SILLITOE v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and PRIESTLEY JJA 1 August 1991, 1 August 1991 [1991] NSWCA 246 APPEAL — agreement in trial before judge alone between parties that histories given by plaintiff to doctors were to be treated as truth of the matters stated therein — judge in reserved judgment ignores agreement and finds against plaintiff inter alia on ground that much of the history and thus the basis of medical opinion was unsubstantiated — held trial miscarried on that account — new trial ordered on conditions designed to reproduce the basis upon which the previous trial conducted. ORDERS Appeal allowed. A general new trial ordered. New trial is to be conducted pursuant to following conditions: 1. The respondent admits duty and breach but does not admit that the appellant suffered any damage. 2. The trial is to be conducted by a judge alone. 3. The new trial is to be subject to the agreement which is recorded at p 2 of the transcript of the previous trial in these terms: "Mr Gross indicated that the plaintiff would consent to the jury being dispensed with upon the agreement between the parties that the histories and complaints given to doctors were to be treated as evidence of the truth of the matters stated in those histories and complaints, subject to the defendant's right of cross-examination." 4. The costs of the previous trial are to abide the discretion of the judge hearing the new trial. Samuels JA This is a rather unfortunate case the material facts of which, however, can be shortly stated. The appellant was involved in the railway accident which occurred on 18 January 1977, and which, as Lusher AJ stated, has come to be known as the Granville train disaster. The appellant was not physically injured. But, in December 1983, he filed a statement of claim in which he sought damages from the respondent for various psychological effects of his experience, including the onset of a manic depressive psychosis and a milder psychogenic condition which was described as a post traumatic stress disorder. The action came on to be heard before Lusher AJ in March 1990. It appeared that the issue between the parties was confined to damages. The respondent admitted the existence of a relevant duty and breach, but did not admit that as a result of the breach, the appellant sustained any damage for which the respondent could be held liable. It appeared also that the appellant contended that part of his psychological condition involved his experiencing mental pain and anxiety if he were required to make a public recital of the consequences of the psychological involvement which had followed the accident. It was put that he had developed a delicate mesh of what might be described as defence mechanisms and, as a Dr Colin Seabridge said, he was extremely apprehensive about the public disclosure of his 2 UNREPORTED JUDGMENTS symptomatic experiences, and the doctor believed that a trial before a jury would subject him to a considerable amount of personal distress. There was some preliminary manoeuvring so far as the tribunal was concerned. The matter was originally fixed for hearing as a jury trial; but the plaintiff shortly before the date fixed, applied to dispense with the jury on the footing of the opinion of Dr Seabridge to which I have just referred. This application the defendant opposed. But when the matter came into the list for hearing before Lusher AJ, and a jury, the defendant applied to dispense with the jury and the plaintiff opposed this application. The course of the argument has been adequately recorded in the appeal book. After the preliminary argument of counsel had been given and Dr Seabridge's report read, counsel then appearing for the respondent indicated: "that there would be no objection to the plaintiff being asked in the witness box whether he gave a history of the account of the disaster to the doctors and if he adhered to the history, which could not be done with a jury." There was then a short adjournment during which, no doubt, counsel discussed the matter and came to an agreement which senior counsel for the respondent conveyed to the court in this way. He said: "that the plaintiff would consent to the jury being dispensed with upon the agreement between the parties that the histories and complaints given to doctors were to be treated as evidence of the truth of the matters stated in those histories and complaints, subject to the defendant's right of cross examination." Thereupon the learned judge ordered: "that the jury is dispensed with in this matter by consent and also that there is agreement as set out with both parties." I would have thought that "with" is a corruption of "by" but nothing turns upon that. The matter then proceeded, and it is material to note that early in his evidence in chief, the appellant was asked this question and gave this answer: "Q. On those occasions when you have been interviewed by doctors and you have told them these things, have you to the best of your knowledge and belief told them the truth? A. Yes." The question was not objected to, and with all respect to counsel who appeared at the trial for the respondent I would have thought that question was probably objectionable whether it was asked before a judge or a jury. The fact that there was no objection is, of course, support for mutual understanding of the agreement to which I have just referred. Indeed, the appellant did not support all the matters of history which he was recorded as having given to the various doctors by whom he had been examined. Similarly, the agreement does not seem to be confined to the appellant as historian. His wife, for example, did not support everything that she was recorded as having said to doctors who had examined her husband. The issues of damages at the trial, as I have already indicated, were whether or not the appellant was suffering from a manic depressive psychosis to which the accident was a causative factor, and whether he was suffering from or had suffered from post traumatic stress for a closed period after the accident which was again attributable to that disaster. The learned judge entered judgment for the defendant and this appeal is brought by the appellant from that order. URJ SILLITOE v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Samuels JA) — 3 The first ground of appeal is, in short, that the learned judge appears to have entirely ignored the agreement between the parties and, as a result, founded his adverse view of the appellant's case in part at least upon the appellant's failure to support vital matters of history, a defect or omission which the agreement was designed to repair and which, I add, it did repair if the learned judge had had regard to it. There are two passages only from the judgment which need to be quoted. The first is this: "At the outset it is well to point out some of the problems arising in seeking a judicial