NEW SOUTH WALES MEDICAL DEFENCE UNION LTD vy CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY vy CRAWFORD [No.2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and SHELLER JJA 15, 16, 18 and 19 of 1993, 30 June 1994 [1994] NSWCA 364 Nature of Jurisdiction: Second stage of part-heard appeals from judgments and orders entered in the Common Law Division of the Supreme Court (Enderby J) together with hearing of cross-appeal. See CL 13757/88 and CL 17289/80. Motion for enlargement of appeal and grounds of appeal. EVIDENCE - expert evidence - proper approach of appellate court - advantages of primary judge - whether judge sufficiently explained or justified his conclusion - failure to refer to certain conflicting expert opinions - whether such opinions overlooked - whether position of advantage of trial judge in respect of evidence extends to evidence of expert opinions - held: (Kirby P dubitante): The rules controlling the interference by an appellate court in the decision of a primary judge concerning his preference for the evidence of witnesses extends to the preference for the opinions of particular expert witnesses. Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA); Wilsher v Essex Area Health Authority [1988] AC 1074 (HL) applied. APPEAL - rehearing - appellate review - proper approach to - expert opinions - advantages of primary judge - influence of demeanour and impression - obligation to explain - held: (Kirby P dubitante): The appellate court may not interfe[rence - sic] unless the decision reached is inconsistent with incontrovertibly established facts or is glaringly improbable or demonstrates that the primary judge has not made proper use of his or her advantage. Voulis v Kozary and Ors (1976) 50 ALJR 59 (HC); Fabre v Arenales and Anor (1992) 27 NSWLR 437 (CA) 449f referred to. Abalos v Australian Postal Commission (1990) 171 CLR 167; Louth v Diprose (1992) 175 CLR 621. Government Insurance Office of New South Wales v Luong, Court of Appeal (NSW), unreported, 2 April 1992 [1992] NSWJB 36 applied. JUDGES - decision and orders - reasons - duty to provide - preference for plaintiff's medical experts' opinions over defendant's experts - failure to explain and justify - failure to refer to particular evidence held: (by Sheller JA; Kirby P concurring; Mahoney JA contra): In the circumstances the conflicting evidence was adequately referred to and in considering the evidence in its entirety the Court of Appeal could not conclude that the trial judge was wrong. Mifsud v Campbell (1990) 21 NSWLR 725 (CA) applied. INSURANCE - limitation of recovery - limitation of $500 for each act or omission complained of- whether limited to cause of action or individual medical incidents held: (Sheller JA; Kirby P concurring; Mahoney JA dissenting): (1) The limitation adopted was not linked to claims or causes of action but to acts or omission; (2) Having regard to the conduct of the trial, where two acts or omissions were alleged, the plaintiff would be limited to these. Forney v Dominion Insurance Co Ltd [1969] 1 WLR 928 (DC) applied. 2 UNREPORTED JUDGMENTS PRECEDENTS - stare decisis - binding authority - publication of decision - later, before orders entered, further decision given - later decision allegedly inconsistent with earlier - whether Court has jurisdiction to, and is obliged to, conform to holding in later decision - held: (1) The Court has the power to alter its pronounced opinion. Smith v New South Wales Bar Association [No 2] (1992) 176 CLR 256 applied; (2) Having regard to the fact that no orders were entered and that the proceedings were part heard, no difficulty stood in the way of the reopening of argument; (3) The Court should ensure that at the time its orders were entered, those orders conformed to the law as it then stood, whatever may have earlier been the understanding of the law. In re Harrison's Share Under a Settlement; Harrison v Harrison [1955] 1 Ch 260 (CA) applied; (4) (per Kirby P): However, having regard to the doubts concerning the holding of the later decision relied upon, the earlier opinion should be adhered to. Different considerations affecting dismissal of special leave applications in the High Court or leave in the Court of Appeal and in the present case should not require alteration of the Court of Appeal's decision. INSURANCE - indemnity insurance - statutory charge - purported alteration to articles governing insurance - whether retrospective operation permitted or possible - whether inconsistent with Law Reform (Miscellaneous Provisions) Act 1946, s6 - whether, after