Sterndale v Laurie

[2010] HCATrans 280

[2010] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 2010

B e t w e e n -

JOHN PAUL STERNDALE

Applicant

and

FREDERICK JAMES JOHN LAURIE

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 2.05 PM

Copyright in the High Court of Australia

MR T. LAMPROPOULOS, SC:   May it please, your Honours, with MR J.N. D’ANGELO I appear for the applicant.  (instructed by Friedman Lurie Singh & D’Angelo)

Mr D.R. CLYNE:   May it please the Court, I appear for the respondent.  (instructed by Talbot & Olivier)

CRENNAN J:   Thank you.

MR LAMPROPOULOS:   If your Honours please, if I could take you directly to page 99 of the application book where the error appears, which we respectfully submit special leave should be granted to correct, and it appears at paragraph 134 of the reasons of his Honour Justice Buss in relation to the approach taken to the issue of causation of what is described as the stress‑related psychological condition.

Your Honours will see in the paragraph before that his Honour mentions that in the present case the respondent disputed at trial that the accident caused or materially contributed to “the appellant’s stress‑related psychological condition” and then in paragraph 134 that issue is dealt with and his Honour concluded that it was reasonably open to the trial judge not to be satisfied that the negligence was a cause of that stress‑related psychological condition and that was based on the reasons and conclusions in relation to what have been referred to as errors numbered 1, 4, 5, 6 and 7. 

Now, can I first of all say at the outset it is important to recognise in this case that we are speaking of two different psychological conditions.  There is the stress‑related psychological condition and, in that respect, there is no dispute that the plaintiff had that condition.  So the only issue there was the question of causation.  The other psychological condition was what is described as the chronic adjustment disorder within the meaning of DSM‑IV and in order to arrive at that diagnosis or to put that label on a condition, it is necessary to establish specific criteria.

Now, just to show that that is the approach that was taken, if I could take your Honours to paragraph 8 of Justice Buss’s reasons which appear at page 57 of the application book and halfway through paragraph 8 after dealing with the physical effects of the accident, his Honour says:

It also became undisputed, in the course of the trial, that the appellant was suffering from a stress‑related psychological condition.  The critical issue between the parties at the trial were whether the appellant had developed a chronic adjustment disorder -

That is that DSM‑IV, of course -

and whether his stress‑related psychological condition and any chronic adjustment disorder from which he was suffering had been caused by the accident.

CRENNAN J:   Is there a matter of principle which you are seeking to raise in relation to the application for special leave?

MR LAMPROPOULOS:   Your Honour, we are relying on the visitorial jurisdiction entirely, yes.  Then in the next paragraph the point is made about the findings of the learned trial judge in relation to the diagnosis of chronic adjustment disorder and then (b):

the accident did not cause the appellant’s stress‑related psychological condition -

At the bottom of that page, paragraph 16, his Honour makes the point that:

The grounds of appeal attack the trial judge’s findings in relation to whether the appellant suffered from chronic adjustment disorder and whether the accident caused his stress‑related psychological condition.

If I could then take your Honours to page 94 of the application book, at the top his Honour makes the point that:

It is important to note that her Honour’s absence of satisfaction concerned whether the appellant suffered ‘shortly after and since the accident’ the symptoms he reported to Dr Ng and Dr Blumberg in 2008 ‘as a continuing set of symptoms’, which had their onset within three months of the accident.  She did not find that the appellant did not have any symptoms of anxiety or depressed mood shortly after and since the accident, and she did not find that the appellant did not suffer from any psychiatric or psychological symptoms at any material time.

That is a recognition once again, your Honours, of the two conditions we are concerned with.  The first part of that paragraph deals with the requirements of DSM‑IV for the chronic adjustment disorder and that requires that the debilitating psychological symptoms come on within three months of the stressor, in this case the accident.  So, if they come on four months after, then you do not have chronic adjustment disorder.

The other aspect is that you need to have a continuing set of debilitating symptoms from that time.  So if you have a situation where you get some symptoms, they are not debilitating but they develop over a number of years, then once again you do not come within the description of “chronic adjustment disorder” within the meaning of DSM‑IV.  I will take your Honour to it in a moment, but the effect of her Honour’s decision in relation to the first part was that the evidence of the applicant was that he suffered symptoms that he described to Dr Ng and Dr Blumberg in 2008, the two psychiatrists who he saw for the first time in 2008, and the symptoms described to those two doctors were quite debilitating.

