TC v State of New South Wales

[2000] NSWSC 292

CITATION:	TC v State of New South Wales [2000] NSWSC 292
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11844/93
HEARING DATE(S):	13-14 March 2000
JUDGMENT DATE:	12 April 2000
PARTIES :	TC by his tutor Kris Sabatino (Plaintiff) State of New South Wales (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	A.B. Shand QC/R.R.I. Harper (Plaintiff) F.S. McAlary QC/G.W. Moore (Defendant)
SOLICITORS:	Heidtman & Co (Plaintiff) Crown Solicitor (Defendant)
CATCHWORDS:	Negligence - breaches of duty by defendant - whether any breach or breaches causative of harm.
LEGISLATION CITED:	Child Welfare Act
CASES CITED:	Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Bonnington Castings Limited v Wardlaw (1956) AC 613 Chappel v Hart (1998) 156 ALR 517 EM Baldwin & Son Pty Limited v Plane & Anor (1999) ATR 81-499 Farrell v Snell (1990) 72 DLR (4th) 289 Holloway v McFeeters (1956) 94 CLR 470 ICI Australia Operations Pty Limited v Walsh & Ors (1997) ATR 81-452 Jones v Dunkel (1958-59) 101 CLR 298 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 McGhee v National Coal Board [1972] 3 AER 1008 Millicent District Council v Altschwagen (1983) 50 ALR at 173 Pibworth & Anor v Roberts Pty Limited & Ors (1994) 176 LSJS 39 Sellars v Adelaide Petroleum NL & Ors (1992-94) 179 CLR 332 St George Club Limited v Hines (1962) Argus Law Reports 39 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Vyner v Waldenberg Brothers Limited [1946] KB 50 Wallaby Grip (BAE) Pty Limited (In Liq.) v Macleay Area Health Service (1998) 17 NSWCCR 355 Wilsher v Essex Area Health Authority [1988] 1 AC 1074
DECISION:	Verdict and judgment for defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 12 April 2000

11844/93 TC by his tutor Kris Sabatino v THE STATE OF NEW SOUTH WALES

JUDGMENT

1   HIS HONOUR: On 11 February 1999 I delivered judgment, finding for reasons then published, that the first defendant was in breach of its duty of care to the plaintiff in two ways:

“(a) In the failure following the presentation in February and March 1983 of the material identified in para 234 of this judgment to take the steps identified in paras 247 and 248 of this judgment;
(b) In the failure following receipt of the notification in May 1984 to attend promptly to the matters addressed in para 516 of this judgment.”

2   Subsequently, on 11 March 1999, I ordered that there be a separate trial of the issue as to whether those breaches of duty, or either of them that I found established, were or was causative of harm. For the purposes of the determination of this issue only, it was to be assumed that the plaintiff is suffering from a psychiatric disorder.

3   At the trial of that further issue medical evidence was introduced and argument was directed to the issue of causation, and in particular to the onus of proof. It was submitted by Mr Shand of Queen’s Counsel on behalf of the plaintiff that my findings of breach of duty, when coupled with evidence of harm suffered by the plaintiff at a point of time after such breaches, in what Mr Shand submitted was the very area of risk which the first defendant’s duty was designed to avoid, imposed an onus upon the first defendant to prove that the harm suffered by the plaintiff was not caused by its negligence. Mr Shand submitted that a consideration of the authorities to which I was taken led to the conclusion that there was such a shift in the onus of proof. Mr McAlary of Queen’s Counsel, on the contrary, submitted that the burden of proof rested upon the plaintiff throughout to establish that the negligence proved caused him harm.

4   These competing submissions obviously go to an issue of the utmost importance and warrant the closest consideration of the relevant authorities.

5   I was referred by counsel in the course of submissions to the following cases: Betts v Whittingslowe (1945) 71 CLR 637; McGhee v National Coal Board [1972] 3 AER 1008; Wilsher v Essex Area Health Authority [1988] 1 AC 1074; March v E & M H Stramare Pty Limited (1991) 171 CLR 506; Bennett v Minister for Community Welfare (1992) 176 CLR 408; Sellars v Adelaide Petroleum NL & Ors (1992-94) 179 CLR 332; Farrell v Snell (1990) 72 DLR (4th) 289; and Chappel v Hart (1998) 156 ALR 517.

6   Mr Shand submitted that what Lord Wilberforce said in McGhee as to a reversal of onus underlies the recent decision of the High Court in Chappel v Hart. Mr Shand’s fundamental submission was expressed in the course of argument (T68):

“It is our submission that the Lord Wilberforce propositions are now installed as basic principles in respect of this sort of case where the negligence involves not a positive act but an omission, and particularly where there is involved an impossibility of the plaintiff proving in its own case, in effect, by some hypothesis that namely the damage would not have occurred apart from the negligence of the defendant.”

7   I begin my review of the authorities with Bonnington Castings Limited v Wardlaw (1956) AC 613. The House of Lords had occasion to consider the onus of proof of damage in a case in which the injured worker was exposed by the use of a pneumatic hammer to silica dust. He was also exposed to such dust by swing grinders. There was no practicable way of providing dust extraction measures for the hammer, but dust extraction equipment was fitted to the swing grinders. This particular equipment was not kept free of obstruction and the employer was accordingly in breach of the relevant statutory duty. Having contracted pneumoconiosis, the worker sued his employer. It was determined in the House of Lords that the onus was upon the worker to prove that the breach of statutory duty caused or materially contributed to the injury suffered and not merely that it was possible that it did. In so deciding, the House of Lords overruled the judgment of the Court of Appeal in Vyner v Waldenberg Brothers Limited [1946] KB 50 where it had been determined that once a breach of statutory duty was proved and a workman was injured in a way that could result from the breach, there was a shift in the onus of proof and it was for the employer to prove that the breach was not the cause of the injury suffered.

8   In his speech in Bonnington Castings Lord Tucker said of the proposition that there was a shift in the onus of proof (at 624):

“My Lords, I think it is desirable that your Lordships should take this opportunity to state in plain terms that no such onus exists unless the statute or statutory regulation expressly or impliedly so provides, as in several instances it does. No distinction can be drawn between actions for common law negligence and actions for breach of statutory duty in this respect. In both the plaintiff or pursuer must prove (a) breach of duty and (b) that such breach caused the injury complained of. (See Wakelin v London & South Western Railway Co. (1886) 12 App.Cas. 41; 3 TLR 233) and Caswell v Powell Duffryn Association Collieries Ltd [1940] AC 152, 55 TLR 1004; [1939] 3 All ER 722.) In each case it will depend upon the particular facts proved and the proper inferences to be drawn therefrom whether the pursuer has sufficiently discharged the onus that lies upon him.”

