumbar spine.  I find that this degenerative disease was aggravated by the fall . . . the back pain . . . recurs from time to time.

So, your Honours, the basis of saying that the degenerative condition was not manifesting itself was just wrong, in our submission.  It is based on an error as to the findings made at first instance.  Your Honours will see that his Honour Justice Handley – and I referred to this at paragraph 26 of our submissions – had also referred in paragraph 18 of his reasons at page 1495 to the – he said he had read his judgment as being:

that this was only a temporary aggravation.

But your Honours have seen the passage in the primary judge’s reasons and, with respect, it just does not say that.  Could I come then to the second of the errors.  Your Honours will see that referred to in paragraph 29 of our written submissions and it again appears at page 1497 in paragraph 22 of Justice Handley’s reasons where his Honour said that he:

did not appear to have realised that his finding that her psychiatric disorder commenced “at the latest” on or shortly after her husband’s death, tended to undermine his finding that it was caused by her fall some –

12 months later and:

treated her back pain as causative without, it seems, considering that after the first 12 months or so this was due to her degenerative condition and not the fall.

What we would say about that is simply that your Honours will see, apart from what we have said already, we would say in paragraph 31 the husband’s death was within, in any event, the period of 12 months.  He died in January.  She had been injured in the preceding April.  The second thing is that what the primary judge had found was that the slide commenced somewhere in 1998, or, at the latest, on or shortly after the death on 1 January, but, in either event, it was during the 12‑month period anyway.

We would also seek to make the point, as we have in paragraph 32, that the judge was not speaking of matters having a merely temporal significance.  Your Honours will see that he said in addition in a causative way that the “psychological factors would not have manifested as they did without the back pain”. 

We would also refer your Honours to the matters we have set out in that regard to paragraphs 33 and 34 of our written submissions. I do not think I need to take your Honours to the detail of those but I did want to take your Honours to the matters to which we refer in paragraphs 35 and 36. Your Honours will see that the appellant’s daughter, Tracey, gave evidence about her condition. Could I take your Honours to volume 2 and, in particular, a reference which is omitted in error from paragraph 35. It should be in the second line of paragraph 35, “See 2 AB 487-488 and 498‑499”. If one goes to page 487 at about line 51, she was asked:

After your father’s death, the pain in your mother’s low back and right leg became increasing troublesome, didn’t it?
A.  It was increasingly troublesome from the day of the accident.  I don’t know that it increased as – she was getting steadily worse but I’m sorry I can’t exactly say.

Then your Honours will see the next question, then at page 488, line 10, on the right‑hand side of the page, your Honours will see a passage going through from lines 10 to about 37.  This is a passage referred to by Justice Davies in his reasons for judgment.  Your Honours will see she said, “She was regressing all the way through.”

If one goes also to page 498, about line 45, your Honours will see that she answered at about line 50:

All I can say is she steadily got worse . . . 

She was bad from the time she walked, like got out of the hospital ‑ ‑ . . . 

I am just saying she has got steadily worse . . . 

Since the accident.

Q.  So you say there was no particular relevance in that regard after your father’s death:
A.  I don’t think so, no.

That is relevantly it, I think.

That evidence was referred to by Justice Davies in volume 6 at page 1525, paragraph 99.  Your Honours will see he there referred to the passage at page 488 and said on the next page at paragraph 100:

Thus, at the trial, counsel passed very lightly over the events of 1988 and did not confront either Mrs Shorey or her daughter, Tracey, with the specific proposition that Mrs Shorey recovered during 1988 from the effects of the 1988 accident.

We mention that it does seem apparent that the primary judge accepted the evidence of the daughter.  I have given your Honours one reference already which is at page 1456 at about line 37 but also a little earlier at page 1450 the judge said commencing at about line 16:

She reacted emotionally but I thought tellingly to the question whether she accepted that her mother’s condition is not due to physical causes –

and your Honours will see the answer that she gave.  Could I just say that if your Honours look at the evidence which the daughter gave and also the other evidence in the case about what she had to do for her mother, one can imagine the judge saying that there was a telling response for her to say that she had been doing a lot of things that she did not need to do as well as running her own household and taking the view that she was likely to be a witness of truth.

Now, your Honours, could I refer then back to Justice Davies’ reasons, commencing at page 1519.  Your Honour Justice Kirby said, one might need to go to the detail, and the point I would seek to make about it is this, that if one goes from page 1519 at paragraph 82 through the recitation of the medical evidence and the events that took place by Justice Davies, and that goes through to page 1526, one sees that the evidence that was before the judge, in our submission, was evidence on which he was perfectly entitled to arrive at the conclusion which he did. 

