Neil J Gillespie v the Commonwealth of Australia [1991] ACTSC 70; (1991) 104 ACTR 1; (1991) 105 FLR 196 (13 September 1991)

SUPREME COURT OF THE ACT

NEIL J. GILLESPIE v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 402 of 1985
Negligence
[1991] ACTSC 70; (1991) 104 ACTR 1
(1991) 105 FLR 196

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - employer's liability - panic attack and anxiety attack following posting to Venezuela - difficult working and living conditions and lack of security - foreseeability of harm - predisposition of plaintiff to anxiety not within knowledge of defendant - obviating measures including failure to warn - whether such measures would have avoided or minimised risk - causation - utility of defendant's conduct - whether failure to take obviating measures relied upon by plaintiff constituted breach of duty.

Turner v. State of South Australia (1982) 42 ALR 669 at 670

Bunyan v. Jordan [1937] HCA 5; (1937) 57 CLR 1 at p T6

Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531

The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40 at pp 47-48

Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1971) 125 CLR 383

Neill v. NSW Fresh Food and Ice Limited [1963] HCA 4; (1962-63) 108 CLR 362

HEARING

CANBERRA
13:9:1991

Counsel for the Plaintiff: Mr Wheelahan, QC with Mr S. Walmsley

Solicitors for the Plaintiff: Ken Johnston Bedford and Co.

Counsel for the Defendant: Mr McGregor, QC and Mr Williams, QC

Solicitors for the Defendant: Australian Government Solicitor

ORDER

There be judgment for the defendant.

DECISION

This case is in the nature of an action for damages for personal injuries. The plaintiff was an administrative officer in the Department of Foreign Affairs and Trade. He was sent to a diplomatic mission recently opened in Caracas, Venezuela. He arrived there on 18 October 1979. He had a breakdown in health and was repatriated to Australia on 24 June 1980. His health continued to suffer and he was retired from the Public Service on medical grounds on 30 April 1986. He has not engaged in paid employment since 30 June 1987. He claims that his breakdown and continuing ill-health resulted from the negligence of the Commonwealth and breach by the Commonwealth of the contract of employment between them. The defendant denies the breach and denies negligence.

2. The terms of the contract of employment pleaded were simply the conventional terms that the defendant was under a duty to take all reasonable precautions for the safety of the plaintiff and the like. Negligence was pleaded in the following way.
"3. In or about the month of October 1979 the plaintiff was in the

course of his said employment posted to Caracas Venezuela as
Administrative Officer to assist the Australian Charge d'Affaires in
opening an Australian Embassy in Venezuela. Between October 1979 and
June 1980 whilst the plaintiff worked in Caracas he was exposed to
unusual stresses and to a hostile environment whereby he was injured and
suffered loss and damage."

3. The particulars of negligence and of breach of contract were as follows:

"PARTICULARS
(a) Posting the plaintiff to Venezuela without giving him proper
warning of the environment he faced there;
(b) Posting the plaintiff to Caracas without first carrying out any or
any adequate survey to see how members of Australia's Department of
Foreign Affairs would adapt to life in that city;
(c) Failing to warn the plaintiff of or protect him from the rigours of
the environment of Caracas;
(d) Failing to warn the plaintiff of or protect him from such hardships
in Venezuela as:
(i) necessity to bribe customs officials;
(ii) necessity to face threats of personal violence from customs
officials;
(iii) necessity to be subjected to long periods of personal abuse
whilst dealing with public service officials including
airport officials whilst waiting to clear air freight bags;
(iv) personal violence in the streets of Caracas;
(v) difficulties in obtaining medical assistance in case of

emergency;

(vi) necessity to engage in arguments with hotel staff concerning
reservations even after written confirmation of
reservations had been obtained;
(vii) difficulty for members of his family in visiting friends in
Caracas due to transport difficulties;
(viii) high incidence of street assaults and robberies leading to
inability to allow his children to go outside the front garden of
the house they lived in without an escort;
(ix) necessity to go long periods without water because
terrorists bombed the Caracas water supply leading to the
necessity to move from the house in which he lived with his
family into a hotel until the water supply had been fixed;
(x) inability to engage in many social functions because of the
impossibility of obtaining satisfactory babysitters.
(xi) unavailability of inexpensive sporting and other recreational
facilities
(xii) high cost of living, forcing him to live beyond his means."

4. The injury alleged in the statement of claim was stated to be "anxiety state".

5. The substantial issue in the case on liability is concerned with foreseeability. Foreseeability of damage in a claim for negligence may relate both to the existence or absence of a duty of care and to the discharge of that duty by the exercise of a standard of care which is reasonable in the circumstances. There can be and was no argument about the existence of a duty of care on the part of an employer to take reasonable care for the safety and health of employees. In Turner v. State of South Australia (1982) 42 ALR 669 at 670 Gibbs C.J. put it in terms which are of particular assistance in the present case:

"The duty of an employer is to take reasonable care to avoid
exposing his employees to unnecessary risk of injury: Hamilton v.
Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25. The employer is not
an insurer of his employees against danger. 'For a plaintiff to
succeed it must appear, by direct evidence or by reasonable
inference from the evidence, that the defendant unreasonably failed
to take measures or adopt means, reasonably open to him in all the
circumstances, which would have protected the plaintiff from the
dangers of his task without unduly impeding its accomplishment':
Vozza v. Tooth and Co Ltd. [1964] HCA 29; (1964) 112 CLR 316 at 319. When the
employer does unreasonably fail to take a precaution against danger,
the plaintiff cannot succeed unless he satisfies the court that if
that precaution had been taken the injury would probably have been
averted, or, in other words, that the safety measures would have
been effective and that he would have made use of them if available:
Duyvelshaff v. Cathcart and Ritchie Ltd. (1973) 1 ALR 125; 47 ALJR
410 at 416-417, 419."

6. The damage of which the plaintiff complains was not as a result of a particular incident, often in these cases inaccurately referred to as an "accident", nor did it relate to a frank bodily injury. It is not alleged to be in the nature of "nervous shock". Nevertheless, the defendant was under a duty to take reasonable and effective steps which were likely to have avoided foreseeable harm, even if the harm was purely psychological. In Bunyan v. Jordan [1937] HCA 5; (1937) 57 CLR 1 at p 16, Dixon J., as he then was, said:

"I have no doubt that such an illness without more is a form of harm
or damage sufficient for the purpose of any action on the case in
which damage is the gist of the action, that is, supposing that the
other ingredients of the cause of action are present. But I do
think that upon facts like those I have stated it is impossible to
formulate any cause of action in which the reasonable likelihood of
harm of some such nature resulting from the act done does not form
an essential element."

7. The questions then that arise for particular attention in the present case are whether the plaintiff's anxiety state was something that the defendant should have foreseen and, if it was, whether the defendant took such steps as were reasonably necessary to obviate or at least minimise the risk of that type of harm occurring to the plaintiff. Before attempting to deal with those issues, it is as well to state my factual findings on matters which are not strongly in dispute.
Events leading to plaintiff's breakdown

8. The plaintiff was born in Canberra on 25 February 1950 and educated to Higher School Certificate level at a local high school. His father had been a successful public servant and the plaintiff followed his father in a Public Service career. However, it is apparent that the plaintiff lacked strong ambition and he had no desire to gain a tertiary education. He entered the Public Service in 1969 and the following year married the daughter of an Indonesian diplomat. His wife was eighteen months older than he. They had three children over the next three years.

9. In 1971 the plaintiff, then a clerk in the Department of Army, accepted an administrative position in Singapore and he and his family went there for a period of some three years. He performed well in administrative tasks and after his return to Australia in 1974 he was promoted to Clerk Class 4 in the then Department of Foreign Affairs (DFA). In 1975 he accepted a posting as an administrative assistant in the Australian Embassy in Buenos Aires and he and his family went to live there for a period of three years. That was a very satisfying period for him and it greatly enhanced his prospects of promotion in DFA. He liked his job, he liked the life and he liked the local people. On 30 March 1978 he wrote to the Executive Officer of the Staffing, Training and Head of Mission Section, expressing his interest in a posting to Caracas, Venezuela, where he understood an embassy was to be opened late that year or early the following year. (I use the terms Caracas and Venezuela interchangeably, because as far as the plaintiff was concerned, substantially the whole of his Venezuelan service was in Caracas.) His tour of duty in Argentina came to an end in August 1978 and he returned to Canberra taking up a position in the Finance Section of DFA.

10. In November 1978 at his own request he had a lengthy interview with the Foreign Service Adviser expressing his lack of job satisfaction in the work he was doing. Despite the advice he had received that his own interests in DFA would be better served by his continuing in Canberra for some time in order to better acquaint himself with the workings of DFA as a whole, the plaintiff pressed for an overseas posting, expressing his preference for South America. This interview made a favourable impression and the files were noted accordingly with a recommendation for appointment to a suitable overseas posting when one came up.

11. On 16 October 1978 in an interview with an officer of the staffing section (in which it was noted that the plaintiff "held the floor") the plaintiff repeated his desire to proceed on an overseas posting at any time. At that stage his preference was for somewhere in Southeast Asia.

12. On 31 October 1978 it was noted on the plaintiff's personal file that when the Ambassador to Argentina, Mr Bullock, had called at DFA on a visit he had commented on the various members of the staff at the Australian Embassy in Buenos Aires. Mr Bullock described the plaintiff as a hard worker, conscientious, obliging, an asset at any post and the best officer of his level that he had had working for him.