9   See also the speeches to the like effect of Lord Reid at 620 and Lord Keith at 625.

10   The principles as to the burden of proof as stated in Bonnington Castings were given further expression in the High Court in St George Club Limited v Hines (1962) Argus Law Reports 39. In their unanimous decision in this case, Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ said:

“In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default (Bonnington Castings Ltd v Wardlaw [1956] 1 All ER; [1956] AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Roberton Ltd [1957] 1 All ER 760; [1958] AC 9, at p 23: ‘”Post hoc, ergo propter hoc” is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life’.”

11   I turn now to McGhee. This was a case in which the appellant was suffering from dermatitis found to be due to the working conditions at the brick kiln where he was employed. The evidence also established that after work the appellant had to ride his bicycle home with brick dust adhering to his skin because there were no adequate washing facilities provided by the employer. The appellant’s action at trial failed because he had not shown that the respondent’s negligence in failing to provide washing facilities had caused his injury since there was no positive evidence that it was more probable than not that the appellant would not have contracted dermatitis had appropriate washing facilities been provided. The appellant succeeded in the House of Lords on the basis that the respondent’s breach of duty had materially contributed to the harm suffered.

12   This was the setting in which Lord Wilberforce considered the issue of the onus of proof at pp 1012-1013:

“But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers should suffer from this inherent evidential difficulty, the answer as a matter in policy or justice should be that it is the creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences.
……………..
And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable condition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”

13   In Wilsher, the House of Lords allowed an appeal from the Court of Appeal. Sir Nicholas Browne-Wilkinson was in the minority in the Court of Appeal but his judgment on causation was approved in the House of Lords. In the course of that judgment appears this passage:

“To the extent that certain members of the House of Lords (in McGhee) decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”

14   In Wilsher the House of Lords considered McGhee and Lord Bridge of Harwich, with whom the other members of the House agreed, rejected the notion that McGhee had established a reversal of onus. Lord Bridge said, in referring to the speech of Lord Wilberforce, at 1087:

“My Lords, it seems to me that both these paragraphs, particularly in the words I have emphasised, amount to saying that, in the circumstances, the burden of proof of causation is reversed and thereby to run counter to the unanimous and emphatic opinions expressed in Bonnington Castings Ltd v Wardlaw [1956] AC 613 to the contrary effect. I find no support in any of the other speeches for the view that the burden of proof is reversed and, in this respect, I think Lord Wilberforce’s reasoning must be regarded as expressing a minority opinion.”

15   Lord Bridge later, after a review of the other speeches in McGhee, said at 1090:

“The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”

16   This brings me to the decision of the Supreme Court of Canada in Farrell. Shortly the facts were that the plaintiff lost the sight of an eye after an operation by the defendant surgeon. The medical evidence was that the operation was a possible cause of the loss of the sight but the evidence fell short of saying that it was the principal cause. The plaintiff succeeded at trial and on appeal. It was in such setting, and after the trial judge had determined that the defendant carried the onus of disproving that the operation caused the sight loss, that the appellate court considered the question of onus. In so doing express consideration was given to the speech of Lord Wilberforce in McGhee and to the later speech of Lord Bridge in Wilsher. In the course of the judgment of the court, consideration was given to the adequacy of the traditional approach to causation, particularly in the setting of cases of medical malpractice. However, ultimately the court rejected the concept of a shift of the onus of proof and it was said at 301:

“The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced.”

17   How has the relevant law developed in Australian since Wilsher?

18   In March an intoxicated motorist travelling at an excessive speed came into collision with the defendant’s truck which had been left at night obstructing the roadway. In the High Court the defendant’s negligence was found to have been causative of the accident and the decision of the intermediate appellate court that the plaintiff’s negligence was the sole effective cause of the accident was reversed.

19   In March the only references to Lord Wilberforce’s speech in McGhee appears in the judgment of Mason CJ, not by way of adopting the proposition that there was a reversal of onus, but in the following context (at 514-515):

“Nonetheless, the law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are ‘caused or materially contributed to’ by the defendant's wrongful conduct: Duyvelshaff v. Cathcart and Ritchie Ltd. (1973) 47 ALJR 410, per Gibbs J. at p 417; 1 ALR 125, at p 138; Tubemakers of Australia Ltd. v. Fernandez (1976) 50 ALJR 720, per Mason J. at p 724; 10 ALR 303, at p 310; Bonnington Castings Ltd. v. Wardlaw (1956) AC 613, per Lord Reid at p 620; McGhee v. National Coal Board (1973) 1 WLR 1, at pp 4, 6, 8, 12; (1972) 3 All ER 1008, at pp 1010, 1012, 1014, 1017-1018. Generally speaking, that causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent: see I.C.I.AN.Z. v. Murphy (1973) 47 ALJR 122, at pp 127-128. But, as the decision in that case illustrates, it is often extremely difficult to demonstrate what would have happened in the absence of the defendant's negligent conduct.
Causation as a question of fact
The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’, in the words of Lord Reid: Stapley [1953] AC, at p 681. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co [1918] AC, at pp 363, 369-370; Admiralty Commissioners v SS Volute [1922] 1 AC 129, at p 144; Yorkshire Dale Steamship Co [1942] AC, at p 706; Alphacell Ltd v Woodward [1972] AC 824, at p 847; McGhee v National Coal Board [1973] 1 WLR, at pp 5, 11; [1972] 3 All ER, at pp 1011, 1017. It is supported also by this Court's decision in Fitzgerald v Penn (1954) 91 CLR 268.”
(The Chief Justice cited references to the speeches of the various members of the House of Lords in McGhee in the references to that case.)