Your Honours, could I come then to the third error of the case, and that is the one to which we refer in paragraphs 37 and following.  Your Honours will see Justice Handley referring at page 1505, in paragraph 47, to the evidence of Drs Yeo and Phillips.  The essence of what was said by Justice Handley appears at paragraph 57 of his reasons, at page 1511, where he said: 

After the cross‑examination of Dr Phillips, the Judge could no longer act on the evidence of Dr Yeo on the causation question (para 17) because Dr Yeo had relied heavily on –

Dr Phillips, to put it shortly –

Nor could the Judge act on Dr Phillips’ opinion, given in his evidence‑in‑chief, that the fall was “the sentinel event in the causal chain” (para 17, black 2/223) because he had withdrawn that opinion during cross‑examination –

and he refers back to paragraph 55 of his reasons, where your Honours will see a passage there set out.  He also says, at page 1511, that – and this is paragraph 56, at the top of the page: 

The re‑examination of Dr Phillips failed to come to grips with this evidence or with the additional history that Dr Phillips had received the night before and during his cross‑examination. 

Now, could I take your Honours for a moment to the actual evidence of Dr Phillips, which is in volume 3, commencing at page 501.  I am sorry,  I said page 501.  The evidence actually starts at page 502.  If one goes to page 504, using the lines on the right‑hand side of the page, line 5, he agreed that it was “fair to say” that “the orthopaedic matters” he did not believe would “help explain in totality” her problems.  Your Honours will then see, in a passage to which I think I referred earlier, line 20, that she was asked to assume a sequence of events, and then your Honours will see that put to him, and going through on the next page, page 505, about line 10, he said: 

Well, I would view the accident of 1988 as the sentinel event in the causal chain.  She had made a relatively good recovery, I understand, from previous surgery.  It was after that accident that her symptoms began to be manifest.  I accept that there were other important stressors along the way which you have touched upon but the accident, in my view, was the psychological trauma of principal importance. 

Then he was asked, in the next question, to take into account the fact of the death of her brother and related matters, and he gave, again, the same answer – an answer to the same effect at about line 25. 

Now, your Honours will then see cross‑examination by my learned friend, Mr Jones, commences, and some discussion about the nature of the diagnosis.  If I could just give your Honours a reference, page 506, about line 45: 

The central understanding of conversion disorder is based on failure to resolve conflict. 

Your Honours will then see in the cross‑examination commencing about line 55, going through, I think, the next page, and then page 508.  At page 508, your Honours will see at about lines 30 to 55 dealing with the question of the administration of morphine, and then what was put to him at page 509.

GLEESON CJ:   Just before you pass from that evidence on the bottom of 506:

The central understanding of conversion disorder is based on failure to resolve conflict.

So let us suppose that as a result of somebody’s negligence a person has a broken thumb and then some time later that person finds himself or herself in a situation of unresolved conflict and comes to believe that as a result of the broken thumb that person is a quadriplegic or suffers some disability relating to the thumb that is grossly disproportionate to any physical symptoms or physical condition.  How do you then work out the causal connection between the conduct of the defendant that resulted in the broken thumb and the condition that I have just described, which results from the unresolved conflict?

MR JACKSON:   Your Honour, the way in which one would have to approach it would be fundamentally to identify whether the condition from which the person ultimately suffers is a manifestation of a condition underlying at the time of the injury to the thumb and if it was something that was a condition that was latent at that time and its manifestation and the form in which it came was as a consequence of the injury to the thumb then, in the ordinary course of events, that would be a variant, in a sense, of the “eggshell skull” theory.  It would not be really very different from it, your Honour.

GLEESON CJ:   What is this meaning in this context of the word “conversion”.  What is being converted from what into what?

MR JACKSON:   Your Honour, I suppose I can more easily tell your Honour what is converted into, and that is converted into the condition which manifests itself.  Your Honour, it is put in various ways and I find it a little hard to describe personally, but what it seems to be ‑ and I will endeavour to give your Honour a couple of references to the evidence a little later if I may ‑ ‑ ‑

GLEESON CJ:   Certainly.  You can do it after the conclusion of argument if that is convenient.

