Sterndale v Laurie - [2010] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STERNDALE -v- LAURIE [2010] WASCA 79

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 8 FEBRUARY 2010

DELIVERED : 4 MAY 2010

FILE NO/S: CACV 71 of 2009

BETWEEN: JOHN PAUL STERNDALE
Appellant
AND
FREDERICK JAMES JOHN LAURIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
Citation  :STERNDALE -v- LAURIE [2009] WADC 83
File No  :CIV 262 of 2007

Catchwords:

Tort - Motor vehicle accident - Personal injury - Negligence admitted - Alleged chronic adjustment disorder - Stress related psychological condition - Causation - Whether trial judge made any material errors of fact

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T Lampropoulos SC & Mr J N D'Angelo
Respondent: Mr J G Staude

Solicitors:

Appellant: Friedman Lurie Singh & D'Angelo
Respondent: Talbot Olivier

Case(s) referred to in judgment(s):

Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gordon v The Queen (1982) 41 ALR 64
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632
R v Tonkin & Montgomery [1975] Qd R 1
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Table of Contents

Buss JA's reasons

Some pre‑trial procedures in the District Court
The trial judge's reasons and conclusions: general
The trial judge's reasons and conclusions: the relevant symptoms allegedly suffered by the appellant
The trial judge's reasons and conclusions: findings in relation to the appellant's alleged symptoms including findings as to his credit
The trial judge's reasons and conclusions: the diagnosis of chronic adjustment disorder
The trial judge's reasoning and conclusions: causation in relation to the appellant's stress‑related psychological condition
The grounds of appeal
The real issues in the appeal
The appellant's orders wanted
The general principles of appellate review
The principles governing whether an appellate court should order a re-trial
The merits of alleged error no 1
The merits of alleged error no 2
The merits of alleged error no 3
The merits of alleged error no 4
The merits of alleged error no 5
The merits of alleged error no 6
The merits of alleged error no 7

Causation

Conclusion

PULLIN JA: I agree with Buss JA.
BUSS JA: On 10 May 2003, the appellant was struck by a motor vehicle while he and his family were sitting in the alfresco area of a restaurant in Northbridge.
On 13 February 2007, the appellant commenced proceedings in the District Court against the respondent, who was the driver of the motor vehicle. The appellant pleaded a cause of action in negligence and claimed damages for loss he had allegedly suffered as a result of the accident. The respondent admitted negligence.
The appellant was aged 46 years at the time of the accident. He had been employed as a commercial airline pilot between 1 January 1980 and 31 March 2002. Before the accident, the appellant had been diagnosed with atrial fibrillation (AF) and for some time had not been certified as medically fit to work as a pilot. At the time of the accident, however, his commercial airline pilot's licence had been re‑instated.
The appellant alleged that the accident caused injuries, as follows:
(a)a crush injury of the chest;
(b)six fractured ribs;
(c)an acute aggravation of his pre-existing AF, which had first been diagnosed in September 2001;
(d)bruising of the abdomen, thorax and lumbar spine;
(e)shortness of breath;
(f)pulmonary vein stenosis;
(g)angina;
(h)throat and chest discomfort with emotional stress;
(i)stress‑induced pain in the neck and jaw, extending to the left arm; and
(j)chronic adjustment disorder, with anxiety and depressed mood.
After the accident, the appellant was admitted to hospital. It was found that his heart was in AF. He underwent radio frequency ablation procedures on 6 November 2003 and 17 January 2004.

The appellant pleaded, in the final version of his statement of claim, that as a result of the accident he had sustained the following 'continuing and permanent disabilities':
(a)shortness of breath;
(b)pulmonary vein stenosis;
(c)angina-like symptoms;
(d)throat and chest discomfort with emotional stress;
(e)stress‑induced pain in the neck and jaw, extending to the left arm;
(f)panic attacks and a sense of losing control;
(g)palpitations;
(h)pathological anxiety, particularly about his cardiac status;
(i)depression;
(j)forgetfulness;
(k)fatigue/tiredness and sleep disturbance; and
(l)excessive perspiration.
The appellant's claim was tried before O'Brien DCJ. It became undisputed, in the course of the trial, that the accident had caused the appellant to suffer fractured ribs, bruising, and an aggravation of his pre‑existing AF as a result of which it went from being controlled to uncontrolled. It also became undisputed, in the course of the trial, that the appellant was suffering from a stress‑related psychological condition. 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.
The trial judge found, relevantly for the purposes of this appeal, that:
(a)the diagnosis of chronic adjustment disorder that had been made by some of the medical expert witnesses was not supported by the evidence; and
(b)the accident did not cause the appellant's stress‑related psychological condition [322].
Her Honour awarded the appellant damages in the sum of $61,580 together with interest on the sum of $40,000 at the rate of 3% per annum from 10 May 2003 to 5 June 2009. The $61,580 comprised 'non‑pecuniary loss' of $21,580 and 'loss of a chance to obtain employment' of $40,000.
The appellant has appealed to this court.

Some pre‑trial procedures in the District Court

As I have mentioned, the District Court proceedings were commenced on 13 February 2007. A statement of claim was filed on 27 April 2007. The trial was originally listed to commence on 31 March 2008 but was adjourned until 31 August 2008. On 7 August 2008, the appellant was granted leave to adduce psychiatric evidence at the trial and, in consequence, the 31 August 2008 trial date was vacated.
Before 6 October 2008, the focus of the appellant's claim was the effects of the accident‑caused injuries on his pre‑existing AF. On 6 October 2008, the appellant was granted leave to amend his statement of claim to allege that he was suffering from an accident‑caused psychological disorder.
The alleged psychological disorder was diagnosed by Dr Frederick Ng, a forensic psychiatrist, on 19 June 2008 and by Dr Lawrence Blumberg, a consultant psychiatrist, between 3 July 2008 and 9 April 2009. They made a diagnosis of chronic adjustment disorder, with anxiety and depressed mood, by reference to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed, text revisions, published by the American Psychiatric Association (referred to in medical reports and the trial judge's reasons as DSM-IV-TR). This condition was specifically pleaded in the amended statement of claim.
The trial was heard between 14 April and 6 May 2009.

The trial judge's reasons and conclusions: general

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. I will therefore mention only those of her Honour's reasons and conclusions which bear on these issues. I will examine these reasons and conclusions by reference to the relevant symptoms allegedly suffered by the appellant including findings in relation to those alleged symptoms and findings as to the appellant's credit, the diagnosis of chronic adjustment disorder, and causation in relation to his stress‑related psychological condition.

The trial judge's reasons and conclusions: the relevant symptoms allegedly suffered by the appellant