20   After March the Full Court of the Supreme Court of South Australia considered the issue of causation in Pibworth & Anor v Roberts Pty Limited & Ors (1994) 176 LSJS 39. I do not propose to refer to the facts in that case, but in his judgment, with which Perry and Mullighan JJ agreed, Legoe A-CJ considered McGhee, Wilsher and March. His Honour commented on Wilsher at pp 11-12 of his judgment:

“I make reference to the speech of Lord Bridge in Wilsher v Essex Area Health Authority [1988] AC 1074. Lord Bridge stated four propositions of law relating to causation. Those propositions are summarised by the commentator in Cambridge Law Journal (1988) at 350 as follows:
‘1. The burden of proving causation rests throughout a case upon the plaintiff. See Bollington Castings Ltd v Wardlaw [1956] AC 613.
2. Exceptional cases apart, the plaintiff must show that the defendant has caused or materially contributed to the injury; see Bollington Castings Ltd supra.
3. The law does not equate the situation where the defendant had “materially increased the risk of injury” with one where he had materially contributed to the injury.
4. That in some circumstances if it were proved that the defendant did “materially increase the risk” of injuring the plaintiff then the court might infer causation, ie that the defendant’s negligence “materially contributed” to the injury.’
Lord Bridge’s speech, which was approved by the other Law Lords in that case, resolved an issue that had been debated in England ever since McGhee v National Coal Board [1973] 1 WLR 1 which it was thought by many had introduced a benevolent principle of causation into the law of negligence allowing the court to ‘bridge the evidential gap’ where factual uncertainty made a decision about cause and effect impossible on the balance of probabilities. A judge in Fitzgerald v Lane [1987] 3 WLR 249 at 262 per Nourse LJ put it thus ‘a benevolent principle smiles on…factual uncertainties and melts them all away.’ Lord Bridge denied that the decision in McGhee had introduced any such new principle of causation into the law of negligence. The Court of Appeal (majority) was reversed by the House of Lords. In my opinion the reasons expressed by Lord Bridge are consistent with the principles as stated by the High Court of Australia.”

21   In Bennett the facts were that a ward of state was injured while using an inadequately guarded saw, in circumstances in which he would have been entitled to damages against the responsible Minister. It was conceded that he would have sought such damages if he had known of his entitlement. It was accepted that the Director of Community Welfare had a duty to obtain independent legal advice for the ward in relation to his entitlement. The Director failed to discharge that duty and the claim became statute barred. The ward did obtain legal advice before the limitation period expired but was wrongly advised he had no cause of action against the Minister. He later sued for the Director’s failure to obtain independent legal advice. It was held that the Director’s breach of duty remained causative notwithstanding that wrongful advice was later obtained.

22   In their joint judgment Mason CJ, Deane and Toohey JJ referred not to the speech of Lord Wilberforce in McGhee but to the speech of Lord Simon of Glaisdale. That reference was in the course of determining that it was not necessary for the court to consider what would have been the position if the advice which the ward did obtain constituted independent legal advice that conformed to normal standards and procedures. Their Honours said at 416:

“Whether such advice would have constituted the supervening cause or a concurrent cause along with the Director's omission to obtain advice is an interesting and, on the facts as we see them, an academic question. In order to answer that question, it might be necessary to consider the view that there is no real distinction between breach of duty and causation (See McGhee v. National Coal Board (1973) 1 WLR 1 , per Lord Simon of Glaisdale at p 8; Quigley v. Commonwealth (1981) 55 ALJR 579 , per Stephen J. at p 581; 35 ALR 537 , at p 539), as well as the question whether a failure to take steps which would bring about a material reduction of the risk amounts to a material contribution to the injury. These questions have been considered in Canada in the context of a possible shift in the onus of proof (Nowsco Well Service Ltd. v. Canadian Propane Gas and Oil Ltd. (1981) 122 DLR (3d) 228; Letnik v. Metropolitan Toronto (1988) 49 DLR (4th) 707; Haag v. Marshall (1989) 61 DLR (4th) 371; Snell v. Farrell (1990) 72 DLR (4th) 289; Lankenau Estate v. Dutton (1991) 79 DLR (4th) 705) but it seems that the problem still awaits final resolution. There is no occasion to consider it here.”

23   Gaudron J said at 420-421, in a passage upon which Mr Shand placed much reliance:

“Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred (See, for example, Duyvelshaff v. Cathcart and Ritchie Ltd.; Quigley v. Commonwealth (1981) 55 ALJR 579 ; 35 ALR 537 . See also Hart and Honore, Causation In The Law, 2nd ed. (1985), pp 59-61 where the authors identify the hypothetical nature of an enquiry as to the causal significance of providing or failing to provide a person with, or depriving a person of, an opportunity). In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that ‘when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm’ (Sutherland Shire Council v. Heyman (1985) 157 CLR 424, per Mason J. at p 467. See also Hart and Honore, op.cit., p 38).

In practice, it is not always necessary to enquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty’ (Betts v. Whittingslowe (1945) 71 CLR 637 , per Dixon J. at p 649).

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed (See, for example, Duyvelshaff v. Cathcart and Ritchie Ltd. and Quigley v. Commonwealth, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided), generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed (See Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428 and British Road Services Ltd. v. A.V. Crutchley and Co. Ltd. 1967 2 All ER 785), it will be taken that the breach of the common law duty caused or materially contributed to the injury.”

24   As a footnote referable to the third of the paragraphs above cited, her Honour noted, after reference to “the absence of evidence that the breach had no effect”:

“McGhee v. National Coal Board (1972) 1 WLR 1 , per Lord Wilberforce at pp 6,7, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf. Wilsher v. Essex A.H.A (1988) AC 1074 , per Lord Bridge of Harwich at pp 1087, 1090, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analysed in terms consistent with an inference arising from the evidence in the plaintiff's case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v. Farrell (1990) 72 DLR (4th) 289, at p 301.”

25   Later, at 422-423 her Honour said:

“It might be said that, where questions of causation depend on hypothetical considerations, allowance should be made, as in the assessment of damages, for the possibility that some event would not have occurred (See, in relation to the assessment of damages, Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638). Possibilities, if they are not fanciful, must be taken into account, at least in a general way, whenever causation or the related issue of prevention is in issue. But questions of that kind are not answered ‘maybe’ or, even, ‘more probably than not’. They are answered ‘yes’ or ‘no’ depending on the probabilities for or against. In this respect, they are indistinguishable from the question whether an event happened (As to the ‘all or nothing’ approach to whether an event happened, see Malec v. J.C. Hutton Pty. Ltd. ibid., at pp 642-643) where possibilities are taken into account but, once the question has been answered, those possibilities have no further bearing on the matter.”