13. During the course of 1979 a decision was made to open an embassy in Caracas, Venezuela, which had been in contemplation for some time. A nine page document compiled from different sources and entitled "Outline on Venezuela" was prepared within the Department of Foreign Affairs in April 1979. It contained precise information about Venezuela ranging from its general history and geography and political system to such detailed matters as the quality of the drinking water. There is, however, no evidence about its distribution or circulation within DFA or elsewhere.

14. On 25 July 1979 a meeting was held of DFA senior officers, and officers of other relevant departments, in which a decision was made to send an opening team to Caracas consisting of Mr Hargraves, then Trade Commissioner in Lima, Peru, Mr T. Ross of DFA and Mr Harry Trowbridge of the Overseas Offices Bureau of the Department of Administrative Services. There was agreement on the proposed establishment for the Caracas mission. It included a Clerk Class 5 to be in charge of day-to-day administrative tasks within the mission. The opening team obtained a temporary office for the mission and signed a lease for permanent office space and a residence for the Ambassador by the end of October 1979.

15. In the meantime, the plaintiff had taken active steps to keep DFA reminded of his wish to get back to South America. In May 1979 he had expressed the wish to go overseas to obtain a job with responsibility and a heavy workload.

16. In an internal departmental memorandum dated 8 February 1979, the plaintiff wrote:

"Regarding my general preferences, I would like to state that I am
keen to receive my next posting, which, according to previous
discussions should be at the Clerk Class 5 level. In the future I
would be looking forward to another posting in South America."

17. In a report of May 1979 the plaintiff was described as "a very solid character", "an asset to any team" and it was suggested that he should be sent "to a position where he has responsibility and a sizable workload" and "should therefore be tested accordingly with more difficult assignments". It was specifically noted that he had "no problems on health" and that the plaintiff had "ability to adjust".

18. On 31 July 1979 the plaintiff was appointed to the position of administrative officer in the Embassy still to be opened in Caracas. Whilst awaiting his departure for Caracas, the plaintiff requested and was granted a pre-embarkation hearing for the purpose of his possible promotion to Clerk Class 5. Presumably the appointment had been made on the basis that he would act in the higher grade. The hearing was granted and the Promotions Advisory Committee concluded that in view of the plaintiff's broad experience, his particularly commendable performance in Buenos Aires and his continuing performance at a very high level, he was the outstanding contender for promotion and was rated first in order of merit of the fourteen officers recommended for promotion. In a group of eleven officers who underwent a finance training course in September 1979, the plaintiff gained the second highest marks. It is clear that prior to his departure for Caracas, the plaintiff's career in the DFA was progressing very well indeed. There was, however, one possible cloud on the horizon, one which apparently did not cause the plaintiff any concern, if indeed he was aware of it. During the Buenos Aires posting the Ambassador, Mr Bullock, formed the view that he was spending more time with locals than was good for his family and the Ambassador spoke to him "in a fatherly sort of way". By mid 1979 his wife had for some time been concerned about his lack of attention to family affairs. In order to bring the seriousness of his domestic situation to his attention she moved out of the home with the children and went to live with the plaintiff's sister. She was absent for only two or three weeks and it was not her intention to end the marriage. This episode appears to have occurred before the plaintiff and his wife knew that he had been accepted for the posting in Venezuela.

19. Despite the substantial amount of evidence in the case, particularly from official files, there is little evidence on the subject of what, if anything, was done in DFA to prepare the plaintiff for the particular demands of the Caracas posting. At the same time, the plaintiff, who was aware that he would be in charge of the administration of a brand new diplomatic mission, did not seem to take any particular steps to acquaint himself with the situation in Venezuela or the demands of the position. He appears to have assumed that things would be much the same as they had been in Buenos Aires, where there had been a well-established Australian Embassy. There were others who took that view. Even Mr Bullock, who acknowledged that Argentina was with its established middle class of European origin unique in Latin America, thought that Buenos Aires involved an "alien and stressful environment with considerable social problems" and that work there was good preparation for work in Caracas.

20. The plaintiff was medically examined on 8 August 1979 and pronounced fit for overseas service.

21. He arrived in Caracas on 18 October 1979. There had been a stopover of some days in Honolulu on the way. Nevertheless, according to Mr Ross, the Charge d'Affaires who had preceded him, the plaintiff appeared very fatigued after his arrival. He was accommodated during the first few weeks in a hotel where the temporary offices of the Australian Embassy were also located. Mr Ross was the senior Australian representative pending the arrival of the Ambassador and the only other member of the mission at that stage was a Mr Trowbridge, seconded from the Department of Administrative Services to assist with the obtaining of housing and accommodation. A number of other officers arrived within weeks of the plaintiff. The Ambassador, Mr Brown, arrived on 6 December. It was the plaintiff's task to set up the administrative structure for the Embassy. This involved the hiring of staff, opening of bank accounts, assisting in the locating and leasing of residential properties and in particular the clearing of goods that were being sent from Australia to Caracas for the purposes of the mission. The plaintiff had a great deal of difficulty in this work. People were abusive, bribes were demanded in order to clear items from the port or airport and for all sorts of other transactions down to the most mundane, such as retrieving a car from a carpark. There were severe traffic problems, difficulty in engaging local staff, and generally people were totally different from anything he had ever previously experienced - very arrogant, aggressive and excitable. There was a feeling of a general and continuous threat of violence. He said that after a couple of weeks he felt under a great deal of strain. Mr Ross, in his evidence, said that the plaintiff took up his duties enthusiastically but soon began to show signs of strain and anxiety within weeks of his arrival.

22. The plaintiff's wife and children arrived in Caracas on 14 November 1979 and had to stay in the hotel for a couple of weeks. Although a suitable house was found and the family moved in there on 1 December 1979, there were domestic difficulties. Prices were far higher than expected, and higher than the departmental allowances. The plaintiff, who had been a keen tennis player and golfer in Buenos Aires and Canberra, found that he could not afford to join a local club. Public recreational facilities were non-existent. In late December 1979 the family had to move back to the hotel for a few days because of disruption to the water supply to the house. The Australian government paid for the hotel accommodation during these periods.

23. Mr Ross noticed that the plaintiff was working for longer hours, so much so that on two or three occasions Mr Ross advised the plaintiff to go home or to try to go home earlier. On one occasion the plaintiff told him that he was hyperventilating. Nevertheless, according to Mr Ross the plaintiff did not show the same degree of anxiety once he and the family were settled in the house. Mr Ross left Caracas at the end of December.

24. Mr Ross was replaced by Mr Tony Usback, who was the plaintiff's immediate supervisor. He described the posting in Caracas as more difficult than any other he had experienced in twenty years in Foreign Affairs. Many of the difficulties were due to the fact that the mission was not yet properly established, the office accommodation was temporary, furniture and equipment had to be obtained and local staff recruited. One particular feature which appears to have distinguished the opening of the mission in Caracas from previous mission openings by Australia was that the host government did not display any enthusiasm for it or lend it any support. That particular difficulty had been absent in opening other difficult posts such as Tripoli and Hanoi. Government officials as well as private businesses demanded bribes to get things done. In addition there was a fear of violence and a belief that the local people all carried weapons. However, he thought that Port Moresby and Caracas were dangerous cities, with Mexico city "not on a par". Mr Usback noticed that the plaintiff showed signs of anxiety, was jumpy and restless, shaking and unable to concentrate.

25. The Ambassador's secretary, Ms Barbara Zuegg, arrived in Caracas shortly after the plaintiff. She found herself accommodation which was twenty minutes walk from the Embassy. Six weeks after her arrival she was assaulted on her way home from work. She telephoned the plaintiff who came and collected her, took her to hospital and then to the family home where the plaintiff and his wife accommodated her for a period of about eleven weeks. During that time she noticed that the plaintiff seemed to become increasingly stressed with flashes of panic. He no longer demonstrated the patience, caring and respect that she had previously noticed.

26. According to the plaintiff's wife, in the early stages in Caracas the plaintiff's behaviour was no different from what it had been back in Australia. However, after some time he did become more withdrawn and began watching television in the bedroom and even eating his meals in the bedroom. She noticed that he was not sociable during the time Ms Zuegg was living in the house.

27. Towards the end of February 1980 Mr Usback suggested to the plaintiff that he take a holiday. The plaintiff arranged to go to the island of Aruba in the Netherlands Antilles, about twenty minutes flight from Caracas. He and his family were accompanied by friends from Argentina. It was intended to be a short holiday only, and the plaintiff had arranged for only three days leave. The first couple of days appear to have proceeded without incident. However, on the last day the plaintiff with his family and friends were in a car going back to the hotel after an outing in order to collect their luggage and go on to the airport. The plaintiff who was travelling as a passenger in the front seat had a sudden feeling of claustrophobia and impending suffocation and death. He jumped from the car and broke down. The others had difficulty getting him back into the car. Eventually they got back to the hotel, but the plaintiff's bizarre conduct continued, striking walls and furniture with his fists, striking his head against the wall, pacing up and down and mumbling incoherently. A local doctor was summoned and the plaintiff was given Valium. The stay on Aruba was extended for another few days. The plaintiff recovered his composure but according to his wife was very pale and quiet. On the way back to Caracas he drank whisky from a bottle he had put in his airlines bag.

