HART v CASHMAN & EVERINGHAM [2010] NSWCA 5 (9 February 2010)

Last Updated: 10 February 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
HART v CASHMAN & EVERINGHAM [2010] NSWCA 5


FILE NUMBER(S):
40465/2007

HEARING DATE(S):
07/09/2009

JUDGMENT DATE:
9 February 2010

PARTIES:
Barry Francis Hart - Appellant
Peter Cashmand and Roland Everingham - t/as Cashman & Partners - Respondents

JUDGMENT OF:
Handley AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
CA 40465/07

LOWER COURT JUDICIAL OFFICER:
Registrar Schell

LOWER COURT DATE OF DECISION:
09/07/2009


COUNSEL:
J L Sharpe - Appellant
D Nock SC & B Shields - Respondents

SOLICITORS:
The People's Solicitors - Appellant
HWL Ebsworth - Respondents



CATCHWORDS:
PRACTICE and PROCEDURE – appeal – extension of time –intending appellant impecunious – prejudice to respondent - prospects of success required.

LEGISLATION CITED:
Supreme Court Act

CATEGORY:
Procedural and other rulings

CASES CITED:
Abalos v Australian Postal Commission [1990] HCA47; 170 CLR 167
Cole v The Commonwealth [1961] HCA 87; 106 CLR 653
Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Dearman v Dearman [1908] HCA 84; 7 CLR 549,
Gallo v Dawson [1990] HCA 30; 64 ALJR 458
General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394, 404
Smith v Chadwick (1884) 9 App Cas 187
Tomko v Palasty (No. 2) [2007] NSWCA 369, 71 NSWLR 61
Vakauta v Kelly [1989] HCA 44; 167 CLR 568

TEXTS CITED:


DECISION:
The plaintiff’s notice of motion of 31 July 2009 is dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40475/2007

HANDLEY AJA

Tuesday 9 February 2010

HART v CASHMAN & EVERINGHAM
T/as CASHMAN & PARTNERS

CATCHWORDS

PRACTICE and PROCEDURE – appeal – extension of time –intending appellant impecunious – prejudice to respondent - prospects of success required.

HEADNOTE

The appellant brought proceedings for professional negligence against the solicitors who had acted for him between 1992 and 1996 in his appeal, on the ground of inadequacy of damages, from verdicts and judgment in his favour in a jury trial heard in 1980. The causes of action in tort arose in 1973. The appeal was dismissed in 1996 and the High Court refused special leave. The appellant alleged that, as a result of the solicitors’ negligence, he had lost the chance of obtaining a new trial as to damages, and lost the chance of obtaining additional damages at the new trial.

The appellant’s claim against his solicitors was based on their failure to bring before the Court of Appeal in 1995 a claim that he had suffered from post-traumatic stress disorder (PTSD) since 1973 as a result of the original wrongs. This had not been diagnosed because PTSD had not been recognized as a psychiatric illness until the publication of DSM-III in 1980 after the trial. The appellant was first diagnosed by a psychiatrist with PTSD in 1993, but in 1992 another psychiatrist had examined him and made a different diagnosis. The Judge dismissed the action after a 13 day trial having found that the plaintiff had not suffered from PTSD between 1973 and 1992 and was not suffering from it at the time of the first trial in 1980.

The defendants had already incurred substantial costs without any prospects of recovery because the plaintiff was impecunious. The plaintiff’s application for an extension of time for an appeal as of right was refused by the Registrar and he applied for a review of this decision. HELD: (1) The applicant had to displace the respondents’ vested right to retain the judgment; (2) The applicant had to establish that his proposed appeal had prospects of success; (3) The applicant’s remedy, if successful on the proposed appeal would be a new trial limited to damages; (4) The applicant’s damage allegedly suffered as a result of the negligence in question was the loss of the chance of obtaining damages for the PTSD he had suffered since 1973 as a result of the original wrongs; (5) In the quite exceptional circumstances of this case the Court would scrutinise the proposed grounds of appeal with more than usual care; (6) The applicant could not displace the Judge’s finding that he had not suffered from PTSD between 1973 and 1992; (7) None of the proposed grounds of appeal had realistic prospects of success; (8) An extension of time for an appeal should therefore be refused and the application for review dismissed.

ORDERS

The plaintiff’s notice of motion of 31 July 2009 is dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40475/2007

HANDLEY AJA

Tuesday 9 February 2010

HART v CASHMAN & EVERINGHAM
T/as CASHMAN & PARTNERS

Judgment

1 HANDLEY AJA: The proceedings in this Court arise from an action for professional negligence by Mr Barry Hart against Cashman & Partners who acted as his solicitors in an appeal to this Court heard in 1995.

