JONES v DAPTO LEAGUES CLUB LIMITED [2008] NSWCA 32 (18 March 2008)

Last Updated: 20 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
JONES v DAPTO LEAGUES CLUB LIMITED [2008] NSWCA 32


FILE NUMBER(S):
40867/06

HEARING DATE(S):
4 December 2007

JUDGMENT DATE:
18 March 2008

PARTIES:
Bryan JONES
DAPTO LEAGUES CLUB LIMITED

JUDGMENT OF:
Mason P Beazley JA Bell JA

LOWER COURT JURISDICTION:
District Court - Wollongong

LOWER COURT FILE NUMBER(S):
37/05

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

LOWER COURT DATE OF DECISION:
8 December 2006


COUNSEL:
Appellant: D Kennedy SC/ G Smith
Respondent: M Maxwell

SOLICITORS:
Appellant: Lough Wells Duncan - Wollongong
Respondent: McCabe Terrill

CATCHWORDS:
APPEAL AND NEW TRIAL – Appeal – general principles – interference with judge’s findings of fact – proof and evidence – other matters – where primary judge’s findings inconsistent with own findings of fact and evidence
EVIDENCE – Burden of proof, presumptions and weight and sufficiency of evidence – uncontradicted evidence – where treating doctor’s and expert’s conclusions unchallenged – where rejected on inadequate grounds
NEGLIGENCE – Occupier’s liability – dangerous premises – injuries to person entering premises – live open light socket at pub – electrocution of patron at pub – causation – damages

LEGISLATION CITED:
Civil Liability Act 2002

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
Appeal upheld



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40867/06

MASON P

BEAZLEY JA

BELL JA

Tuesday 18 March 2008

Bryan JONES v DAPTO LEAGUES CLUB LIMITED

JUDGMENT

1 MASON P: The claimant recovered a verdict for $700 in the District Court. Damages, assessed at $2,000 solely for past out of pocket expenses, were reduced by 65% for contributory negligence.

2 The proceedings were subject to the Civil Liability Act 2002 (the Act).

3 The claimant was playing pool at the Dapto Leagues Club on 6 July 2002. Adjacent to the pool table was a barrier in the form of a picket fence on which there were lights on the fence posts. There was a light socket into which a bulb could be screwed. Over and around the bulb was fixed a spherical-shaped lamp.

4 On one of the posts was an exposed socket which lacked both bulb and lamp.

5 A companion of the claimant, Mr Scremin, who was an electrician by trade, drew the claimant’s attention to the danger of electrocution. The claimant jokingly said that he was going to place his fingers into the socket. He had consumed a reasonable quantity of alcohol at the time.

6 Mr Scremin then told the supervisor at the Club, Mr Venables, that he could have an insurance claim if injury was suffered. Mr Venables removed from its socket the plug that serviced the line of lights on the picket fence. He then went off to arrange for an “out of order” sign for the defective power socket, but was distracted by another matter.

7 During the ensuing period of approximately 20 to 30 minutes the claimant placed two fingers in the empty light socket and suffered an electric shock that burnt his middle finger. The claimant fell to the floor, momentarily unconscious. He was aware that the power had been turned off but no one in his group realised that someone (probably a Club employee) reconnected the power shortly afterwards. It was not put to the claimant that he had placed his finger deliberately into the exposed socket, let alone had done so knowing that the power had been reconnected. The claimant’s earlier remark that had prompted Mr Scremin to warn the Club duty manager was found to have been made in jest (J28(3)).

8 The claimant was taken to hospital by ambulance and subsequently received extensive treatment for what his psychiatrist, Dr Pakula, diagnosed as post-traumatic stress syndrome (PTSD).

9 All of the medical reports were tendered without any doctor being required for cross-examination. The differing recorded histories and the different diagnoses reached by the doctors made the trial judge’s task a difficult one.