dissent of the statutory charge, an insurer was unable to alter the nature and relationship to the insured and obligation to third parties which would have the consequence of frustrating the utility of the charge imposed by the statute - held: (per Kirby P; Mahoney JA contra; Sheller JA expressing no opinion): By reason of the terms of the statute, the insurer could not alter its liability but was subject to a charge in respect of that liability as established at the time the charge attached. Oswald and Anor v Bailey and Ors (1987) 11 NSWLR 715 (CA) applied; Grimson v Aviation and General (Underwriting) Agents Pty Ltd and Anor (1991) 25 NSWLR 422 (CA) not followed; McMillan v Mannix and Anor, (1993) 31 NSWLR 538 (CA): SLR, High Court of Australia, unreported, 13 May 1994 referred to. Law Reform (Miscellaneous Provisions) Act 1946, s6. Supreme Court Act 1970, s75A. Kirby P This is the continuation of part-heard appeals and a cross-appeal to this Court from a judgment and orders of Enderby J in favour of the respondent (cross-appellant), Mr Maxwell Crawford. For convenience, the Court earlier separated five legal issues in the appeals and dealt with them first. The decision of the Court is now reported. See New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 (CA); 11 ACSR 406 (NSWCA). Also before the Court is a motion to permit the appellant, New South Wales Medical Defence Union Ltd (NSWMDU) to make further submissions in respect of "the meaning and scope" of s6 of the Law Reform (Miscellaneous Provisions) Act 1946 (the Act) and to file a supplementary notice of appeal raising certain new grounds of appeal. Belatedly, when the appeal stood for judgment, still further written submissions were received from the parties as a result of the decision of the High Court of Australia on 13 May 1994, dismissing an application for special leave to appeal from the orders of this Court in McMillan v Mannix and Anor (1993) 31 NSWLR 538 (CA). It was asserted that the decision of the High Court required me to alter my view of the meaning and effect of s6 of the Act. That section was one of the two foundations of the respondent's claim against the NSWMDU. These further proceedings may, for ease of consideration, be divided into three parts: WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILES [No.2]; BAILEY v CRAWFORD [No.2] (Kirby P) 1. The reopening of argument issue; 2. The factual issues; and 3. The issues presented by the motion, other than as it relates to the reopening issue. It is convenient to deal with these three matters in sequence. THE REOPENING ISSUE It is necessary, first, to explain how it becomes relevant to consider the NSWMDU's application for leave to make further submissions in respect of s6 of the Act. I shall not restate the facts of the dispute between the parties. Those facts are sufficiently stated in my reasons in the earlier decision (see report, 472-477; 410-414). Further facts can be found in the reasons of Mahoney JA and Sheller JA in this part of the proceedings. As will appear, upon the further matters dealt with, I am in substantial agreement with Sheller JA, except upon one point as I shall now explain. The earlier judgment of the Court was complicated by the inability of the majority (Sheller JA and myself) to reach agreement concerning the basis of Mr Crawford's entitlement to recover judgment against NSWMDU and thus to sustain the orders of Enderby J in the proceedings between those parties. Mr Crawford had framed his case upon two essential bases, stated alternatively and cumulatively. Expressing them broadly, these were: (a) That he was the beneficiary of a statutory charge under s6(1) of the Act which charge he was entitled to enforce against NSWMDU. Once that charge had descended, it was not competent for NSWMDU, as it had purported to do, to alter the nature and relationship enjoyed with its insured, the late Dr Bailey and, following death, with Dr Bailey's estate represented by his personal representative (and widow), Mrs Bailey; and (b) That there was a "special contract" between NSWMDU and Dr Bailey which was one of insurance. Such special contract having been effected, it could not unilaterally be altered by NSWMDU to affect its obligations to indemnify Dr Bailey in respect of a claim brought against him by Mr Crawford and, following his death, in respect of the promise to indemnify his estate represented by his legal personal representative. Such "special contract" could only be varied by agreement between the parties. Put shortly, I favoured upholding Mr Crawford's