2 On 21 March 2007 Hall J published his reasons and directed the entry of judgment for the defendants in the action. The question of costs was reserved for further submissions.

3 Mr Hart’s legal advisers made ineffectual attempts to appeal from this decision. Mr Hart himself was unwell and at various times was hospitalised for lengthy periods following the delivery of the judgment.

4 Although the question of costs was reserved the judgment ordered to be entered was final, and in the appropriate sense the proposed appeal involved a claim for more than $100,000 in damages: Cole v The Commonwealth [1961] HCA 87; 106 CLR 653. Mr Hart therefore had an appeal as of right. The material date under SCR Pt 51 r 2(1), which was then in force, was the date on which judgment was given, namely 21 March 2007.

5 On 4 April 2007, well within the 28 days for the filing of a notice of appeal, Mr Hart’s then solicitors filed a holding summons for leave to appeal. They should have filed a notice of appeal without appointment under SCR Pt 51 r 6(1)(b)(i).

6 Treating the holding summons as a notice of appeal without appointment would give Mr Hart and his lawyers a further three months within which to file a notice of appeal: SCR Pt 51 r 6(2)(a). In order to be within time, this had to be filed by 4 July 2007. This did not occur and under SCR Pt 51 r 4A(2) and 6(4) the application to leave to appeal or the appeal as the case may be was taken to be discontinued.

7 On 17 July Mr Hart’s solicitors filed a new holding summons for leave to appeal and a notice of motion seeking an extension of time for filing an application for leave to appeal. These were inappropriate steps. The documents filed did not include a draft notice of appeal.

8 On 30 July, the return date of that notice of motion, Mr Hart was ordered to file a draft notice of appeal by 28 September 2007. This was not done until 4 February 2008 more than 4 months out of time and over 10 months after the material date.

9 On 16 May 2008 Mr Hart filed another notice of motion, which superseded that of 17 July 2007, seeking leave to file an amended notice of appeal and an extension of time.

10 The second notice of motion was heard by the Registrar on 21 July 2008. He gave judgment on 9 July 2009 dismissing the motion with costs.

11 On 31 July Mr Hart filed a notice of motion for a review of the Registrar’s decision under s 121(3) of the Supreme Court Act and UCPR Pt 49.9. This came before me for hearing on 7 September 2009 when I reserved my decision. The principles on which the Court acts in reviewing a decision of the Registrar were recently considered in Tomko v Palasty (No. 2) [2007] NSWCA 369, 71 NSWLR 61.

12 The current proceedings are the latest in a long history of litigation arising out of Mr Hart’s “treatment” by deep sleep therapy at Chelmsford Private Hospital in 1973 (his treatment).

13 In 1976 Mr Hart commenced proceedings against Dr Herron and the Hospital which were heard by Fisher J. and a jury of 12 in 1980 over more than 75 hearing days (CA 6/6/96 unreported p.29). The jury returned verdicts for Mr Hart, some unanimous, some by majority for $60,000. They assessed compensatory damages against both defendants of $36,000 and aggravated damages of $18,000 against Dr Herron for assault, and aggravated damages of $6,000 against both defendants for wrongful imprisonment.

14 Mr Hart appealed to this Court seeking a new trial as to damages, including exemplary damages. For various reasons, including the Royal Commission into deep sleep therapy appointed in August 1988, and with the agreement or acquiescence of the respondents for much of the time, the appeal did not come on for hearing until 21 August 1995. Judgment was delivered on 6 June 1996.

15 The Court (Priestley, Clarke & Sheller JJA) dismissed Mr Hart’s application for leave to adduce further evidence on his claim for exemplary damages, and dismissed the appeal. They held that “the arguments relating to the further material were not strong enough to justify a new trial to enable a jury to consider a claim for exemplary damages” (p.26).

16 They held that there was no error in the summing up, and the jury’s awards could not be disturbed. The High Court refused special leave.

17 The respondents acted as the solicitors for Mr Hart after 1992. He commenced the present proceedings on 21 August 2004.

18 Amended statements of claim were filed on 13 May 2005 and 15 March 2006.

19 The proceedings were heard by Hall J. over 13 days in March and April 2006.

20 Mr Hart’s initial challenge to the judgment came without delay on 4 April 2007. This lapsed, and his second challenge, out of time, came on 17 July 2007, 13 days after his first holding summons was deemed discontinued.

21 Ordinarily delays of this length would readily be excused if there was an apparently plausible challenge to the judgment below, and if the respondents were unable to point to some particular prejudice. However this is no ordinary case.

22 Delay of a more serious kind occurred in filing a draft notice of appeal. The first draft was not filed until 4 February 2008 over 10 months after the judgment of Hall J., and leave to file an amended notice of appeal was sought on 16 May 2008 nearly 14 months after that judgment.