10 The claimant seeks leave to appeal as to contributory negligence and damages. The opponent seeks leave to cross-appeal as regards the rejection of its defence invoking s50 of the Civil Liability Act and on the issue of causation. This Court heard full argument as on an appeal.

Liability, causation and contributory negligence
11 Judge Delaney found that the Club was negligent as occupier. Although there is an application for leave to cross-appeal, the Club does not challenge this particular finding. Rather it contends that the claimant’s injuries were self-inflicted by a deliberate act; alternatively, any negligence on the Club’s part was not causative of the injuries; alternatively, there should have been a finding of 100% contributory negligence.

12 In light of Mr Scremin’s explicit warning, it was put to the claimant in cross-examination that he had acted deliberately in putting his fingers into the light socket. But there was no finding to this effect. On the contrary, the Judge concluded that the claimant had been joking when he said that he was going to place his fingers into the light socket.

13 Although Judge Delaney concluded that the claimant’s evidence as to the manner in which the accident occurred was both inaccurate and unreliable (J26), there were findings relevant to the liability issues that lead me to disagree with his Honour’s conclusions on contributory negligence and to reject the cross-appeal on causation.

14 At J43 the judge found that the claimant was aware that the power had been disconnected to the lights on the picket fence.

15 As evidenced by the accident itself, clearly someone turned the light back on before a replacement globe was inserted, or any warning given by the Club, or any other steps were taken to prevent patrons from accidentally touching the exposed socket (J28(8), 43). His Honour found that “it appears that no one was aware that someone had reconnected the power” (J43). This finding was supported by the evidence of the claimant and of Mr Scremin.

16 In fact the claimant was found to be as ignorant as anyone else around the pool table that the exposed socket had once again become the danger that Mr Scremin had earlier pointed out. There was no finding that he placed his hand deliberately into the socket, let alone knowing that it had become live again. True it is that the reconnection of the plug must have had the effect of turning on all of the functioning lights on the picket fence. But this illumination happened behind the claimant’s back. There is no evidence to support a conclusion that the claimant should have realised the power was back on. His failure to take any special precautions against accidentally placing his fingers in the exposed socket was due to his ignorance that the power had been switched on again.

17 The opponent’s cross-appeal on the injury being self-inflicted and on causation must fail in light of these findings.

18 As to contributory negligence, ss5R and 5S of the Act provide:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim

In determining the extend of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

19 The judge assessed contributory negligence at 65% for the following reasons:

43. The plaintiff was aware that a globe was missing from the light socket and that one could suffer an electric shock if ones fingers were placed in the light socket if the power was on. The plaintiff was aware that the power had been disconnected to the lights on the picket fence, but it appears that no one was aware that someone had reconnected the power.

44. Mr Delia and Mr Scremmin’s evidence confirmed that it would be difficult for a person to accidentally place their fingers in the light socket but I am satisfied that is precisely what the plaintiff did. Here, the plaintiff placed his middle finger, at the very least, inside the empty light socket. He either did this deliberately or with so little regard for his own safety that he did not think about what he was doing. He stepped back from the pool table and leant on the fence, putting his fingers into the light socket. In my opinion, this was a reckless act which significantly contributed to the accident. With the knowledge the plaintiff had before the event occurred, there can be no doubt that his action was a significant cause of the injury he suffered, and not a momentary inattention.

20 In my view, the claimant has made good his challenge to these findings. There should not have been a reduction of damages for contributory negligence, in essence because the findings in J43-44 are internally contradictory and cannot, in any event, stand with the findings as to liability for negligence that I have already summarised.

21 Accordingly, the finding of contributory negligence ought to be set aside.

22 This conclusion would only boost the claimant’s damages by $1300 if the trial judgment’s assessment stands. There would be a real question about granting leave to appeal if that were all that was at stake.

Intoxication
23 The judge found that the plaintiff had consumed a quantity of alcohol (J28(4)) and was in some form affected by alcohol at the time the event occurred (J20).