claim against NSWMDU upon the basis of (a). In this respect, I adhered to the opinion expressed for the purposes there stated in Oswald and Anor v Bailey and Ors (1987) 11 NSWLR 715 (CA), 724. I was not, however, convinced by the claim based on (b). In essence, I accepted NSWMDU's argument that no "special contract" had been shown with Dr Bailey or his estate to prevent the alteration by NSWMDU of its articles of association. Nor was I convinced that the decision to act as they did had been shown to be otherwise than in the best interests of NSWMDU as perceived by the directors to whom the law commits such decisions. See 31 NSWLR at p 486; 11 ACSR at 420. Mahoney JA was of the opinion that the judgment given in favour of Mr Crawford against NSWMDU was erroneous and should be set aside, only the judgment against Dr Bailey's estate being entitled to stand. By inference, therefore, his Honour rejected the basis of the claim (a) and did not accept the basis of the claim (b). Sheller JA was the other member of the Court who favoured upholding Mr Crawford's right to enforce the charge against NSWMDU. However, he based his reasoning solely on the claim of a "special contract". He found it unnecessary, in those circumstances, to consider the alternative basis of the claim (a) resting on 4 UNREPORTED JUDGMENTS the suggested implications of the operation of s6, independent of any "special contract". See 31 NSWLR at p 526; 11 ACSR at 456f, 458f. Sheller JA's approach substantially followed the opinion expressed by Priestley JA in Oswald v Bailey (above) at 737f. That opinion had been stated by Priestley JA only for the purposes necessary at that stage of the litigation, viz to decide whether Mr Crawford had an arguable case to proceed against NSWMDU. Sheller JA adopted Priestley JA's reasoning as a basis for his final orders. Being of the opinion that NSWMDU could not affect its obligation to indemnify Dr Bailey or his personal representative on the grounds of the "special contract" (argument (b)), Sheller JA considered himself relieved of the obligation to determine the alternative basis for the assertion of Mr Crawford's entitlement to enforce the charge against the company, viz the statutory charge under s6 of the act, without more (argument (a)). Recognising this difference in the reasoning of the majority of the Court, as the reasons then stood, in respect of Mr Crawford's entitlement to enforce his charge directly against NSWMDU, the latter sought to seize the opportunity so presented to it. In doing so, it acted within its lawful rights. I also consider that it acted reasonably. Unhesitatingly, I would give NSWMDU the leave it seeks by its motion to make further submissions in the endeavour to persuade me to change my mind. As it was put for NSWMDU: ".. If Kirby P was able to be persuaded that his view of s6 of the Act was an incorrect one, or, alternatively, that his view of that section's operation and effect had been rejected by a majority decision of this Court which he felt obliged to follow, then the appellant must succeed in these appeals." This would be so because, then, I would join Mahoney JA in rejecting Mr Crawford's entitlement to enforce the alleged charge directly against NSWMDU. That would leave Mr Crawford solely to his hollow rights against Mrs Bailey, as legal representative of Dr Bailey's estate. REOPENING A "DETERMINED" ISSUE There can be no serious doubt that NSWMDU was entitled to have its argument considered. In recent times' there has been much discussion of the circumstances in which a court will entertain further argument upon a matter determined with apparent finality in a published opinion. See eg Smith v New South Wales Bar Association [No 2> (1992) 176 CLR 256, 265; Autodesk Inc v Dyason [No 2] (1993) 67 ALJR 270 (HC); Raybos Australia Pty Ltd and Anor v Tectran Corporation Pty Ltd and Ors [No 15], Court of Appeal (NSW), unreported, 8 July 1993; [1993] NSWJB 67. The circumstances in which courts will permit reopening of argument include the establishment of inconsistency between decisions in different Divisions of a court which require reconsideration of orders proposed but not yet entered (Bastow v Bagley and Co Ltd [1961] 1 WLR 1494 (CA)) or cases where it is established that a mistake has occurred in the court's understanding of the matters in issue between the parties. (See eg Winrobe Pty Ltd and Anor v Sundin's Building Company Pty Ltd [No 2] Court of Appeal (NSW) unreported, 24 December 1992; [19921 NSWJB 139). In the lastmentioned case this Court, being convinced that an