26   Turning to Sellars, it is unnecessary to refer to the facts for present purposes. Counsel took me to the judgment of Brennan J in Sellars. The earlier passage from Gaudron J’s judgment at pp 420-421 did not attract consideration by his Honour but his Honour did refer to the dicta of Gaudron J at 422-423 set out immediately above. Having cited the passage in question, his Honour expressed his agreement with it and went on to say in Sellars at 367-368:

“Unless it can be predicated of an hypothesis in favour of causation of a loss that it is more probable than competing hypotheses denying causation, it cannot be said that the plaintiff has satisfied the court that the conduct of the defendant caused the loss. Where a loss is alleged to be a lost opportunity to acquire a benefit, a plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities.”

27   Mr McAlary relied upon the above dicta of Brennan J as emphasising the need for the plaintiff to establish a chain of causation which continued up to the point that the harm that the plaintiff claimed to have suffered would have been avoided.

28   Before considering Chappel v Hart, it is convenient, sequentially, to refer to a decision of the Court of Appeal of this State, not raised in argument, but to which my independent research has led me, and to which counsel subsequently directed attention. Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 was a case in which the plaintiff was awarded damages in the Dust Diseases Tribunal for mesothelioma, it having been found by the tribunal that the defendants were negligent in exposing the plaintiff to asbestos. The various defendants had each employed the plaintiff in the period from 1962 to 1985. However the plaintiff had also been exposed to asbestos in his service in the Royal Navy between 1947 and 1962 but the UK Ministry of Defence was not a party to the proceedings in the tribunal. The appeal raised inter alia the issue of causation and was successful, it being determined by Mason P and Beazley JA, Stein JA dissenting, that the plaintiff had not established causation.

29   In addressing the issue of proof of causation of damage, Mason P said at 311:

“It is sufficient for a plaintiff to establish that his or her injuries were ‘caused or materially contributed to’ by the defendant's wrongful conduct: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514. The basal principle does not change when the plaintiff sues more than one defendant. The test must be satisfied as against each defendant from whom the plaintiff seeks a verdict before such a verdict will be entered. Hope JA summed-up the principle in Kilgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600 at 628 when he said that cases such as Nesterczuk v Mortimore (1965) 115 CLR 140 and Host v Bassett (1983) 57 ALJR 681; 48 ALR 404:
‘... require a plaintiff to be able to point, on a balance of probabilities, to the particular defendant or defendants who was or were negligent; it is not enough that he can say that one of them must have been and all of them may have been negligent.’
The law might, and in some jurisdictions does, distinguish between proof of unreasonable want of care and causation of damage. But it does not do so in Australia, on my understanding. While the law is prepared to adopt ‘a robust and pragmatic approach’ (Wilsher v Essex Area Health Authority [1988] AC 1074 at 1090, per Lord Bridge) to proof of causation in fact, the principles I have referred to extend to proof of damage as I shall endeavour to demonstrate.

30   The President went on to consider McGhee and Wilsher and the Canadian decision in Farrell. The President referred to Bennett and, in relation to the judgment of Gaudron J, the President said, at 316:

“Gaudron J (at 420) cited Mason J in Sutherland Shire Council v Heyman. Later, she said (at 420-421) that:
‘... generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect ... it will be taken that the breach of the common law duty caused or materially contributed to the injury.’
This would appear to take Mason J's principle beyond the field of a duty to take care to protect the plaintiff from foreseeable injuries due to the acts of third parties or accident. What is less clear is whether her Honour was embracing the idea that in such circumstances the onus shifts to the defendant (cf at 420 footnote (23)) or whether she was merely endorsing a legitimate method whereby the trier of fact could validly move from evidence of risk to finding of probable cause of damage.”
(The President in referring to “footnote (23)” was referring to the footnote I have set out earlier (para 24 of this judgment.)

31   However, the President went on to say:

“In the end I do not think it open to an intermediate court of appeal to take this path, in the light of the many Australian authorities starting with St George Club Ltd v Hines which I have cited above; and the more recent developments in England and Canada.
In Pibworth v Bevan M Roberts Pty Ltd (1994) 176 LSJS 39 (otherwise unreported, Supreme Court of South Australia, Full Court, 15 April 1994) the Full Court of the Supreme Court of South Australia followed Wilsher v Essex Area Health Authority and adopted the summary of what the case stands for offered by Andrew Grubb in a case note (‘Causation and Medical Negligence’) in [1988] Cam LJ 350. That summary states, as its third proposition (at 350-351): ‘The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.’ I respectfully agree. Only parliament or the High Court may change this.
The difficulties which these principles place in the way of a plaintiff can be very considerable. To say that they are the logical outcome of a legal system that requires proof of fault before damages flow against a particular defendant does not remove a lingering sense of injustice, particularly in the case of multiple defendants where each has been shown to have negligently exposed a plaintiff to a risk of injury. Nevertheless our law remains wedded to the principle that if the risk does not come home in a way that is causally linked to the particular defendant's negligence, then it is the plaintiff who must bear the loss: see Rhesa Shipping Co SA v Edmunds, The ‘Popi M’ [1985] 2 Lloyd's Rep 1 at 5.”

32   Beazley JA, with whose conclusion on the issue of causation the President agreed, after an extensive review of the authorities, including McGhee and Wilsher and March and Bennett, said at 339:

“The clear effect of these cases is that the onus remains on the plaintiff to prove causation on the balance of probabilities…”

33   In his dissenting judgment Stein JA determined that the trial judge’s conclusion as to causation was justified on the state of the evidence and his was a dissenting voice in reaching this conclusion. However his Honour had this to say as to principle at 345:

“In approaching the issue of causation it should be noted that the respondent's case always was that the conduct of the appellants, in exposing him to asbestos, materially contributed to or increased his risk of developing mesothelioma: Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 at 620, 622; [1957] 1 All ER 776 at 781, 783 and McGhee v National Coal Board [1973] 1 WLR 1 at 4, 8, 10, 12; [1972] 3 All ER 1008 at 1010, 1014, 1016, 1018; see also Quinn v Cameron & Robertson Ltd [1958] AC 9 at 23; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138, per Gibbs J; Wilsher v Essex Area Health Authority [1988] AC 1074; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421, per Gaudron J; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467; Commonwealth v McLean (1996) 41 NSWLR 389; Chappel v Hart (Court of Appeal, 24 December 1996, unreported); Seltsam Ltd v Minahan (Court of Appeal, 20 March 1996, unreported); March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514. The position is well explained by King CJ in Birkholtz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 at 130-132:
‘... the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions he substantially increases the risk of the plaintiff contracting that disease the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board [1973]1 WLR 1.’”

34   Whilst Bendix Mintex was decided before Chappel v Hart, it would not appear to have been considered by the High Court in that case. Certainly it attracted no comment in Chappel.