28. On arrival back in Caracas the plaintiff spent a few days away from work. He resumed work on restricted hours and he consulted a psychiatrist, Dr Lila Scott de Vega. Dr de Vega supplied reports and during the hearing a telephone link was arranged whereby she answered questions in the nature of examination in chief and cross-examination. A transcript of counsel's questions and her answers has been treated as a statement under Part VI of the Evidence Act 1971 (ACT). Dr de Vega was particularly well qualified to treat the plaintiff. She was a Canadian who had qualified in medicine in British Columbia, married a Venezuelan and had lived twenty years in Caracas. She had particular experience and interest in the treatment of expatriates with the same sort of problems as those of the plaintiff. Dr de Vega diagnosed the condition as a severe anxiety reaction following as matter of sequence a panic attack on Aruba, but due to the plaintiff's personality reacting to the aggressive environment in Caracas. The plaintiff first saw her on 2 March 1980. He continued to see her two or three times a week until about the end of March and less frequently thereafter. He received medication and psychotherapy. On the weekend of 18 and 19 March 1980 he went back to Aruba for a weekend with another friend from Argentina. This sojourn passed without incident.

29. At the end of March he consulted the Ambassador with a view to discussing his position at the Embassy. He told the Ambassador that his preference was that he should stay in Caracas insulated as much as possible from the problems there in order to try to stabilise his condition so that he could then make an assessment whether he should try to stay on in Venezuela or go home. The plaintiff gave the Ambassador permission to speak to Dr de Vega. Consultations with Dr de Vega continued though less frequently. The plaintiff continued to work on a part-time basis. He said he only worked about two hours a day and spent the rest of his time cowering at home in his room unable to leave for the anxiety. His wife said that he was working "odd hours, not very regular" and confirmed that he was spending more time in the bedroom on his own. On 14 March 1980 the Ambassador, Mr Brown, wrote to the Assistant Secretary, DFA, outlining the situation, and noting that the plaintiff "has continued to work in the office, although obviously not at full steam". Although the Ambassador had been advised that the prospects for recovery were good, he was not sure that things would change significantly in the short or medium future. Mr Brown asked that consideration be given to transferring the plaintiff to another post as the plaintiff was keen to be posted to Jakarta. The Assistant Secretary replied requesting to be kept informed and stating that DFA would be guided by the Ambassador's views and any supporting medical evidence.

30. On 29 April 1980 the Ambassador wrote again to the Assistant Secretary, stating that the plaintiff had continued to work at the office but was finding it difficult to manage outside and was unable to lead a normal social life. His psychological problems were becoming aggravated by low allowances and difficulties with children settling into school. Mr Brown expressed the view that the plaintiff appeared to be suffering from severe anxiety, using Valium in large quantities. He expressed concern about the plaintiff's health and long-term well being. It was further explained that the plaintiff had come to the conclusion, supported by the Ambassador, that it would be in the best interests of the plaintiff, his family and the Embassy if he were to leave Caracas as soon as practicable. The Ambassador also sought a replacement for the plaintiff. Coincidentally, the security situation in Caracas appears to have deteriorated rapidly in the first half of 1980 with a number of incidents involving diplomatic staff in violent attacks in April.

31. The plaintiff's replacement, Mr Alan Davis, who had been serving in the Australian Embassy in Lima, arrived in Caracas in June 1980 and the plaintiff and his family went back to Canberra via Puerto Rico and San Francisco. The plaintiff described the journey as the most stressful thing that has happened, that he felt fearful, guilty and ashamed during the whole journey. On his arrival back in Australia on 1 July 1980 he went on immediate sick leave.
Facts: After Caracas

32. Upon his return to Canberra the plaintiff did not see a doctor for some ten days. On 11 July 1980 he consulted his family doctor, Dr Dawson, who referred him to a psychiatrist, Dr Hook, for treatment for a condition of anxiety or depression. Dr Hook confirmed the opinion of Dr de Vega that there was a condition of anxiety or depression and that pre-existing personality factors, evidenced by a fear of flying from age ten, were relevant. The plaintiff cancelled a further appointment with Dr Hook and resumed duty in August in the Diplomatic Security Section which he found very undemanding. He was referred by the Commonwealth Medical Officer to a psychiatrist, Dr Merrifield, whom he saw on 15 September 1980. He told Dr Merrifield that he had not gone to see Dr Hook again as he was "exploring the situation which he felt was now in the past". He also told Dr Merrifield that he was fairly well and planning a holiday in Noumea. He said that he could have stayed and coped in Caracas, that his work was not affected there, but that his personal life was unhappy. In particular he said that his eldest son was very unhappy.

33. The plaintiff went off duty again on 7 October 1980 and this time was referred by Dr Dawson to Dr Katherine Lubbe. The plaintiff continued with medication and psychotherapy from Dr Lubbe. He returned to work (which he regarded as of a "degrading" nature) in December and was discharged from Dr Lubbe's care on 7 January 1981 when she considered that he had "no symptoms of note anymore". He did continue, however, with a small dosage of Valium.

34. By May 1981 Dr Lubbe wrote expressing support for an application by the plaintiff for another overseas posting and on 26 May 1981 the Commonwealth Medical Officer certified him fit for overseas service. In July 1981 he applied for the position of Vice Consul in Jakarta.

35. In September 1981 the plaintiff and his wife separated, this time permanently. The plaintiff engaged a new general practitioner, Dr Henderson, who was in partnership with Dr Wright. He presented to Dr Henderson on 23 September 1981 with an acute panic attack manifesting itself as a central chest pain with associated sweating following the separation. Valium was prescribed. The plaintiff nevertheless continued at work. In October 1981 he was transferred to the Consular Section in DFA and promoted to the level of acting Clerk Class 6. He formed an association with a female officer in DFA and they made a successful joint application for a posting to Tanzania. Six weeks before the departure date, however, the plaintiff withdrew his application for the posting. He gave as the reason emotional upset on the part of his children, stating, "I must put my children's interests before mine". The relationship with the female officer came to an end when she departed for Tanzania. The plaintiff once again consulted Dr Henderson on 21 June 1982 and was referred to Dr Lubbe. Treatment and Valium resumed as previously. The treatment continued until 24 November 1982. He appears to have lost no time from work in this period. He received a Public Service promotion to Clerk Class 6 but was transferred out of DFA into the Australian Bureau of Criminal Intelligence (ABCI). It may be noted that a decree nisi for the dissolution of the plaintiff's marriage was pronounced on 15 November 1982.

36. Treatment resumed again on 30 May 1983 when the plaintiff consulted Dr Henderson for anxiety which was associated with "domestic worries". The plaintiff was given a few days off work.

37. The plaintiff moved from ABCI, where he found it difficult to get on with many of the staff particularly those who had a police background, to a position in the Australian Council for International Agricultural Research (ACIAR). The move took place on 11 January 1984 and the plaintiff found the work worthwhile. He was promoted to an acting position of Clerk Class 7, but on 6 September 1984 someone else was confirmed in the position on a permanent basis. Within a few days he was back to Dr Wright with depression and a referral to Dr Lubbe. He commenced sick leave on 7 November 1984. The Commonwealth Medical Officer noted that he was having problems with alcohol. The plaintiff rejected a suggestion that he should look to alternative forms of therapy such as group counselling, meditation and the like.

38. On 6 December 1984 Dr Merrifield, who once again saw the plaintiff on the reference of the Commonwealth, noted that the plaintiff wished to be invalided out of the Public Service and that he did not consider that a Class 7 job in the Public Service was not suitable for him. Dr Merrifield noted the change in the plaintiff's attitude towards his condition and the Venezuelan episode: whereas he had been arguing initially that it be minimised, he was now "all out to make it the destructive force in his life", blaming it for his marriage breakdown as well as the continuing inability to go on with his career.

39. On 8 January 1985 a Commonwealth Medical Officer determined that the plaintiff was suffering from a compensable anxiety neurosis due to the exigencies of service in Caracas, that a severe phobic condition existed and long-term therapy was necessary.

40. On 15 January 1985 Dr Lubbe noted that the plaintiff's condition appeared to be worsening and predicted that his problems would be likely to last for years. She wrote that the possibility of trying to get the plaintiff back to work might become counter-productive.

41. The plaintiff continued on sick leave. In April 1985 he went on an overseas holiday to Argentina. He had been having hypnotherapy to help with fear of flying and other problems, and on his return Dr Lubbe thought he had improved somewhat.

42. On 23 April 1985 his solicitors issued the writ in the present proceedings. On 4 June 1985 he resumed work at ACIAR, for a few hours only each day, declining to submit to treatment by way of occupational therapy. Dr Lubbe's guarded prognosis at that stage was that the plaintiff was suffering from a moderately severe anxiety state, likely to persist but varying in intensity over years.

43. On 9 October 1985 an incident occurred at work which the plaintiff claimed was in the nature of a panic attack similar to that which had occurred in February 1980 on Aruba. The evidence of the plaintiff on this incident is very sketchy and exactly what happened is unknown.

44. The middle of 1985 appears to be the low point in the plaintiff's career with heavy dependence on medication and alcohol. Nevertheless, there was the overseas holiday and he continued to play golf, sometimes playing with Dr Wright who said that the plaintiff would be anxious, taking medication on the course and getting diarrhoea. About this time Dr Wright wrote that any pressure applied to the plaintiff's fragile personality such as criticism of work or golf produced symptoms of anxiety and increased sedation.