appeal had been decided on the basis of an issue which was not raised at the trial, withdrew its orders although they had been formally pronounced and supported by published reasons. Subsequently, the Court published a judgment which came to a conclusion different from that earlier reached. See Winrobe Pty Ltd and Anor v Sundin's Building Company Pty Ltd [No 3], Court of Appeal (NSW), unreported, 4 May 1993; [1993] NSWJB 42. WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILES [No.2]; BAILEY v CRAWFORD [No.2] (Kirby P) The Court emphasised the importance of intellectual honesty and the manifest integrity of its processes. Those principles apply with the same force in the present case. In one sense, NSWMDU is in a stronger position to urge reconsideration in the present case. For here, no final orders have been pronounced, still less entered. The appeal is simply part-heard. Because of its high complexity and multiple issues, it was divided in parts and heard in stages. But that was done simply for convenience. The Court might have reached its conclusions upon the five issues isolated for decision in September 1993 and withheld the publication of its reasons until all other matters had been argued - there still being utility, in the conclusion on those points, in proceeding to hear argument on the remaining questions. Instead, the Court elected to publish reasons for the opinions expressed upon the separated issues. But no orders were entered. The only formal order made, in reflection of the majority opinion that Mr Crawford was entitled to hold his judgments (with some modifications) was that the part-heard appeals and the cross-appeal should be listed for conclusion of the balance of the arguments upon what were described as the "factual issues" and certain other issues bound up in them. This being the case, there is absolutely no impediment to NSWMDU urging a new or additional reason for reconsidering opinions expressed in the published reasons. No orders of this Court stand in the way as the suggested basis for the reconsideration of the supervening decision of the Court of a binding decision requiring a result different from that earlier stated by me on s6 of the Act, it is right that the argument should be considered. No impediment of jurisdiction stands in the way. Unsurprisingly, earlier authority in analogous circumstances supports NSWMDU's contention that its newly available argument should be determined. Before any formal order is entered, it is necessary for the Court to reconsider an earlier opinion stated in the light of suggested intervening changes in, or perceptions of, a binding rule of law. See In re Harrison's Share Under a Settlement; Harrison v Harrison [19551 1 Ch 260 (CA), 280. SUGGESTED NECESSITY OF RECONSIDERATION The argument for NSWMDU that I should withdraw my earlier stated opinion concerning the operation of s6 of the Act, reverse that opinion, adhere to my stated view rejecting the "special contract" and thus dismiss Mr Crawford's claim against NSWMDU was advanced upon three bases, each arising out of the judgment of this Court in McMillan v Mannix and Anor, (1993) 31 NSWLR 538 (CA) or the decision of the High Court rejecting the special leave application in that case. The arguments were: (i) That I would be convinced by the majority opinions in McMillan to recant my earlier stated views concerning the operation of s6 of the Act and thus withdraw the conclusion now twice stated in the litigation between the present parties that Mr Crawford had a direct claim against NSWMDU which he could enforce within the four walls of the statutory charge provided by s6 of the Act; (ii) Even if not persuaded by the majority reasoning in McMillan, that I would be convinced of my duty to conform to the binding authority of the Court of Appeal there stated and, however reluctantly, bring my conclusion in this case into compliance with the principle of law in McMillan. Doing so would ensure that the orders of this Court in the present case conformed to the law as stated by the Court, binding on all courts in the State, including this Court. It would still be open to Mr Crawford, if discontented with the outcome, to seek special leave to appeal to the High Court of Australia, challenging the holding in McMillan and 6 UNREPORTED JUDGMENTS seeking restoration of the opinion expressed by me in Oswald v Bailey (above) and in the earlier published opinion in this case; or (iii) Even if (i) and (ii) did not move me, the rejection by the High Court of the special leave application and the affirmation