BELL J:   Can I take this up with you?  The trial judge at application book 37, paragraph 283, said that the history that the applicant gave to those two doctors needed to be “considered with caution”, and then set out the reasons why that was so, including the absence of the independent observation to support a history given a number of years later of the symptoms.  Now, if we are looking at factual findings by the trial judge, it is just not clear to me what you are suggesting was the error in the Court of Appeal.  The Court of Appeal has, in essence, carefully reviewed the evidence and concluded that these were factual findings open to the trial judge.  Is that not so?

MR LAMPROPOULOS:   It is.  But what we say, your Honour, is that the factual items that were relevant to the question of whether or not the chronic adjustment disorder had been established were not factors that were relevant to the question of whether the admitted stress‑related psychological condition was caused by the accident because in relation to that condition it was accepted that the applicant had ongoing angina‑like symptoms from the time of the second ablation procedure and, indeed, when one looks at the evidence, including the evidence recited by her Honour, there are contemporaneous documents in 2004, for example, that deal with angina‑like symptoms of the type that it was accepted that the plaintiff had following the second ablation procedure.  So there is no issue of fact and there is no issue of credibility that the plaintiff had the angina‑like symptoms from the time of the second ablation procedure which was in early 2004. 

Where her Honour found against the applicant was that the symptoms of the type and degree described to the psychiatrist five years later, which were much more severe by that time than the angina‑like symptoms, because there was no contemporaneous complaint of the severe panic attacks and the like between 2004 and 2008, therefore, her Honour concluded that you did not have the continuous set of debilitating psychological symptoms that would bring you within DSM‑IV.  But that says nothing, with respect, in relation to the admitted condition in respect of which it was not contested that he did have ongoing symptoms, namely angina‑like symptoms.  That is what we say is the problem with 134, that the court has used ‑ ‑ ‑

BELL J:   I am sorry, 134?

MR LAMPROPOULOS:   Paragraph 134 of Justice Buss’s reasons at page 99 of the application book because the part where he says:

This opinion is based on the reasons and conclusions I have expressed in the context of considering alleged errors nos 1, 4, 5, 6, and 7 -

they are errors that were alleged in relation to her Honour’s treatment of chronic adjustment disorder, in other words, where the symptoms came on within three months and the contemporaneous documents.

BELL J:   Yes.

MR LAMPROPOULOS:   Now, to use that or those findings in relation to the question of whether or not the accident was a contributing factor to the admitted stress‑related psychological condition we submit involves a logical flaw.  Perhaps if I take your Honours through those errors, 1, 4, 5, 6 and 7 to illustrate what we say is the point because going backwards to the previous page his Honour deals with the merits of alleged error number 7.  The alleged error was in relation to her Honour’s finding that the applicant’s account of the symptoms, as reported to the psychiatrists, was largely unsupported by the documented evidence.  Justice Buss, in fact, emphasises in paragraph 129 that it refers to the:

account of his symptoms as reported to the psychiatrists . . . 

In my opinion, the challenged finding was reasonably open to her Honour.  My opinion is based on the reasons and conclusions I have expressed in the context of considering alleged errors nos 1, 4 and 6.

So then we need to go back to – the next one in line is 6.  This is an alleged error that her Honour concluded that there were no documented symptoms of panic attacks.  That is the more serious symptom complained about to the psychologist and in that regard again Justice Buss makes the point:

Her Honour did not find that all of these highly qualified specialists had not documented any symptoms associated with panic attacks.  Her finding related to symptoms ‘as reflected by the appellant’s report of his symptoms’ to Dr Ng and Dr Blumberg.

So we are not dealing at all there with the admitted accepted symptoms of angina‑like symptoms which he did have during the relevant period of time. In that regard, Justice Buss relies on his reasons and conclusions in relation to errors 1 and 4.