MR JACKSON:   Yes, your Honour, I would prefer to do it that way if I may because it is a technical issue and put in a number of different ways by the persons who ‑ ‑ ‑

CALLINAN J:   Dr Phillips seems to have adopted something that was said in a textbook, that it was a form of non‑verbal language or non‑verbal communication of, in effect, grief and suffering by acting physically in certain ways, in certain apparently disabled ways.  That is paraphrasing, but I think that is ‑ ‑ ‑

MR JACKSON:   That is page 507, your Honour, yes.

CALLINAN J:   But Mr Jackson, the trial judge seemed to rely very heavily on Dr Phillips.  Is that correct?

MR JACKSON:   Yes.

CALLINAN J:   I just wonder whether the opinion of Dr Phillips was not seriously discredited when it emerged that – it was “he”, was it not, Dr Phillips was a male?

MR JACKSON:   Yes.

CALLINAN J:   When it emerged that he was unaware until the night before he gave evidence that the appellant had been consulting a psychiatrist for some years after her husband’s death and because she was troubled by the fact that she had given him too much morphine.  That seemed to be something that Dr Phillips had no knowledge of and I wondered whether that really may have demolished much of his opinion.

MR JACKSON:   Your Honour, could I say first of all about that, the evidence I think was at the bottom of page 508, at about line 43, and that is that she went to in April 1991 she went to a physician in a depressed state in relation not grief counselling, and then at the bottom of that page, saw a psychiatrist in consequence of that.

Your Honour, could I just say that had these questions been put to him, one sees Dr Phillips giving oral evidence and then one comes to the conclusion of his evidence in fact and then one sees various matters put to him at the end of his cross‑examination and then in re‑examination.

CALLINAN J:   I know I have only referred to one aspect of it, Mr Jackson.  What is the best refutation of the proposition that I have just suggested to you?

MR JACKSON:   Your Honour, it is really his re‑examination, I suppose, but could I just say in relation to it:  when one comes to the end of his cross‑examination, you see for example at the bottom of page 514, at about line 45, he said, “This a most difficult case.”  Then it is put to him:

you would really prefer . . .  is see this lady again, armed with all this additional information . . . is that right?  A.  yes.

And then he was asked:

Sit down and work through all that . . . only be at that point . . . wouldn’t it, that you would be able to say with any confidence 1, what condition this lady has, and 2, what the etiology of that condition is?

His answer was:

Well you are perhaps  . . . a bit more optimistic than I would be.  I certainly agree that armed with additional information to go back and carry out a further examination would be very useful.

Whether he could achieve the end points he is not sure but he could probably be “in a stronger position”.  He agreed in the next answer that:

it’s true to say that some diagnoses are harder to reach and to substantiate –

and “conversion disorder” is such a diagnosis.  Then your Honours will see further cross‑examination by other counsel involved and then ‑ ‑ ‑

CALLINAN J:   It is a fairly effective cross‑examination though, is it not, at 514 and 515?

MR JACKSON:   Your Honour, what he is saying is that he would know something better if he did another examination.  The effectiveness of cross‑examination, your Honour, like beauty in a sense, tends to be a bit in the eye of the beholder.  The cross‑examiner, one has found so often ‑ the cross‑examination thought to be so successful at the time turns out to be rather barren when one ‑ ‑ ‑

CALLINAN J:   I was looking at it a few years later.

MR JACKSON:   Yes, and your Honour, sometimes that happens, sometimes the merits of it do not appear really from the bits of paper.

Could I just say when one comes to the re‑examination at page 518 you will see that he is re‑examined about various aspects.  He says at line 51, “the behaviour is bizarre rather than deceitful”.  The next answer, he thought that “bizarre behaviour” can be:

evidence of a lack of insight consistent with a diagnosis of the conversion disorder.

Then you will see in the question ‑ ‑ ‑

CALLINAN J:   It looks very much like cross‑examination rather than re‑examination.  Typically Sydney re‑examination.

MR JACKSON:   Your Honour, I am not supporting it or defending it.  The judge ruled on it and there we are.

Your Honours will then see the question put to him, it goes through from line 5 to about line 38, and you will see in particular at about line 35:

In saying that I really don’t want to rule out other stressors because I think medicine –

I am sorry, your Honour, I am putting it badly.  What I was going to say was the questions repeated at about line 22 and then the answer is to say:

Yes, it is entirely reasonable to see the fall in the shopping centre in 1988 as the event which was the beginning of the downhill course, if you like.  In saying that I really don’t want to rule out other stressors because I think here perhaps medicine apart, we tolerate multiple stressors.  The law would like us to have a single cause –

and the judge said “I don’t know about that?”  And he said “I withdraw everything I have said then.”  And then he goes on.  It is in an amusing way, no doubt.  Your Honour could perhaps tell that from – but then he goes on to say:

I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically.