35   An application for leave to appeal against the decision in Bendix Mintex was refused by the High Court in May 1998. The Court of Appeal decision was cited with approval in ICI Australia Operations Pty Limited v Walsh & Ors (1997) ATR 81-452, see in particular the judgment of Mason P at 64,596; and in Wallaby Grip (BAE) Pty Limited (In Liq.) v Macleay Area Health Service (1998) 17 NSWCCR 355; see in particular the judgment of Beazley JA, with which Sheller JA and Shepherd A-JA agreed. Her Honour said at pp 362-363:

“Neither Bendix nor Walsh established any new principle. Rather, each case applied well known principles of causation. Relevantly, for the purposes of this case, those principles are:

1. A plaintiff must establish that his or her injuries are ‘caused or materially contributed to’ by the defendant's wrongful conduct: see Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138, per Gibbs J; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310, per Mason J; Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620, per Lord Reid; McGhee v National Coal Board [1973] 1 WLR 1 at 4, 6, 8 and 12; March v E & MH Stramare (1991) 171 CLR 506 per Mason CJ at 514; Bendix at 339; Walsh at 283;

2. Proof of default by the defendant followed by injury of the plaintiff is insufficient to establish causation: St George Club Ltd v Hines (1961) 35 ALJR 106 at 107; [1962] ALR 39 at 41; Quinn v Cameron & Robertson Ltd [1958] AC 9 at 23; Bendix at 315; and

3. If the defendant's negligence cannot be causally linked to the particular risk, the plaintiff must bear the loss: see Rhesa Shipping Co SA v Edmunds, The `Popi M' [1985] 2 Lloyd's Rep 1 at 5; Bendix at 317.

4. A causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent: ICIANZ Ltd v Murphy (1973) 47 ALJR 122 at 127-128; March v E & MH Stramare (1991) 171 CLR 506; Bendix at 338;

5. The impossibility of excluding a factor as a cause of injury does not establish that factor as the cause of that injury: Sydney County Council v Furner (1991) 7 NSCCR 210 per Hope AJA at 214, Barnes v Bendix per Beazley JA at 339;

6. A plaintiff must show more than that it is possible that injury was caused by the defendant: Bonnington Castings Ltd v Wardlaw [1956] AC 613;

7. One or more defendants may be liable if each has been shown to have negligently exposed a plaintiff to a risk of contracting the fatal disease. It will be sufficient to establish liability against each if their several acts caused or contributed materially to the onset of mesothelioma: Bendix at 320;
8. A material increase in the risk of injury by a defendant is not legally equated with a material contribution to the injury by a defendant. However, in ‘some circumstances if it were proved that the defendant did “materially increase the risk” of injuring the plaintiff then the court might infer causation, ie. that the defendant's negligence “materially contributed” to the injury’: see Wilsher v Essex Area Health Authority [1988] AC 1074; Andrew Grubb, `Causation and Medical Negligence' [1988] Cam LJ 350; Bendix at 316; Walsh at 284”

36   Chappel v Hart was a case of medical negligence. The appellant, in the course of an operation on the respondent’s oesophagus, perforated it, and infection followed. There was no negligence in the performance of the procedure, but the appellant was negligent in failing to warn the respondent of the possible consequences of perforation should it occur. The respondent’s evidence was that had she been duly warned she would not have had the procedure when she did, and when eventually she did have it she would have taken steps to have the operation carried out by the leading surgeon in the field. The respondent succeeded at first instance and in the Court of Appeal. The contention of the appellant was that because the risk that eventuated was a random event which was ever present, no matter who carried out the operation or when, there was no causal connection between the failure to warn and the damage suffered. By majority, the appeal failed. Gaudron, Gummow and Kirby JJ were in the majority, and McHugh and Hayne JJ dissented.

37   Each of the members of the court delivered a separate judgment.

38   In the course of her judgment Gaudron J said, in relation to causation, at pp 519-520 (paras 7-9):

“[7] Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue (see Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422 per Gaudron J).

[8] It was not disputed in this Court that Dr Chappel was under a duty to inform Mrs Hart of the possible consequences in the event of the perforation of her oesophagus and subsequent infection, including the possibility of damage to her voice. The duty was called into existence because of the foreseeability of that very risk (see Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422 per Gaudron J). The duty was not performed and the risk eventuated. Subject to a further question in the case of a duty to provide information, that is often the beginning and the end of the inquiry whether breach of duty materially caused or contributed to the harm suffered. As Dixon J pointed out in Betts v Whittingslowe, albeit in relation to a statutory duty, ‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach’ ((1945) 71 CLR 637 at 64).

[9] Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided (see, for example, Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410; 1 ALR 125 and Quigley v The Commonwealth (1981) 55 ALJR 579; 35 ALR 537, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided, referred to in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420 per Gaudron J). If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action.”

39   Gummow J said at 535 (para 68):

“Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury (Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421).

40   It is to be noted that his Honour cited the judgment of Gaudron J in Bennett and the passage which I set out earlier at 420-421 in support of the above statement as to causation.

41   Kirby J, in a passage upon which Mr Shand placed much reliance, said at 548 (para 93.8):

“One means of alleviating the burden cast by law on a plaintiff to establish a causal relationship between the breach and the damage concerns the evidentiary onus. Australian law has not embraced the theory that the legal onus of proof shifts during a trial (Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 500; Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 456; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413-414; cf Colvilles Ltd v Devine [1969] 1 WLR 475 at 479; [1969] 2 All ER 53 at 58. See generally Atiyah, ‘Res Ipsa Loquitur in England and Australia’, (1972) 35 Modern Law Review 337 at 345). Nevertheless, the realistic appreciation of the imprecision and uncertainty of causation in many cases - including those involving alleged medical negligence - has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing. Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established (Betts v Whittingslowe (1945) 71 CLR 637 at 64). It is then for the defendant to show, by evidence and argument, that the patient should not recover damages. In McGhee v National Coal Board ([1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 101), a Scottish appeal, Lord Wilberforce explained why this was so. Although Lord Wilberforce's statement in McGhee has proved controversial in England Wilsher v Essex Area Health Authority ([1988] AC 1074 at 1087, 1090), it has received support in this Court (see eg March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 514; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421). Its principle has also been accepted by international experts such as Professor Giesen. I find Lord Wilberforce's exposition compelling…”

His Honour then set out the earlier of the passages from the judgment of Lord Wilberforce to which I referred (para 12 above).