The appellant gave evidence that he suffered panic attacks at night. He would wake up feeling extremely tense, with pins and needles in his arms and legs, and soaked in perspiration. He would also suffer from 'the chills'. The trial judge found that 'it [was] far from clear on the evidence when [the appellant] experienced [these] symptoms' [123]. However, she said that it appeared the appellant was referring to symptoms he was experiencing when he consulted Dr Blumberg [123]. He first saw Dr Blumberg on 3 July 2008.
The appellant said in evidence that during the day he tended to suffer from more anxiety. He would be upset by 'little things', and would experience tightness in the chest which sometimes progressed to his jaw. He also experienced 'the shakes', breathed more rapidly, and his heart rate increased [124].
Dr Blumberg referred the appellant to Mr Harry Wiegele, a senior occupational and cognitive behavioural therapist, for cognitive behaviour therapy. According to the appellant, before receiving this therapy he suffered from anxiety attacks on a daily basis. After receiving treatment from Mr Wiegele, he still had anxiety attacks once a day, but the frequency of his panic attacks diminished to two or three times a week. The appellant did not explain, in evidence, the difference, if any, between the symptoms of his anxiety attacks and those of his panic attacks. The appellant gave evidence that his current symptoms included shortness of breath, dizziness, heavy perspiration, insomnia and angina‑like symptoms [126].
The trial judge made this finding:
I doubt that [the appellant] is an accurate historian and it is not clear when he experienced the onset of the symptoms he described [127].
The appellant's case at trial was that the accident in 2003 was a very traumatic event. He suffered significant physical injuries. His psychological condition developed against this background. The appellant's counsel submitted to the trial judge that the psychological symptoms were 'unmasked' after a radio frequency ablation procedure was carried out on 17 January 2004 [186].
After all of the evidence had been adduced at the trial, the respondent did not dispute that the appellant suffered from a stress‑related psychological condition, but the respondent disputed the diagnosis of chronic adjustment disorder and, further, asserted that the stress‑related psychological condition was not caused by the accident [187].
Professor Rene Pretre, a cardiac surgeon and former trauma surgeon, suggested in 2008 that the appellant's complaint of chest pain was caused by emotion and stress. He was unable to attribute any physiological cause [189]. He considered that the appellant might be suffering from a psychological disorder and recommended that he be examined by an appropriate specialist. In a document dated 10 August 2008, described as 'Substance of expert evidence of Professor Rene Pretre', the professor said:
Based on my experience as a former trauma surgeon and a present cardiac surgeon, any significant chest trauma can also result in anxiety and post traumatic stress disorders. Anxiety and PTSD can increase the tonus of the autonomic system and produce shortness of breath and angina like pain for any small stimulus. Therefore, in my opinion, it is certainly possible that the motor vehicle accident trauma triggered such a reaction in [the appellant]. I suggest that this area should be investigated by an appropriate specialist in the field (such as a psychiatrist) to account for its possible contribution in [the appellant's] residual problems.
The trial judge noted:
Until Professor Pretre suggested a psychological assessment, none of the other medical professionals gave any real thought to that option. By 2008 [the appellant's] action against [the respondent] had progressed significantly [191].
The appellant's solicitors arranged for him to undergo a 'medico‑legal psychiatric assessment' by Dr Ng, who assessed the appellant on 19 June 2008.
The trial judge recorded the history of symptoms given by the appellant to Dr Ng, as follows:
He told Dr Ng he became stressed following the accident with tightness in his chest and throat and pain in his throat and lower jaw under stress.
These symptoms could last between 30 minutes and two hours.
Associated with those symptoms were increased perspiration, the need to pant, increased heart rate, and feelings of anxiousness in the context of those episodes.
Following the accident these episodes occurred every second day. Following the second ablation procedure, the AF symptoms settled. However, [the appellant] reported that the chest tightening and associated symptoms continued happening when he felt stressed.
[The appellant] told Dr Ng that in the last 18 months [before the consultation] his stress levels had increased because of financial difficulties. He became more easily irritable, felt not in control of his life, his moods also fluctuated, and that he started feeling depressed about four years previously when he could no longer fly.
[The appellant] told Dr Ng that at the time of consultation, he was experiencing the following symptoms: sleep disturbances, waking up about 20 to 30 times; nightmares every second night; moderately irritable and grumpy and more easily angered; less robust moods; decreased concentration and general confidence; forgetfulness; low libido; moderate diminishment of his general motivation and drive; jumping at sudden loud noises; moderate diminishment of his energy levels; and somewhat socially withdrawn [197] ‑ [202].
Dr Ng noted that the appellant suffered from anticipatory anxiety about the occurrence of further panic attacks [204]. He was unable to be certain if the appellant had experienced any anxiety/panic episodes before the accident [209]. Dr Ng agreed under cross‑examination that the appellant suffered from stress factors such as an inability to fly, financial concerns, medico-legal concerns and uncertainty about the future [210].
Dr Blumberg described in four written reports dated 4 July 2008, 1 August 2008, 7 September 2008 and 8 April 2009, and in his oral evidence, the symptoms reported by the appellant. The trial judge summarised Dr Blumberg's record of these reported symptoms, as follows:
According to Dr Blumberg, [the appellant] reported experiencing ongoing anxiety and panic symptoms since the accident. These included nightmares; disrupted sleep pattern; a fluctuating appetite; poor energy levels; decreased libido; decrease in enjoyment of pleasurable activities; social withdrawal; hypervigilence [sic]; and feelings of irritability, frustration, hopelessness and helplessness.
[The appellant] also described physical symptoms of tightness in his throat associated with excessive perspiration, increased heart rate, chest pain and shortness of breath.
[The appellant] reported that these symptoms would occur out of the blue or after he felt stressed. At times they could last up to between 30 minutes and two hours.
The reported symptoms included 'anticipatory anxiety' about having further panic attacks in stressful environments.
[The appellant] reported to Dr Blumberg that although the symptoms of AF almost disappeared after the second ablation on 17 January 2004, he continued to experience episodes of shortness of breath and what he described as 'angina-like' chest pain symptoms which were exacerbated when he was under stress. [The appellant] himself was unsure if these symptoms were cardiac related or psychologically related symptoms.
[The appellant] also described himself as a 'worrier'. He was worried about his finances, losing his assets, his future, the welfare of his family and the inability to be able to fly in the future.
[The appellant] told Dr Blumberg that before the accident he was focused, organised and confident. He had no history of psychiatric or psychological intervention.
…
In his latest report dated 8 April 2009, Dr Blumberg reported [the appellant's] mood was more settled and he felt improved. He still experienced difficulty sleeping, although the Endep had helped address his initial insomnia but his sleep pattern was still disrupted at times. His energy levels were stable but he still experienced a decreased libido. [The appellant] reported that his concentration was not as good as it used to be and he was sometimes forgetful.
He still experienced anxiety symptoms and panic attacks associated with chest pain, palpations [sic] and shortness of breath.
[The applicant] was still concerned about his 'chest wall compliance and underlying cardiac status'. He also experienced dizziness which Dr Blumberg considered was a possible adverse side effect from the combination of his antidepressant medications [224] ‑ [230], [235] ‑ [237].
The trial judge then examined other evidence as to the appellant's symptoms. She referred to the records and evidence of Dr Neil Ozanne (the appellant's general medical practitioner), Dr Rukshen Weerasooriya (a cardiologist), Dr Bernard Hockings (a cardiologist and clinical associate professor in medicine) and Dr Peter Bremner (a respiratory physician).
As to Dr Ozanne, the trial judge summarised his records and oral evidence concerning the symptoms reported by the appellant, as follows:
As far as I can make out, according to Dr Ozanne's notes of consultation with [the appellant] which took place after the accident, he saw [the appellant] over 60 times as well as monitoring various medical tests and reviews from other doctors which he documented in his notes.
Although Dr Ozanne notes symptoms relating to back pain and other ailments, obviously unconnected with the accident, there is no specific note at all of [the appellant] experiencing nightmares, fluctuating appetite, decreased libido, diminishment in pleasurable activities, social withdrawal, tightness in the chest, shortness of breath, angina-like symptoms, anticipatory anxiety, fluctuating moods or lack of confidence and concentration.
However, Dr Wright, a doctor practising from the same practice as Dr Ozanne, referred [the appellant] to Dr Bremner for investigation of his dyspnoea in May 2005. I infer that [the appellant] complained of dyspnoea to warrant the referral.
The first mention in Dr Ozanne's notes of anything resembling any psychological symptoms is on 7 December 2004 when [the appellant] consulted Dr Ozanne for dermatitis and Dr Ozanne's notes reads [sic]: 'Multiple stresses incl retirement issues'. On 10 December 2004, Dr Ozanne notes 'Lethargy. Discussed exercise to reduce body fat to reduce insulin resistance'. The next relevant note was made at the consultation on 7 December 2006 as follows: 'Tired & a little bit cranky', with the diagnosis recorded as 'Feeling; tired'. On 17 April 2007 the notes read:
'Waking up 10 times/night with pins & needles in both upper limbs> Intermittent dizzy spells and headache every day from midday onwards irrespective of when he eats lunch.'
Dr Ozanne prescribed Endep.
On 13 March 2008, Dr Ozanne's notes read:
'Anxious+++/insomnia re pending court case. Endep>2 nights" nightmares. Try dose dothiepin/nortrypliline.'
Under cross-examination, Dr Ozanne said that there are recognised symptoms of anxiety as a medical condition, and that general practitioners are able to discern them.
Dr Ozanne said that before the accident, [the appellant] did not exhibit any signs of anxiety over and above the normal concern about his back and heart.
Leading up to the back operation in August 2003, Dr Ozanne said that he considered any signs of anxiety to be within 'normal limits'.
I refer to an email from [the appellant] to Dr Ozanne dated 6 June 2007. In that, [the appellant] reports on the success of Endep to help him sleep. Far from complaining of any irritability, social withdrawal or lack of energy, he wrote:
' … I sleep better and wake up more refreshed and ready for a full day. My arms still go stiff during the night, but the pins and needles sensation is gone and therefore doesn’t awaken me constantly. Haven't needed an afternoon nap in weeks and best of all, Esther [wife] thinks I am more bearable (I took this as a complement (sic)) … Feel like an idiot thinking it might have been my heart.'
It is not suggested that the stiff arms and pins and needles sensation were part of the psychological condition [255] ‑ [265].

As to Dr Weerasooriya, the trial judge summarised his records and oral evidence concerning the symptoms reported by the appellant, as follows:
Dr Weerasooriya said that 'interestingly' [the appellant] complained of lethargy, low libido, depression and feeling like an old man after ablation and not before. He said that also most immediately after the second ablation [the appellant] reported shortness of breath, as do the majority of patients, but it wasn't a 'major component'.
On 15 March 2004, [the appellant] told Dr Weerasooriya that he had shortness of breath on exertion.
Dr Weerasooriya thought there might be pulmonary vein stenosis. On investigation, although [the appellant] had said that the shortness of breath was associated with palpitations, there was no abnormal rhythm. Dr Weerasooriya excluded AF and pulmonary vein stenosis as a cause of [the appellant's] reported symptoms.
Dr Weerasooriya said that [the appellant] did not manifest any signs of anxiety. Dr Weerasooriya said that he has seen lots of patients with a history of panic attacks. He did not consider that the shortness of breath was a panic attack. He thought that the symptoms might be related to the impending court case.
Although Dr Weerasooriya said that [in hindsight] the symptoms [the appellant] complained of before the second ablation were consistent with a panic attack, he observed that [the appellant] also had abnormal heart rhythm. It is not clear from the evidence which symptoms Dr Weerasooriya was referring to.
Dr Weerasooriya said [the appellant] did not complain of chest pain extending up to his jaw until after the second ablation. In my view, if this symptom was present before the second ablation, I would expect [the appellant] to mention it as it clearly had potential cardiac implications.
Dr Weerasooriya testified that he was concerned about this reported symptom but not enough to report it to Dr Hockings as a possible anxiety disorder [266] ‑ [272].
As to Dr Hockings, the trial judge summarised his records and oral evidence concerning the symptoms reported by the appellant, as follows:
[The appellant] told Dr Hockings on 25 November 2003 that he was feeling well but that he was having a few episodes of palpitations but nothing like the problems he was having before the ablations. On 24 April 2004 [the appellant] told Dr Hockings that he had chest and throat discomfort with emotional stress.
Dr Hockings wrote to Dr Ozanne that on 17 May 2004, [the appellant] said that he was aware of chest and throat discomfort with emotional stress. This would come on within seconds and last five to 10 minutes. (I note that [the appellant] told the psychiatrists that the symptoms lasted between 30 minutes and two hours). Sometimes with physical exertion he would develop chest discomfort which started low down and spread upwards, but did NOT reach his jaw and shoulder (my emphasis). Dr Hockings wrote to Dr Ozanne that 'John is fairly happy with his medical situation … '
According to Dr Hockings, [the appellant] complained of shortness of breath on exertion which seems to be consistent with the results of the stress test and Dr Bremner's opinion [273] ‑ [275].
As to Dr Bremner, the trial judge summarised his records and oral evidence concerning the symptoms reported by the appellant, as follows:
On 24 April 2004 Dr Hockings arranged a stress test which he reported was 'satisfactory although [the appellant] did become short of breath with increasing activity'.
On 29 June 2004 Dr Junga examined [the appellant] in Switzerland. Dr Junga reported that 'during ergometry' [the appellant] only reached 'a capacity' of 75 per cent compared with 79 per cent in July 2002. Dr Junga noted that [the appellant] complained of shortness of breath and stress induced angina pectoris.
On 5 May 2005, [the appellant] reported to Dr Bremner that he had shortness of breath since the accident which became more noticeable after the second ablation. Dr Bremner noted that [the appellant] 'remains reasonably active and independent'.
As outlined above, Dr Bremner considered that the shortness of breath was due to physical deconditioning with some contribution of reduced chest wall compliance due to the broken ribs [277] ‑ [280].
The trial judge referred to a questionnaire for admission to the Mount Hospital for back surgery which the appellant completed on 5 August 2003. He answered 'no' to questions about whether he had any shortness of breath or 'any lung, chest or breathing problems' [276].