45. The plaintiff consulted Dr Wright and it appears that he lost only a few days from work. Although he had been contemplating retirement from late 1984, it was not until the end of 1985 that the plaintiff made a firm decision to retire from the Public Service. He took the necessary steps to put that decision into effect and he was formally retired on 30 April 1986. His visits to doctors have been less frequent since his retirement.

46. The plaintiff remarried in May 1986, but the marriage lasted only a few weeks. There turned out to be personality differences between himself and his new wife, and there was a problem with her son.

47. Soon after his retirement the plaintiff obtained work as a pump attendant at a local service station and worked there until 30 June 1987.

48. When seen by Dr Lubbe at the end of July 1986 he was noted as having improved. Over 1987 and 1988 the plaintiff saw Dr Wright on several occasions, but not for any complaint of a psychiatric type. The job at the service station came to an end when the business was purchased by a policeman. The plaintiff decided that he could not work under the new employer and resigned the day the business was to change hands.

49. In March 1988 the plaintiff raised money by way of mortgage on his house at Holder to enable his mother to buy a chocolate shop in a suburban shopping centre. At first the plaintiff worked there several days a week, but without receiving payment. He saw Dr Lubbe on 17 August 1988 and stated that he was feeling better because he had been able to do some work. However, when Dr Lubbe mentioned a possible return to work for the Commonwealth, the plaintiff was horrified at the suggestion. In something of a quandary (she thought that the plaintiff was "not fit to be unfit for work") Dr Lubbe suggested that the plaintiff might join a programme at St. Vincent's Hospital in Sydney. The plaintiff travelled to Sydney to consult the doctors in charge of the programme. He joined the programme which ran for a few weeks in August and September 1989, after which the plaintiff felt "slightly more relaxed and felt a new sense of confidence when dealing with people". His hours of work in his mother's shop increased to forty or more per week. In an undated letter, probably written about June 1990 (Exhibit 12), the plaintiff wrote to the Commissioner of Commonwealth Superannuation stating that it was his long-term goal to return to his former position at Class 7 level in the Department of Foreign Affairs and Trade within 6 to 12 months. He stated that for the first time since Venezuela he felt motivated and that he did not want to have worked at rehabilitation in vain. He said that he was seeking a foreign posting and did not wish to finish up in some backwater until depression once again set in. He predicted that unless he was given a suitable overseas posting his efforts at rehabilitation would have been for nothing and his rebuilt confidence would be dashed overnight.

50. The Commonwealth, however, has failed to respond to the plaintiff's invitation to re-engage him. In fact, the Commissioner for Superannuation wrote to him on 19 January 1991 to the effect that he was still unfit to resume duty. His sense of confidence appears to have been once again eroded. In his evidence he stated that looking after the shop has become a strain and he works there now only in an advisory capacity and to some extent in order to train his son in that line of business. He says that he receives no payment for work at the shop and that his hours there have shrunk to two or three a week. He states that he cannot return to the Public Service because he could not cope with the pressures of an office environment and the anxiety that would be caused by "the things that go with the office environment".
Nature of plaintiff's claim

51. Paragraph 3 of the statement of claim, the substantive paragraph which alleges negligence on the part of the defendant, asserts three matters of fact; that the plaintiff was posted to Caracas, that whilst working in Caracas he was exposed to unusual stresses and to a hostile environment, and that as a result he suffered injury. Paragraph 4 goes on to allege that the injury occurred by reason of the negligence and/or breach of contract on the part of the defendant, and particulars of such negligence and breach follow. The particulars are four in number and identified as (a) to (d). Particulars (a) and (b) are both concerned directly with posting the plaintiff to Venezuela: (a) without giving him proper warning about the Venezuelan environment, and (b) without first carrying out an adequate survey as to conditions in Caracas. Particulars (c) and (d) both deal with a failure to warn the plaintiff of the conditions in Caracas and Venezuela and, in my view, are in substance indistinguishable from each other and from particular (a).

52. In essence the negligence alleged in the statement of claim may be reduced to an allegation of failure on the part of the Commonwealth in two respects, one a failure to inform itself of the conditions its officers and employees were likely to face in the Venezuelan posting and the other a failure to inform the plaintiff of those matters relevant to such conditions which were within its knowledge or which ought to have been within its knowledge.

53. There is a further particular of negligence alleged in a letter of 14 August 1986 sent by the plaintiff's solicitors to the defendant's solicitors in an answer to a request for further and better particulars. In that letter the plaintiff's solicitors stated that "the abuses, the suffering and the stresses under which the plaintiff worked were excessive, and he should have been relieved from undertaking them", particularly in the post opening period 18 October 1979 to February 1980.

54. In reply to a further question from the defendant's solicitors whether it was alleged that the defendant was aware, or ought to have been aware, of the plaintiff's anxiety state, his symptoms or any of the disabilities suffered by the plaintiff, the plaintiff's solicitors answered in the same letter that it was alleged that the defendant became aware of the plaintiff's anxiety state on 25 or 26 February 1980 when, after suffering an attack of panic on the island of Aruba on 25 February, he telephoned the Second Secretary at the Australian Embassy in Caracas and gave him details of the incident and informed him of his inability to return to Caracas for several more days. The plaintiff's solicitors further stated in the same letter that the defendant ought to have become aware of the plaintiff's anxiety state when he telephoned the Second Secretary on 25 February 1980.

55. From the above it is clear that no case is put that the defendant should have known of any particular susceptibility to anxiety on the part of the plaintiff prior to being told by him on 25 or 26 February of the panic attack on Aruba. (On the evidence it is unlikely that the plaintiff made, or was capable of making the call on 25 February, the day of the attack, and it is more likely that the call was made on 26 February.) Nevertheless, the extent to which it was foreseeable that persons in the position of the plaintiff would suffer an anxiety state as a result of the conditions in Caracas cannot be excluded from consideration. It is simply that the plaintiff's case as presented falls short of alleging that the defendant was aware or should have been aware of any personality factor that made the plaintiff more vulnerable to such harm than other officers in the defendant's service.

56. In addition to the particulars of negligence already referred to, it was argued on behalf of the defendant by way of written submission that the defendant was negligent in failing to take all or any of the following steps prior to the plaintiff's departure for Venezuela:

(a) The preparation suggested by Dr de Vega -
Dr de Vega said in her statement to the Court
that the plaintiff was unprepared to deal with or
know what techniques to use in order to deal with
what she called rather euphemistically the
"informality" of Venezuela. Such preparation would,
according to her, have included information about
Venezuelan culture, what made it work and how it was
different from other cultures. Dr de Vega was of
the view that such preparation would have been more
effective if it had been applied prior to the
plaintiff's arrival in Venezuela but counselling on
such matters may have been of assistance even after
his encounter with the particular difficulties of
the post.
(b) The preparation which according to the
submission was suggested by Dr Milton who had
examined the plaintiff on behalf of the defendant
and who gave evidence -
I am unable to accept that Dr Milton gave any
evidence which would support a conclusion that the
harm to the plaintiff was avoidable by taking any
particular form of evasive action. In my view, the
evidence of Dr Milton does not support the
submission, as the following extract from his
evidence indicates:
"Doctor, is it, in your view, possible to minimise the effects of

exposure

to such circumstances as I put to you by allowing the persons who is
to be exposed to them a period to adjust to those conditions?
---- It is possible, but there is a difficulty with doing that
because the very personality who is some times vulnerable to such
things would be the very one to go out and try to grapple with
them in order to prove to himself that he can. So if you say to
some, "Look we are going to get you to take it easy for two weeks
or something like that", they usually do not go along with you.
What about a course of instruction as to the type of circumstances
that one is likely to encounter? ---- I would like to speak to that, I
would like to give you an example. I am consultant to the Air
Force and in fact am in charge of reservists in New South Wales.
And yesterday I was asked to go up to Richmond to lecture to
medical people who were standing by for the current conflict in
the Middle East. Now, the pilots were asked if they would like to
go to the same lecture. They said, "No, we know it all". Now, I
think, that is one of the difficulties with giving courses of
instruction that the very people who need them are often those who
most resist.
And that is a matter that is well known and recognized in your
field of endeavour, is that so? ----- I do not know how widely it is
known to psychiatrists in general, it is certainly known to me."
Dr Milton added that it would be common sense and good training to
give a course of lectures, but the impact on a particular person is
very unpredictable, and that in the case of the plaintiff, he had
already had experience of Latin America culture before hand.
(c) Giving the plaintiff copies of a number of
documents which were in the defendant's possession -
Those documents were numerous and particular
reference will be made to some of them later.

Nature of defence

57. The defendant whilst accepting as it must that it was, as the employer of the plaintiff, under a duty to take reasonable care for the safety of the plaintiff, denied that there was in fact a breach of such duty. In particular the defendant denied that a reasonable employer in its position would have foreseen that there was a real risk of damage to the plaintiff's health of the kind sustained by the plaintiff in the course of his employment in Caracas. Alternatively, it was submitted by the defendant that if there was such a real risk, then the nature of the risk was such that in all the circumstances the defendant discharged the duty to take reasonable care of the plaintiff by providing adequate means of carrying out his work without unnecessary risk, by warning him of unusual and unexpected risk, and by training him and instructing him in the performance of his work where instructions might reasonably be thought to be required. The defendant also raised the issue that there was no causal relationship between the plaintiff's condition of service in Venezuela (or more precisely, the breach of the duty to take care, assuming such breach had occurred) and the damage of which the plaintiff complained.