The next one down is at page 97 of the application book – alleged error number 5 – and this was a criticism by her Honour that one would have expected that the doctors would have considered a psychological cause if the applicant was exhibiting the level of disability and symptoms as reported to the psychologist.  In that regard, Justice Buss says that we need to go back to errors 1 and 4 and, in passing, he says at 124:

In any event, even if this finding was not reasonably open having regard to the oral evidence at trial, the existence of such an error would not, in my view, be sufficient to disturb any other material finding –

That was an error where, although her Honour said that the documents did not record any evidence of these severe symptoms and they had not turned their mind to a psychological cause, in fact the oral evidence from the doctors, in particular Dr Ozanne, the GP, was “Well, no, I did consider a psychological cause, but people do not die from psychological causes.  They die from heart problems and, therefore, we needed to exclude a physical cause for his ongoing symptoms about which he was complaining before we turned to the psychological causes”. 

But, in any event, that then takes us back in terms of the approach of Justice Buss at paragraph 134 that I mentioned earlier, to error number 1 and error number 2.  Now, error number 1 was a finding by her Honour that the applicant did not have any pre‑existing stress, that is, stress before the accident.  That was relevant because her Honour in considering the psychiatric evidence, in particular Dr Ng, and Dr Ng had given evidence that said the applicant, before the accident, did have some stresses.  He had the stress of the initial diagnosis of AF and losing his medical accreditation.  He lost his job and he was also about to have some back surgery.  But he was coping with that stress and really the straw that broke the camel’s back was the motor vehicle accident.  Her Honour said, “Well if there was evidence of pre‑existing stress, I would accept the evidence of Dr Ng, but there is no evidence of pre‑existing stress because he seemed to be coping with it adequately”.

The finding in relation to error number 1 that was challenged was her finding that there was an absence of pre‑existing stress, in other words, that the applicant did not have any pre‑existing psychological condition.  So the finding then is, that is now unchallenged, that he did not have a pre‑existing psychological condition.  So, in our submission, that cannot then be used to say that there was no causal connection between the accident and the admitted stress‑related condition.  In fact, it works in our favour, not against us.  But that is one of the matters that Justice Buss relies upon at 134. 

The other and final remaining factor that he relies upon is in relation to error number 4 – the continuing set of symptoms which had their onset within three months of the accident.  That takes us to page 94 of the application book which is the part I initially read which said you need to draw a distinction between the particular symptoms for DSM‑IV and the other symptoms being the stress‑related psychological conditions. 

He makes the point that it was only in relation to the former that her Honour made the finding of fact that they were not the continuing set of debilitating symptoms as reported to the psychiatrist and they did not come on within three months of the accident.  That says nothing, with respect, in relation to the stress‑related psychological condition because DSM‑IV does not determine causation in relation to the stress‑related psychological condition and the difficulty ‑ ‑ ‑

CRENNAN J:   Even accepting some of those observations and distinctions to be made between the two conditions, the trial judge simply did not accept the applicant’s account of timing in relation to these illnesses.  Is that not the case?  I am thinking now of paragraph 300 at page 39 of the application book.  So that underpinning her ultimate determination there was not the causative link between the accident and the psychological condition was that finding in relation to the applicant’s credit.  I am not sure how you would expect us to look at a visitation‑type of case in that context where there are findings of fact by the trial judge which are concurrently affirmed by the Court of Appeal.

MR LAMPROPOULOS:   The point we make, your Honour, in relation to the matters that we seek to rely upon causation, why we say there was an error.  There are admitted facts or undisputed facts that we rely upon in relation to causation which the court did not turn their mind to.  The error was that they simply looked at the chronic adjustment disorder findings, and I should stress her Honour did not find that he did not have psychological symptoms through this period of time.  That would not have been open to her anyway because that was conceded and accepted by the parties.

CRENNAN J:   She just did not accept that they were caused by the accident.

MR LAMPROPOULOS:   Did not accept that they came on within three months of the stressor – that is the serious symptoms, and did not accept that they were a continuous set of serious symptoms. 

CRENNAN J:   That is why I directed your attention to what her Honour had to say about the timeframe and the evidence given by the applicant before her.

MR LAMPROPOULOS:   Yes, your Honour.  But the only significance of the three months is the DSM‑IV.

CRENNAN J:   Yes, I understand that.

MR LAMPROPOULOS:   That does not determine, in our submission, the stress‑related psychological condition because in relation to that it is undisputed that he did not have any condition before the accident.  It is undisputed - in fact, it is conceded that he had a stress‑related psychological condition with angina‑like symptoms from the time of the second ablation procedure.

CRENNAN J:   But it does not automatically follow just because of those sorts of acceptances that there is a causative link between the accident and the psychological condition because you have the overlay of the ablations to worry about.  You have the heart condition and one possibility is that the psychological disorder was related to that rather than to the accident.