The trial judge's reasons and conclusions: findings in relation to the appellant's alleged symptoms including findings as to his credit

As I have mentioned, the trial judge doubted that the appellant was an accurate historian and said it was unclear when he experienced the onset of the symptoms he described [127].
The trial judge found that the history given by the appellant to Dr Ng and Dr Blumberg must be considered with caution [283]. She elaborated:
I accept that it may be a difficult task to give a consistent, accurate and chronological history of a variety of symptoms over a period of five years especially given the other medical conditions which preoccupied [the appellant] during that time. 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 appellant's] evidence that he experienced panic daily before treatment [283].
The trial judge found that the appellant's account of the symptoms reported to the psychiatrists was largely unsupported by documented evidence of his reported symptoms in the notes of other medical practitioners who had treated him since the accident [288]. She then said:
This causes me to have serious doubts that [the appellant] did report the symptoms to those doctors, as I would expect him to do, given that there were extensive investigations after the second ablation to ascertain why he was still having heart symptoms and given that [the appellant] testified that before treatment, he was experiencing panic attacks daily [288].
Her Honour added that, given the evidence of the appellant's treating doctors as to the symptoms he reported to them, she had 'grave doubts' that those symptoms reported to the psychiatrists commenced shortly after the accident [289].
The trial judge said that Dr Ozanne did not notice, and made no note of, any anxiety symptoms suffered by the appellant after the accident, except as set out at [30] above. Her Honour said she would have expected that, given Dr Ozanne's understanding of anxiety as a medical condition, the number of times he saw the appellant, and the symptoms the appellant claimed he was experiencing after the accident, if the appellant had in fact complained of any of his alleged psychological symptoms, Dr Ozanne would have made a note of them [292]. Her Honour therefore found, by inference, that the appellant made no such complaint notwithstanding, on his account, he was suffering daily from panic attacks with 'quite marked symptoms' [292].
The trial judge referred to the evidence of Dr Weerasooriya and Dr Bremner and said that their evidence did not support the appellant's evidence that he was experiencing daily panic attacks before and after the radio frequency ablation procedures [295].
The trial judge then made the following additional comments on the appellant's credibility:
[The appellant] said that before the accident he did not have the symptoms he described when he first saw Dr Weerasooriya. However, before the accident, the evidence contains reports of fatigue requiring him to stop physical activity and to rest being the main symptom with the pre-existing AF and Dr Reif's reference to him experiencing 'warmer temperatures' during AF.
[The appellant] testified about episodes which he described as 'panic attacks' or 'anxiety attacks'. He did not so categorise or describe those claimed episodes to any treating or reviewing doctor before the psychiatric diagnosis. Having been diagnosed with those conditions, he has clearly categorised his post-accident symptoms as such attacks.
The answers [the appellant] recorded on the Mount Hospital Admission document concerning shortness of breath and breathing difficulties are inconsistent with his evidence of, in effect, chronic shortness of breath. [The appellant's] reports of shortness of breath on exertion and the opinion of Dr Bremner, based on exercise tests, that the shortness of breath was due to deconditioning are also inconsistent with the chronic shortness of breath which [the appellant] claims to have suffered on a daily basis before the psychiatric treatment [297] ‑ [299].
The trial judge concluded that the appellant had reconstructed, in the course of his psychiatric assessments, his account of his symptoms. She was not satisfied that his account to the psychiatrists as to the 'time frame of the symptoms' was reliable [300].
Further, her Honour was not satisfied, on the balance of probabilities, that the appellant had suffered the symptoms he reported to the psychiatrists shortly after and since the accident as 'a continuing set of symptoms which had their onset within three months of the accident' [303].

The trial judge's reasons and conclusions: the diagnosis of chronic adjustment disorder

According to DSM-IV-TR, the diagnostic criteria for adjustment disorders are these:
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
B.These symptoms or behaviours are clinically significant as evidenced by either of the following:
1.Marked distress that is in excess of what would be expected from exposure to the stressor.
2.Significant impairment in social or occupational (academic) functioning.
C.The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.
D.The symptoms do not represent bereavement.
E.Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Specify if:
Acute: If the disturbance lasts less than six months.
Chronic:If the disturbance lasts for six months or longer.
The trial judge said, in essence, that she 'could not doubt' the diagnosis of chronic adjustment disorder made by Dr Ng and Dr Blumberg 'assuming that':
(a)the appellant had actually experienced, shortly after and since the accident, the symptoms he reported to the psychiatrists;
(b)the exclusion of physiological causes; and
(c)the 'identification and application' of the criteria in DSM-IV-TR [282].
As I have mentioned, her Honour found that the history given by the appellant to Dr Ng and Dr Blumberg must be considered with caution [283].
The trial judge found that the diagnosis of chronic adjustment disorder was not supported by reliable evidence in respect of the criteria required for the diagnosis [284]. She added that, notwithstanding Dr Ng's evidence that the criteria are 'vague', it remained necessary for those criteria to be satisfied before the diagnosis could be made [284].
As to the requirement of DSM-IV-TR that the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occur within three months of the onset of the stressor(s), the trial judge found:
(a)There was an imprecise account by the appellant of the onset of the symptoms he reported to the psychiatrists [286].
(b)The psychiatrists acknowledged that any one of a number of stressors could account for the development of the appellant's symptoms [286].
(c)The evidence did not establish the required temporal link between the stressor relied on by the appellant (namely, the accident) and his symptoms [287].
(d)The temporal link was important for an accurate diagnosis; in particular, Dr Ng gave evidence that the longer the period between the stressor and the onset of symptoms, the more difficult it is to link them to the diagnosis [287].
As I have mentioned, her Honour had serious doubts that the appellant did in fact report his alleged symptoms to other doctors who treated him after the accident and, in consequence, she had grave doubts that those symptoms reported by him to the psychiatrists commenced shortly after the accident [288] ‑ [289].
As to the requirement of DSM-IV-TR that the symptoms or behaviours be clinically significant, as evidenced by either marked distress in excess of what would be expected from exposure to the stressor or significant impairment in social or occupational (academic) functioning, the trial judge found:
(a)Dr Blumberg's evidence to the effect that the appellant's day‑to‑day functioning was 'quite good' was 'somewhat inconsistent' with his evidence that the appellant was not incapacitated by the chronic adjustment disorder but still experienced panic symptoms. His evidence did not suggest that there was 'significant impairment in social or occupational (academic) functioning' [291].
(b)(As I have mentioned) the appellant did not make any complaint to his general medical practitioner, Dr Ozanne, about any of his alleged psychological symptoms even though, on his account, he was suffering daily from panic attacks with quite marked symptoms [292].
(c)The evidence of Dr Weerasooriya and Dr Bremner did not support the appellant's evidence that he was experiencing daily panic attacks before and after the ablations [293] ‑ [295].
(d)(As I have mentioned) the appellant, in the course of his psychiatric assessments, reconstructed his account of his alleged symptoms, and her Honour was not satisfied that his account to the psychiatrists as to the 'time frame of the symptoms' was reliable [300].
(e)The psychiatric opinions were to the effect that it is the combination of the reported symptoms being present within three months of the accident which forms the basis for the diagnosis of chronic adjustment disorder [301].
(f)Dr Ng conceded in cross‑examination that it was not possible for him to ascertain whether the required symptoms for diagnosis existed within three months of the accident [302].
(g)(As I have mentioned) her Honour was not satisfied, on the balance of probabilities, that the appellant suffered, shortly after and since the accident, the symptoms he reported to the psychiatrists as a continuing set of symptoms which had their onset within three months of the accident [303].
As to the requirement of DSM-IV-TR that 'Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months', the trial judge found:
(a)According to the psychiatrists, the relevant stressor was the accident.
(b)The consequences of the accident (that is, the AF, the fractured ribs, the bruising) resolved, at the latest, by the time of the second ablation procedure even though, in the appellant's opinion, he still had a heart problem.
(c)Her Honour did not, however, place much weight on this point as it was not explored in evidence and it was not clear to her what 'consequences' the DSM-IV-TR requirement was referring to.
Accordingly, on the basis of the criteria outlined in DSM-IV-TR, the trial judge rejected the diagnosis of chronic adjustment disorder made by Dr Ng and Dr Blumberg [305].