by that Court in doing so that McMillan had been correctly decided, obliged me to reach a different conclusion now, whatever my personal views on the matter might continue to be. McMillan saw this Court constituted by Meagher JA, Cripps JA and myself. Cripps JA agreed in the judgment of Meagher JA, offering no separate reasons. Meagher JA acknowledged the controversy concerning the meaning of s6 of the Act and the differences of judicial opinion expressed as to its operation and requirements. He allowed that "the details of how the section operates in some circumstances is not entirely free from doubt". He admitted that "whatever construction one gives the section, some anomalies will persist". He recorded that the differing views about s6 had been presented by the opinions which Samuels JA and I separately published in Oswald v Bailey (above). He recorded that a number of judges of the Supreme Court of this State accepted and preferred the view which I expressed concerning the intended operation of s6 of the Act. Thus Allen J did so in James Suttie v Austreofix Pty Ltd (SC(NSW), unreported, 15 December 1989); Enderby J did in the instant case; Badgery-Parker J did Anastassiou v The Estate of the Late Dr Harry R Bailey and Ors (SC(NSW), unreported, 23 July 1992); Loveday J did so in McMillan. He also mentioned that my approach had been followed by Thomas J of the High Court of New Zealand in Independent Wool Dumpers Pty Ltd v American International Underwriters (NZ) Ltd and Ors (1993) 7 ANZ Ins Cas No 61-152, 77802 (NZHC). However, Meagher JA preferred the view of Samuels JA in Oswald v Bailey. He felt that that was more consistent with the earlier opinions of Clarke J in Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor v Lissenden (1987) 8 NSWLR 411 (SC) and Hunt J in Ratcliffe and Anor v VS and B Border Homes Ltd and Ors (1987) 9 NSWLR 390 (SC). Most importantly, he referred to the majority opinion in Grimson v Aviation and General (Underwriting) Agents Pty Ltd and Anor (1991) 25 NSWLR 422 (CA). Conformably with what he took to be the requirement of Crimson, he held that "it was not the purpose of the section to increase the liability of insurers". I was the third judge in McMillan. I dissented from the result. At p 542, I said: "T remain convinced that the least disharmonious interpretation which this Court can give to the section, and that which best carries into effect the intention and policy of parliament as made clear by the words of the section, is that which I earlier expressed in [Oswald, Grimson and Crawford]. " As to the suggestion that the language of s6(7) of the Act necessitated the interpretation favoured by Meagher JA, I noted (at 545): "That subsection provides that no insurer shall be liable 'for any greater sum' than that under the contract of insurance.... The subsection is only concerned with the amount provided by the relevant policy of insurance. The contrary conclusion has been reached by overlooking the significance of the word 'sum'. Further, the context in which the word 'sum' is used requires that it should only be taken as a reference to a limitation imposed between the parties themselves by way of their agreement. It cannot be taken to refer to the 'sum' which would have been payable but for the operation of s6 of the Act. Such a construction would render s6 of the Act impotent. It would render the section subject to easy circumvention by the unilateral action of the insurer. This cannot be what parliament intended." MCMILLAN DOES NOT REQUIRE A CHANGED OPINION WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Kirby P) The attempt to persuade me to change the earlier considered opinion about the effect of s6 of the Act (see 11 ACSR at 416-8) fails. I remain impenitently of the view which I have now consistently expressed in a series of decisions which has been adopted by a number of judges in this country and in New Zealand. The contrary view of s6 of the Act as applicable to this case is not required by the language of the Act. In my view, it contradicts the achievement of the purposes of the section. As this case would demonstrate, in its widest view it would permit the insurer, unilaterally, to escape what otherwise would be its obligations, rendering the statutory "charge" upon the insurance moneys useless to protect the plaintiff seeking to enforce it. But am I obliged by the principles of stare decisis to give effect to the contrary opinion, notwithstanding its lack of intellectual attractiveness. Judges are not the servants of their consciences alone. They