23 The amended draft notice of appeal, which contained 20 grounds, sought judgment for the plaintiff with damages to be assessed by the Court of Appeal. However the assessment would require findings of fact that could only conveniently and justly be made after a new trial.

24 The proposed appeal would require the Court to consider the conduct of the solicitors between 1992 and 1995, between 14 to 17 years prior to the hearing before me. This is only the beginning. The damage suffered by Mr Hart was the loss of the chance of a new trial following the first in 1980, 29 years prior to the hearing before me. The underlying causes of action for which Mr Hart sought increased damages, arose in 1973, 36 years prior to the hearing before me.

25 A new trial as to damages would require the Court to consider what Mr Hart lost as a result of the negligence of the solicitors, assuming that was established.

26 This would be the chance of an increased verdict against the original defendants if the Court of Appeal had granted a new trial in 1996. The date of the notional new trial (Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394, 404) would have been 1997 or 1998, on causes of action which arose in 1973.

27 In an exceptional case like this the Court should scrutinise the merits of the proposed appeal with more care than usual before allowing this saga of litigation to continue. On the evidence of Mr Kennedy, the solicitor for the respondents, their costs of these proceedings to 28 March 2007 totalled $561,197.19. It the respondents are ultimately successful these costs, and the substantial costs incurred since 28 March 2007, will be irrecoverable. Mr Hart is an invalid pensioner who has only worked for about one month since the first trial in 1980 (CA transcript 21/8/95 p2 which was before me on the motion).

28 I should also scrutinise each of the proposed grounds of appeal to determine whether any of them are without substance and should be disallowed.

29 In Gallo v Dawson [1990] HCA 30; 64 ALJR 458, 459 McHugh J said:

“When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted ... It follows that, before the applicant can succeed in his application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”

30 In Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516, 519-21 Brennan CJ and McHugh J said:

“[I]n ... an application for an extension of time to lodge an appeal ... the respondent to the application has a vested right to retain the judgment the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent ... It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.”

31 The question was considered in Tomko v Palasty (No. 2) [2007] NSWCA 369, 71 NSWLR 61, 65 where Hodgson JA, with the approval of Ipp JA, said:

“... there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, and to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then the fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merits than merely being fairly arguable.”

If ever there could be such a case it would be this.

32 Basten JA at 74 described the relevant test as being whether the applicant “has a fairly arguable case”, and at 75 he said that an application such as this should not be treated as a dress rehearsal for the full appeal.

33 The draft amended notice of appeal contains 20 grounds of appeal. Grounds 1–7, and part of 20 relate to the Judge’s decision to accept the evidence of Mr Everingham, the solicitor with the carriage of Mr Hart’s appeal, about events at the conference with counsel on 20 February 1994 in preference to that of Mr Hart, his failure to draw Jones v Dunkel inferences against the solicitors, and his decision to admit the solicitor’s affidavit of 3 September 2003 relating to that conference.

34 Ground 8-12, 16-17, and 19 relate to the Judge’s rejection of the plaintiff’s case that his “treatment” had caused post-traumatic stress disorder (PTSD). This was not recognized as a psychiatric illness until the publication of DSM – III in 1980 after the first trial. It was first diagnosed in the plaintiff by Dr Dent in 1993, but the solicitors did not attempt to make that case to the Court of Appeal in 1995.

35 Grounds 13-15 relate to the "failure" of the Judge to disqualify himself because of his role in the Chelmsford Royal Commission.

36 The Jones v Dunkel inferences contended for were based on the failure of the solicitors to call Mr Cashman who did not have the carriage of the plaintiff's appeal (judgment para [163]), and Mr Bates. The latter was one of the plaintiff’s counsel in the trial before Fisher J., and acted with Mr R Parker QC after 1992 until both returned their briefs in March 1994 (para [178].) The Judge held that the opinion of Mr Bates was sufficiently evidenced by his written advice of 29 September 1993 and the joint letter of Mr Parker and himself of 13 October 1997: para [167]. The Jones v Dunkel grounds are without substance.

37 The challenges to the Judge’s findings about the plaintiff’s credit and that of Mr Everingham face the usual difficulties based on the Abalos principle (Abalos v Australian Postal Commission [1990] HCA47; 170 CLR 167). The only objective evidence to support these grounds is the solicitor’s admission in his evidence in chief and cross examination about his statement in para 18 of his affidavit of 25 August 1995. He there said that reliance on evidence that the plaintiff was suffering from PTSD had not been considered and relevant advice had not been received from counsel until shortly before the hearing of the first appeal. Mr Everingham acknowledges that this was incorrect: para [215(j) & (k)].