The trial judge's reasoning and conclusions: causation in relation to the appellant's stress‑related psychological condition

The trial judge's findings as to causation in relation to the appellant's stress‑related psychological condition were these:
(a)even on the assumption that the appellant did suffer from his alleged symptoms, her Honour had 'grave doubts' that they were caused by the accident [306]; and
(b)her Honour was not satisfied, despite the intervention of the appellant's back condition and sequelae, that the respondent's negligence was, as a matter of common sense and experience, properly to be seen as having caused the psychological condition [321].
The trial judge based these conclusions on the following factors:
(a)The appellant had no history before the accident of psychological or psychiatric symptoms, conditions or treatment [307].
(b)Before the accident, the appellant was competent, capable, clear‑thinking and work‑focused [308].
(c)The appellant's evidence generally revealed a continuous history of symptoms, consistent with the condition, since the accident, even though some of the symptoms were also consistent with AF. The AF was 'cured' by the second ablation, but according to the appellant the symptoms persisted [309].
(d)Despite extensive investigations and review by highly qualified medical specialists, none of them (apart from Professor Pretre) attributed the ongoing symptoms to a possible psychological cause [310].
(e)Since the diagnosis by Dr Ng and Dr Blumberg, medication and psychiatric and psychological treatment had been of some benefit to the appellant [311].
(f)Some of the appellant's alleged symptoms (for example, fatigue associated with AF) pre-dated the accident. Dr Bremner's opinion, based on physical testing, was that the principal cause of the appellant's shortness of breath was physical de‑conditioning (although lack of chest wall compliance as a result of the fractured ribs may have contributed). Dr Ng accepted that any one or more of a number of different stressors could have caused the appellant's alleged symptoms of anxiety and depressed mood [314].
(g)Although Dr Ng noted the appellant's robust personality before the accident, he said the appellant suffered from pre‑existing stress. Her Honour found that there was 'scant, equivocal and undeniable [sic] evidence' as to pre‑existing stress. Her Honour rejected, as speculation, Dr Ng's view that the appellant had pre‑existing stress. She said Dr Ng assumed that it was likely the appellant had pre‑existing stress 'given the direction of [his] career leading up to him stopping work', and Dr Ng did not outline the basis for this view [315].
(h)The appellant had a number of stresses and pain not associated with the accident. In particular:
[The appellant] had a pre-existing back condition which Dr Ozanne considered (together with the pre-existing AF) sufficient to incapacitate him from working. [The appellant] suffered disabling pain from the back condition and ultimately had surgery. The surgery was painful. The evidence is that [the appellant] was still being evaluated for treatment of the pain and receiving treatment for the pain as late as August 2004. Further, surgery was under consideration up until September 2004. [The appellant] was still experiencing back pain as at 30 November 2004. Despite [the appellant's] evidence that his back 'came good very quickly', the objective evidence points to the back pain, surgery, the after effects of the surgery and inevitable concern about the potential disabling effects of the back condition constituting significant stress for [the appellant] [316].
(i)Despite being assessed by numerous highly qualified specialists over a period of years, no one documented symptoms associated with panic attacks as reflected by the appellant's report of his symptoms to the psychiatrists [317]. Her Honour found that if the appellant had in fact experienced the miscellany of distressing symptoms over a period of five years, as he alleged and reported them to the psychiatrists, it was extremely unlikely that he would not have mentioned them to one or more of the specialists and his general medical practitioner [318].
(j)It was unlikely that the specialists and the general medical practitioner who treated the appellant would not have at least considered the issue of a psychological cause if there had been a sufficient basis for it in the appellant's presentation. The specialists and the general medical practitioner gave evidence to the effect that the appellant was not exhibiting symptoms of anxiety consistent with a condition that required psychological intervention [319].

In conclusion, the trial judge said:
The absence of complaints to the treating doctors about the debilitating and distressing symptoms as described to the psychiatrists, the delay in diagnosis and the quality of the evidence relied on by the psychiatrists to make the specific diagnosis which caused me to reject the diagnosis, create an insurmountable doubt in my mind that the accident was a material cause of the psychological condition [320].

The grounds of appeal

There are three grounds of appeal.
Ground 1 alleges that the trial judge erred in law and fact in failing to find that the appellant suffered from 'an anxiety/stress‑related psychological condition of the type described by the psychiatric witnesses as a chronic adjustment disorder with anxiety and depression'.
Ground 2 alleges that the trial judge erred in law and fact in failing to find that there was a causal connection between the accident and the appellant's psychological condition.
Ground 3 alleges that the trial judge erred in law and fact in not finding that the appellant suffered a psychological condition of the type identified by Dr Ng and Dr Blumberg as a result of the accident, and in not assessing damages (including capital losses) on that basis, having regard to the matters raised in grounds 1 and 2.
The grounds of appeal, as drafted, are unsatisfactory. The grounds and supporting particulars do not identify alleged errors in the findings made by the trial judge. They merely assert that her Honour erred in failing to make different findings. Also, the grounds and supporting particulars make indiscriminate assertions of errors 'in law and fact'. They do not identify which of the alleged errors are errors of law and which are errors of fact.
Counsel for the appellant, in his oral submissions, departed from the grounds, as drawn. After questioning by members of the court, it became apparent that counsel was endeavouring to contend that the trial judge had made various errors of fact. Counsel said he did not contend that her Honour had misstated the law. The appeal, as argued, was confined by counsel solely to challenges in relation to findings of fact (appeal ts 2).
Unsatisfactory grounds of appeal (which, lamentably, are not unusual in personal injuries appeals in this court) obscure the real issues and, almost inevitably, occasion wasted time and expense for the parties and inconvenience to the court.

The real issues in the appeal

The findings of fact challenged by counsel for the appellant were these:
(a)Alleged error no 1: Her Honour said that Dr Ng considered it was more likely than not that the appellant had 'pre‑existing stress‑related problems given the direction of his career leading up to him stopping work' [208]. Also, she said that Dr Ng considered 'the physical effects of the accident and the consequential concerns about the cardiac situation would have been sufficient to exacerbate any pre‑existing psychological stress' [208]. Her Honour found that this opinion 'might hold true if there were evidence of pre‑existing stress, but there is not' [208]. According to counsel for the appellant, the finding that there was no evidence of pre‑existing stress was an error (appeal ts 4). He also challenged related findings by her Honour at [212], [218] and [315] to the effect that the appellant did not suffer from 'pre‑existing stress'; that is, 'pre‑accident stress'.
(b)Alleged error no 2: Her Honour found that the specific diagnosis by Dr Ng and Dr Blumberg of chronic adjustment disorder was not supported by reliable evidence as to the criteria required for diagnosis of that disorder [284]. Her Honour added that, notwithstanding Dr Ng's evidence that the criteria are vague, 'those criteria are required before the diagnosis can be made' [284]. See also her Honour's reasons at [252] and [282]. According to counsel for the appellant, her Honour's 'approach' to the issue of the diagnosis of chronic adjustment disorder was in error 'because she [approached] it on the basis that the application of the criteria in [DSM-IV-TR] is critical to the diagnosis' (appeal ts 9). Counsel said that neither psychiatrist asserted that the criteria were critical. They were merely to be used as a guide (appeal ts 9).
(c)Alleged error no 3: Her Honour said:
The psychiatrists say that the relevant stressor was the accident. The consequences of the accident (that is, the AF, the fractured ribs, the bruising) resolved at the latest by the second ablation notwithstanding as far as [the appellant] was concerned, he still had a heart problem [304].
Her Honour then said that she did not place much weight on this point 'as it was not explored in evidence and it is not clear what "consequences" the [DSM-IV-TR] is referring to' [304]. According to counsel for the appellant, this last sentence contains an error because 'it' (being, so counsel submitted, the consequences of the accident) were explored in the re‑examination of Dr Blumberg (appeal ts 11).
(d)Alleged error no 4: Her Honour said that she was not satisfied on the balance of probabilities that the appellant had suffered shortly after and since the accident the symptoms he reported to the psychiatrists, as a continuing set of symptoms which had their onset within three months of the accident [303]. According to counsel for the appellant, it was not reasonably open to her Honour, on the evidence, to make this finding (appeal ts 13).
(e)Alleged error no 5: Her Honour found:
I also consider it unlikely that the specialists and Dr Ozanne would not have at least considered the issue of a psychological cause if there had been sufficient basis for it in [the appellant's] presentation to them. The effect of the testimony of all doctors questioned about the issue, was [the appellant] was not exhibiting anxiety symptoms consistent with a condition which required psychological intervention [319].
According to counsel for the appellant, it was not reasonably open to her Honour to find that the appellant was not exhibiting, in effect, pathological anxiety symptoms (appeal ts 14). Also, according to counsel, the only finding reasonably open to her Honour was that the specialists and Dr Ozanne did consider the issue of a psychological cause (appeal ts 14).
(f)Alleged error no 6: Her Honour found that, despite being assessed by numerous highly qualified specialists over a period of years, no one documented symptoms associated with panic attacks as reflected by the appellant's report of his symptoms to the psychiatrists [317]. According to counsel for the appellant, this finding was not reasonably open to her Honour in that there were 'documented symptoms associated with panic attacks' (appeal ts 14).
(g)Alleged error no 7: Her Honour found that:
[The appellant's] account of the symptoms reported to the psychiatrists is largely unsupported by documented evidence of his reported symptoms in the medical notes of other doctors who treated him since the accident. This causes me to have serious doubts that [the appellant] did report the symptoms to those doctors, as I would expect him to do, given that there were extensive investigations after the second ablation to ascertain why he was still having heart symptoms and given that [the appellant] testified that before treatment, he was experiencing panic attacks daily [288].
According to counsel for the appellant, it was not reasonably open to her Honour to find that the appellant's account of his symptoms, as reported to the psychiatrists, was largely unsupported by documented evidence (appeal ts 16 ‑ 19).
Fortunately, counsel for the respondent informed the court that he was able to deal in oral submissions with the findings of fact challenged by counsel for the appellant. I will therefore deal with the findings challenged by the appellant, notwithstanding that they involve a departure from the grounds of appeal, as drawn.