And then one sees the question and answer at the bottom of the page.

Now, your Honours, in relation to that, there was no reason, in our submission, why the judge was not entitled to form the view which he did of Dr Phillips.  That is why re‑examination exists.  We would refer also, your Honours – and I am referring to paragraph 40 of our written submissions – to what was said by Justice Davies in relation to this issue, in volume 6 at page 15 to 16, commencing at paragraph 75 and going through to paragraph 81.  Your Honours, we would submit that was a correct approach and one which should be accepted.

Your Honours, could I come then to the fourth aspect.  That is the matter to which we refer in paragraphs 42 and 43 of our written submissions.  At page 1497, paragraph 23, there is a reference by Justice Handley to the fact that:

The judge did not refer at all to the objective evidence in the records –

of the hospitals, but what we would simply say about it is that he did in fact refer to them, in globo, as it were, at page 1456, lines 15 to 24, but also prior to that he referred to a summary of the medical evidence, and, your Honours, a judge does not have to refer to every part of the evidence.

Your Honours, the final, I think, things we would seek to say are those set out in paragraphs 44 and 45 of our written submissions.  This was a case where the decision of the trial judge did depend, in significant measure, upon his estimation of the witnesses.  We would also seek to say, your Honours, that he expressly accepted evidence which linked the degeneration progressively from the accident. 

Your Honours, as to the definition of conversion disorder, Dr Phillips’ report in volume 4 at page 914, at the top of the page, in the first line he says:

The sensory loss will probably be explained as a conversion disorder with sensory deficit symptoms.  Conversion was previously known as hysteria.  It is best understood as the genuine loss of physical function brought about by psychological mechanisms mediated at an unconscious level.  It has been described as a non‑verbal language through which the patient demonstrates her/his distress.  It is not to be confused with malingering.

Your Honours will see in the last paragraph of that report he refers to the role of the fall in that symptomatology.

KIRBY J:   The Court of Appeal’s orders at 1529 includes order 6 that:

The cross appeal be dismissed with costs.

I could not find where that has been dealt with in Justice Handley’s reasons, but it followed the logic of it, I suppose.

MR JACKSON:   Well, your Honour, what happened was this, that there was a cross‑appeal on the quantum of damages.  Because of the view taken by the Court of Appeal, that was not dealt with by the majority.  Your Honours will see that at the conclusion of Justice Handley’s reasons, page 1514, paragraph 69.

GLEESON CJ:   Does that mean the matter would have to be remitted if we were in your favour?

MR JACKSON:   Yes.  I was going to say, your Honour – the answer is “yes”.  Could I say that it was dealt with by Justice Davies at page 1527, paragraph 103 to 105, adversely to us, but the issue has not been dealt with by the Court of Appeal, and that is why ‑ ‑ ‑

KIRBY J:   Where did that figure of 68,911 come from?  I know it was nominated by the present respondent – this is at the top of page 1515 – and Justice Handley embraced that figure.

MR JACKSON:   Your Honour, I do not know the detail of it.  It immediately appears ‑ ‑ ‑

KIRBY J:   Well, perhaps Mr Walker can explain it.  It was his figure.  But if the Court of Appeal finds error, then that gives them the gateway and then, as I understand the principles, they have to perform the function that has miscarried at trial and his Honour just says, “Well, I adopt that figure on a reassessment”.  Though he was invited to reassess himself, he just adopted the figure from the respondent.  I just do not quite understand how that was done.

leaving that aside –

so it is clear that the pains taken today in relation to the dating of physically caused pain continuing played no part in the reasoning below, and, with respect, his Honour the trial judge was clearly correct.  It turned out to be irrelevant to the formation of this bizarre mental disorder –

it seems to me that the plaintiff’s slide into her now full‑blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 when she began use of a walking stick, and her husband became very ill and was diagnosed with cancer, or at the latest on or shortly after his death on 1 January 1989. 