42   In his dissenting judgment, McHugh JA said at 524-525 (para 27):

“Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury (Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310-311; March (1991) 171 CLR 506 at 51). In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases (‘Increases’ in this context includes ‘creates’) the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring.”

43   Hayne J, in addressing the issue of causation, said at 555 (para 113):

“The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.”

44   Mr Shand submitted that in the dicta of Gaudron J in Bennett and in the dicta of Gummow and Kirby JJ in Chappel is to be found the adoption of the propositions enunciated by Lord Wilberforce in McGhee. I referred earlier to the expression of Mr Shand’s submission in para 6.

45   Having considered closely all the judgments in this case, it seems to me that Mr Shand’s submission reads too much into the decision in Chappel. Neither Gaudron J nor Gummow J referred to McGhee at all. As to the dicta of Gaudron J in Bennett upon which Mr Shand placed reliance in developing his submission, I am mindful of what Mason P said about those dicta in Bendix Mintex (para 30 above). Certainly in Chappel Kirby P made specific reference to the approach of Lord Wilberforce in McGhee and expressed his attraction to such approach, but his Honour also stated that Australian law had not embraced the concept of a shifting legal onus.

46   Chappel has been considered by the Court of Appeal in EM Baldwin & Son Pty Ltd v Plane & Anor (1999) ATR 81-499. Like Bendix Mintex and Wallaby Grip, this case involved consideration of causation where the employee contracted mesothelioma. It is unnecessary to consider the facts however. The principal judgment was given by Fitzgerald A-JA, and with that judgment Meagher JA and Beazley JA agreed. In the course of it his Honour made a very extensive review of the authorities, including those to which I have been taken in this case. Of Chappel his Honour said (at 65,636):

“Despite the dismissive language in some of the judgments concerning the opposite view, Chappel v Hart, is in my opinion, a case in which both the outcome, narrowly favouring the patient, and the minority view that the defendant should have succeeded, were ultimately dependent on differences of opinion with respect to the appropriate policy and value judgment limitations to be placed on the ‘but for’ test of legal causation in an unusual fact situation.”

47   Bendix Mintex was considered in Baldwin but its consideration after Chappel did not cause any revision of the principles on causation stated in Bendix Mintex by Mason P or by Beazley JA. Having completed his review of the cases, Fitzgerald A-JA said at 65,639:

“As the cases referred to illustrate, issues with respect to causation can arise in a variety of circumstances and lead to different approaches. A plaintiff’s damage might probably result from a single cause, or some combination of possible causes, which might have occurred concurrently or sequentially, and some of which might be unidentifiable. All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage probably materially contributed to that damage. Circumstances are relevant for this purpose if they assist in establishing or strengthening a causal connection between the defendant’s breach of duty and the plaintiff’s damage according to expert opinion or by the application of logic, common sense or experience. Unusually, a conclusion that a defendant’s breach of duty materially contributed to a plaintiff’s damage might be rejected by reference to policy considerations or value judgments.”

48   It may be that there are pointers in the judgments upon which Mr Shand relies to the possibility of change but it seems to me that I must follow Bendix Mintex and Wallaby Grip and in so doing heed the expressions of principle as to the onus of proof that were stated in these cases. It follows that I consider in the present case that the legal onus of proof remains throughout upon the plaintiff. He must prove on the balance of probabilities that the breaches of duty which I have found to have been proved (or either of them) were (or was) causative of injury. In the present context that involves proof that the negligence proved caused or materially contributed to the plaintiff’s psychiatric disorder.

49   In order to enliven a shift in the evidentiary burden of proof, the plaintiff must first prove prima facie that for which he contends.

50   Whilst prima facie proof may be facilitated by inference, and whilst a “robust and pragmatic approach” may be permissible (Wilsher at 1090), I remind myself that to justify the drawing of any inference:

(i) the fact or facts proved must form a reasonable basis for drawing such inference: Jones v Dunkel (1958-59) 101 CLR 298 at 305; and

(ii) the inference chosen must be more likely than conflicting inferences: Holloway v McFeeters (1956) 94 CLR 470 and Millicent District Council v Altschwagen (1983) 50 ALR at 173.

51   In written submissions it was stated by counsel for the plaintiff that:

“In that the breaches by the defendant found by his Honour consisted of omissions to take action by investigation (sub-section 5(a)) or appropriate action (sub-section 5(b)) there is no feasible or practicable way of postulating how the damage was caused or contributed to by the inaction of the defendant because there is no way of postulating what mode or degree of investigation the defendant would have carried out, had it recognised its duty, or what that unknown quantity and quality of investigation would have revealed to the defendant and what it would have thought it appropriate to do to protect the child in recognition that he may have been assaulted, ill treated or exposed.”
(The references to sub-section 5 are references to s 148B(5) of the Child Welfare Act, which I set out at para 145 of my earlier judgment.)

52   Counsel’s acknowledgment of the difficulties in the plaintiff’s task cannot be treated, and I do not treat it, as a concession of defeat once I have concluded that the onus remains as I have stated it, and I must return to my findings of negligence to assess their causative significance.

The failure following the presentation in February and March 1983 of the material identified in para 234 of my earlier judgment to take the steps identified in paras 247 and 248 of such judgment

53   I will not repeat the detail of the relevant information with which the defendant had become equipped in February and March 1983, as supplied by HF and by Mrs Foot. Such detail is contained in para 234 of my earlier judgment. I have found that Ms Daskalopoulos, Ms Tokatlidis and Mrs Brunner should have been interviewed and so too should HM for the purpose of obtaining her specific responses to the assertions that had been made as to her ill treatment of TC. Had the defendant done what ought to have been done, is it more probable than not that the harm suffered by the plaintiff would have been avoided or minimised?

54   It is first necessary to consider the harm of which the plaintiff here complains.

55   A number of medical reports were tendered relevant to this issue. The plaintiff tendered reports from Prof Johnson and from Prof Oates. The defendant tendered reports from Dr McMurdo and Dr Milton, and these two doctors were cross examined.

56   This is, as Dr McMurdo opined in his report of 19 August 1999,

“a very complicated case and much of it is based on theoretical assumptions of somewhat indistinct past history.”