24 Section 50 of the Act provides:

(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

25 Section 50 was not invoked in the pleadings but it appears to have been raised in argument at trial. Judge Delaney found that the requirements of the section had not been made out, for the following reasons:

40. Has the defendant established that the plaintiff was at the time he was injured intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired? Section 50(2) provides that the court is not to award damages unless it is satisfied that the event is likely to have occurred even if the person had not been intoxicated. In my opinion, the evidence establishes that while the plaintiff was affected by alcohol, this was not to the degree that his capacity to exercise reasonable care and skill was impaired. Indeed the defendant’s case was that he deliberately placed his fingers into the light globe socket and had the capacity to be mischievous by telling Mr Scremmin he was going to do so. In my opinion, any intoxication issues go to the question of contributory negligence and not to breach of duty.

26 The opponent submits that the reasoning disclosed in the third sentence of this passage does not address the issue posed by s50(2).

27 I accept that the reasoning might have been more clearly expressed, but have concluded that J40 as a whole should be read as addressing s50(2) and explaining why the court was in effect satisfied in accordance with that provision.

28 In my view, the conclusion rejecting the impact of intoxication upon the injury was open to the judge. It has not been shown to be wrong. There was really no evidence about the extent of the claimant’s alcohol consumption on the day in question. Neither he nor his companions were challenged on this topic in cross-examination.

Damages
29 There is no claim for economic loss apart from out of pocket expenses.

30 The principal component of the damages claim relates to non-economic loss. The judge made no award on this account because he rejected the claims that PTSD and brain damage were caused by the accident. He also found that the psychological effects of the shock had ceased by the end of 2003 or early 2004. These are the substantive findings challenged in this part of the appeal.

31 The Act stipulates that assessment of damages is to be by reference to the severity of the claimant’s non-economic loss as a proportion of a most extreme case. No damages for non-economic loss are recoverable unless the severity of such loss is at least 15% of a most extreme case (s16(1)).

32 The claimant’s general practitioner referred him to Dr Irwin Pakula, a consultant psychiatrist.

33 Dr Pakula began treating the claimant on 6 November 2002 and saw him on average every two to three months between then and May 2006. Three reports from him were put into evidence and he was not cross-examined.

34 Dr Pakula diagnosed PTSD based upon the DSM IV diagnostic criteria. He summarised the diagnosis as follows in a report of 2 August 2003:

Mr Bryan Jones was exposed to a very traumatic event, in which he was electrocuted whilst at a pub, and was rendered unconscious at that time and required treatment.

35 His diagnosis and treatment were based upon a history of the accident provided by the claimant; information from the claimant as to prior medical condition and pre-accident levels of alcohol consumption; reported symptoms consistent with PTSD; and his observations of this regular patient.

36 As to the accident itself, Dr Pakula recorded that the electric shock meant that the claimant was “seen by his friends lying on the floor in what seemed to be an unconscious state”, this being a reference to the immediate impact of the shock.

37 As to prior medical history, Dr Pakula recorded (with apparent acceptance) a history that the claimant had “never had any previous treatment by a psychiatrist, nor ... any previous psychiatric hospital admissions. Bryan has not had any counselling or psychological assistance by any category of counsellor in the past”. In his latest report, dated 6 May 2006, Dr Pakula recorded that the claimant had never suffered from a psychiatric disorder prior to the accident.

38 Regarding alcohol consumption, Dr Pakula noted in his report of 2 August 2003 that the claimant consumed about three to four standard drinks of alcohol, on about three to four days per week.

39 As regards post-accident symptomology, Dr Pakula (in his first report of 2 August 2003), recorded with acceptance the following symptoms based upon five sessions with the claimant:

2. Recurrent and intrusive distressing recollections of the event, which are best described as flashbacks or memories of the event, and the following events after the electrocution.