38 The Judge said that he regarded this admission as relevant but it did not undermine the otherwise favourable impression he had formed of the solicitor’s evidence on other questions.

39 He said that he had carefully scrutinised the solicitor’s evidence about this conference in the light of the correspondence, the plaintiff's own note, and the solicitor’s file note: paras [167], [169]. His scrutiny is recorded in paras [167]-[215].

40 In my opinion the plaintiff's challenge to the Judge’s acceptance of the oral evidence of the solicitor faces the full force of the Abalos principle and the falsity of para 18 of the solicitor’s affidavit of 25 August 1995 would not be sufficient, on its own, to justify the reversal of these findings by a Full Court, and the substitution of findings to the opposite effect in favour of the party with the onus of proof: Dearman v Dearman [1908] HCA 84; 7 CLR 549, 553.

41 If I were otherwise minded to extend the time for an appeal I would, for these reasons, refuse leave in respect of grounds 1-5 and the relevant part of ground 20 of the draft notice of appeal.

42 Ground 6 and parts of grounds 7 and 20 relate to the Judge's mistake in para [188]. He there said: “On 8 June 1994 the plaintiff wrote to Mr Everingham in which reference is made to his inspection of two boxes of documents regarding the 1980 [trial]. There is no reference to the issue of post traumatic stress disorder”.

43 This was incorrect. The plaintiff’s letter, which was placed before me in the respondent’s supplementary submissions of 8 September 2009 stated:

“I now have expert medical opinion that they [clonic fits, convulsions] are caused by a chronic post traumatic stress disorder”.

44 In my opinion, with respect to the drafter of the draft notice of appeal, this ground is simply nitpicking. The Judge reviewed the communications between the plaintiff and his solicitor following the conference with counsel on 28 February 1994 (para [167]). The review ran from para [168] to [195] leading to his finding that by May 1995 “the defendants were not pursuing the issue of post traumatic stress disorder in terms of the opinion of Dr Dent as expressed in his first report” (para [196]).

45 In the middle of this review, in para [185] The Judge said that “... the plaintiff accepted advice that the issue of post-dramatic stress disorder was one considered best left to be determined on a re-assessment of damages or a retrial rather than as a ground of appeal”.

46 The isolated error in describing one of the plaintiff’s letters during the period from February 1994 to July 1995 could not justify appellate interference with the inferences the Judge drew from the communications between the plaintiff and his solicitors over this lengthy period. In my opinion such an error could not possibly have occasioned ‘a substantial wrong or miscarriage’ within SCR Pt 51 r 23(1) (now UCPR Pt 51 r 51.53(1)).

47 I would, for these reasons, refuse leave in respect of ground 6 and the relevant parts of grounds 7 and 20.

48 Grounds 13-15, 17(d), 18 and 19(a) are based on the Judge’s “failure” to disqualify himself although neither party had asked him to do so.

49 The Judge appeared in the Chelmsford Royal Commission for the Attorney General of New South Wales and his predecessors. The Royal Commission was established in August 1988 and the Commissioner reported in December 1990. The plaintiff and Dr Herron gave evidence in the Royal Commission.

50 The transcript for 13 March 2006, the first day of the trial, (T16) records, at the end of Mr Arden’s opening, his Honour’s disclosure of his role in the Royal Commission and the reaction of senior counsel for the plaintiff:

“HIS HONOUR: ... I should mention to the parties, not that I can see that it has any bearing on this case, but that I was briefed many years ago in the Chelmsford Royal Commission for the Attorney General’s Department and former Attorneys General. I only put that on the record.

ARDEN: We are aware of that. It doesn’t cause us any difficulty.”

51 The trial lasted 13 days but the Judge's role in the Royal Commission was not raised again.

52 The Royal Commissioner’s report was delivered over 15 years before this trial started. Because senior counsel for the plaintiff responded as he did to his Honour’s disclosure, and “failed” to raise the matter again during the trial there was and is no evidence about the role adopted by Mr Hall during the Royal Commission. The Court does not know whether he cross-examined the plaintiff, if so for how long, and in what way and about what. The only “evidence” the Court has about the Judge’s role in the Royal Commission is the disclosure recorded in the transcript.

53 The relevant grounds of appeal make detailed assertions about the Judge’s role in the Commission. Ground 13 states that he appeared “against the plaintiff”, Ground 14 states that he was present during the entire proceedings, was acting “against” the interests of the plaintiff, and heard and “presumably” assessed the plaintiff’s evidence, cross-examined him, and made submissions about “the veracity, tenor and reliability of” his evidence.