MR LAMPROPOULOS:   But that would still be a causal link if that was the case, your Honour.  The accident which caused the need for the ablation procedures, therefore, there is a causal link with the stress‑related psychological condition.  That would make our case even stronger, your Honour.  The difficulty here is - and I certainly accept what your Honour says about the need to then look at the various factors - the approach that was taken by the Court of Appeal. 

The approach was wrong because at 134 they have not taken the approach of looking at what factors are not in dispute and what is the appropriate test in relation to causation, but rather what they have said is “Look, we look at the findings in relation to the chronic adjustment disorder.  The applicant did not establish the requirements for the chronic adjustment disorder within the technical requirements of DSM‑IV.  Therefore, they failed to establish a link with the stress‑related psychological condition”.  In our submission, you cannot jump from one to the other.

BELL J:   Can you just take us back to the grounds before the Court of Appeal – the matters that Justice Buss was addressing?

MR LAMPROPOULOS:   Certainly.  Is that at the bottom of page 58, your Honour, where his Honour drew the distinction between the:

findings in relation to whether the appellant suffered from chronic adjustment disorder ‑ ‑ ‑

BELL J:   Yes.

MR LAMPROPOULOS:   ‑ ‑ ‑ on the one hand, and on the other:

whether the accident caused his stress‑related psychological condition.

They are separate things.  Errors 1 to 7 concerned whether or not there was sufficient to reach a conclusion that the technical requirements of the DSM‑IV had been met.  But in relation to the stress‑related psychological condition, there was no issue about whether or not he had that condition.  It was accepted he had that condition.  The only question was the causation and that required a consideration of the various matters like what was the condition beforehand, what was the history between the accident to the ablation and what occurred thereafter, and was there any other possible cause for the condition.

BELL J:   Can I just ask you this?  If you go to application book 57, paragraph 8, and to the way in which Justice Buss in summary fashion describes the critical issues between the parties at trial, is that a statement with which you take issue?

MR LAMPROPOULOS:   No, we embrace that, your Honour.

BELL J:   Yes, all right.

CRENNAN J:   And you embrace 16 where his Honour is again talking about the grounds of appeal and summarising them?

MR LAMPROPOULOS:   Yes, your Honour.  We accept that, too.

CRENNAN J:   It indicates that he is mentioning only those of her Honour’s reasons that go to those particular issues.

MR LAMPROPOULOS:   Yes.

BELL J:   So, to go back to 8:

The critical issues between the parties at the trial were whether the appellant had developed a chronic adjustment disorder, and whether his stress‑related psychological condition and any chronic adjustment disorder from which he was suffering had been caused by the accident.

MR LAMPROPOULOS:   Yes, your Honour.

BELL J:   Then you say by paragraph 134, his Honour is only directed to the chronic adjustment disorder.

MR LAMPROPOULOS:   Yes.  He has jumped from the chronic adjustment disorder and applied that to the issue of causation of the stress‑related psychological condition and he said because you have not proved chronic adjustment disorder, therefore you have not proved causation of the admitted stress‑related condition which everybody accepts that the applicant suffers.  I think I have gone over time, your Honour.

MR CLYNE:   If it please the Court, it is our submission that there is no error, certainly, no error of law and there is no error such as to cause this Court to interfere.  It is clear that her Honour, the trial judge, was at pains to examine a causal link between the accident and the onset of symptoms.  The reason for that was that it was a very late change of pleading to allege, five years after the event, that the accident had caused chronic anxiety adjustment disorder and stress.

Now, I accept that in closing counsel for the respondent said that it was accepted that there was a stress‑related condition from the time of the second ablation.  That was approximately eight months after the accident, but he left very much at issue, causation.  So given the late allegations of these symptoms – the late diagnosis, if you like, by doctors, consultant psychiatrists, Dr Ng and Dr Blumberg – her Honour was at pains to test the history given to them, upon which they relied, with the contemporaneous medical evidence from time to time.