3. Mr Bryan Jones has had recurrent distressing and very vivid dreams following the episode of the electrocution, and

4. Mr Jones shows evidence of marked physiological reactivity, particularly marked hyper-arousal, and a very increased startle response.

40 Other symptoms which had become associated with the trauma of the electrocution experience included a marked diminution in interest and participation in usual significant activities, a sense of feeling detached, a restricted range of mood, and occasionally an impending sense of the claimant’s own death. Furthermore, the claimant had suffered from “marked anxiety, symptoms of depression, marked anhedonia, and quite severe headaches”.

41 Dr Pakula treated the claimant with a combination of cognitive behavioural therapy and the use of psychopharmacology. Medicine included Deptran, an anti-anxiety medication.

42 Dr Pakula concluded that there was a clear causal relationship between the PTSD and the accident. He recommended continuing psychiatric treatment involving visits every two to three months, coupled with more intensive treatment from a psychologist to implement cognitive behavioural therapies.

43 Dr Pakula’s latest report is dated 6 May 2006. He adhered to the PTSD diagnosis, recording that, even with treatment, the claimant still continued to have a significant number of symptoms of this disorder. By way of update Dr Pakula reported:

A short time after I had written the report on the 2nd August 2003, there had been some deterioration in Bryan’s behaviour. He had marked problems sleeping, poor concentration, alcohol use varying from none at times to up to 10 schooners per day and he continued to have headaches. At one particular time he had some serious problems with having visual hallucinations of seeing faces, particularly at night.

I introduced the medication Seroquel 100mg at night, as well as continuing with his antidepressant medication of Deptran. The medication took away the visual hallucinations and also calmed and settled Mr Bryan Jones quite markedly. Over the period of time that I’ve continued to see him, there has been quite a substantial improvement in his ability to sleep. There has been no recurrence of the visual hallucinations, and Bryan has been able to cut back on his alcohol use most of the time (though occasionally he does drink heavily for periods of time as well). Bryan has been able to cope financially and socially.

Mr Jones began to make some attempts to improve his health in 2005. For a period of time he had given up alcohol completely, had been walking and exercising and losing weight. His sleep and mood were much better, and there was far less suicidal ideation.

At my last assessment on 19th April 2006 I was quite happy with his progress. Bryan continues to occasionally have nightmares where he sees “horrible faces” however, these are diminishing significantly. His appetite is very good, and his sleep is much better. Bryan does not hear any voices in his head. There was no evidence of any psychotic phenomena, no delusions, no hallucinations, and no affective instability. Bryan had no homicidal or suicidal ideation. Bryan continues to have a rather short fuse, and I understand he was recently involved in an altercation with a friend who laughed at him. Mr Jones continues to described problems with his memory particularly his short-term memory.

In terms of the Post Traumatic Stress Disorder, Bryan appears to be improving quite markedly. He still has some intrusive and distressing recollections of the event, as well as some flash-backs or memories of the event, but these are lessening over time. The vivid dreams are also lessening, and he is not as hyper-aroused as he was in the first couple of years after the incident. His startle response does not appear to be as extreme as before. Bryan appears to be much calmer and much more settled.

At the present time my plan is to see Mr Jones every 3 months; to continue with his antidepressant medication of Deptran, and to continue giving him the Seroquel medication to help keep him calm and settled. From my point of view the Post Traumatic Stress Disorder is largely under control, though not completely. I will need to see Mr Jones on a regular basis of once every 3 months. The cost of this is approximately $200 every three months, and the cost of his medication will be approximately $20 per month.

Presently I do not believe that Mr Jones could return to any form of employment, either on a part-time or full-time basis.

44 Since the accident the claimant and his wife have separated. The claimant believes that this was due to his marked irritability and anger.

45 The primary judge reviewed the medical evidence contained in the various reports. His Honour concluded by stating his preference for the evidence Dr Parker, a medico-legal consultant qualified by the Club whose conclusions, generally adverse to the claimant, were based upon his review of the claimant’s specialists’ reports.