57   The plaintiff may well be suffering from a bipolar disorder which is a genetic condition. Dr Milton considered this to be so and so too, it would seem, does Prof Johnson. The plaintiff may or may not be suffering from post traumatic stress disorder (PTSD). Such a disorder was opined by Prof Johnson in the earlier of his two reports tendered, although Prof Johnson did not interview the plaintiff, and in his more recent report of 18 February 2000 he remarked that he was unable to comment on whether the plaintiff’s symptoms fulfilled the criteria for PTSD. Prof Oates in his report of 6 March 2000 acknowledged a lack of expertise in commenting as to whether the plaintiff was suffering from PTSD and, if so, whether it was the result of sexual abuse. However, he agreed with Prof Johnson that if the plaintiff was suffering from PTSD, this was more likely to be as a result of sexual abuse than physical abuse.

58   Dr McMurdo examined the plaintiff in May 1996 and after that examination, relying upon the history he took and the observations he made, he expressed the opinion that the evidence was insufficient to conclude that the plaintiff has suffered from PTSD. However he conceded that this may well have been an appropriate diagnosis in the plaintiff’s childhood for a period of time. Dr McMurdo considered it possible that bipolar disorder could account for some of the plaintiff’s sexual and general behavioural disinhibition.

59   Dr Milton did not consider that the plaintiff is suffering from post traumatic stress disorder and remarked that when he saw the plaintiff on 30 January 1997 he did not consider that the plaintiff had any psychiatric disease, “except bipolar mood disorder adequately controlled by appropriate specialist care.”

60   There has not been a trial of the issue of damages and it would not be appropriate on such evidence as is presently before the Court to exhaustively determine the nature, extent and aetiology of the plaintiff’s psychiatric disorder. However, Prof Oates is of the opinion, and I accept his evidence to this effect, that the short and long term effects of sexual abuse of children is well documented. The short term effect in boys includes behavioural disorders. The longer term effect of sexual abuse in boys includes emotional disorders with sexually abused males significantly more susceptible to major depression, antisocial personality disorder and behavioural problems, and low self esteem.

61   Dr McMurdo, when cross examined as to the impact that the game of “Luna Park” described by Dr Goldberg, and activity of that kind, may have had upon the plaintiff as a child then three or four, answered (T19):

“It breaks down what are appropriate and reasonable patterns for the boundaries in relationships, obviously especially sexually, but also in the relationships generally on other people and being coached behaviour in an inappropriate way and so the concepts of right and wrong are very disturbed on the whole. If one is coaxed, as you are led through, that is exactly what happened with the case of sexual abuse - that is exactly what happens with children in my experience. If the victim is coached through that, sure, they have no or very limited ability to determine what is right or wrong in relationships. It usually leads to some trouble in their intimacy in later life, in developing a mature development of the relationship with appropriate boundaries but it cannot always and is very likely to disturb their ability to relate to other people closely.”

62   Dr McMurdo said that the continuation of such behaviour (if it continued) would have had an ongoing effect upon the victim’s personality and he agreed that sexually inappropriate behaviour such as was engaged in by the plaintiff in later years may well have been due to a personality disorder caused by his abuse as a young boy of three or four years of age.

63   Dr Milton also agreed in cross examination that disinhibited sexual behaviour of the plaintiff may well have resulted from the original sexual abuse when he was three or four years of age. Whilst Dr Milton considered that the plaintiff’s behaviour could have been attributable to his bipolar disorder, he agreed that the plaintiff had some of the symptoms to be found in post traumatic stress disorder and that these in turn could be due to the fact he had been abused as a young child. Dr Milton was asked this question and gave this answer (T40):

“Q. Would you agree with this proposition, that the adverse effects on his personality, which may have resulted from the sexual abuse, could certainly combine with the effects of bipolar disorder, if that’s what he has?
A. Yes.”

64   Dr Milton said (T43) that

“there is a current view that sexual abuse in any form causes very severe long term effects. So far, I think clinicians accept that seems common sense and reasonable. The studies don’t support it as well as one might think.”

65   Dr Milton said this was a view held by many psychiatrists nevertheless.

66   Whilst the evidence available for consideration is not altogether satisfactory, I am prepared to accept for the purposes of the issue which I now have to determine that the fact that the plaintiff was sexually abused did cause the plaintiff injury in the sense of contributing to the plaintiff’s complex psychiatric disorder. If the plaintiff established an entitlement to damages, clearly a great deal more evidence would be required before an appropriate assessment would be possible.

67   For the present I define the injury which the plaintiff suffered by reason of having been sexually abused as being a contribution to his later psychiatric disorder.

68   However, I remind myself of the finding previously recorded in para 60 of my judgment of 11 February 1999. What I have found is that the plaintiff was sexually abused by a female or females at some time or times prior to Ms Goldberg’s assessment in May 1984 but that the evidence does not permit me to determine when or where or how often abuse took place. Further, the evidence has not established who the perpetrator or perpetrators of the sexual abuse were (para 72 of the earlier judgment).

69   The avoidance of harm due to sexual abuse could only have been brought about by eliminating the exposure of the plaintiff to the risk of that abuse occurring. In turn, this would have required the introduction of effective preventative measures. Since the defendant was not aware of any sexual abuse before learning of it in May 1984, if the abuse occurred after March 1993 and if it happened whilst the plaintiff was in his mother’s care, it seems to me the risk of exposure would only have been avoided if the defendant had acted to remove the plaintiff from his mother.

70   The breach of duty proved involved a failure to make a proper investigation as to the allegations of physical abuse and neglect in 1982, and in particular concerning “the cot incident” at Greek Easter time. Depending upon the results of that investigation, the occasion may have arisen for the defendant to contemplate resort to the provisions of the Child Welfare Act, including the exercise of the discretionary power under s 148B(5)(b). I reviewed the relevant provisions of the statute in paras 122-151 of my earlier judgment and I will not repeat that review; of particular relevance are the provisions in Pts XIV and XVII.

71   I find myself unable to conclude that due investigation would have led in the exercise of reasonable care to the avoidance of or the reduction of the risk of exposure to sexual abuse. Absent such a finding there is absent an essential link in the chain of causation. There is a need to establish that performance of the defendant’s duty to investigate would have averted the harm: see Sutherland Shire Council v Heyman (1985) 157 CLR 424 per Mason J at 467. As I assess the factual matrix of this case, this is a case in which it is “necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed”: see Bennett per Gaudron J at 420. The result of that inquiry does not advance the plaintiff’s case.