She did that and having done it, did not accept that in the five years prior to the assessment by the consultants that the plaintiff, in fact, had had those symptoms.  It was a credibility matter.  There were a number of experts who had treated this gentleman for a number of different things.  But why the chronic adjustment disorder became important is because it was that, the panic attacks which are said to have been symptomatic of the chronic adjustment disorder, which disabled him from flying.  So her Honour clearly recognised that this gentleman had the stress – application book 28, paragraph 210.  She acknowledged that particular fact referring to the cross‑examination of Dr Ng:

Dr Ng agreed that the plaintiff experienced stress factors such as inability to fly, financial problems, medico-legal concerns and uncertainty for the future.

That is all understandable.  He had a back problem.  He had been out of work for some years before this.  His original employer, Swissair, went broke.  He had another job lined up which was with a Gulf airline when the Gulf War broke out.  Those are sorts of things that are going to cause stress.  But in looking at the totality of the evidence, her Honour has, as she says in her findings at page 37, paragraphs 282 and following, noted the two psychiatrists that they had diagnosed the disorder and, therefore, at 283 she had to carefully look at these symptoms.  As she said about five lines in 283:

This makes the temporal link between the reported symptoms and the accident potentially very tenuous.  It becomes even more tenuous when symptoms reported to other doctors do not match those reported to the psychiatrists.  There is no evidence of independent observation of a panic attack notwithstanding the plaintiff’s evidence that he experienced panic daily before treatment.

284     In my view, the specific diagnosis is not supported by reliable evidence as to the criteria required for diagnosis of a chronic adjustment disorder.

. . . 

286     There is an imprecise account of the onset of the symptoms the plaintiff reported to the psychiatrists.  The psychiatrists acknowledge that any one of a number of stressors could account for the development of the symptoms.

287     The evidence does not establish the required temporal link between the stressor (said to be the accident) and the symptoms.  The temporal link is important for an accurate diagnosis.  Dr Ng said that the longer the period between the onset of symptoms the more difficult it is to link them to the diagnosis.

So, that was why it was critical, as her Honour in fact did, that she looked at the expert evidence of Dr Ng and Dr Blumberg which was totally reliant upon the reports of this plaintiff.  She looked at what the other doctors had to say during the whole of the period and did not believe him.  Now, that is where this case is. 

BELL J:   To the extent that the claim was a claim for psychological injury, it was a claim that was dependent on the reports of Dr Ng and Dr Blumberg in relation to something that was described as the chronic adjustment disorder found in DSM‑IV.

MR CLYNE:   It was entirely reliant upon their opinions as to his psychiatric psychological disorder.  They had made comments as to his other stresses ‑ ‑ ‑

BELL J:   Yes.

MR CLYNE:   ‑ ‑ ‑ but his incapacity, his substantive problem, was entirely reliant on their reports.  Her Honour has carefully, we say, examined all of that, as has Justice Buss.

CRENNAN J:   So you could not say that their reports were not relevant to the stress‑related psychological condition as distinct from the chronic adjustment disorder.

MR CLYNE:   No.  There was nothing else without their reports and once their reports fell away, because they were critical as to causation, because her Honour did not accept the histories given by the plaintiff, then the plaintiff had to fail.  That is the analysis of Justice Buss in the Court of Appeal.  There was no contest in the Court of Appeal as to an error of law.  Paragraph 59 of Justice Buss makes that abundantly clear at page 74.  These are simply issues - contests of fact.  Again, his Honour has carefully analysed these, as did the trial judge, and so we say there is nothing that should cause this Court to interfere with what has gone before.  Those are my submissions, your Honours.

CRENNAN J:   Anything in reply?

MR LAMPROPOULOS:   Yes, briefly thank you, your Honour.  If I could take your Honours to page 12 of the application book and at paragraph 102 there is a description of what are referred to by the plaintiff as the angina‑like symptoms:

These included tightness around his chest which went into the throat, neck and jaw. 

If I could then take you to paragraph 104, just by way of example, there is a report from a Dr Hockings, a cardiologist, on 17 May 2004 where there is specific reference to:

chest/throat discomfort with emotional stress.

In our submission, it is not an adequate answer for my learned friend to say that these are credibility findings because there was an acceptance by the respondent that the plaintiff did have a psychological condition.  This is not a situation where there is all or nothing, that he either had the chronic adjustment disorder or nothing.  There was an in‑between position which was a stress‑related psychological condition.  The proof of the existence of that did not involve credibility findings.  It did not involve demeanour findings.  That was accepted, with respect.