Now, for the reasons set out by Justice Handley, it is not possible to prefer, in light of those incontrovertibles about presentation to doctors, what was and was not noticed concerning ambulation, concerning limping, concerning walking.  It is not possible to prefer the admittedly generalised and quite impossible to test assertions that there was something in the nature of perfect gradualism in her physical decline, whether psychologically or physically caused.  It is for those reasons, in our submission, when one sees that that is the only reasons one finds for this point in the trial judge’s judgment that the Court of Appeal proceeded in orthodox and correct fashion.

Intertwining, the metaphor used at 1458, line 16, does not advance matters, not least because, as your Honour Justice Callinan has pointed out, that may simply mean that you have to try and untwist them.  Then his Honour holds:

The psychological factors would not have manifested as they did without the back pain.

We obviously emphasise the words “as they did”.  That is partly a sine qua non finding of a kind that advances the plaintiff’s cause but if there is no suggestion, and there can be no suggestion, that this was peculiarly exacerbated because of so‑called back pain as opposed to something cardiac or ocular, then the question is, does it make us responsible so far as causation is concerned for everything that occurred after the simple trip and slip.

While it may be true to say that had she not had back pain the plaintiff’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point.

Well, that emphasises the adventitious nature of the relationship between our negligence and the fall, on the one hand, and on the other hand, her bizarre disorder for which she sought so much by way of damages.

She did have back pain.

Well, so she did, but that, as Dr Dyball suggests, simply displays what she will focus on, presumably unconsciously because of no malingering, by way of the conversion disorder.  Then his Honour appears to assimilate this

to the ordinary case of mental sequelae of disease or injury.  In our submission, it is no such case at all.  Then, without further reasoning, he concludes that:

the conversion disorder was caused by a variety of factors, including the fall.

In our submission, bearing in mind what he has already said about that it might be true to say – and that appears to be in accordance with the evidence before him -  that it would have displayed itself in some other way without the fall, that, in our submission, means that one simply cannot say that it was the fall that caused the disorder.  It will not even pass, in our submission, an ordinary commonsense sine qua non requirement.

Now, your Honours, paragraphs 42 and 43 of the written submission against us refers to Justice Handley’s criticism of the failure by the primary judge to refer to all the objective evidence in the records which were analysed in the Court of Appeal.  It is not a refutation of Justice Handley to make the reference in volume 6 to 1456 which is made.  That is an extremely perfunctory paragraph that expresses nothing as to reasons in relation to that objective evidence.  What it does is demonstrate that this case was on those matters, that is, how were her orthopaedic symptoms, what was her orthopaedic treatment and what was her psychological state over a number of a great many medical and hospital attendances.  That was a documentary case of a kind that the Court of Appeal is not only fully at liberty to but, in an appropriate case, is obliged to decide for itself.  For those reasons, in our submission, your Honours would find that no error was committed by the Court of Appeal.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   If it please, your Honours.  Your Honours, may I deal first with the matter to which my learned friend has last been referring and that is the question of the medical evidence, the going to hospitals and so on.  Your Honours, if one looks at that medical evidence – and I will do so very, very briefly – what one can see is that there were from an early point indications that she was suffering from something which was beyond what one might expect.

Could I just take your Honours for a moment to Justice Handley’s reasons, the parts that he extracts?  It is in volume 6, page 1497.  What he does first is to look at the hospital records from Blacktown Hospital on the one hand and he follows that with Westmead.  If one goes to page 1497 in the paragraph commencing about line 24 what he refers to about line 29 is:

Her twelfth admission to Blacktown Hospital occurred on 15 November 1988 –

and then your Honours will see at the end of that paragraph how she is described:

She is described as a “well looking lady” and her condition on admission was described as “walked in ward has a limp”.

Now, this is November 1988.  If I could pass over then to page 1498, the paragraph commencing about line 18:

Her next admission to that Hospital was on 7 March 1991 and she remained there until 19 March . . . There is an ambiguous reference in the clinical notes to: “right leg pain – calf/hip on walking –

Well, I do not know how ambiguous that is, your Honours, but it simply says:

“right leg pain – calf/hip on walking –

Then, your Honours, if one moves over to the next page, 1499, your Honours will see about line 34 that he is referring to the consultant psychiatrist who saw her at one point, but then goes on to say about line 37:

Entries for 12, 18 and 19 March –

and this is 1991 –

referred to her use of a walking stick.

Then, your Honours, page 1500, the next page, the last four lines on the page:

On 25 September –

1991 –

Dr O’Brien of the Hospital’s dental clinic . . . recorded a history of “back problems . . . impaired use of right leg” –

and at the top of the next page she –

“Arrived to the ward with walking stick”.