must conform to the law. The orders which they pronounce must reflect the law as it stands when the orders are entered. Does the law of this State now require that the view of Meagher JA in McMillan concerning the general operation of s6 of the Act be accepted as binding so as to defeat Mr Crawford's claim against NSWMDU based upon the charge provided by the statute? For a number of reasons, I think not: 1. A foundation of the opinion of the majority in McMillan was the decision of this Court in Grimson. I remind myself that that decision was one in the series in which a view of s6 of the Act was expressed by a divided Court. The majority comprised Meagher JA and Hope AJA who agreed with Meagher JA without giving separate reasons. I was in dissent. The result is that, to the extent that Meagher JA in McMillan followed Grimson, he was giving effect, not unsurprisingly, to the opinion concerning the section which he had already stated. However, although McMillan was decided two weeks after the delivery of the reasons of this Court in the earlier phase of this appeal, no reference was made by Meagher JA (or by Cripps JA agreeing with him) to the by then published opinion in this case. I called it to notice (at 542). I said: "In New South Wales Medical Defence Union v Crawford I adhered to my view of s6. Mahoney JA reached his conclusion by a different route. Sheller JA favoured generally the approach followed by Priestley JA in Oswald. However, Sheller JA (and by inference Mahoney JA) declined to follow Grimson. On the limitation point, which was the ratio decidendi of Grimson. Sheller JA (at 531B [11 ACSR at p 461]) expressed the view that Grimson had been wrongly decided and should not be followed. The status of Grimson must therefore be regarded as now being dubious, if not overruled." Meagher JA did not respond to this point. Nor did Cripps JA. Their Honours simply proceeded to apply Grimson. In my opinion, this leaves the authority of McMillan resting upon an infirm foundation. It is possible that what was said by Sheller JA and myself in the earlier decision in this case was overlooked by the majority in McMillan. However that may be, it was not dealt with. The fact that the earlier decision did not result in a binding order for precedential purposes seems scarcely a convincing reason for ignoring a majority opinion which either impliedly, or expressly, disapproved of the authority (Grimson) upon which the conclusion of the majority in McMillan is based. I therefore do not believe that the authority of McMillan in this Court requires me to change my earlier stated opinion for, although the issue posed by the earlier reasons in these appeals was tendered to the majority, they gave no response; 8 UNREPORTED JUDGMENTS 2. In any case, McMillan dealt with a case of disclaimer pursuant to, and in accordance with, the contract of insurance there in question. S6 of the Act expressly contemplates disclaimer. See s6(4), Provisos. What the section does not contemplate is a retrospective rewriting of the contract of insurance. Still less does it contemplate the attempt by a body which was undoubtedly an insurer" at an earlier time to redefine its very nature and to change that nature from being an "insurer" to a "non-insurer". See 31 NSWLR at 481; 11 ACSR at 416; 3. I entertain little doubt that this Court would have permitted the correctness of the holding in Grimson to be reargued in the present case, having regard to (a) the importance of the question for Mr Crawford and other plaintiffs who complain of similar wrongs at the Chelmsford Hospital; and (b) the increasing evidence of support for the alternative construction of s6 of the Act which I favour. Thus, since the judgment in the earlier proceedings was handed down, the decision of the Court of Appeal of New Zealand in FAI (NZ) General Insurance Co Ltd v Blundell and Brown Ltd (CA (NZ), unreported, 26 August 1993) has become available. As I read the opinions of Hardie Boys J and Robertson J in that case, their Honours appear to have preferred my view in Grimson to that of the majority; 4. There being conflicting opinion, and the facility of special leave to appeal being available to NSWMDU, the preferable course (in the absence of clear and binding authority) is for me to adhere to the opinion stated in a series of decisions and included in the earlier published opinion in this case. The High Court of Australia may then decide after full argument (which is not possible in a special leave application) whether my opinion of s6 of the Act is incorrect. The point