CRENNAN J:   But the stress‑related psychological condition, in relation to that aspect of the case, there was evidence, was there not, that the plaintiff was under a lot of stressors, quite independent of the accident, which is in a sense the point I was trying to convey to you before.  He did have a back condition.  He suffered pain from that.  He had had surgery from it.  These things are summarised at 316, application book 41.  So that the picture was not a simple one of stress‑related psychological condition and the accident, as it were.

MR LAMPROPOULOS:   It is important, with respect, to make our submissions clearly on this point because in one sense if that is used to refuse the application for special leave, it would really be rubbing salt into the wound because the learned trial judge dismissed Dr Ng’s evidence, where Dr Ng said that there was pre‑existing stress, the exact matters that your Honour referred to, but her Honour concluded as a fact that he did not have any pre‑existing stress conditions – did not have any pre‑existing stress.  Therefore, he rejected the evidence of Dr Ng.

We sought to appeal that and make exactly the points that your Honour is making to me.  Well, it is obvious, losing your job, losing your medical certification, are matters that are stressful and he was coping with that, as Dr Ng said.  But the Court of Appeal said to us “No, that the trial judge was entitled to conclude that there was no pre‑accident stress and having reached that conclusion, she could then use that to reject the evidence of Dr Ng”.  But, the point, your Honour, is if she accepted that, she would have accepted the evidence of Dr Ng and we would not be here today.

The respondent made it clear in the Court of Appeal that, whereas they were alleging that there were pre‑existing factors that contributed to the onset of the stress‑related psychological condition, they could not point to anything post accident.  In relation to the pre accident we established, based on her Honour’s findings which still stand, of course, because we are not challenging them, that there were not any pre‑existing stress conditions.

BELL J:   To the extent that you had a claim for psychological injury, it was a claim that depended upon acceptance of the opinions of Dr Ng and Dr Blumberg.  Is that correct?

MR LAMPROPOULOS:   No, that is putting it too highly, your Honour, because quite apart from Dr Ng and Dr Blumberg, it was accepted by all the parties that this person had a stress‑related psychological condition.  That did not depend on anyone’s evidence.  It was accepted.  It was not an issue.  That is the difference between the stress‑related psychological condition and the chronic adjustment disorder.  The chronic adjustment disorder – that was the issue – did he have it?  Stress‑related psychological condition – we all accepted that he had it and he had the angina‑like symptoms from the time of the second ablation procedure. 

Therefore, the question was what caused it?  There were no pre‑existing causes.  The defendant respondent could not point to any subsequent accident causes.  It arose from trauma to the chest in the context of a pre‑existing heart condition, the AF, and it was established that that worsened and he needed two ablation procedures and immediately after that he has this stress‑related psychological condition with angina‑like symptoms, in other words, mimicking heart symptoms and that is the approach that should have been taken by the court.

In those circumstances, can you draw an inference that there is a causal connection between the accident and the stress‑related psychological condition?  The Court of Appeal and the learned trial judge did not do that.  What they said is you do not have the chronic adjustment disorder.  Therefore, you fail on causation on the stress‑related condition.  One does not carry across to the other, with respect.

BELL J:   You amended in order to bring the claim that was based on the expert evidence of Dr Ng and Dr Blumberg and that was, with respect, just to the chronic adjustment disorder, was it, or did it embrace the matters that you say were not in controversy between the parties concerning the stress‑related psychological condition?

MR LAMPROPOULOS:   There is reference in the pleading already to the angina‑like symptoms, as I recall it, even before the amendment, your Honour.  But this is not a situation where the defendant was put at some severe disadvantage.  The trial was adjourned so that they could get a report from a psychiatrist of their own choosing.  That was a Dr McCarthy.  They got a report.  They chose not to call Dr McCarthy to challenge any of this.  The learned trial judge, in fact, observes in relation to Dr Ng and Dr Blumberg that - and this is at page 41 of the application book, paragraph 312:

The psychiatrists’ views are that the accident was the main precipitating factor for the anxiety symptoms and panic attacks.  (I observe that this is of minor weight as that is the ultimate issue for determination by the Court).

And, of course, it is.  But in a situation where there is no issue about the stress‑related psychological condition and the approach has not been taken, or whether or not from the factors that are not in dispute, or that have been established, can you draw an inference that the accident was a causal factor when the defendant has not been able to point to anything else.  The only thing they did point to was a pre‑existing condition.  The judge made a finding against them on that, so you are left with the situation that prima facie, one would draw the inference that there was a causal connection.  But the problem is it was not even approached on that basis by the Court of Appeal or the learned trial judge.