46 His Honour’s rejection of the claimant’s doctors stemmed in large part from his rejection of the histories upon which their opinions were based. Judge Delaney found that the claimant did not know exactly what happened to his body immediately after he suffered the electric shock. He was satisfied that the claimant's comments to various doctors on the history of the event, including the comment that he was thrown backwards onto the floor and hit his head, was "a reconstruction of the events that is not supported by any objective evidence" (J20).

47 This broad statement is to be compared with findings by way of summary in which, the judge concluded (J28, emphasis added):

(9) That the plaintiff placed his fingers in the empty light socket and suffered a shock, falling to the ground.

(10) That he suffered a burn to his middle finger without anything other than a momentary loss of consciousness and without head injury.

48 His Honour rejected most of the evidence of Dr Pakula, stating (J51-53):

51. The psychiatrist, Dr Pakula reviewed the plaintiff over a number of years after the incident. He concluded that the plaintiff had a post traumatic stress disorder based on the history given to him that the plaintiff had been rendered unconscious, thrown backwards and hit his head. He tended to ignore the plaintiff’s pre-existing serious psychological problems and health difficulties in coming to the conclusion that it was the incident that caused the plaintiff’s problems. I find that the history the plaintiff gave to Dr Pakula about the way the incident occurred is a reconstruction of the events and led Dr Pakula to an incorrect diagnosis of post traumatic stress disorder.

52. It seems to me that Dr Pakula recognizes this when he states that in 2006 the plaintiff had become a schizophrenic with depression and had suffered symptoms as a result of alcohol abuse. I am satisfied on the balance of probabilities that this diagnosis is based on the history of the plaintiff’s lifestyle and not from any effects of the incident at the club.

53. The history indicates that the plaintiff had a 40-year history of heavy drinking. He has suffered marriage breakdowns, hypertension, gout, high cholesterol and arthritis. Whilst he may have had some anxiety after the shock, I find that the evidence does not support that from 2002 to 2006 he had any continuing symptoms requiring psychiatric treatment that were specifically related to the incident of 6 July 2002 at the club. In my opinion, any psychological effects of the shock had resolved either by the end of 2003 or early 2004 when Mr Anthony saw him.

49 When dealing with out-of-pocket expenses, the judge found that the psychological effects of the shock had ceased at least by the end of the year 2003 or early 2004 (J47). This also entailed rejection of Dr Pakula's diagnosis in his report of 6 May 2006.

50 The claimant submits that these findings failed to give proper weight to the unchallenged evidence of the treating psychiatrist who had been seeing the claimant every 2 or 3 months between January 2003 and May 2006. Three other doctors were of a similar view and their opinions were also rejected on inadequate grounds, it was submitted.

51 I accept these submissions, for the reasons that follow.

52 I do not accept the judge’s view that Dr Pakula tended to ignore the claimant’s pre-existing serious psychological problems and health difficulties. On the contrary, the specialist addressed the claimant’s prior history and accepted that there had never been any previous psychiatric treatment or diagnosis of psychiatric disorder in the past. Nothing in the evidence indicates that this was untrue. Treatment for “depression” - to which the respondent points - is not the same as psychiatric disorder, absent elucidation.

53 Dr Pakula’s latest report of 6 May 2006 does not retreat from the diagnosis of accident-induced PTSD, albeit that it records marked improvement. The report provides nothing that would, in my view, entitle a layman to have formed the diagnosis that appears at J52. (I consider below whether the judge’s conclusion should be supported on the basis of Dr Parker’s report.)

54 The statement in the first sentence of J52 (set out above) appears to derive from a short report of Dr Pakula dated 19 April 2006 in which he lists in point form a diagnosis of:

• Schizoaffective Disorder

• Post Traumatic Stress Disorder

• Degressive Symptoms

• Alcohol Abuse.

55 The report refers to the patient as continuing to have nightmares of seeing faces described as “horrible”. The claimant’s current psychiatric medication was Deptran and Seroquel.