The appellant's orders wanted

The appellant's orders wanted, as drawn, read, relevantly:
1.The appeal be allowed.
2.The decision of O'Brien DCJ delivered on 5 June 2009 be set aside.
3.The matter be remitted to O'Brien DCJ to assess damages in accordance with the reasons of this Honourable Court.
However, during the hearing of the appeal, counsel for the appellant abandoned order wanted no 3 and sought, instead, an order that the action be remitted to the District Court for a re‑trial generally before a different judge (appeal ts 42 ‑ 43).

The general principles of appellate review

Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:
The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].
The requirements and limitations of a rehearing of the kind which occurs before this court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:
The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'.
The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] - [17] (footnotes omitted).
It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox [88]. As Kirby J observed in CSR:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] - [22] (footnotes omitted).
Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).

The principles governing whether an appellate court should order a re-trial

Section 58(1)(a) and s 59(1) of the Supreme Court Act 1935 (WA) confer on this court the power to hear and determine an application for a new trial.
The exercise of the court's power to order a re-trial depends upon the demands of justice. See Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 39, where Mason CJ, Deane, Toohey & McHugh JJ said:
[T]here is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction: see Burston v Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143, per Starke J at 158 ‑ 159; Dixon J at 167; General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, per Barwick CJ at 242 ‑ 243; Taylor J at 245; Menzies J at 257; Windeyer J at 259 ‑ 260. See also University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, at 483; 60 ALR 68, at 71; Coulton v Holcombe (1986) 162 CLR 1, at pp 7 ‑ 8; Water Board v Moustakas (1988) 62 ALJR 209, at 211; 77 ALR 193, at 196.
See also Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134, 141 ‑ 142 (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ).

The merits of alleged error no 1

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 is the leading Australian authority on the admissibility of hearsay evidence in the context of expert evidence given by medical practitioners as to a person's physical (as distinct from psychiatric) disabilities. In Ramsay, Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ examined the origin and scope of the rule that certain statements made by a person out of court as to his or her present bodily symptoms and sensations are evidence of the facts they recount. Their Honours cited with approval the following statement of the rule in Wills on Evidence (3rd ed, 1938) 209:
Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience (647).
Their Honours also discussed the basis on which, and the extent to which, out of court statements made by a person to a medical practitioner generally (as distinct from out of court statements made by a person to a medical practitioner as to his or her present bodily symptoms or sensations) are admissible in evidence:
When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the 'history' he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s. 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except [where] they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts (648 ‑ 649).
In R v Tonkin & Montgomery [1975] Qd R 1, Kneipp J made these observations as to the proof of the basis for the opinion of an expert witness who is giving psychiatric evidence:
In general, the facts on which an expert’s opinion is based not only may be proved, but must be proved by admissible evidence: see Cross on Evidence (Australian Edition) at p 461, and the cases there cited. In the case of a medical witness, the facts on which he relies may include, among others, his own observations, the results of tests or experiments, and what the patient has told him of the patient’s history and symptoms. Of course, if what the patient has told him is not confirmed by evidence from the plaintiff or other sources, this may weaken or destroy the effect of his evidence: Ramsay v. Watson (1961) 108 CLR 642. It seems to me that the same principles are applicable to the evidence of a psychiatrist as to the evidence of any other medical witness, subject to the observation that what the patient of a psychiatrist says or has said, whether to him or in his presence or not, may be relevant to him, and admissible in evidence, quite irrespective of proof of any facts stated in the statement. The words used by a person, irrespective of the truth or any facts stated, might to a psychiatrist be just as significant and objective a symptom as might be the presence of a rash to a physician (17). (emphasis added)

In Gordon v The Queen (1982) 41 ALR 64, Gibbs CJ, Mason, Murphy, Aickin and Brennan JJ, in short reasons refusing special leave to appeal, referred to Ramsay and then said, in the context of the admissibility of statements made to an expert witness who is giving psychiatric evidence:
[Ramsay decided that] statements [as to physical disabilities] made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies but that if such statements, being hearsay, are not confirmed in evidence, the expert testimony based on them is of little or no value.
In the case of psychiatric evidence, statements made to the psychiatrist may be themselves original evidence, in which case they need no confirmation in the witness box. In the present case, however, the statements made to the psychiatrist and upon which he relied, but which were not proved in evidence, were not of that character (64).
As I have mentioned, in the present case, the critical issues at trial were whether the appellant suffered from chronic adjustment disorder and whether the accident caused his stress‑related psychological condition.
The appellant's out‑of‑court statements to Dr Ng and Dr Blumberg as to his psychiatric and bodily symptoms or sensations before and after the accident, were not evidence of the existence, in fact, of alleged past symptoms or sensations. The appellant's psychiatric and bodily 'history' (that is, alleged past symptoms or sensations), as related to Dr Ng and Dr Blumberg, was hearsay evidence receivable for the purpose of enabling the psychiatrists to express a diagnosis or opinion as to the appellant's mental state at earlier times.
The trial judge's statement at [208] that there was no evidence of pre‑existing stress (that is, pre‑accident stress) must be evaluated in the context of other relevant findings. In particular:
(a)Her Honour said that the appellant '[did] not acknowledge he had pre‑existing stress' [212].
(b)Her Honour added that the appellant's 'own assessment of his personality and the way he approached life and his job is inconsistent with him suffering pre‑existing stress' [212].
(c)Her Honour then noted that there was 'only brief and equivocal mention in the medical notes of possible stress‑related angina in 1996 and certainly no firm diagnosis' [212].
The appellant said in evidence‑in‑chief in response to questions from his counsel:
Well, can you describe, subjectively, your symptoms and the like when you went to see Dr Weerasooriya---Well, you might have noticed, you know ‑ is I've got wet hair. Is ‑ one of the things that you get is I perspire very ‑ very heavily. To this day, if I get upset or that sort of thing, get stressed, I perspire like crazy. So one of the side ‑ is I perspired very heavily. I---
When did that start---That started ‑ that ‑ that was after the MVA. I never ‑ I didn't have that problem before.
Right. Yes, go on---Is I suffered from dizziness, especially when I got up too fast or I bent down to pick something up too long - got up too fast. The chest ‑ it wasn't ‑ it wasn't pain but you could feel the heart racing. And when it raced, I cannot emphasise enough ‑ you get so exhausted to the point where if you don't go and lie down, you need almost all your concentration just to stay awake.
LAMPROPOULOS, MR: So how did the state of your heart then compare to what it was like immediately before the motor vehicle accident---Before the MVA, it ‑ it was good. I didn't notice the AF anymore. That ‑ I ‑ the medication seemed to be doing a wonderful job. I ‑ I felt good. I had my weight down. I ‑ I was ‑ yeah, raring to go.
And after---Definitely not. Definitely after it was there, but very tired, cranky, irritable, I ‑ I suffered from sleeplessness; insomnia, I think you call it. I ‑ I - I still do, occasionally; I still get up at night and watch TV for two hours in the middle of the night because I can't sleep.
The dizziness that you mentioned, did you have that before the motor vehicle accident---No, definitely not.
All right. And you mentioned the palpitations or the beats of the heart‑‑‑Beat. And it ‑ I became very ‑ very preoccupied with thinking that sometimes when you ‑ when it got particularly bad, I ‑ I was convinced I was having a heart attack or just that far off a heart attack.
Well, how did the level of that beating of the heart compare to the way it was before the motor vehicle accident---I don't know how else to say it ‑ after the successful ‑ after Dr Hockings had treated me, I did not feel AF. Even that ‑ that light butterfly feeling. I could not pick it. In fact, he ‑ he would say, 'Are you in AF?' And I'd say, 'Possibly.' He'd check and he says, 'No, you're not.' I could not pick it. But after the MVA, it was unmistakeable. It was ‑ it was just a - you couldn't miss it. Both in the length and in ‑ in the sensation, you felt it a lot stronger. Yeah (ts 97 ‑ 98).
Later, in cross‑examination, the appellant gave this evidence:
Okay and the reason that you say you can't fly because you have these panic attacks---Yes.
And they include symptoms, which you had suffered before the crash---No.
STAUDE, MR: Chest tightness and pain, experienced previously---No, sir, I explained that in 1990, Dr Alex Berger, yes, sent me for a cardio angiogram because I complained of chest pain but in this left arm.
And you'd previously experienced shortness of breath---In connection with the high dosage of Sotalol ‑ yes.
And you'd previously experienced excessive perspiration---No.
Before the------Before the MVA.
‑ ‑ ‑ accident---No.
Associated with taking Sotalol---No. No.
Well it will be a matter of evidence from others - and you'd previously suffered fatigue before the accident---The ‑ when I ‑ when you got an AF episode ‑ and when I had one yes it made you tired.
Yeah. Okay. So the symptoms that you've described as panic attack symptoms ‑ they're all symptoms of which you had some experience prior to the accident---No, I don't agree. Angina like symptoms ‑ the chest pain with the throat and the jaw ‑ I'd never had that before the MVA ‑ not once (ts 227 ‑ 228).
The contemporaneous medical notes made before the accident on 10 May 2003, are consistent with the evidence of the appellant that I have reproduced.
Also, the appellant's evidence as to his mental state before the accident reflects his description of his personality before the accident as recorded by Dr Ng in his letter dated 19 June 2008 to the appellant's solicitors. Dr Ng said in this letter:
He described his premorbid personality as assertive, goal-oriented, organised, self-confident, focussed, sociable, slow to anger, not a worrier, liked himself as a person. He indicated that in his premorbid state he was very competent and in control, otherwise he would not have risen up the ranks of Swissair, and achieved all the other things that he did in the airline industry prior to his difficulties (GAB 136 ‑ 137).
Dr Blumberg noted in his letter dated 1 August 2008 to the appellant's solicitors that the appellant had no psychiatric history or contact with psychiatric services before the accident. He had never been treated for anxiety or panic symptoms (GAB 152, 159).
However, notwithstanding the appellant's evidence at trial and the description of his 'premorbid personality' in Dr Ng's letter dated 19 June 2008, Dr Ng expressed the following opinion:
This man was subject to significant stress from about 2001 when he developed atrial fibrillation which then precluded him from working as an airline pilot, after which the September 11 2001 terrorist attack forced his airline to shut. The atrial fibrillation treatment was reportedly completed with medications, and by 20 February 2003 CASA had reportedly restored his Class I medical certificate to fly after which Gulf War Part II then occurred and he said that tourism went down along with his chances of finding work as a pilot. He said that it was then difficult to find work as a pilot. In addition to this, the incident in question, of being crushed, occurred on 10 May 2003.
Based on the above, it was more likely than not that he did have pre‑existing stress related problems given that his career (one that he worked hard to achieve) was threatened initially by the atrial fibrillation and then the terrorist attack and then the Gulf War part II. I do acknowledge that the incident of being crushed by the reversing van, and the significant concerns that he would have had regarding any damage to his chest wall and heart (in the context of his concerns about his previous and pre‑existing cardiac problems) would have been sufficient to exacerbate any pre‑existing stress.
Therefore if he did have any pre‑existing anxiety and panic type symptoms/episodes, the crush incident caused by the van would more likely than not, have exacerbated it to a significant extent. It is very unclear to me if he did have any of the anxiety/panic episodes before the van crushing incident.
He would also have potentially felt depressed in the context of worrying about the effects of being crushed on his chest wall given his history of cardiac problems. It is again unclear to me if he did have pre‑existing pathological depressive symptoms before the van reversing incident and if he did, this would have been exacerbated by the van incident also because he did have previous cardiac problems which did stop him flying and which would have concerned him (GAB 144 ‑ 145). (emphasis added)
It is plain, in my view, on a fair reading of the trial judge's reasons as a whole, that her reference to the absence of 'pre‑existing stress' was to the absence of any stress before the accident that interfered with or impaired the appellant's ordinary functioning.
I am satisfied that the impugned findings were reasonably open to the trial judge. Her Honour was entitled to accept the appellant's evidence as to the absence of relevant 'pre‑existing stress' of this kind in preference to any different views advanced by Dr Ng or Dr Blumberg; for example, Dr Ng's view (as set out in his letter dated 19 June 2008) that, on balance, the appellant had 'pre‑existing stress related problems'.
Alleged error no 1 has not been made out.