58. I deal with each of these issues in turn.
Foreseeability and avoidability

59. Liability in negligence requires proof, inter alia, of damage of a kind that would have been foreseeable by a reasonable person in the position of the defendant.

60. The issue of a foreseeable kind of damage is relevant both to the existence of a duty of care and to the question of breach of that duty. As Dixon J. said in the passage from Bunyan v. Jordan, quoted above, "illness without more" is sufficient harm for the purpose of proof of damage but it is also necessary to prove reasonable likelihood of that kind of harm resulting from the breach. It is also relevant to causation, an issue with which I deal later.

61. In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only insofar as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any "unnecessary" risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a sociably acceptable, level. It may be that this takes the Court into an area of value judgment for which the inscrutability of a jury verdict may provide a more appropriate means of expression. Where a judge constitutes the tribunal of fact, reasons must be given for this decision, a decision which is non-juridical and in the nature of a value judgment. Others may reject those reasons, and an appeal court may substitute its own value judgment: Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531.

62. In recent years the well known passage of Mason J., as he then was, in The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40 at pp 47-48 has provided a number of tests against which may be measured the reasonableness of the steps to be taken by a defendant in a particular case. His Honour said as follows:

"In deciding whether there has been a breach of the duty of care the
tribunal of fact must first ask itself whether a reasonable man in
the defendant's position would have foreseen that his conduct
involved a risk of injury to the plaintiff or to a class of persons
including the plaintiff. If the answer be in the affirmative, it is
then for the tribunal of fact to determine what a reasonable man
would do by way of response to the risk. The perception of the
reasonable man's response calls for a consideration of the magnitude
of the risk and the degree of the probability of its occurrence,
along with the expense, difficulty and inconvenience of taking
alleviating action and any other conflicting responsibilities which
the defendant may have. It is only when these matters are balanced
out that the tribunal of fact can confidently assert what is the
standard of response to be ascribed to the reasonable man placed in
the defendant's position.
The considerations to which I have referred indicate that a risk of
injury which is remote in the sense that it is extremely unlikely to
occur may nevertheless constitute a foreseeable risk. A risk which
is not far-fetched or fanciful is real and therefore foreseeable.
But, as we have seen, the existence of a foreseeable risk of injury
does not in itself dispose of the question of breach of duty. The
magnitude of the risk and its degree of probability remain to be
considered with other relevant factors."

63. As Mason J. appears to contrast the magnitude of the risk with the degree of probability of its occurrence, I take his Honour to mean by the former term that degree of harm which would be inflicted should the contemplated situation in fact occur. A life-threatening event (for example the collapse of a factory roof in Canberra by an earthquake) might be so unlikely that reasonable care would require little or nothing to be done to avoid it. On the other hand, an event of little but real harmful impact may be so likely as to demand simple and obvious safety measures (for example a warning about drowsiness on a bottle of medicine).

64. For the purpose of considering the magnitude of the risk, I think it has to be assumed that the plaintiff suffered the kind of damage he alleges, that is to say, a panic attack in February 1980 preceding or precipitating an anxiety state which has varied in intensity thereafter and which eventually rendered the plaintiff incapable of continuing to work in the Public Service and which continues to render him incapable of engaging in regular full-time employment or in normal social relationships and leisure pursuits. Accordingly, the risk in this case, in my view, has to be regarded as one of considerable magnitude.

65. On the other hand, it could not be said that there was a high degree of probability that the harm would eventuate. I bear in mind that it is not necessary to measure the degree of probability of the precise harm suffered by a plaintiff but only the degree of probability of suffering harm of that kind. In Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1971) 125 CLR 383, Walsh J., at p 413 said that "it is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen", that it was "necessary only that the damage suffered should not be different in kind from that which was foreseeable" and that all forms of psychological disorder, capable of resulting from the defendant's breach are to be treated, for the purposes of the foreseeability test of liability, damage of the same kind.

66. Nevertheless, a distinction has to be drawn between the inconvenience, unpleasantness, frustration and all the other difficulties experienced by the plaintiff in Caracas prior to 25 February 1980 and the anxiety state which was precipitated on that date. The plaintiff's claim as laid correctly recognizes that without some abnormal psychological state resulting from the defendant's conduct the cause of action must fail.

67. In Mount Isa Mines Limited v. Pusey Windeyer J. said at p 394:

"Sorrow does not sound in damages. A plaintiff in an action of
negligence cannot recover damages for a "shock", however grievous,
which was no more than an immediate emotional response to a
distressing experience sudden, severe and saddening. It is,
however, today a known medical fact that severe emotional distress
can be the starting point of a lasting disorder of mind or body,
some form of psychoneurosis or a psychosomatic illness. For that,
if it be the result of a tortious act, damages may be had. It is in
that consequential sense that the term "nervous shock" has come into
the law."

68. This is not a nervous shock case. As I understand the nervous shock cases, many of them at least are concerned with the question of whether a duty of care existed on the particular facts. Many of the nervous shock cases have been concerned with the plaintiff's reaction to the receipt of bad tidings or to the witnessing of injury to another person. In Mount Isa Mines Limited v. Pusey itself the plaintiff developed a schizophrenic condition in reaction to going to the assistance of two workmates who were injured in an electrical explosion and who died of shocking burns. But it is clear, as the passage from the judgment of Dixon J. in Bunyan v. Jordan cited above, damages are not limited to recovery for a condition of "shock", whatever that term may mean, and will be awarded for any foreseeable harm resulting from the defendant's breach of duty, so long as the other conditions necessary for liability are present.

69. The question is then whether it was reasonably foreseeable by a person in the position of the defendant that the plaintiff might suffer some sort of anxiety state on or about 25 February 1980 as a result of the conditions to which he had been exposed in performing his duties.

70. The medical evidence, particularly that of Dr de Vega, Dr Milton and Dr Robbie, deals to some extent with the question of the extent of the risk of psychological breakdown on the part of the plaintiff. Their evidence takes into account the plaintiff's predisposing personality. The evidence of Dr de Vega, on the other hand, does support the proposition that any person going to work in a strange and hostile environment runs a risk of the sort of breakdown which the plaintiff suffered. Even without such evidence, I think that that is a proposition which is self-evident to a tribunal of fact. The extent of the risk would depend at least in part upon the degree of difference between the familiar environment and the new environment and factors particularly relating to personal security and violence would be important. There were such factors in the present case and they were known to the defendant as a result of its enquiries before and during the setting up of the mission prior to the plaintiff's arrival. Nevertheless, the risk was not necessarily a high one. Despite the enquiries, there was no information passed on to the Australian government which revealed that any member of the staffs of any other embassy had suffered in the way in which the plaintiff eventually did. There was a hint at such a possibility in the Canadian post report to which I have already made reference. Nor did any member of the Australian mission either before or, as far as the evidence goes, after the plaintiff's term in Caracas fall prey to a panic attack or an anxiety state. Indeed there was a risk which the Australian Embassy staff faced which was greater than that of psychological decompensation, and that was the risk of violent attack. That danger came to pass in the case of Ms Zuegg. The steps taken to minimise or eliminate the risk of such an attack on Ms Zuegg are of course not the subject of these proceedings. But it could not be suggested that the risk was so great that she should never have been sent to Venezuela, or that the Australian mission should have been closed down either before or after the attack upon her. Questions as to whether she should have been supplied with a personal bodyguard at all times, or at least transport to and from her home are matters that need not be investigated. The point is that there were risks attached to serving with the Australian mission in Caracas in 1977 and 1980 which the defendant could not be expected reasonably to eliminate or even to substantially reduce.

71. In my view, it was not foreseeable that the plaintiff was particularly susceptible to psychological harm anymore than any other member of the Australian diplomatic mission in Caracas. As I have said, I do not understand the plaintiff's claim to go so far, but if I am wrong in that understanding, I should state that on the evidence the defendant could not, prior to the plaintiff's arrival in Venezuela, have been expected to know that the plaintiff was particularly vulnerable. All the material within the defendant's knowledge led to a contrary conclusion. Advice from previous Ambassadors in Buenos Aires, interviews with the plaintiff in Canberra and medical examinations on several occasions did not give rise to any hint that there was any greater risk to the plaintiff being subject to an anxiety state than there was in the case of other officers. Soon after the panic attack on 25 February 1980 the plaintiff was subjected to psychiatric assessment and it became apparent with the wisdom of hind sight that there were certain traits in his personality which were likely to have contributed to the panic attack and its aftermath.

72. In turning to discuss some of the medical evidence at this stage, I am bound to say that I did not find the plaintiff in all respects a compelling witness. This may not matter in the end because the findings of fact that I find it necessary to make for my decision do not turn on matters of credit. But the matter of the plaintiff's acceptability is relevant in another respect and that is the medical opinion evidence which itself depends on how much of what the plaintiff says about his symptoms can be accepted. The medical evidence from all sources from about 1985 is increasingly sceptical, even from the plaintiff's treating doctors who have otherwise been extremely supportive. I think that scepticism is justified for the whole of the period under consideration.