54 Ground 15 asserts that a prudent advocate who had read the transcript of the Royal Commission would not have wanted the Judge to hear evidence by the plaintiff again and would have applied for the Judge’s disqualification because the plaintiff’s evidence “could have been remembered in a less than favourable light”. Ground 17(d) asserted that the Judge had been aware of the plaintiff’s medical reports which had been filed with the Commission.

55 Ground 18 asserted that the Judge “failed to take note that the [solicitors] had not acted with due diligence with respect to researching [the] history of the case and the evidence before the Chelmsford Royal Commission”. This was not part of the plaintiff’s case presented by his senior counsel at the trial, and it goes without saying that the Judge could not make a case for a litigant which competent advisers had not attempted to make on his behalf.

56 Ground 19 asserts that the Judge “having seen, heard and cross-examined the appellant in the Royal Commission” failed to do various things.

57 The factual assertions about the Judge’s role in the Royal Commission are not supported by evidence in the trial, and evidence about those matters could not be admitted as “fresh evidence” in the appeal.

58 It was not suggested that the Judge’s reasons for judgment evidenced any bias or pre-judgment against the plaintiff.

59 The point, if entertained and upheld, would entitle the plaintiff to a new trial, throwing away the public and private costs of the 13 day trial before Hall J.

60 The relevant principles, supported by Vakauta v Kelly [1989] HCA 44; 167 CLR 568 and other decisions, were summarised in Handley “Estoppel by Conduct and Election” 2006 p.285:

“An occasion for an election will arise if a judge ... is known to a litigant to be disqualified for interest, pre-judgment, or bias. Such a litigant who fails to take the objection at the earliest opportunity will lose his right to object if the hearing continues and the decision proves adverse. Awareness of a ground of objection to the constitution of the tribunal confronts a litigant with an election to accept or object to its authority to adjudicate. If he does not object in time the objection cannot be taken later.”

61 There was no evidence from Mr Arden SC or the plaintiff to explain what, on the face of it, was a clear election with knowledge.

62 In my judgment these grounds of appeal are utterly hopeless, and in fact are an abuse of process. I would therefore refuse leave to include them in any notice of appeal allowed to be filed out of time.

63 Grounds 8, 9, 10, 11, 12, 16 and 17 relate in whole or in part to the plaintiff’s case that the solicitors should have prepared and tendered additional evidence before the Court of Appeal in 1995 to establish that in 1980, as a result of his treatment, he was suffering from PTSD but the condition had not been diagnosed by his doctors because it was only recognized as a distinct psychiatric illness when DSM-III was published later in 1980.

64 The condition was first diagnosed by Dr Dent in September 1993, and it was submitted that evidence of this diagnosis was admissible on appeal from the 1980 jury verdict either because it was fresh evidence which could not have been discovered by his legal advisers before the trial by the exercise of reasonable diligence, or because it was evidence of events which had occurred since the trial (Supreme Court Act s 106).

65 In the end, despite some forensic skirmishing on the first day of the earlier appeal to the Court of Appeal, no application was made to adduce evidence of the plaintiff’s PTSD (Para [209]) in that appeal. It was said that the solicitors were duty-bound to pursue this avenue, that the necessary evidence could and should have been assembled, and an application made for it to be admitted on the appeal. As a result of this breach of duty it was said that the plaintiff had lost a substantial chance of obtaining a new trial as to damages and a substantial chance of obtaining an enhanced verdict at that new trial.

66 The case depended on proof that in 1980, at the date of the first trial, the plaintiff’s symptoms would have supported a diagnosis of PTSD if it had then been recognized as a distinct psychiatric illness.

67 An initial and, to my mind, insuperable difficulty with this part of the plaintiff's case, is that the whole of his evidence in the 1980 trial relating to his then complaints and symptoms, was not in evidence before Hall J because it was not tendered by his Senior Counsel.

68 As Hall J recorded (paras [71], [73]), extracts from the evidence of the plaintiff and his mother at the 1980 trial dealing with his presentation and capacity before and after his treatment were in evidence. However it was not proved or admitted that these were the whole of the relevant evidence given by the plaintiff and his mother. In July 1993 the plaintiff wrote to his solicitors saying that the transcript revealed that he had symptoms of PTSD (para [80]).

69 The plaintiff’s case at the 1980 trial was that his treatment had caused brain damage. Hall J observed (para [73]) that the medical evidence before him did not deal with whether the symptoms described in the extracts from the 1980 trial transcript, which included anxiety, sleep disturbance, difficulties in concentration and some forgetfulness, were due to brain damage or wholly or partly to another condition.

70 The only evidence of the plaintiff’s symptoms and complaints, which could support a diagnosis of PTSD in 1980, was his ex post facto evidence before Hall J. and his ex post facto history recorded by Dr Dent and others from June 1993 onwards, 13 years or more after the trial, and 20 years or more after his treatment.