56 In my opinion, this abbreviated report provided no basis for a lay diagnosis attributing the claimant’s present condition to “the history of the plaintiff’s lifestyle” (J52). Nor did it justify the judge in confining himself to two of the four conditions diagnosed. At worst for the claimant, it showed Dr Pakula’s awareness of a history of alcohol abuse.

57 His Honour dismissed the supporting conclusions of the claimant's general practitioner, Dr DeHavilland, in his report of 2004 on the basis that "he was merely recording some of the opinions expressed by Dr Pakula" (J54). On the contrary, Dr DeHavilland made his own observations and recorded them in his medical records. His diagnosis included PTSD and anxiety disorder before he referred the claimant to Dr Pakula (see WB 189-190).

58 Mr Anthony is a clinical psychologist. He reported that neuropsychological assessment indicted a number of conjunctive defects, including memory gaps. In his view they indicated organic brain damage which appeared to arise from the accident in which the claimant suffered electrocution and head injury. Mr Anthony diagnosed PTSD with reduced symptoms by the time of testing.

59 The judge recorded (at J55) that the claimant was seen by Mr Anthony in 2004. His Honour noted that Mr Anthony thought that the claimant had a post traumatic stress disorder, although the symptoms had improved by the time he saw him. The implicit rejection of this report (at J55) is presumably explained by the finding at J53 that "the evidence does not support that from 2002 to 2006 [the claimant] had any continuing symptoms requiring psychiatric treatment that were specifically related to the incident of 6 July 2002 at the club. In my opinion, any psychological effects of the shock had resolved either by the end of 2003 or early 2004 when Mr Anthony saw him." This conclusion cannot stand if the opinion of the treating psychiatrist, Dr Pakula, is itself to be accepted.

60 The opinions of Dr Teychenne, a neurologist were also considered and effectively rejected by the judge (J56-61). The 26 May 2004 report of Dr Teychenne, who also diagnosed a traumatic brain injury with continuing cognitive deficits, was rejected on the basis that (J61):

the plaintiff has no memory of the mechanism of his fall, and no one gave evidence of him being 'thrown backwards' or striking his head on the ground.

61 In fact, the claimant himself had given evidence that he hit his head (WB 49) and this evidence was unchallenged in cross-examination. The mechanism of the fall, including whether the claimant hit his head, is insignificant in itself. The judge found elsewhere that the claimant fell to the ground (J28(9)). There is a record in the hospital notes that the claimant complained of headaches when he arrived there after the accident. Other witnesses gave unchallenged evidence about seeing the claimant lying on the ground after the shock.

62 Dr Teychenne’s history of the accident was that the claimant was apparently thrown back about three metres, apparently landing on the back of his head with loss of consciousness. The claimant told Dr Teychenne that he had no recollection of these matters and was therefore presumably reporting something he had been told.

63 In his 26 May 2004 report, Dr Teychenne referred to a work called Alexander on Neurology which described mild traumatic brain injury as head trauma due to contact forces or due to acceleration/deceleration trauma, a brief duration of loss of consciousness usually seconds or minutes and in some cases no actual loss of consciousness but simply a brief period of dazed consciousness. Dr Teychenne inferred such an injury (WB 197), basing the diagnosis on evidence about memory function deficit and other matters. He moved to a diagnosis of PTSD, recording his recognition that the claimant drank up to five schooners of beer a day. There was no clinical evidence suggestive of “excessive alcohol intake”.

64 Judge Delaney had found “momentary loss of consciousness” (J28(10)).

65 The matters to which I have drawn attention show why the learned judge was not, in my view, justified in rejecting Dr Teychenne’s diagnosis as depending on the false basis of the claimant having been rendered unconscious in the accident. Nor did Dr Teychenne ignore the concurrency of alcohol consumption as part of the background of a patient who presented with symptoms including aggression, depression and memory deficits.