The merits of alleged error no 2

I have set out at [43] above the diagnostic criteria from DSM-IV-TR for adjustment disorders.
An examination of Dr Ng's evidence reveals that he did not assert that all of the criteria in DSM-IV-TR for the diagnosis of adjustment disorders are vague. Rather, he said in cross‑examination, in response to a question asking him to identify the appellant's emotional or behavioural symptoms which he thought satisfied criterion A, that DSM-IV-TR was 'rather vague' in relation to the nature and extent of the required symptoms. The relevant questions and answers were as follows:
STAUDE, MR: So, in this case, Dr Ng, what were the emotional ‑ or behavioural symptoms that occurred that you thought satisfied that criterion---Your Honour, as one would see from the DSM IV criteria, it is rather vague, and in fact the major salient points that DSM IV points to with respect to diagnosing an adjustment disorder is that it must affect the person and cause them distress and it must also cause them significant impairment in their functioning, such as social and occupational. They do not, in any way, actually clearly prescribe to the psychiatrist what the actual specific depressive (indistinct) symptoms are, unlike the other. But in answering your esteem colleague's question, if I please, may refer to my report. I have stated justification for the diagnosis. In page 183 of this exhibit, in page 11 of my report.
Yes---And in answer to question 3 there, 'our client's condition in presenting symptoms at the examination', in the subsequent paragraphs I would have justified why I had made the diagnosis, your Honour. I am happy to read them out, if you wish me to.
O'BRIEN DCJ: Is that the last paragraph---Yeah. Then I, your Honour, indicated in answer to question 3, separately both the depressive components as well as previously the anxiety components. Well, in one way or another, okay (ts 444 ‑ 445).
The exhibit referred to in these questions and answers is Dr Ng's letter dated 19 June 2008. In that letter, in response to an inquiry from the appellant's solicitors as to his 'condition and presenting symptoms at the examination' and after setting out the appellant's reported physical and other symptoms, Dr Ng said (in the last paragraph on page 11 of the letter):
Hence, from a diagnostic point of view, it is reasonable, given what I have stated in the body of the report, that he does have a chronic adjustment disorder with mixed anxiety and depressed mood (DSM IV TR). The depressive component relates to the reported symptoms including lowered energy levels, poor libido, some degree of social withdrawal, being somewhat irritable, being easily angered, being somewhat forgetful, having difficulties with concentration, having sleep continuity difficulties, and feeling somewhat down at times, as stated in the body of this report (GAB 141).
Dr Ng was cross‑examined about what symptoms, as reported by the appellant to him, were identified by Dr Ng as 'significant psychiatric symptoms after the accident' (ts 448). He responded:
Your Honour ‑ given the passage of time it is not possible to exactly ask him what symptoms he would've felt within 30 minutes to one hour or two hours unless one was there at that time. So I ‑ I don't think he could remember so my recounting of what he said were the psychiatric symptoms which occur in page 180 of the exhibit which follows the incident of May 2003 is ‑ is a mish-mash of what he would've felt over a period of time. It is impossible to chronologically and specifically account which day and what day and what happened at what time. I am unable to do that, your Honour (ts 448).
Counsel for the respondent then asked Dr Ng why, if that were the case, he made reference to the diagnostic criteria in DSM-IV-TR in arriving at the conclusion that the appellant suffered from an adjustment disorder. Dr Ng explained:
Your Honour, because the specific symptoms that he told me about … and I asked him whether these symptoms had occurred prior to the incident, and my sense, from what he told me, was the extent to which he had had these symptoms was over and above to the significant extent what he would have had before the incident of the accident, and hence in my opinion, he developed pathological anxiety symptoms following the incident, whereas I did not think he had pathological anxieties before the symptoms based on what he told me, and that it had caused him distress, more than it ever did before the accident, which is one of the salient criteria of the DSM adjustment disorder ‑ distress and functional impairment (ts 448).
Dr Ng gave evidence to the effect that if symptoms of pathological anxiety did not become apparent until many months after the accident, then there would be 'a problem in tying the two together' (ts 450). He re‑iterated, shortly afterwards, that 'the later the onset of [pathological anxiety] symptoms after the motor vehicle accident, the more difficult it is to attribute them to the accident' (ts 452).
Dr Blumberg expressed the opinion in his letter dated 7 September 2008 to the appellant's solicitors that the appellant fulfilled 'a DSM-IV-TR psychiatric diagnosis of a Chronic Adjustment Disorder with anxiety and depressed mood' (GAB 147).
In an earlier letter dated 1 August 2008 to the appellant's solicitors, Dr Blumberg also made the diagnosis of chronic adjustment disorder with anxiety and depressed mood. He said that this diagnosis was made using 'the internationally recognised diagnostic system of the American Psychiatric Association known as DSM-IV-TR' (GAB 155).
In the letter of 1 August 2008, Dr Blumberg said as to the appellant's condition and presenting symptoms at the time of examination:
In my opinion [the appellant] has signs and symptoms in keeping with a DSM-IV TR psychiatric diagnosis of a Chronic Adjustment Disorder with depressed mood. [The appellant] continues to suffer from 'pathological anxiety' and depressive symptoms. He clearly describes chronic anxiety symptoms associated with panic attacks which at times are debilitating. His current presentation in my opinion does not meet the criteria of a chronic Post Traumatic Stress Disorder. [The appellant's] atrial fibrillation and cardiac status has been extensively investigated and managed under Cardiologist, Dr Weerasoorya [sic], and angina has been excluded. [The appellant's] panic and anxiety presentations, including tight chest, palpitations, sweating and shortness of breath would mimic angina symptoms and seems to have escalated and perpetuated his anxiety. [The appellant] has also clearly developed a great anxiety about the status of his heart since the accident and continues to experience a number of depressive symptoms which are perpetuated by the loss issues of being unable to fly, the uncertainty about his future, financial stress, and the ongoing stress of his medico-legal case.
[The appellant's] ongoing anxiety symptoms with associated chest pain have precipitated emotional and behavioural symptoms in keeping with a chronic Adjustment Disorder. These symptoms have clearly caused distress in excess of what would be expected from the stressor and impaired his social and occupational functioning. [The appellant's] symptoms do not fulfil the criteria of a Major Depressive Disorder or Generalised Anxiety Disorder. [The appellant's] mental state was consistent with the history and congruent with my findings.
[The appellant's] psychiatric condition can be considered in view of predisposing, precipitating and perpetuating factors. There was no family history to suggest a specific biological predisposition. [The appellant] has no past psychiatric history and I could not identify any psychological factors relating to a Personality Disorder which could have contributed to his condition (GAB 156).
Also, in the letter of 1 August 2008, Dr Blumberg said in relation to whether the appellant's 'psychological/psychiatric condition' was attributable to the accident:
[The appellant] had no previous psychiatric history or contact with psychiatric services prior to the accident on 10 May 2003. He was subject to significant stress after developing atrial fibrillation in 2001 which precluded him from working as an airline pilot. However, the atrial fibrillation treatment was completed by February 2003 and his licence was reinstated. After this period he disclosed difficulty finding work as a pilot and due to the break-out of the Gulf War. From the history available, [the appellant] did not describe experiencing panic attacks and depressive symptoms prior to the accident on 10 May 2003. The chest wall injury having an effect on his 'chest wall compliance', and causing breathing difficulties seems to be a major precipitating factor for his anxiety and panic symptoms which he experienced and continues to experience. [The appellant's] history of having previous cardiac pathology and atrial fibrillation, and concerns about his cardiac status, has further perpetuated his anxiety symptoms (GAB 159).
Dr Blumberg accepted, in his oral evidence, that the diagnostic criteria, as set out in DSM-IV-TR, for adjustment disorders require, amongst other things, that there be development of emotional or behavioural symptoms in response to an identifiable stressor or stressors within three months of the onset (ts 268).
When questioned about the relevant stressor or stressors in the appellant's case, Dr Blumberg said:
Okay, now what did you identify as the stressor or stressors in this case‑‑‑Well, I think the stressors in his case and ‑ was the ‑ the coming ‑ possibly the - the stressors was how his - he was unaware that he had a psychological diagnosis. When he saw Dr Ng and was told he had a psychological illness, I think accepting that diagnosis and the sequalae following, which includes the potential loss issue of not being able to fly, which would affect his future.
Are you saying the stressor was the advice given by Dr Ng---Well, his stressor was - clearly, the main stressor he had was the accident but I'm talking about within three months to make that diagnosis would - would be the advice given by Dr Ng, yes (ts 268).