71 Dr Dent’s reports of 23 September and 15 November 1993 were in evidence before Hall J. This was his only evidence because he had died before the trial. The first report focused on the plaintiff’s PTSD as a consequence of his treatment , the second dealt with the aggravating effects on his PTSD of Dr Herron’s perjury at the 1980 trial and its disclosure during the Royal Commission (para [78]).

72 Hall J noted that Dr Dent’s diagnosis was a current diagnosis as at 1993, and that he did not provide a retrospective diagnosis at any earlier time (para [87]).

73 The Judge had earlier pointed out (para [84]) that Dr Dent’s first report “does not identify any source documentation or historical material establishing the nature or the pattern of symptoms in the 20 years before 1993”, although it did refer to unidentified “transcripts” and to reports of Professor Wade and Dr Sydney Smith. These did not support a retrospective diagnosis of PTSD and Dr Dent did not claim that they did (paras [84]), [222], [235]-[238], [244]).

74 The Judge held that Dr Dent’s first report was based on the history provided by the plaintiff over five consultations in 1993 (para [221]), and was not relevantly based on any material over the 20 years after 1973 (paras [221], [223]). He also held that there was “comparatively little in the nature of contemporaneous records bridging [this] period” (para [228]), and those that did exist did not afford “evidence of contemporaneous accounts of post-traumatic stress disorder symptoms continuing ... from 1973 ... to the time of Dr Dent’s diagnosis” (paras [284],[297]).

75 The Judge reviewed the evidence of the plaintiff’s treatment after his discharge from Chelmsford Hospital in 1973, and the medico-legal evidence in the 1980 trial and the particulars of injury in proceedings brought by the plaintiff for negligent eye surgery he underwent in 1972 which were settled in 1987 or 1988 (para [233]-[ 254]).

76 The principal evidence for the plaintiff on the PTSD issue, other than that in Dr Dent's report, was given by Professor McFarlane in oral and report form. However he “was reliant upon the relevant history since 1973” provided by the plaintiff (paras [258], [259], [293]).

77 Professor McFarlane’s principal report was that dated 27 January 2005, some 32 years after the treatment. The Judge held that the earlier reports and documents referred to in this report “do not provide a factual basis for post-traumatic stress disorder operating and producing adverse effects in the period 1973 to 1980” (para [295]), or from 1980 to 1992 (para [297]).

78 In his second report of 28 February 2005 the Professor considered the report of Dr Sydney Smith of 16 January 1979 which suggested to the Professor “intrusive phenomena” associated with PTSD and significant anxiety symptoms, but there was no report at that time of the other symptoms of PTSD reported by the plaintiff in 2005 (para 291]).

79 Professor McFarlane did not have access to the transcript of the plaintiff’s evidence in the 1980 trial (para [259]), and he confirmed in cross-examination that his report did not contain “any opinion that in 1980 the plaintiff had symptoms sufficient to diagnose PTSD” (para [260], [266]). He agreed that if the plaintiff had suffered brain damage his condition in the 1970s and 1980s may not have been static and “there may have been a progressive shift” (para [265]).

80 Associate Professor Richard Clark, a psychologist, administered tests to the plaintiff in January 2005. His assessment dated 28 February that year concluded that the plaintiff’s memory difficulties were due to brain damage, but that PTSD “has been a major contributor to his mental state and related problems since Chelmsford” (paras [305]-[306]).

81 The Judge noted that the Professor’s conclusions were not based upon contemporary records that established “the nature, extent and pattern of symptoms” over the 30 year period since the plaintiff’s treatment (para [307]).

82 The plaintiff’s difficulties on the causation issue are compound by the medico-legal evidence of the psychiatrist Dr Phillips who saw the plaintiff on two occasions in 1992 (para [268]) and reported to the solicitors on 28 August that year. His report contained a summary of the plaintiff's current problems and symptoms (para [75(b)]).

83 Dr Phillips considered that the required pattern of symptoms for a diagnosis of PTSD did not exist at that time (paras [267], [270], [277]). He diagnosed “widespread irreversible cerebral damage ... as a direct consequence of hypoxia” (para [239]). This was a year before the plaintiff first saw Dr Dent. The Judge accepted Dr Phillips’ written and oral evidence (para [279]).

84 Dr Philips had the benefit of examining the plaintiff at two different stages in 1992 and 12 years later on 30 October 2004 (para [260]).