66 Dr Teychenne’s diagnosis also proceeded upon the basis of accepting the claimant’s statement that he had not been aware of a memory problem prior to the injury and had not been lost or disoriented prior to the injury (WB 200-1). The judge stated that this was not the evidence of the claimant (J57). Senior counsel for the claimant questioned the accuracy of this statement and we have not been referred to any evidence supporting his Honour’s observation.

67 Dr Teychenne concluded by stating his agreement with Mr Anthony’s findings that the claimant’s impairments (as at November 2004) were consisted with organic brain damage resulting from the electrocution and head injury.

68 A report of 26 October 2006 from Dr Teychenne shows that doctor’s awareness that the claimant had attended an AA meeting in 2004. Dr Teychenne nevertheless rejected Dr Parker’s conclusion that the claimant was an alcoholic. He agreed that Mr Jones probably drank excess amounts of alcohol but did not consider that his alcohol intake was the cause of his neurologic syndrome. In so observing, he repeated the history of “head injury” stemming from the claimant having been thrown back and landing on the back of his head with the next memory being the presence of ambulance men around him.

69 Dr Teychenne observed that “there was a question that the patient was unconscious during this period of time”, but he adhered to the diagnosis of traumatic brain injury regardless of how that question was resolved (WB 251). This report also based its conclusions about alcohol upon the absence of cerebral atrophy and other diagnostic matters (WB 251-2).

70 His Honour does not appear to have rejected the claimant’s unchallenged evidence concerning post-accident headaches. As indicated, he accepted that there was “momentary loss of consciousness”.

71 Dr Parker is a medico-legal consultant. He is an assistant professor at the Faculty of Health Sciences and Medicine at Bond University.

72 He took from the claimant a history that the shock threw the claimant three to four metres across the room and rendered him unconscious for about 20 minutes. Present complaints were intermittent headaches mainly in the frontal area occurring two to three times a week and relieved by Panadol. On this basis, Dr Parker in his report of 26 May 2005 diagnosed moderate head injury sustained in the accident.

73 Later, Dr Parker was supplied with various hospital records relating to relatively minor accidents before the incident in question, as well as the records of the observations and treatment at the hospital in the days following the electric shock. This did not change his opinion.

74 Later still he was provided with the various medical reports tendered by the claimant including those of Dr Pakula and Dr Teychenne. His review of them appears to have triggered a significantly revised diagnosis. Dr Parker felt himself unable to comment on reports from Dr Teychenne or Mr Anthony because “I am not a psychiatrist or psychologist and thus, it may be advisable for this man to be reviewed by an independent psychologist and/or neuro-physician”. He contented himself with noting that “Dr Teychenne makes no mention of Mr Jones’ alcoholism”.

75 Dr Parker felt himself unable to comment on a report from Dr Teychenne discussing a report of Mr Anthony. He twice pointed out that he was not a clinical psychologist or a neuro-physician. As regards Mr Anthony’s opinion that the claimant’s cognitive impairments indicated organic brain damage, Dr Parker stated (WB 271):

It may be advisable for this man to be reviewed by an independent neuro physician and/or an independent clinical psychologist because it does seem that the findings of Mr Anthony could be due to long standing chronic alcoholism of the patient and “early cerebral atrophy as described in the CT brain report from South Coast Radiology which was undertaken on September 24, 2002.

76 Dr Parker expressed the following opinion (WB 271):

After considering all the information that you sent me on September 8, 2006 and reviewing my original reports to you dated May 26, 2005 and June 7, 2005, it is my view that the present picture stems from chronic alcoholism and “early cerebral atrophy” as noted in the CT scan report of the brain at South Coast X-ray on September 24, 2002. This examination was performed two to three months after the incident that occurred on July 6, 2002.

It is my view that the incident of the electrocution on July 6, 2002 and the period of amnesia did not cause the present symptomatology.