is of importance not only for Mr Crawford but for many other litigants in the Chelmsford series. It is of great practical importance given the number of claims, their size and the disclosed condition of Dr Bailey's estate. In effect, unless the plaintiffs, including Mr Crawford, can recover directly from NSWMDU (upon one or other or both of arguments (a) and (b)) or can recover from Dr Bailey's estate in circumstances giving rise to an entitlement to indemnity in that estate against NSWMDU, the plaintiffs will be left with empty rights and deprived of any real hope of recovery. The practical effect of my changing my opinion on the matters concerning s6 of the Act, dealt with in the earlier published reasons, would be limited. It would simply mean that it would be Mr Crawford, rather than NSWMDU who would be obliged to seek special leave to appeal to the High Court and, if such leave were granted, to carry the obligations of the appellant in the appeal. Whilst it was an entirely legitimate exercise for NSWMDU to attempt to manoeuvre Mr Crawford into this possibly disadvantageous position, I do not feel obliged to facilitate that result. This is not a case where the point earlier determined was decided upon a footing which overlooked some essential argument concerning the meaning of s6 of the Act. The arguments, now repeated, were fully rehearsed and thoroughly agitated. By now, those arguments are well known. The proponents in each camp acknowledge the obscurity of the statute and the opacity of its meaning. I do not accept that McMillan requires me to change my mind or to alter the order which I will ultimately propose in disposing of these appeals. To the extent that McMillan rests upon Crimson, its foundation is, so far as logic goes, shaky to say the least. Without a clearer holding of this Court, or an authoritative determination of the issue by the High Court of Australia, I consider that I am entitled to, and should, adhere to the opinion which Ihave now consistently stated over more than seven years. It is an opinion which, in my respectful view, is supported both by the language of s6 of the Act and by WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Kirby P) the achievement of its protective and beneficial purpose. Because of the significance of this decision for many other cases waiting in the wings, I have no doubt that NSWMDU will seek special leave to appeal against the decision of this Court in this case. In such circumstances, it is preferable that my opinion should remain stated as I hold it. If it is to be revealed as error, let that be done by the High Court for I do not consider that binding authority establishes, or obliges, that conclusion. 5. But do the terms in which Mason CJ expressed the dismissal of the application for special leave to appeal in McMillan require a different conclusion? We have been provided with the transcript of the special leave argument. It proceeded over six substantive pages only. At the end of it, the respondent was not called upon. The Chief Justice said: "Notwithstanding the difficulties and capricious results which may flow from the interpretation of the relevant provisions by the majority in the Court of Appeal, we are of opinion that the interpretation which they favoured is the correct interpretation of the words which the legislature has chosen to use in these provisions. For that reason, the application is refused." For NSWMDU it was argued that this, at last, conclusively demonstrated the error of my opinion about s6 of the Act and compelled me to change it. With all respect, I think not: (i) McMillan has never, as such, been determinative of the point in issue in this case. It was a case of disclaimer pursuant to and in accordance with the contract of insurance. Disclaimer is expressly contemplated by the section. It is perfectly feasible to adhere to the view which I have expressed concerning the effect of s6 but to permit disclaimer in circumstances for which the section has provided. In the facts of the present case, NSWMDU did not disclaim the obligation to indemnify Dr Bailey's estate pursuant to, and in accordance with, the existing contract of insurance. Instead, it purported to rewrite the contract and, indeed, to redefine itself out of being an "insurer" at all. This is not a "disclaimer" as understood in insurance law and as s6(4) of the Act contemplated. It was that provision which was relied upon by the insurer in McMillan. Deane J referred to the provision in argument. I take it to be that provision to which Mason CJ referred in