85 In his second report of 1 March 2005 Dr Phillips records the “new history of symptoms” he took from the plaintiff in October 2004 which differed from those he recorded in 1992 (paras [272]-[273], [279]). In his opinion the plaintiff’s then current symptoms supported a diagnosis of PTSD (paras [276], [278]).Dr Phillips suggested that the symptoms reported in 2004 developed after 1992 (para [275]).

86 In Dr Phillips’ last report of 23 June 2005 he accepted “a relationship between the plaintiff’s extremely adverse experiences at Chelmsford Private Hospital and the development of [post traumatic stress disorder]” (para [278]). This was not ultimately relevant because, as Hall J recorded (para [282]:

“The question as to whether there could be or was a medical explanation for a delayed onset of approximately 20 years ... was not, as earlier stated, an issue pursued in these proceedings, the plaintiff’s case having been advanced on the basis that he had the requisite symptoms since 1973. Accordingly, no attempt was made to identify a precipitating stressor event occurring after 1992.”

See also paras [28], [304(e)].

87 Since the plaintiff’s case was that he had been suffering from PTSD since 1973 and an alternative case of late onset PTSD was not litigated the “relationship” accepted by Dr Phillips in 2005 cannot assist the plaintiff on the present application. Professor McFarlane did not consider a diagnosis of late onset PTSD (para [357]).

88 Proof of causation is made more difficult by evidence of the plaintiff’s organic brain damage (paras [300], [308 (a) and (b)]), and its psychological consequences identified as anxiety, forgetfulness, difficulties in concentration and self organisation, perseveration, and depression (para [308(d)]). Dr Dent said that there was no basis on which these could be specifically attributed to PTSD.

89 The jury’s verdict in 1980 compensated the plaintiff for any organic brain damage and its consequences caused or materially contributed to by his treatment. He is not entitled to additional compensation for the same damage on proof that it was also caused or materially contributed to by PTSD caused by the same treatment.

90 Since the plaintiff’s case before Hall J. was that he had been suffering from PTSD since 1973 prior to his diagnosis by Dr Dent he had to prove substantial continuity of relevant symptoms throughout that period.

91 As Hall J. demonstrated this is not established by the documentary medical evidence that predated Dr Phillips’ examinations in 1992. The plaintiff did not tender the whole of the relevant transcript of the 1980 trial and it was not shown that his symptoms described at that trial would support a retrospective diagnosis of PTSD.

92 The earliest record of symptoms of PTSD after 1973 is that taken by Dr Dent in 1993 . The plaintiff’s history of his symptoms over the previous 20 years is not corroborated, and as the Judge found, was significantly undermined by Dr Phillips’ evidence that he had not reported those symptoms less than a year before (para [293]).

93 The paucity of medical records covering the 20 year period before Dr Dent’s diagnosis of PTSD, as the Judge noted, made a diagnosis of that condition throughout that period dependent on the plaintiff’s own history of his symptoms, with the risk of distortion through the passage of time (para [250]).

94 The Judge held that in 1995 the Court of Appeal would not have been prepared to act on the plaintiff’s evidence about his symptoms over the 32 year period since his treatment without corroboration from contemporary records (paras [309], [335], [353], [354]). As already noted he held that there was very little corroboration (para [335]).

95 The Court of Appeal which, heard the appeal from the 1980 trial had before it the full transcript of the trial.

96 If the plaintiff’s evidence at that trial recorded the existence of symptoms which would now support a diagnosis of PTSD it is reasonable to suppose that that transcript would have been in evidence before Hall J, and that Professors McFarlane and Clark would have been provided with that evidence, and on that basis made a diagnosis of PTSD in 1980.

97 The fact that the full transcript was not in evidence and the Professors were not asked whether it supported a diagnosis of PTSD in 1980 gives rise to inferences that such questions and the transcript on which they would have been based would not have assisted the plaintiff’s case before Hall J. This is “some evidence” that such questions “would have exposed facts unfavourable to the party”: Jones v Dunkel [1959] HCA 8; 101 CLR 298, 320-1; Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, 418-9. To the authorities there referred to may be added Smith v Chadwick (1884) 9 App Cas 187, 200 per Lord Blackburn.

98 Hall J made a positive finding that the plaintiff had not suffered PTSD during the period between his treatment and Dr Phillips’ examination in 1992. He said (para [343]):

“... the evidence not only raises a doubt about the existence of post-traumatic stress disorder as at the date of the trial in 1980, it does not, on the findings I have made, establish on the probabilities that the disorder, additional to the cerebral damage claimed at trial, in fact existed before 1980, or at the date of trial and/or continuing to the time of Dr Dent’s diagnosis.”