73. When the plaintiff first presented himself to Dr de Vega, she immediately noticed the features of his personality which she considered to be relevant. They were that he was a rigid, inflexible person who would not accept any kind of imposition and who was extremely sensitive to any kind of order or situation that he did not control. His reaction to those circumstances would be one of antagonism. In addition, investigation by Dr de Vega of the plaintiff's history revealed that he had a deep-seated fear of flying which he attempted to counter by the use of alcohol.

74. When the plaintiff was exposed to the aggressive and frustrating environment of Caracas, it produced, in Dr de Vega's view, an anger which itself increased the tension within him. This resulted in the panic attack on the island of Aruba when he was faced with the immediate prospect of returning to Caracas and its environment. Despite the treatment given by Dr de Vega, the illness continued to interfere with the plaintiff's capacity to cope effectively with his work. She commented as follows:

"Depression, phobic reactions and increases in anxiety are not
uncommon reactions of transients and immigrants while they are
learning to deal with the customs and the shock of a new cultural
code. His rigid and controlling personality would be more affected
by any new situation and particularly affected by Venezuela where
people tend to be disorganized and casual in the fulfilment of
commitments."

75. In her statement to the Court, Dr de Vega said that about ten years ago the American Psychiatric Association included in its five axes of diagnosis three factors which were present in the plaintiff's situation, namely personality disorder, environmental stress, and level of previous functioning. About that time it was recognized that persons who worked with the United States Embassy and people coming to Venezuela to work for companies could be subject to the risk of psychological breakdown. From that time Dr de Vega and others were engaged to prepare such people to withstand the service in Venezuela and to treat them in the event of ensuing illness. However, it does not appear from Dr de Vega's report or her statement that such preparation was common or that such illness was widespread in the sizable diplomatic and expatriate community in Caracas. In particular, it may be noted that by the time of the plaintiff's arrival in Caracas there were some fifty foreign embassies there, and there was no evidence that there was a common practice, even amongst the embassies of the more advanced and affluent countries, to prepare their staff by engaging such experts as Dr de Vega. No doubt that would have been a good idea, but it was not the practice. Dr de Vega also said when asked questions by counsel for the defendant that had the plaintiff demonstrated reliability and dependability in times of stress, and a capacity to persevere and exercise initiative in difficult circumstances, then she would have expected that he would have had "a high degree of probability" of being able to tolerate the day-to-day workload in a diplomatic mission in Caracas. In my view, the plaintiff had displayed those very characteristics in Singapore, Buenos Aires and Caracas.

76. When asked by counsel for the plaintiff the ways available to avoid an anxiety reaction, Dr de Vega said there were two ways, the first being a system of detection of persons with vulnerable personalities who should simply not be posted to an aggressive environment, and the other would be "some kind of prior preparation in order to help him to understand, anticipate and have a plan of action for what he would be exposed to".

77. In my view, taking Dr de Vega's evidence as a whole, the answer to the last question should not be taken too literally. It is clear that Dr de Vega meant that a person with a predisposed personality who was given a course of preparation before the posting to Caracas would have been in a better position to withstand the stresses of the environment there, not that an anxiety state would necessarily or even probably have been avoided.

78. Dr Hook, according to his report, saw the plaintiff on 15 July 1980, soon after his return from Venezuela. It is not clear whether Dr Hook had any information deriving directly from Dr de Vega, but Dr Hook elicited from the plaintiff indications of difficulties before the Venezuela posting, namely a fear of heights and a fear of flying. Dr Hook also noted that the plaintiff was able to cope with conditions in Venezuela only by a substantial consumption of Valium and alcohol whereas, according to what the plaintiff told him, Mrs. Gillespie coped with Venezuela very well without such assistance.

79. Dr Milton saw the plaintiff on one occasion only, but was supplied with a number of previous medical reports, including the report of Dr de Vega dated 6 June 1980.

80. There was some criticism of Dr Milton on behalf of the plaintiff in that his first report was based on documentation only and that he should not have come to any conclusions about the case until he saw the plaintiff as he did eventually on 12 December 1990 on which date he wrote his second report. I do not consider the criticism to be valid. A consideration of the whole of the material from Dr Milton including his reports and his evidence to the Court, convinces me that he did not, as it were, make up his mind on the documentation and having done so refused to budge. In fact I found Dr Milton's reports and evidence very helpful. In particular they addressed some of the central questions that required decision. He said that he had a particular interest in the question of stress caused to people exposed to hostile, difficult and foreign situations and his conclusion that the prospects of returning to Venezuela was the final and precipitating cause of the plaintiff's breakdown pays regard to a factor to which the other doctors seem to pay little attention. Although in the end I do not think it affects the question of the defendant's liability, I think that the point should be made that the panic attack did not occur whilst the plaintiff was in the hostile environment itself. It occurred after he had had a short respite from it and when he was faced with the unwelcome prospect of having to return to it.

81. In his first report of 16 September 1990, Dr Milton gives a useful definition of the terms used in psychiatry, relating to conditions like that of the plaintiff. Anxiety is to be distinguished from fear, anxiety being the reaction to anticipated events, fear being the reaction to an immediate threat. Most anxieties are normal, but when it is prolonged, intense or inappropriate, anxiety is abnormal, and if chronic and excessive, psychiatrists use the term "anxiety neurosis". Phobia, the inappropriate or excessive of things not normally provoking fear, is a form of abnormal anxiety. Agoraphobia is a phobia characterised by panic attacks. They are episodes of terror, occurring for no apparent cause and virtually overwhelming when present. They usually occur when the sufferer is away from home and usually when alone. Dr Milton thought that the plaintiff's condition of breakdown had some of the features of panic disorder and usually a panic disorder arises as a result of inadequacy in personality rendering the individual vulnerable to every day life events, and only rarely following exceptionally stressful events in normal personalities. Dr Milton concluded that the childhood fear of heights and flying, and use of alcohol to combat this fear in the later years, indicated that the plaintiff's personality was likely to predispose him to developing an emotional disorder. He commented further, however, that these matters and others which had come to light since the plaintiff had received psychological treatment over the years, were all consistent with negative long-standing personality features, but "even an experienced psychiatrist might have had trouble predicting Mr Gillespie's response without having from him (and family members) a frank and detailed history and current life". Indeed, some of the "apparently positive features" of his personality may have been on the one hand qualities which could have commended him promotion or for seeking and being given difficult and challenging tasks, but on the other hand, prejudicial to his eventual emotional well being.

82. Dr Lubbe who treated the plaintiff over several years from October 1980 was concerned, particularly in the early stages, with treating his condition rather than considering medico-legal questions of causation and foreseeability. However, her report written at the request of the Commonwealth Medical Officer, dated 24 June 1988 is of particular interest and significance. It was written at a time when treatment of the plaintiff had really come to the end of the road. He had been relieved of the stresses of the work environment in the Commonwealth Public Service and he was, on the face of it, in reasonably good health. He was simply, as she put it, "not fit to be unfit". She wrote that in her most recent interview on 17 August 1988 the plaintiff was co-operative, affable and voluble as he usually presented and that fitted with his description of his own premorbid personality as being gregarious, outgoing and sociable. However, Dr Lubbe herself thought that "his premorbid personality was one which always liked to be in control of his affairs and of the situation around him, to the point of being somewhat stubborn and proud and this aspect of his personality I think has influenced the way he has handled his anxiety state and its treatment".

83. On the matter of the relationship between the situation in Venezuela and the plaintiff's condition, however, Dr Lubbe has remained somewhat guarded. She stated in her evidence that she did not know what effect training and preparation would have had if he had been exposed to that before going to Caracas and that her own experience in psychiatry did not relate to the trans-cultural problems of persons from western countries being required to work in places like Caracas. In fact when the plaintiff first consulted Dr Lubbe, he told her that he felt safe at the Caracas desk, even though the job was particularly arduous, and it was the handling of the social situations which he found difficult.

84. Dr Robbie saw the plaintiff only once, on 16 October 1986, but delivered a very comprehensive and thoughtful report. He was obviously sceptical of the plaintiff and, in my view, rightly observed that a proper assessment of the plaintiff's situation and its relationship with the Venezuelan posting depended on acceptance of a number of facts. He concluded "if he was quiet, reliable and capable before Venezuela, and has changed dramatically since, and has remained changed, then no suspicion need be entertained". In the end it appears that Dr Robbie accepts Dr de Vega's diagnosis of an anxiety neurosis precipitated by a panic attack while on vacation. Although Dr Robbie appears in the end to reject the view that the plaintiff's breakdown was the result simply of an underlying disorder, and not the excessive stress imposed on him in Venezuela, he clearly considers the plaintiff's pre-existing vulnerability to be considerable. I think it is consistent with Dr Robbie's view, that no amount of counselling and the like would have avoided the breakdown.

85. I do not intend to analyse the whole of the medical evidence. Apart from what I have already mentioned, I do not find anything in it to support the proposition that the plaintiff's condition could have been avoided by any of the measures suggested on his behalf, or that the defendant was on notice that he was particularly predisposed to the anxiety state.

86. Added to this there is also the evidence that up until about 1985, the plaintiff from time to time repeated his assertion that he was fit for another overseas posting. Indeed, the letter to the Commissioner for Superannuation in June 1990 (Exhibit 12) contains an assertion that even at that date he considered himself well enough to resume his career in Foreign Affairs.