Dr Blumberg was then asked about the identifiable stressor or stressors for the purpose of satisfying the three‑month requirement in DSM-IV-TR:
STAUDE, MR: Well, I'm asking you for the purpose of your diagnosis, what is the identifiable stressor or stressors for the purpose of satisfying the three month requirement?
O'BRIEN DCJ: Well, three months ‑ within three months of the onset of the stressor------Well, I think he would have - from three months from the onset of his ‑ of his accident, he would have had these symptoms. If you want to look at it in that way but he wasn't aware that he had a psychological problem …
…
But I've asked you a simple question I suggest, with respect, and that is what is the identifiable stressor that you can point to for diagnostic reasons, as causing the development of emotional or behavioural symptoms in this case---The stressor in that case would be the accident.
The car accident, okay. Now, what symptoms came on within three months of the onset of that event that you would call or you would categorise as emotional [or] behavioural symptoms in response to it---A change in his ‑ he gave a history of having mood swings, being hyper vigilant, experiencing panic attacks, experiencing panic symptoms, which he wasn't aware they were panic attacks at the time (ts 269).
Dr Blumberg accepted that if his diagnosis of chronic adjustment disorder was correct, then he 'would have expected to see the development of emotional [or] behavioural symptoms in response to the accident within three months' (ts 273).
Later, when challenged again by counsel for the respondent on this point, Dr Blumberg's evidence was as follows:
STAUDE, MR: But in any event, Dr Blumberg, you would accept that for your diagnosis to be correct there would have to have been these symptoms within three months of the accident if the accident is to be pinned as the cause of the present adjustment disorder---If ‑ if one calls it, in inverted commas, an adjustment disorder. But as I've said, I could have easily labelled him as a major depressive disorder, which I haven't, because I just think the symptoms that he describes for ‑ I note that in ‑ in Dr McCarthy's report he refers to it - he refers to both, an adjustment disorder as well as a major depressive disorder. And then he talks about a major depressive disorder being in partial remission. Which if you read DSM IV, all that means is that he ‑ yes, he has got depressive symptoms, but doesn't have all the depressive criteria. So it's a depressive diagnosis but not a ‑ as I've ‑ as I say, a full blown major depressive episode.
But isn't an adjustment disorder meant to lift when the stressor is removed‑‑‑Well, I think that's in ‑ it's meant to lift if the stressor's removed, it normally if it's removed in that three month period it's an acute adjustment disorder. However with some patients it becomes a chronic ‑ a chronic problem (ts 276).
Dr Blumberg expressed his distaste for 'labelling' patients. His preference was to treat the patient as 'an individual' and treat him or her on the basis of 'the symptoms' and not the 'label'. His evidence was, relevantly, this:
I mean isn't it the case ‑ Dr Blumberg that you've got a manual of disorders there published by the American Psychiatric Association ‑ that ‑ it's just a convenient set of coat hangers isn't it ‑ to hang diagnosis off---?---And that's why I personally like to treat the patient and every patient's individual and take the symptoms and not label -
I hate labelling patients and giving three DSM diagnoses to make ‑ to give him these labels. He's presenting now like here and now in my last review ‑ his mood has improved ‑ he was still getting anxiety symptoms ‑ he was still experiencing panic attacks from memory ‑ one or two a week. He was still experiencing sleep disturbances ‑ he was still experiencing to a certain extent cognitive impairment which possibly is a result of ‑ also of all the medication he's on. So to clump that and give a label ‑ one of the reasons we do it is for the courts.
STAUDE, MR: I see---But to treat it ‑ to treat it ‑ to treat it, you've got to treat the patient and to treat the patient whether we label him depressive adjustment disorder, panic disorder, post-traumatic stress disorder ‑ I don't think he has. But post-traumatic stress symptomatology we'd use the same armoury of psychotrophy medications and the same psychotherapy to address the symptoms to improve the patient, give a better quality of life (ts 282 ‑ 283).
I am satisfied, on my review of the diagnostic criteria in DSM-IV-TR for adjustment disorders, read with the written and oral evidence of Dr Ng and Dr Blumberg (in particular, the aspects I have recounted or reproduced), that the trial judge was not in error in finding that the criteria set out in DSM-IV-TR for the diagnosis of chronic adjustment disorder (in particular, criterion A: the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s)) must be satisfied before a diagnosis of chronic adjustment disorder can be made. The appellant expressly pleaded that one of the accident‑caused injuries he suffered was chronic adjustment disorder, with anxiety and depressed mood. Her Honour was bound to make a finding as to whether he suffered from this disorder and that, in turn, required attention to the relevant diagnostic criteria and the expert evidence.
Alleged error no 2 has not been made out.

The merits of alleged error no 3

The trial judge referred at [304] to the criterion in DSM-IV-TR for the diagnosis of adjustment disorders, being criterion E, which requires that:
Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Dr Ng and Dr Blumberg were agreed that the relevant stressor was the accident, which occurred on 10 May 2003.
The second ablation procedure was performed on 17 January 2004, a little over eight months after the date of the accident. The trial judge noted that by 17 January 2004, at the latest, the 'consequences' of the accident she enumerated (namely, the AF, the fractured ribs, the bruising) had resolved [304]. On the face of it, these physical consequences and the symptoms they generated persisted for more than six months after the accident occurred.
Dr Blumberg gave this evidence in re‑examination about the continuing effects of the accident as a stressor:
LAMPROPOULOS, MR: [The appellant] is diagnosed with the AF, it's brought under control with medication, he then has the motor vehicle accident, suffers a crush injury to the chest including six fractured ribs, the AF goes into uncontrolled mode for 12 hours in hospital, he then has ongoing symptoms from the ribs, from the AF, to the extent that the medication doesn't control the AF, he has a first ablation procedure some months later, which doesn't fully correct the AF, the aggravation of the AF, and he then has a second ablation procedure seven months later. In terms of the effects of the motor vehicle accident as a stressor, when does it start and finish?---That's very hard to - I suppose it continues.
Continues what---Indefinitely. I mean, it's just ‑ I think that ‑ as I say, I think that was the catalyst for a lot of the symptomatology that he described, and - at the time.
And is it possible to concurrently have physical symptoms and psychiatric symptoms---Is it possible? Yes.
And I think you've described the difficulty in differentiating between‑‑‑‑‑‑Very difficult as a clinician, very difficult (ts 290).
Although this passage refers to Dr Blumberg's opinion about the continuing effects on the appellant of the accident, it does not examine what 'consequences' are being referred to in criterion E in DSM-IV-TR. This is the point that her Honour made at [304]. The nature of these 'consequences' within the relevant criterion was not explored at the trial.
It is apparent that the 'consequences' of the stressor, within criterion E, are different from the emotional or behavioural symptoms that develop in response to the stressor (see criterion A) in that criterion E requires that once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
In the present case, if the 'stressor' was the accident then criterion E was not satisfied because any emotional or behavioural symptoms that were, in fact, attributable to the accident did, on the appellant's case, persist for more than an additional six months after the accident occurred. Also, in the present case, if the 'consequences' of the accident were the physical injuries he suffered in the accident then any emotional or behavioural symptoms developed in response to those injuries did, on the appellant's case, persist for more than an additional six months after the injuries had 'terminated' (see criterion E) or been resolved.
In these circumstances, her Honour's decision not to place 'much weight on this point' [304], was reasonably open to her. Indeed, the decision on the point was favourable to the appellant.
Alleged error no 3 has not been made out.