determination of this matter. The history upon which medical opinion is based varies, the plaintiff's evidence does not support the histories in all respects, a question such as 'Was what you told the doctors the truth' is no way to elicit and prove material on which medical opinion is based." Later his Honour made these observations: "A further comment is on the histories. Some variation may well be expected but there were substantial matters. For example he told Dr Bell of hypo-mania of getting drunk putting his fist through windows, ideas of rape, loss of ability to ejaculate, fear of crowds, wanting to hug anyone he saw. On the shining blue luminescence incident he said he saw a policeman looking at him strangely and he would have to kill him if he was approached which was not mentioned elsewhere. He referred to beating his sons when he went a bit crazy which was not mentioned elsewhere. He told Dr Bell his heart was in his mouth with each lurch of a train when travelling to work which was quite different to his evidence. The problem also is that so much of the history proffered to doctors was not proved. History in this medical context is the basis of opinion. I suppose one can rely on unsubstantiated history as an admission against a plaintiff but in relation to evidence for him it is unproven." The passage which appears immediately above seems to me to indicate without question that his Honour was not expressing any criticism of the plaintiff arising out of his response to cross examination. He was founding upon the fact that history, vital history as I have already said, had not been proved. His comment about "unsubstantiated history" makes this quite plain. It seems to be that the agreement, of course, was not intended to render the appellant invulnerable to cross examination. Accordingly, if the learned judge had confined himself to an assessment of the appellant's credibility after his evidence had been probed by cross examination, it could not have been said this was in any way a failure to abide by the terms and intentions of the agreement. But, when his Honour criticised the appellant, and the case led by the appellant, on the ground that there were omissions in it attributable to a failure to offer evidence in support of the foundation of certain medical opinions, that criticism, in my opinion, necessarily involves a failure to apply the agreement which the parties had reached as to the manner in which they desired to conduct this litigation. It follows, to my mind, that the trial miscarried because an important basis upon which it was to be, and was, conducted by the parties was for one reason or another overlooked by the learned trial judge. I should add that as we now know we can confidently expect, we have been assisted by the detachment and common sense of Mr Puckeridge who has appeared as senior counsel for the respondent on this appeal. Without making any unnecessary concessions he has frankly admitted the difficulties which the judgment places in his way. 4 UNREPORTED JUDGMENTS In my opinion, the judgment must be set aside and the remaining question is what orders ought to be made. The appellant has argued that the evidence is such that the only rational view is that the appellant sustained some damage in consequence of the respondent's breach of duty. Accordingly, it is contended the appellant is entitled to judgment on this cause of action, although there is a major question of assessment still to be considered. Mr Puckeridge acknowledges that that approach is well arguable, and that there is a good deal of evidence in support of the view that the appellant did suffer a post traumatic stress condition for some months after the accident. However, the respondent does not at all concede that the major psychogenic condition, namely the manic depressive psychosis, is in any way related to any act or omission for which the respondent is responsible. Further, the question is whether it is possible to avoid the unfortunate consequence of a second trial. New trials are always to be avoided if at all possible, all the more so in this case by reason of the appellant's delicate psychological condition. Mr Puckeridge would be prepared, if we were to take the step of entering judgment for the appellant, to agree that we might assess the damages for the post traumatic stress condition, but he submits that we could not effectively go further than that. Mr Wales for the appellant, while asking us, as I have said, to enter judgment, contends that in order to assess the damages over the whole of the appellant's allegations it would be necessary to see the witnesses and to make judgments about credibility and so forth, so that a new trial is necessary. We have carefully considered what orders are best to make and we have come to the conclusion that we ought to order a new trial. Indeed we must because we cannot be satisfied that we have before us the material which would enable us to make an assessment ourselves. We have also concluded that we ought not to enter judgment for the appellant. If we did, some difficult questions might arise at a new trial as to the extent to which the respondent might be precluded from arguing questions of damage across the field. It might be contended that if we did enter judgment on the footing that we were satisfied that the appellant had sustained some psychiatric injury, this might put him unfairly at an advantage in the contest which would certainly be conducted as to the precise nature and extent of any psychological disorder of which he complained. What we therefore propose to do is to order a new trial but upon certain conditions which will reproduce the agreement to which the parties came previously and the basis upon which the previous trial was conducted. The appeal is allowed with costs. The judgment below is set aside. We order a general new trial. We order that the new trial is to be conducted pursuant to these conditions: 1. The respondent admits duty and breach but does not admit that the appellant suffered any damage. 2. The trial is to be conducted by a judge alone. 3. The new trial is to be subject to the agreement which is recorded at p 2 of the transcript of the previous trial in these terms:"Mr Gross indicated that the plaintiff would consent to the jury being dispensed with upon the agreement between the parties that the histories and complaints URJ SILLITOE v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Samuels JA) — 5 given to doctors were to be treated as evidence of the truth of the matters stated in those histories and complaints, subject to the defendants right of cross-examination." 4. The costs of the previous trial are to abide the discretion of the judge 5 hearing the new trial. Counsel for Appellant: I WALES Solicitors for Appellant: DEZARNAULDS and DEZARNAULDS 10 Counsel for Respondent: A M PUCKERIDGE QC with P CRITTLE Solicitors for Respondent: DAVID FRANK