99 He later confirmed this finding (para [359 (8)]):

“In the circumstances of the case and for reasons already stated, I do not consider that the historical, medical and other material supports the existence of the pattern of symptoms indicative of post-traumatic stress disorder causally linked to the plaintiff’s treatment ... The evidence establishes on the probabilities that such symptoms had not in fact existed before 1992 and that such symptoms that the plaintiff did suffer were identified over many years before 1993 as associated with cerebral damage the subject of the judgment at trial.”

100 The Judge did not base these findings on his assessment of the plaintiff’s credibility as a witness, but he preferred the evidence of Mr Everingham to that of the plaintiff where their evidence conflicted (paras [160], [171], [215(d), (g)]).

101 The Judge also accepted Dr Phillips’ evidence about the symptoms the plaintiff reported in 1992 and his opinion that the plaintiff was not then suffering PTSD (para [279]). This involved the rejection of the plaintiff’s evidence that he had PTSD symptoms during the whole of the period between his treatment and his diagnosis by Dr Dent.

102 The negligence relied upon in the plaintiff’s case against the solicitors was their failure in 1995 to prepare and tender before the Court of Appeal expert and other evidence to establish that, following his treatment, the plaintiff suffered PTSD and had suffered from it ever since. This would have been in support of an application for a new trial pursuant to s 106 of the Supreme Court Act.

103 Section 106 relevantly provides:

“(1) Where ... it appears to the Court of Appeal that, because of matters which have occurred since the trial, an amount of damages awarded at the trial is manifestly ... too low, the Court of Appeal may set aside the verdict ... or judgment and may order a new trial on the issue of damages.

(2) The Court of Appeal may, if satisfied that special circumstances exist which render it desirable to do so, receive evidence as to matters which have occurred since the trial and which are relevant to the exercise by the Court of Appeal of its powers under subsection (1) and may make findings of fact as to what has occurred since the trial.

(3) ...

(4) The powers of the Court of Appeal under this section are in addition to its other powers to set aside a verdict ... or judgment or to order a new trial on an issue of damages or otherwise.”

104 Before ordering a new trial in a case such as the present the Court of Appeal must find as facts that a relevant “matter” has occurred since the trial, and because of this the amount of damages awarded at the trial is “manifestly ... too low”.

105 In the present case the relevant matter which had occurred since the trial was the recognition later in 1980 in DSM-III that PTSD was a discrete psychiatric illness. This was not in dispute.

106 The second fact that the plaintiff would have to prove was that because PTSD was later recognized the damages awarded at the trial were manifestly too low. This required the plaintiff to prove as a fact that he was suffering from PTSD in 1980. The plaintiff failed to prove this before Hall J and in fact the Judge found that the plaintiff was not then suffering from PTSD.

107 That finding is convincingly supported by:

(a) the Judge’s credit-based findings in relation to the evidence of Mr Everingham and Dr Phillips;

(b) the absence of corroboration from contemporary records for the plaintiff’s evidence about his symptoms between 1973 and 1993;

(c) the diagnosis of Dr Phillips in 1992;

(d) the absence of the 1980 transcript and of any expert evidence that the plaintiff’s symptoms described therein supported a diagnosis of PTSD.

108 This means that the plaintiff failed on the causation issue and did not establish on the balance of probabilities that he had suffered any loss from any failure by the solicitors to raise and press the PTSD issue before the Court of Appeal in 1995.

109 The grounds of appeal include a challenge to the acceptance of Mr Everingham’s evidence which has already been considered, but the other matters in para [107] are not directly challenged in the grounds of appeal and there was no application to add further grounds.

110 For the reasons given I find that the grounds of appeal directed to the negligence issue are without merit and cannot succeed because the plaintiff has no reasonable prospects of reversing the adverse finding on the issue of causation.

111 I trust that I fully recognize the unusual nature of the enquiry on which I have been engaged which the Court does not normally undertake on an interlocutory motion of this kind. However, as I have already held, this is a most unusual, indeed exceptional case where an extension of time would expose the defendants to substantial prejudice in the form of further irrecoverable expense if the appeal failed and where an appeal would absorb substantial public resources. For the reasons given I have found that the plaintiff does not have a fairly arguable case on any of the proposed grounds of appeal and that in fact the proposed grounds cannot succeed.

112 In these circumstances the need for me to reserve my judgment for some months and to express my reasons at considerable length does not demonstrate that the appeal should be allowed to proceed to a full hearing. Where the Court is invited to summarily dismiss the plaintiff’s case without a trial Barwick C. J. said in General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125, 130:

“... I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

113 This reasoning applies a fortiori in the present case where the appellant has had a full trial, and the respondents have "a vested right" to the benefit of the judgment at first instance which is put at risk.

114 The plaintiff’s notice of motion of 31 July 2009 is dismissed with costs.

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LAST UPDATED:
9 February 2010