She was again admitted to Blacktown Hospital on 5 April 1992 via the casualty section complaining of severe low back pain.

If one goes, your Honours, on the same page to about line 27:

16 September 1993.  She was admitted from emergency with complaints of back pain . . . The history notes from the emergency staff record that she had been in a wheelchair for the last 12 months and –

so on.  Now, your Honours, that is Westmead Hospital in that paragraph.  If one goes over to the next page, 1502 about line 10:

again admitted to Westmead Hospital for back pain on 3 October 1993 . . . noted that she walked with two sticks and her right leg dragged.

Now, your Honours, the whole of the rest of that page refers to occasions when she had been walking with a stick and so on and a reference, for example, to a “limp” about line 25 and at the top of page 1503:

using a stick in her right hand and a quadruped in her left, but was still driving a car.

Now, I will not take your Honours beyond that, but your Honours will see if one looks at the evidence that there was in relation to what had happened there is a pretty consistent version of her having presented from an early point with conditions which support the conclusion arrived at by the primary judge.

KIRBY J:   That sounds a little bit like the fallacy of post hoc propter.  I mean the fact is that she had these manifestations and they were getting worse, but it does not resolve the causation question.

MR JACKSON:   No, but, your Honour, the point I am seeking to make about it is this, that it does not, in the end, resolve the causation problem but it is not an argument against it.

KIRBY J:   No, that is true.

MR JACKSON:   Our learned friend’s argument and the majority in the Court of Appeal seem to have said, “Look at what happened.  She didn’t, every time she went to hospital, say there was something wrong with her in this area”, but the fact of the matter is, we would submit, that she did, on a number of occasions say there was something wrong with her at appropriate times and as we have sought to say in our written submissions in paragraph 43, the recitation of them by Justice Handley on the one hand, Justice Davies on the other, really shows that one can draw both sides of the argument from them and it certainly is not against us to take that view.

Your Honours, could I go then to the matter raised by our learned friends concerning the interpretation of the judge’s reasons at first instance at page 1457.  The argument appeared to be that what had been said in the paragraph commencing at about line 27 was that the “severe back pain” comprehended, as it were, the aggravation of the degenerative disease and that Justice Handley was right in the way in which he dealt with that.  The difficulty with that, your Honours, is twofold:  the first is that it is apparent enough, in our submission, if one reads that paragraph and the succeeding one that goes on to 1458, that, in fact, they were two different things and that the accident aggravated degenerative disease was continuing over a long period.  The second thing is that it is apparent that if one looks at the passages that we have referred to in our written submissions at paragraphs 26 and 28, other passages from Justice Handley’s reasons, that he had misunderstood what the primary judge had said, because he took the view there was only a temporary aggravation and the finding is to the contrary.

Your Honours, if I could turn then to what was said about the evidence of Dr Phillips, and may I take your Honours to volume 4.  It may be, your Honours, that entranced by the skill of the cross‑examiner, that Dr Phillips perhaps did not appreciate, or did not say, what one sees in his later report at page 915 and at page 915, in the third paragraph of his report, he is referring to Dr Dyball’s report, and you will see in that paragraph that he records the fact that Dr Dyball’s view was that:

a pathological grief reaction . . . took her 2‑3 years to resolve –

And what your Honours will see from the part of the report under the heading “Opinion”, commencing at page 916 and going on to page 917, that that did not affect his view and he said there was a difference between himself and Dr Dyball about the terms of the psychiatric condition.  I am reading, your Honour, at page 916, line 34.  Dr Dyball thought she did not have a psychiatric disorder; he thought she did, and your Honours will see that referred to again in the succeeding paragraphs.  Your Honours, one sees that this was not, one might think, quite the dramatic event in the whole scale of the case that was put.

At page 913 your Honours will see also, at about line 21, that there is the observation made by Dr Phillips that:

She was undoubtedly vulnerable to further deterioration –

Your Honours will see under the heading “Opinion” on that page, she had:

advanced orthopaedic deterioration involving the lower region of her spine.  She already had substantial problems . . . She was undoubtedly vulnerable to further deterioration –

and so on.  So he is dealing with a situation where she was a person who was vulnerable to injury to the spine and broadly speaking, a vulnerable person.