87. Lastly, I make reference to the efforts of the plaintiff to obtain further overseas postings upon his return to Australia. He has repeatedly held himself out to be well enough to accept such postings. They include such places as Dar es Salaam, Jakarta and Noumea. To take but one example, the plaintiff relied on a letter from Mr J.W. Pritchard dated 18 August 1982 stating that in Buenos Aires he had "acquitted himself well in a difficult and demanding environment". Whilst it is probably true that the conditions of service in those places are not as rigorous as those in Caracas, the fact is that the plaintiff himself displays no sense of risk in accepting those sorts of postings. This is inconsistent with any claim that the defendant should have known of personality factors which exposed him to particular risk in Caracas.

88. There is no evidence that any traits indicating the plaintiff's predisposition to anxiety would have been observable, even to a trained psychiatrist prior to the plaintiff's departure to Venezuela. Perhaps after due investigation, a psychiatrist with the special experience and interest of Dr de Vega in the "trans-cultural" problems of members of the expatriate community in Venezuela, or of expatriate communities in South America or indeed throughout the world, might have judged the plaintiff to be vulnerable. But there is no evidence that such expert psychiatric advice was available to the defendant in 1980. Dr de Vega spoke of certain specialist practitioners who were at work in the United States at the time, but there is no evidence of any such expertise in Australia or known to the defendant to be available anywhere else at that time.

89. However, a distinction has to be drawn between what the defendant knew or ought to have known about the plaintiff's personality before 25 February 1980 and what it knew or ought to have known after that date. One part of the plaintiff's claim is predicated upon the premise that the defendant knew or ought to have known shortly after 25 February 1980 that the plaintiff was suffering from an anxiety state and ought to have taken alleviating measures. That aspect of the plaintiff's claim, however, has to be contrasted with the claim that the plaintiff should have been warned before his departure for Venezuela of the likely conditions to which he would be exposed.

90. I deal now with the failure to warn the plaintiff or otherwise prepare him for the posting in Venezuela.

91. I do not think that the evidence of Dr de Vega is of great assistance on this matter because she treated the plaintiff as one with a particular predisposition to an anxiety attack of the type the plaintiff suffered, whereas I have found that the defendant was not on notice that the plaintiff was of such a predisposition. The evidence of Dr de Vega relating to the details of such preparation was in any event somewhat vague. Exactly what the plaintiff was supposed to have been told about Venezuelan culture in order to make the preparation adequate, is difficult if not impossible to determine, but I do conclude in his favour that it was known to the defendant that conditions in Caracas were particularly difficult and despite the plaintiff's experience in Buenos Aires and Singapore he was likely to encounter much greater difficulty than any experienced by him in any previous posting. With the information available to the defendant on those matters, I think reasonableness required that the plaintiff be told something of the difficulties. That would have involved a relatively simple and inexpensive briefing, whether oral or written, by another officer, of whom there must have been several, who had knowledge of what was contained in the defendant's files about conditions already experienced in preparing to set up a new post in Caracas.

92. It was further submitted on behalf of the plaintiff that he should have been supplied with copies of the various documents in the defendant's possession which related to the difficulties of life in Caracas and the submission went to identifying some of the particular documents concerned. The documents are indeed voluminous. I say at the outset that it would have been quite inappropriate to simply dump those documents on the plaintiff and expect him to read through and digest them. I know that that would have been at least a very time-consuming exercise. However, the written submission on behalf of the plaintiff identifies particular documents and particular parts of some of the documents which, according to the submissions, should have been drawn to the plaintiff's attention. On the other hand, the submission on behalf of the defendant is that in this respect counsel for the plaintiff has simply extracted an unrepresentative selection from the total amount of documentation and that taken as a whole the documents which evidence the defendant's state of knowledge do no more than demonstrate that Caracas was a frustrating and sometimes unpleasant and difficult place, not much different from many of the "third world" cities in which most people (including some Australians) happen to live. I have read the documents to which particular reference has been made in the submission and I have read, although less carefully, all the documents that were admitted into evidence from the defendant's files in order to ascertain exactly what it was that was in the defendant's knowledge and what might appropriately have been communicated to the plaintiff by one means or another. In stating my conclusions I am bound to be selective in my reference to the documents and hence subject to the same challenges as made to the written submission made on behalf of the plaintiff but it is obviously impossible in these reasons to reproduce or even to mention every document.

93. By late 1977 at least the Commonwealth had started looking at the possibility of opening a diplomatic mission in Venezuela. The interest arose out of the increasing importance of Venezuela in Latin American and world affairs following the exploitation of its mineral wealth, particularly oil. It was considered that trade opportunities might be lost unless an Australian presence was established quickly. During 1978 and acting under instructions from Canberra, the Australian Ambassador in Lima visited Caracas and interviewed his counterparts there in the British, Canadian, Indian and Indonesian Embassies. He learned of the high cost of diplomatic representation and the difficulties and delays that would have to be encountered in opening an embassy there and doing business there. In documentary communications with Canberra he expressed his own personal dismay at the prospect of being transferred from Lima to Caracas, but he did so in the context of resisting a suggestion that the Embassy in Lima might be closed and that diplomatic representation in Peru be accredited from Venezuela. I do not think that the defendant was bound to convey to prospective candidates for the Caracas mission the highly subjective remarks of the Ambassador or copies of the Ambassador's reports, but the general attitude of the Ambassador was relevant to what preparation such candidates should have been given before their departure.

94. Enquiries were made within DFA through the Australian High Commission in London and diplomatic sources there in late 1978 which drew attention to Venezuela's importance in South America, particularly as an outpost of democracy, but it also drew attention to the difficulties of local conditions - costs astronomical, pollution heavy, traffic impossible. Post reports were obtained from the British Foreign Office and the Canadian Embassy. The British post report was dated 1973 and so was not very up-to-date, but it described conditions in Caracas as reasonably favourable for British Embassy staff and for British nationals generally. The Canadian post report was prepared in May 1977 and it drew attention to the difference in living and working conditions in Venezuela from those in Canada. It mentioned the lack of recreation facilities, the difficulties with water supply, the variable reliability of law enforcement agencies and the like. It warned that "men who are newcomers may find themselves overwhelmed by a new climate, new job, new language, and all sorts of new problems" and drew attention to the dangers of alcohol abuse. However, it also pointed to some positive aspects of life in Venezuela and taken as a whole would have given no cause for alarm for the health and security of diplomatic personnel. In my view, an Australian DFA officer interested in promoting his or her career would not have refused a posting to Caracas as a result of reading the Canadian post report, particularly an officer with experience in Latin America, skilled in Spanish and keen to return to Latin America. Indeed, Mr Usback and Ms Zuegg both obtained copies of the Canadian post report. Ms Zuegg obtained it as a result of her own initiative when on service in Manila. Mr Usback obtained or was supplied with his copy in Canberra.

95. On 20 February 1978 the Australian Embassy in Lima prepared a preliminary survey on the proposed opening of the post in Caracas. It records that security in Venezuela was at the same level as in Lima. In April 1979 DFA produced a concise but very informative document entitled "Outline on Venezuela". It appears to be an edited and updated version of the British and Canadian post reports. It stops short, however, of mentioning the problems that the Ambassador had noted during 1979 relating to the difficulties of living and working in Venezuela. There is no evidence that it was ever shown to the plaintiff or indeed to any of the other diplomatic staff who were posted to Venezuela in late 1979 and early 1980. But if it had been supplied to the plaintiff, I am sure that it would have had no effect on his resolve to take up the Caracas posting, or on his capacity to handle the conditions in Venezuela.

96. Some of the communications back to Canberra in 1978 and 1979 from London and Lima emphasised the problems relating to cost of living in Caracas, which was said to be one of the highest in the world and problems of parking and traffic which were said to be among the worst in the world. There are also references to violent crime, but those references are not frequent in the large mass of documentary material on these matters. One source of information from US Intelligence stated that Australian interests were not affected by urban crime.

97. During 1979 DFA officers visited Caracas with a view to obtaining temporary premises for the Australian mission and a Public Service Board Inspector investigated local conditions for the purpose of fixing remuneration and allowances for the staff to be posted to the mission. (It appears that the recommendations of the Public Service Board Inspector were unrealistically low and very soon after the arrival of the new Ambassador, Mr Brown, in December 1979, he was making strong recommendations for increases which were eventually granted after the departure of the plaintiff.) Nothing in the reports from those officers made them so relevant that they needed to be made available to the plaintiff, although once again they stress some of the difficulties of living and doing business in Venezuela.

98. Whilst I think that it was unreasonable of the defendant to withhold from the plaintiff the precise message which these documents spell out, namely that Caracas was a new post with difficulties as great, if not greater than any other Australian diplomatic post, it was the failure to convey the message and not the omission to supply the source material which was unreasonable. The failure was unreasonable because it was one which was easily and conveniently rectified by supplying a simple document along the lines of the Canadian Post report or the giving of advice along the same lines. Whether such a step would have avoided the plaintiff's anxiety state is, however, another and essential question with which I shall now deal.
Avoidability and effectiveness of obviating measures

99. The plaintiff has to prove that if the defendant had taken the obviating measures relied upon by the plaintiff in his case, then there was a likelihood that they would have obviated the "unnecessary" risk of an anxiety state. A risk is "unnecessary" if by the adoption of some reasonable form of precaution or safeguard it could be eliminated or minimised: Neill v. NSW Fresh Food and Ice Limited [1963] HCA 4; (1962-63) 108 CLR 362, per Taylor and Owen JJ. at p 370. In other words, if the precaution or safeguard would minimise the risk, the remaining level of risk is one which the law regards as "necessary", acceptable or tolerable.