The merits of alleged error no 4

It is well established that a trial judge has an advantage over an appellate court in that the trial judge has the considerable advantage of seeing and hearing the witnesses and the manner in which they deal with questions in cross‑examination.
In the present case, the trial judge was required to consider a substantial body of non‑expert and expert evidence. It is apparent from her reasons, considered as a whole, that she engaged in this task and made findings based on the evidence she accepted and consistent with her assessment of the non‑expert and expert witnesses. These findings included whether the appellant had suffered shortly after and since the accident the symptoms he reported to the psychiatrists, as a continuing set of symptoms, which had their onset within three months of the accident.
I am not persuaded that her Honour made any material error of fact in her evaluation and weighing of the non‑expert or expert evidence, in her selection of the evidence which she preferred or in the findings she made.
It was reasonably open to the trial judge not to be satisfied on the balance of probabilities that the appellant had suffered shortly after and since the accident the symptoms he reported to the psychiatrists, as a continuing set of symptoms, which had their onset within three months of the accident. 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. My opinion that her Honour did not make the alleged error is based on the following:
(a)The opinions of Dr Ng and Dr Blumberg were dependent in relevant respects upon the accuracy of the history provided to them by the appellant.
(b)The appellant's history of his symptoms was subjective and did not accord with objective evidence of the symptoms he complained of, or the clinical observations of his treating doctors, before he consulted the psychiatrists.
(c)Dr Weerasooriya said that the appellant reported shortness of breath on exertion almost immediately after the second ablation procedure. This had not previously been a major part of his presentation, and Dr Weerasooriya was therefore concerned to exclude possible pulmonary vein stenosis (ts 316 ‑ 317). Dr Weerasooriya also said that the appellant contacted him several times to obtain evidence to support his case (ts 323). He said the appellant was 'obviously stressed about this' (ts 323). The appellant's reported increased AF was entirely subjective (ts 324). Dr Weerasooriya did not consider that the symptoms with which the appellant presented after the ablation procedures indicated a panic attack (ts 329). He thought that the appellant's shortness of breath on exertion was not due to a psychological problem. He regarded the appellant's level of anxiety as normal (ts 323). In his report dated 24 October 2003 to Dr Hockings (before the second ablation procedure), Dr Weerasooriya noted that the appellant was 'symptomatic of palpitations with perspiration and generalised lethargy' (GAB 23). No reference was made to complaints of chest pain or shortness of breath. In his report dated 15 March 2004 to Dr Hockings (after the second ablation procedure), Dr Weerasooriya said that the appellant had 'noticed shortness of breath on exertion virtually immediately after the second procedure' (GAB 20). The report does not mention any complaints of chest pain or tightness.
(d)Dr Hockings' reports dated 16 June 2003 and 8 October 2003 (between the date of the accident and the first ablation procedure) do not refer to any symptoms of chest tightness or shortness of breath. However, in his report dated 17 May 2004 to the Civil Aviation Safety Authority, Dr Hockings said:
Unfortunately since the pulmonary vein isolation, although his atrial fibrillation has been essentially controlled, he is aware of chest and throat discomfort with emotional stress. This comes on within seconds and will last five to ten minutes. Sometimes with physical exertion he will develop chest discomfort which starts low down and spreads upwards but does not reach the shoulder or jaw.
A recent stress test was satisfactory when he completed Stage 3 of the Bruce Protocol without chest pain or ECG changes but did develop increasing breathlessness (GAB 11).
The 'exercise stress test' report dated 17 May 2004 indicated that during exercise the appellant developed 'dyspnoea not associated with ECG evidence of myocardial ischaemia' (GAB 10A). Dr Hockings gave evidence that the appellant's increased perspiration was associated with reported episodes of AF (ts 424). He did not give any evidence to the effect that the appellant had any disability due to psychiatric symptoms. His opinion that the appellant was unfit to work as an airline pilot was based on the following:
That was the chest discomfort, the breathlessness, the sweating and the fact that [the appellant] reported his symptoms are incapacitating and the fact that he needs to lie down on most days. It obviously seemed quite inappropriate for someone with those symptoms to be flying an aircraft (ts 431).
Dr Hockings did not attribute a cause for the symptoms, and his opinion as to the appellant's capacity was based on the appellant's subjective response.
(e)Dr Ozanne did not diagnose any actual or possible psychiatric disorder during his many consultations with the appellant before the receipt of the psychiatric reports from Dr Ng and Dr Blumberg in 2008. Although he said in evidence that there were some symptoms which could be interpreted as psychiatric symptoms, he did not diagnose any actual or possible psychiatric disorder, and he did not prescribe any psychotropic medication, except in April 2007 for sleep disturbance. Dr Ozanne did not diagnose any symptoms as constituting an actual or possible panic attack (ts 594), but he did give evidence that the symptoms he noted on 17 April 2007 (namely, 'waking up to ten times/night with pins and needles in both upper arms, intermittent dizzy spells and headache everyday'), which had no physical cause, could have been psychiatric symptoms (ts 595).
(f)Dr Ozanne's medical notes do not record symptoms of anxiety or panic attack of the kind or degree reported by the appellant to Dr Ng and Dr Blumberg. By contrast, Dr Ozanne did make detailed notes of the appellant's low back symptoms and treatment.
(g)There are references in Dr Ozanne's notes to the appellant suffering 'multiple stresses' (7 December 2004) (GAB 51), 'lethargy' (10 December 2004) (GAB 51), 'headaches and waking with pain numbness of the upper limb of the side he was sleeping on' (2 February 2006) (GAB 48), being 'tired and a little bit cranky' (7 December 2006) (GAB 47), 'feeling tired' and 'sleeping ten-eleven hours/night (low quality) and day naps, hot while trying to sleep' (11 January 2007) (GAB 47), and the symptoms referred to at [120(e)] above as reported on 17 April 2007 (GAB 47). These references are not, however, comparable in nature or extent to those reported by the appellant to Dr Ng and Dr Blumberg; in particular, they do not represent a continuing set of symptoms of the kind or degree reported to the psychiatrists which could properly be described as a continuing set of symptoms having their onset within three months of the accident.
(h)Similarly, although there is some reference in the material before the trial judge to symptoms which could be regarded as symptoms of anxiety or psychological stress (see, for example, Dr Hockings' reports dated 17 May 2004 (GAB 11) and 11 May 2005 (GAB 6); Dr Junga's report dated 26 June 2004 (GAB 26); Dr Reif's report dated 12 July 2004 (GAB 90); the CASA medical questionnaire and examination form dated 11 June 2004 (GAB 77) and the reports dated 15 June 2004 (GAB 62), 11 August 2004 (GAB 73) and 2 September 2004 (GAB 74) of Dr John Bateman (a general medical practitioner in the same practice as Dr Ozanne); and Dr Bremner's reports dated 5 May 2005 (GAB 176) and 25 July 2005 (GAB 173)), these symptoms were not of a comparable kind or degree to those reported by the appellant to Dr Ng and Dr Blumberg.
(i)The trial judge doubted that the appellant was an accurate historian and, at least in part, this was a finding based on credit.
(j)Her Honour found that the appellant had reconstructed, in the course of his psychiatric assessments, his account of his symptoms. She was not satisfied that his account to the psychiatrists as to the 'time frame of the symptoms' was reliable. This was a finding based, at least in part, on credit.
Alleged error no 4 has not been made out.

The merits of alleged error no 5

In my opinion, it was reasonably open to the trial judge to find that at material times after the accident and before the appellant consulted the psychiatrists in 2008, he was not exhibiting, in effect, pathological anxiety symptoms which required psychiatric or psychological intervention and treatment. I base this opinion on the reasons and conclusions I have expressed in the context of considering alleged error no 1 and alleged error no 4.
Also, it was reasonably open to her Honour to find that:
(a)it was unlikely that the specialists and Dr Ozanne would not have at least considered the issue of psychological cause if there had been a sufficient basis for it in the appellant's presentation to them; and
(b)the specialists and Dr Ozanne did not consider the issue of psychological cause.
The finding that the specialists and Dr Ozanne did not consider the issue of psychological cause before the appellant consulted the psychiatrists in 2008 was reasonably open on the basis of the contemporaneous notes and correspondence. 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 of fact made by her Honour or to require that the appeal be allowed and a re‑trial ordered.
Alleged error no 5 has not been made out.

The merits of alleged error no 6

The trial judge's relevant finding was that none of the numerous highly qualified specialists who assessed the appellant over a period of years documented symptoms associated with panic attacks 'as reflected by the appellant's report of his symptoms to the psychiatrists' [317]. 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.

In my opinion, it was reasonably open to the trial judge to make the finding in question. I base this opinion on the reasons and conclusions I have expressed in the context of considering alleged error no 1 and alleged error no 4.
Alleged error no 6 has not been made out.

The merits of alleged error no 7

The trial judge's relevant finding was that the appellant's account of his symptoms as reported to the psychiatrists was 'largely unsupported' by documented evidence of his reported symptoms in the medical notes of other doctors who treated him after the accident [288].
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.
Alleged error no 7 has not been made out.

Causation

A defendant will be liable in negligence only if the injury which the plaintiff has suffered was caused by the defendant's negligent act or omission. It is not necessary that the defendant's negligent act or omission be the sole cause of the plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the loss or damage suffered. The question whether the requisite causal connection exists between a defendant's negligence and a plaintiff's loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 ‑ 515 (Mason CJ), 522 ‑ 523 (Deane J). A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [44] (McHugh J).
In the present case, the respondent disputed at trial that the accident caused or materially contributed to the appellant's stress‑related psychological condition. The appellant's chest injuries resolved within a relatively short time and his AF resolved within eight months after the accident. Her Honour was entitled to find, in effect, that he complained of pathological anxiety symptoms of the kind and degree reported to Dr Ng and Dr Blumberg only after it was established beyond reasonable argument that his AF had been treated successfully.
It was reasonably open to the trial judge not to be satisfied that the respondent's negligence was, as a matter of common sense and experience, properly to be seen as having caused the appellant's stress‑related psychological condition [321]. 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.
The trial judge's conclusion on causation depended, to a material extent, on her opportunity to see and hear the appellant and the other witnesses. Her evaluation of the appellant's evidence involved, at least in part, an assessment of his credit. It has not been shown that her Honour failed to use or palpably misused her advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. See Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron & McHugh JJ); Fox [26] ‑ [27] (Gleeson CJ, Gummow & Kirby JJ).

Conclusion

For the reasons I have given, I am satisfied that the trial judge did not make the alleged errors of fact and that her findings in relation to causation were not flawed.
Further, there is no 'imperative demand of justice' (Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 640 (Dixon J)) or 'insistent demand of justice' (Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435, 444 (Dixon CJ)) which would justify this court ordering a re‑trial. No miscarriage of justice has occurred.
I would dismiss the appeal.

NEWNES JA: I agree with Buss JA.