Your Honours, our learned friends say that in some way the case was not conducted on the basis that she was a person who had a predisposition to this.  Well, your Honour, that is a bit - to something happening; a little bit difficult to see that made out, your Honours, in the circumstances where the whole of the case was that she was a person whose nature was such that if something of this kind happened then the result that flowed was one of the results that might flow from that type of event.

Your Honours, if I could go then – staying with Dr Phillips for a moment – to volume 3 at page 512, and your Honours will see in a passage I do not think your Honours have been referred to in the course of going through it, commencing at about line 25 – you will see the answer at about line 30:

I think if we are looking at the development of conversion disorder, we can’t, as it were, separate the physical and the psychological entirely.

Now, your Honours, that is in the middle of the cross‑examination to which reference has been made and one sees then at the bottom of page 514 and page 515 the evidence relied upon by our learned friends.  Your Honours, our submission is that the effect of that evidence, in the light of the re‑examination, in the light of the whole of the evidence of Dr Phillips, was quintessentially one of the things that the trial judge was able to assess, bearing in mind the evidence that he really clearly accepted of the daughter who gave evidence of a steady downhill progress since the accident.

Your Honours, could I then go back to Dr Yeo’s evidence for a moment in volume 2 at page 453.  Now, one sees at line 10 the question and answer where he said – and I will come to his experience in a moment, who is a man of considerable experience – he was asked:

Q.  Is it your view that in a psychosomatic case of this nature there is usually a physical trigger of some sort, physical in the sense of some traumatic injury of some degree?
A.  Yes.

Your Honours will see, for example, also, his answer at the bottom of the same page.  Now, your Honours, the way in which he is speaking of a “physical trigger” and also at the bottom of page 454 is, in our submission, pretty plainly in the sense of identifying what were the causes of the condition of the appellant and your Honours will see that at the bottom of page 451 he speaks of it not being:

possible to identify specific pathology at various areas in her body that would be causing the plethora of symptoms that she has.

So plainly speaking in terms of what causes it.  His qualifications, your Honours, appear at page 450 to the top of page 451 and he is a man of very considerable experience in the general area, including, as your Honours will see there, rehabilitation of the seriously injured.

Your Honours, could I then deal with a number of other matters that have arisen in the course of the case.  Your Honour Justice Kirby asked what was the relevant District Court Act provision giving a right to appeal. It is section 127 of the District Court Act 1973. It does not tell your Honour anything about the conduct of the appeal.

So far as Abalos was concerned, your Honours will see that there was a reference in argument in that case at page 168 to the page – I am sorry, reference in Abalos at page 168 to Warren v Coombes, and the relevant page is the one that contains section 75A.

Your Honours, could I just say one other thing about Warren v Coombes.  Your Honours will recall that the occasion, as it were, for the Court’s decision in Warren v Coombes was in a sense to put down, if I can put it that way, a hare which had been set running in a sense by some judgments in the Court, in particular an approach taken by Chief Justice Barwick.  That was an approach that the test to be applied was whether the decision was wrong.  The start of that was the Court’s decision in Whiteley Muir & Zwanenberg which is referred to in Warren v Coombes, and three Justices in Warren v Coombes were saying that that was an inappropriate test.  That is dealt with between pages 542 and 551.

Finally, your Honours, so far as the future disposition of the matter is concerned, if it be that our appeal is successful, our submission would be that the appropriate course is, as is set out in our written submissions, for the matter to be remitted to the Court of Appeal to deal with the aspect of the case, namely the cross‑appeal on damages, as yet undealt with.

GUMMOW J:   There is a problem about the composition of the court, is there not?  Justice Davies engaged himself with the question I suppose.

MR JACKSON:   Your Honour, it would have to be dealt with by a fresh court.  The issue has not been decided by the Court of Appeal.

GUMMOW J:   No, but what I am saying to you is it could not be the same bench again, could it?

MR JACKSON:   Very unlikely, your Honour, yes.  I do not think Justice Davies ‑ ‑ ‑

GLEESON CJ:   Justice Davies was only an acting judge of appeal anyway.

MR JACKSON:   Yes.  It would have to be a new court.  We would accept that would have to happen, but it is an issue that has not been dealt with in any event.  Our learned friend referred to if this Court has power to do so.  The relevant power seems to be section 37 of the Judiciary Act.  Assuming for the moment that that confers power on the Court not to remit the matter, this is not a case where it would be appropriate to take that course because the reality is that the issue has not been dealt with by a court on appeal.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter.

AT 3.23 PM THE MATTER WAS ADJOURNED