100. The claim by the plaintiff is that the risk was likely to be eliminated or minimised by all or any of the measures specified in the pleadings and in argument. Those measures were: prior to the plaintiff's arrival in Venezuela, warning him of the conditions of service in Venezuela; after the plaintiff's arrival in Venezuela and before 25 February 1980, transferring him out of Venezuela back to Australia, or, further, counselling him and paying him an increased allowance to compensate for the high cost of living in Caracas; immediately after 25 February 1980 or thereabouts transferring the plaintiff back to Australia. As it is necessary to evaluate the hypothetical effect of such measures if taken, it is impossible to be precise or particularly analytical about such effect. Furthermore, most of the suggested measures involved imprecise concepts. What exactly is to be included in the warning? What constitutes counselling? How high did the increased cost of living allowance have to go? How soon after his arrival in Caracas, or alternatively, after 25 February 1980, should the plaintiff have been repatriated? The effect of the hypothetical measures has to be assessed in relation to their impact on the plaintiff's personality in the fluid social and working conditions in Venezuela. It is obvious that any resolution of this issue has to be largely an intuitive one.

101. My conclusions are that even if the plaintiff had been told or "warned" prior to his departure for Venezuela of the conditions he was likely to face there, that would not have deterred him from taking up the post. His enthusiasm to get back to Latin America was far too strong and deep-rooted for that. Indeed, the evidence of Dr Milton, which I accept, expresses a clear view that the more dissuasive the advice, the more determined the plaintiff would have been to take up the challenge of the post for which the plaintiff, like the defendant, considered himself so well suited. The other psychiatric evidence is consistent with that conclusion. Indeed, if it had been suggested to the plaintiff by the Commonwealth that the conditions were such that he might not be able to handle them for fear of a psychological breakdown, one would expect that his reaction would have been one of outrage, and understandably so. To a certain extent similar factors apply with regard to the suggestion that he should have received counselling after his arrival in Venezuela. It is by no means probable that the plaintiff would have accepted such counselling if it had been suggested or that it would have been effective if accepted. Nor, in my view, has it been shown that the payment of an extra cost of living allowance was likely to head off the breakdown to which the plaintiff eventually succumbed.

102. It was submitted that the defendant should have repatriated the plaintiff from Caracas to Canberra immediately after the panic attack, or within a short time thereafter, and that would have had a palliative or rehabilitative effect to the extent that the plaintiff would not have suffered an anxiety state. I think for the reasons already outlined, that it was likely that the plaintiff would have resisted such a move, but more relevantly on the issue now under discussion, I think it would not have avoided the anxiety state which flowed from the panic attack. Indeed, I find it difficult to see how the panic attack and anxiety state can be separated in any real sense. Dr Robbie, in a report of 15 May 1990 stated that the plaintiff had an initial panic attack which almost immediately converted into phobic anxiety, and I think that that accurately summarises the situation as to the relationship between the two psychiatric states. The plaintiff's condition did not deteriorate after his arrival back in Caracas from Aruba. It improved slightly, enabling him to work part-time. He himself expressed the view on at least one occasion that he had coped reasonably well upon his arrival back in Caracas.

103. Clearly, once the panic attack occurred, the plaintiff needed sensitive nurturing. Ordering him back to Australia at that stage was not the obvious way to go, and there is no medical evidence that that course should have been adopted in preference to the Commonwealth encouraging the plaintiff, under the sympathetic treatment of Dr de Vega and working reduced hours, to see whether he could still successfully continue in the post.

104. In short, I think that once the mutual decision was made in late 1979 that the plaintiff was to be posted to Venezuela, the only step the defendant might have taken which was likely to minimise the risk of an anxiety state occurring was to send the plaintiff, and his family, back to Australia when he started to show stressful symptoMs But even that might have had the effect of so damaging the plaintiff's personality that he might well have suffered a similar anxiety state in any event. Further, for the reasons which I have already indicated in applying the tests in Wyong Council v. Shirt, I do not think that it was unreasonable for the defendant to allow the plaintiff to continue in Caracas either in the period leading up to the panic attack or in the few months thereafter.

105. Another factor that needs attention in the light of the tests laid down in Wyong Council v. Shirt is the utility of the defendant's conduct. It is sometimes said that a defendant's undertaking may be so dangerous that it is negligent to carry it on at all. There may be situations in which the Commonwealth would be in breach of its duty to take reasonable care for the safety of its foreign-based employees if it permitted them to remain in a country subject to actual nuclear attack, or even civil war. But that is not the situation in the present case. It is necessary only to repeat that the Australian Embassy was one of more than fifty in Caracas and although there is evidence that some of those embassies carried on with difficulty, there is no suggestion that any of them saw fit to close their doors because of the risk of anxiety states amongst their employees. Again it is necessary simply to repeat that there is no evidence that any officer of the Australian Embassy apart from the plaintiff suffered from an anxiety attack as a result of service in Venezuela.
Damage and causation

106. The findings that I have made lead to a conclusion that the plaintiff cannot succeed on the issue of liability. It is therefore not strictly necessary that I should deal with the question of whether the alleged breach resulted in damage to the plaintiff. However, as proof of damage causally related to the breach is one necessary element in an action for negligence, I will say that I do not think that the plaintiff's action should fail for lack of such proof.

107. The defendant relied on the evidence of Dr Robbie in particular for the proposition that the cause of the plaintiff's breakdown was his own underlying personality and that the conditions of living and working in Caracas did not contribute to that breakdown. However, even Dr Robbie does not put this beyond a possibility and his opinion in this respect is dependent upon an assumption that the "altercations, problems and difficulties" described by the plaintiff were invented by him, and did not reflect reality but rather the illness from which he was already and increasingly suffering. However, there is sufficient and indeed, in my view, overwhelming evidence that the plaintiff's intellectual perception of what was happening around him, whatever its emotional effect on him, was basically sound. Dr de Vega expressed the view that the aggressive and frustrating environment of Caracas, acting upon the plaintiff's predisposing personality, produced anger which later led to the panic attack and anxiety state. Dr de Vega had the advantage of seeing the plaintiff in the very early and important stages of the development of his anxiety state. She was acquainted with the environment itself and had a particular interest and experience in treating over a long period many expatriates who had suffered problems similar to those of the plaintiff. Her view is supported by Dr Lubbe and Dr Milton and I think that it must be accepted. Hence the plaintiff has proved damage which flowed from the defendant's breach. The extent of such damage is not for me to decide. This is not an appropriate case to proceed to make a provisional assessment of damages. I make no findings on the question of how long the anxiety state attributable to the defendant's breach lasted or as to how far it affected the plaintiff's capacity to work and enjoy life.
Conflict of Laws

108. It should be recorded that the submissions on behalf of both parties assumed that the case is to be decided entirely in accordance with the law of the Australian Capital Territory. Any consideration of a conflict of laws consequent upon the alleged breach occurring or the alleged damage or part of it being suffered in another jurisdiction has been left out of account.
Summary

109. The defendant, as the plaintiff's employer, was under a duty to take reasonable care for the safety of the plaintiff. In considering whether the defendant discharged that duty, regard must be had to whether it was reasonably foreseeable that an administrative officer in the Department of Foreign Affairs, like the plaintiff, might be subject to some sort of psychological decompensation, beyond the difficulties and stresses to which most officers would ordinarily be prone, in the circumstances which prevailed in Caracas at the time of the plaintiff's service there. In my view, that sort of harm was foreseeable and the discharge of the duty required that any such officer posted to Caracas be given some preparation beyond that which was appropriate to less stressful posts. The defendant failed to give the plaintiff the benefit of such preparation. However, in the circumstances, and particularly in view of the remoteness of the possibility that an officer would be subject to such an extreme reaction as that of the plaintiff, reasonableness did not require the defendant to give more than the most general warning, such as that contained in the Canadian Post report. Reasonableness would also have required the defendant to emphasise to the plaintiff what he already knew, namely that coping with the conditions in Caracas would be rendered more difficult by the fact that the post was a new one and not an established one. Reasonableness did not require the defendant to repatriate the plaintiff after his arrival at any time sooner than his eventual departure in June 1980, nor to give him counselling beyond what he received both before and after the onset of his anxiety state on 25 February 1980, nor (for the purpose of liability for negligence or breach of contract) to pay him an increased allowance. However, the warnings which it would have been reasonable for the defendant to give would not, in my view, have been sufficient either to deter the plaintiff from accepting the appointment, nor to so strengthen him psychologically that the anxiety state would have been avoided. The plaintiff, in my view, would not have suffered the panic attack or the anxiety state if he had not been predisposed to psychological breakdown by reason of personality factors which were unknown to the defendant prior to 25 February 1980 and which could not have been known to the defendant by the exercise of reasonable care.

110. Although the anxiety state which immediately followed the panic attack and the panic attack itself were both caused by the defendant's action in posting the plaintiff to Venezuela and committing him to live and work there, and although those conditions constituted damage which would otherwise be compensable, the plaintiff's claim must fail. In my view, there was no breach of the duty of care in tort, nor, if it need be added, the duty in contract.

111. There will be judgment for the defendant and unless the parties wish to be heard, I propose to order the plaintiff to pay the defendant's costs in the ordinary way.