72   If the sexual abuse occurred after March 1983, I do not know where or when this happened. Nor do I know the circumstances that afforded the opportunity for the perpetrator or perpetrators. It is possible, although I am unable to find that it is probable, that if the plaintiff had been removed from HM’s care in or about March 1983 the opportunity for the perpetrator(s) to act against the plaintiff would have been removed. However whilst it is possible that the investigation that I find ought to have been undertaken could have prompted the defendant to act so as to have the plaintiff removed from his mother’s care, I do not consider this to be likely. Indeed I think it unlikely, so far as I can make any assessment on the evidence before me. There are a number of circumstances which point away from removal occurring:

(i) The favourable assessment Mr Hanrahan made of HM on 25 February 1983 and on 7 March 1983 (see para 240 of my earlier judgment).

(ii) The recency of that assessment compared with the time when the events referred to in the material that required investigation allegedly took place.

(iii) The perception, identified by Mrs Burgess, as to the difficulties of assessing the credibility of witnesses outside the court process, which perception might have been expected to influence the decision-making process of the defendant.

(iv) When ultimately the evidence of those who alleged physical ill-treatment and neglect was put to the test in court, it was not accepted. The witnesses were assessed by Pawley J as unsatisfactory, and in particular he found himself unable to determine where the truth of the matter lay concerning the cot incident (see my earlier judgment at para 256). Then Bulley J found the evidence of Ms Tokatlidis and Mrs Brunner to be unsatisfactory (see my earlier judgment at para 257). When I came to consider the allegations made against HM from the various sources in question, I found myself unable to determine where the truth lay (my earlier judgment, para 276).

Whilst proper investigation undertaken in March 1983 may have revealed relevant information not disclosed in the proceedings in the Family Court and in this court, and whilst the outcome of proper investigations undertaken at that time may have prompted the investigating officer to reach some other conclusion than such conclusions as have been arrived at in court as to the credence to be given to the complaints of misconduct, I cannot conclude that this is likely.

(v) There is also the circumstance that to effect the child’s removal from his mother would have required a court order, and there was the need for the purposes of s 72 of the Child Welfare Act to satisfy a magistrate that the plaintiff was a neglected child as defined. This would have involved the need to prove the substance of the allegations against HM. Moreover, a decision as to whether the proceedings should be taken in the Children’s Court when there were proceedings pending in the Family Court would have given rise to issues such as the defendant later sought advice about from Mr Heagney and Mr Croke. The practical considerations that later arose when the defendant was contemplating proceedings in the Children’s Court in 1984 would have surfaced at the earlier point of time in 1983. Those matters I addressed in the earlier judgment and I will not repeat them here.

(vi) I considered the opinions of Prof Oates and Dr Scott in my earlier judgment at paras 499-500. Had YACS consulted these experts after completing the investigations that should have been undertaken in March 1983, it would seem unlikely that they would have then supported an application for the removal of the plaintiff from his mother’s care. It is not to be assumed however that YACS would have sought the opinion of a psychiatrist or of a person with Dr Scott’s expertise before deciding what action, if any, it ought to have undertaken following proper investigation.

73   In my earlier judgment (at para 265) I recorded that had the investigating officer completed the investigations I considered ought to have been conducted, what he recorded, even if by way of an open finding, could have been more helpful to those who later reviewed the matter than what was recorded by Ms Boulter and Mr Lungley in Exhibits A(jj), (kk), (ww) and (xxx). However, as stated in para 267 of my earlier judgment, I have not found to have been established an occasion on which an officer of YACS failed to address a fresh complaint because of the history recorded in the YACS file.

74   I have concluded that the plaintiff has not proved that the failure to make the investigations that should have been made after the presentation of the material in February and March 1983 has caused or contributed to the plaintiff’s psychiatric disorder, or that such failure has otherwise caused harm to the plaintiff.

The failure following receipt of the notification in May 1984 to attend promptly to the matters addressed in para 516 of my earlier judgment

75   I dealt with delay that occurred between the department first becoming aware of the evidence of sexual abuse in May 1984 and the receipt of Dr Waters’ report, some six months later. I found that such delay as occurred between May 1984 and 10 September 1984 was attributable to the omissions of Mr Lungley as set out in para 516.

76   Has it been proved that such delay was causative of harm?

77   The evidence does not permit of a finding that sexual abuse occurred after 11 May 1984, although the possibility of such abuse cannot be excluded. However, since I am unable to find that there was any episode of sexual abuse after 11 May 1984, I am unable to determine that the delay beyond that date attributable to the defendant was causative of injury to the plaintiff. Once Dr Waters made his assessment in November 1984 the defendant had the benefit of his opinion that the plaintiff ought not to be removed from his mother (earlier judgment, para 497). That opinion, absent the delay due to the defendant, would in all probability have been available to the defendant several months earlier. I do not consider the earlier receipt of Dr Waters’ report would have altered the defendant’s approach to this case. In addition, neither Prof Oates nor Dr Scott opined that the defendant ought to have removed the plaintiff from his mother’s care at any stage before the intervention of the department in March 1986, following the plaintiff’s physical abuse by his stepfather (earlier judgment, para 499).

78   Prof Oates in his report dated 14 April 1999, in commenting upon the engagement of Dr Waters, expressed the view that

“A prompt early assessment by a skilled person such as Dr Waters should be an initial part of the assessment of the sexually abused child.”

79   Prof Oates was asked to consider the significance of my findings concerning the delay in qualifying Dr Waters and the deficiencies in his instructions. In response, Prof Oates said he was “not convinced that an earlier assessment by Dr Waters would have made a lot of difference”, and further that he was “not convinced that the outcome of [Dr Waters’] assessment would have been different if he had been given instructions as to what was being sought of him.” This was, as I understand Prof Oates’ report, because he regarded Dr Waters’ assessment as being “a very thorough assessment”.

80   Prof Oates was not required for cross examination and I see no reason why I should not accept what he wrote on the subject of delay in obtaining Dr Waters’ assessment. Having considered Prof Oates report, I do not find it likely that the delay referable to the defendant’s breach of duty caused the plaintiff any harm. Indeed, I find it unlikely.

81   In the result I do not find that either of the breaches of duty earlier defined by me was causative of harm to the plaintiff. It follows that there must be verdict and judgment for the defendant.

82   Costs would ordinarily follow the event but this has been a lengthy and, no doubt, expensive hearing. I therefore propose to reserve costs to afford to the parties the opportunity of making written submissions, should it be contended that there are circumstances that warrant a departure from the usual order.

Formal orders

83   1. Verdict and judgment for the defendant.

2. Costs are reserved. Written submissions as to costs are to be served and forwarded to my associate within fourteen days from today.

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Last Modified: 09/25/2000