It may be advisable for this man to be reviewed by an independent neuro-physician and/or independent psychologist or psychiatrist.

With regard to whether my previously expressed views in relation to the Plaintiff are changed or unchanged, may I comment as follows.

Referring to my report to you dated May 26, 2005, Page 4, number vi, where you ask me whether “Details of any pre-existing medical conditions or other injuries which may affect the Plaintiff’s present condition”. In view of the extra information that you have provided me, there is a very important pre-existing condition of chronic alcoholism, which affects the Plaintiff’s present condition.

The answers to your other specific questions on Page 4 of my report of May 26, 2004 are unchanged.

Referring to the “Amended statement of particulars and personal injury proceedings” it s my view that the incident did not cause brain injury and I am of the view that the multiple symptoms complained of by the patient stem from his chronic alcoholism and brain age related changes.

77 Like the trial judge, this Court is faced with conflicting medical opinions from experts who have not been cross-examined. Yet neither party pressed for a new trial, understandably so. Each was content for this Court to do its best to assess damages if it concluded that the assessment below should not stand.

78 In these circumstances, I am persuaded to disagree with the judge’s conclusions. I express my preference for the opinions of the claimant’s experts on the issues of absence of prior psychiatric symptomology and the rejection of a diagnosis that brain damages stemmed from alcoholism. I am not saying that Dr Parker’s conclusions were not open to be accepted, but I prefer those of the treating specialist and the claimant’s experts Dr Teychenne and Mr Anthony, especially in light of Dr Parker’s own frank acknowledgment of the limits of his expertise. There is no evidence that the claimant suffered the symptoms of dizziness, headaches, bad dreams, flashbacks and an impending sense of death prior to the accident.

79 The symptoms that presented severely in the couple of years after the accident stemmed from the accident, not the claimant’s lifestyle. He had been a heaving drinker, but the better view is that his post-accident suffering stemmed from the shock, the blow to his head and the temporary unconsciousness found by the judge. In so concluding, I do not discount entirely the impact of the long history of excessive drinking upon the quality of the claimant’s lifestyle now and into the future.

80 Fortunately, there has been an improvement in the symptoms. The appellant said that his dizziness had got better in the last 12-18 months, he was no longer having dreams, visions and flashbacks and his temper had cooled. Within a short period, the claimant reverted to his regular visits to the Club.

81 At trial the claimant submitted that damages for non-economic loss should be assessed in the range of 28-30%.

82 Doing the best I can I would assess damages on the basis of 23% of a most extreme case. This amounts to $22,000.

83 The claimant sought to recover $2141 for past out of pocket expenses. This was rounded down by the judge to $2000 for reasons stated at J47. I accept the rounded down figure of $2000 for past out of pocket expenses.

84 There is one additional damages component stemming from the overturning of the findings as to the nature of the claimant’s injuries. It relates to a claim for future out of pocket expenses. The claim in $6,651.85 calculated as per a schedule handed to the Court. I do not understand the mathematics to be in dispute, nor the claimant’s entitlement to these expenses if the diagnosis of Dr Pakula is accepted. I accept those calculations.

85 Accordingly, the damages are calculated as follows:

Past out of pocket expenses $2000

Future out of pocket expenses $6652

Damages for non-economic loss $22,000

$30,652

86 If there are any mathematical errors they should be notified to the Registrar within 7 days.

Disposition
87 Accordingly, I propose the following orders:

1. Opponent’s application for leave to cross-appeal dismissed with costs.

2. Grant leave to the claimant to appeal subject to the filing of a notice of appeal within 7 days.

3. Appeal upheld.

4. In place of the verdict for the plaintiff in the sum of $700 enter a verdict and judgment in the sum of $30,652, to take effect from 8 December 2006.

5. Respondent to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951, if qualified.

88 BEAZLEY JA: I agree with Mason P.

89 BELL JA: I agree with Mason P.

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LAST UPDATED:
19 March 2008