CRENNAN J:   Were the expert doctors cross‑examined on the basis that they needed to carefully bear in mind the distinction between the chronic adjustment disorder and the stress‑related psychological condition?

MR LAMPROPOULOS:   Most of the cross-examination was in relation to the chronic adjustment disorder and the various requirements and time period and that sort of thing.  The psychiatrists attempted to say DSM‑IV is only a guide.  It is only a labelling mechanism.  Dr Blumberg, in fact, gave evidence, “I do not like labelling people.  I want to treat the person that is here now in front of me”.  But on any basis the accident, they say, was a contributing or a precipitating factor, as her Honour recites in paragraph 312.

So there was no psychiatric evidence to contradict what they had to say, even though Dr McCarthy available and it basically all then went one way, with respect, having accepted that he had the stress‑related condition, therefore, there is no credibility issues ‑ ‑ ‑

BELL J:   You speak of an acceptance of a condition, and by that I take it you are saying, acceptance of a recognised psychological condition.  This is apart from the chronic adjustment disorder.  Can you just take us to where that acceptance is?

MR LAMPROPOULOS:   I am not sure what your Honour means by “recognised” in this context.  It is certainly recognised by the parties that this particular applicant has this condition.  Her Honour in a couple of places makes the point that it was not an issue.

CRENNAN J:   Well, what is the position chronologically in relation to the stress‑related psychological condition, in terms of consultation with psychiatrists about that?

MR LAMPROPOULOS:   Well, the difficulty here, your Honour, is that the applicant was complaining about heart symptoms, having just come off treatment for the AF, having had two ablation procedures to correct what everybody accepts was a physically caused heart condition.  He had the ablation procedures.  The first one was not successful.  After the second one, he continued to complain of heart symptoms, but the doctors were continuing then to look for a physical cause for the heart symptoms that he was complaining about. 

No one directed their attention to a psychiatric cause until 2008, at the suggestion of Professor Pretre who is a cardiologist, who by that time

had excluded a physical basis for the ongoing symptoms, and we now know that the second ablation was successful, so all his complaints must have been of a psychological nature, not of a physical nature.  But in the meantime they were trying to find a physical cause, and it was not until 2008 when Professor Pretre suggested the involvement of psychiatrists, that Dr Ng and Dr Blumberg became involved.  That is when Dr Blumberg commenced to treat the applicant and, indeed, Dr Blumberg gave evidence “Well, the delay in diagnosis creates problems for treatment and the like”, because he was not diagnosed with the psychological condition ‑ ‑ ‑

CRENNAN J:   I think this is dealt with at trial at application book 42, page 319.

MR LAMPROPOULOS:   Paragraph 319.  That is the one - that is error number 5 that has been mentioned, your Honour, where her Honour makes that observation by reference to the documents and Dr Ozanne gave evidence that he did turn his mind to a psychological cause and as I said earlier, his evidence was that people die from heart conditions, not from psychological causes.  That is why we were first concerned to make sure we had excluded all possible physical bases for it. 

That is why the psychiatrist did not become involved until 2008 because in the meantime, even though the plaintiff was complaining of symptoms, and he is not to be criticised for not self‑diagnosing himself, but he was complaining of these symptoms in the heart and the doctors were trying to find a physical cause and it was not until 2008 that the approach changed to look at a psychological cause, once it had been finally established that the ablation procedure had, in fact, been successful.

CRENNAN J:   Yes.  The Court will adjourn for a short period.

AT 2.53 PM SHORT ADJOURNMENT 

UPON RESUMING AT 3.02 PM:

CRENNAN J:   This is an application for a grant of special leave to appeal from a unanimous decision of the Court of Appeal of the Supreme Court of Western Australia upholding a decision of the trial judge that there was no causative link between an accident suffered by the applicant and a psychological illness.  The appeal to the Court of Appeal was confined to factual matters and there are now concurrent findings of fact adverse to the applicant at both trial and appellate level.  We are not persuaded that there is sufficient doubt about the conclusions of the Court of Appeal as would warrant a grant of special leave.  Special leave is refused with costs.

Adjourn the Court.

AT 3.03 PM THE MATTER WAS CONCLUDED