dismissing the application for special leave when he averted to "the words which the legislature has chosen to use in these provisions"; and (ii) In any case, even if I had been of a contrary opinion, I am respectfully of the view that the issues between the parties in this case should not be disposed of upon the basis of remarks made by the High Court in dismissing a special leave application. Behind Mr Crawford, as this Court has been informed, stand about a hundred of Dr Bailey's patients. They have claimed against Dr Bailey or, since his death, his estate and against NSWMDU. Additionally, twenty-four patients died as a result of the treatment they received at the Chelmsford Private Hospital under Dr Bailey's direction. In some, at least, of their estates, it can be contemplated that proceedings have been or will be brought against NSWMDU. It would be a travesty of justice if the rights of all of these parties were to be determined upon the basis of words stated at the conclusion of a special leave application which endured (as the transcript shows) from 12.20 p.m. until 12.41 p-m. Of necessity, leave and, still more, special leave applications enliven judicial consideration of matters that quite frequently go beyond the merits of the arguments of the parties and their cause. In the High Court, consideration of the national importance of the issues and the general application of local statutes must play a part. No mention is made in the argument of McMillan in the High 10 UNREPORTED JUDGMENTS Court of the possible relevance of the matter then under consideration for other litigants, including the large number in the position of Mr Crawford. To the extent that Grimson is not distinguishable from the present case, it is in my opinion preferable that Mr Crawford (and those who stand in like position) should have the opportunity to enliven the chance of a fully argued decision of the High Court. They should not be put out of their entitlements upon the basis of the expression of a judicial impression as to the meaning of legislation without having the mind of the judges concerned focussed upon the consequences of the decision for so many others whose voices were not heard when McMillan was argued in the High Court. For these reasons I would adhere to the views which I have earlier expressed that NSWMDU is liable to Mr Crawford under s6 of the Act. There being no lawful exercise of disclaimer, Enderby J's judgment against NSWMDU must stand. But in my opinion, it only stands on the basis of the Act. My conclusion against the alternative basis, framed in terms of a "special contract" (argument (b)), has been reinforced by reading the opinion of Mahoney JA in the present proceedings. THE FACTUAL APPEALS So far as the appeals on the factual questions determined by Enderby J are concerned, I have had the advantage of reading what Mahoney JA and Sheller JA have written. I remain of the opinion which I expressed in Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA), p 291. I would resist the importation of the doctrine of the suggested advantages of the trial judge in resolving conflicts of lay evidence into the quite different function of resolving, in an appeal by way of rehearing, the conflicts of expert opinion, recorded in the testimony given at the trial. The instruction of Parliament in s75A of the Supreme Court Act 1970 and the modern understanding of the fallibility of observation make it thoroughly undesirable, in my view, to extend the current doctrine of the High Court concerning "the subtle influences of demeanour' from lay witnesses to expert witnesses. Nevertheless, that extension appears now to have been made in at least three judgments of this Court. See eg Chambers v Jobling (1986) 7 NSWLR 1 (CA), 25; Ahmedi v Ahmedi (above) at 299 and Government Insurance Office of New South Wales v Luong, Court of Appeal (NSW), unreported, 2 April 1992; [1992] NSWJB 36. I am therefore duty bound to conform to the principle stated in Ahmedi and I do so. Despite the criticisms offered by NSWMDU and Mrs Bailey in their common attack upon Enderby J's conclusion on the facts (and despite the legitimate grievance concerning his Honour's failure to address the contrary evidence submitted for the appellants) it was clearly open to Enderby J, for the reasons given by Sheller JA, to conclude on the evidence of the experts before him: . That Mr Crawford has suffered brain damage as a result of the treatment which he received from Dr Bailey, or under his supervision, at the Chelmsford Hospital; . That such brain damage was a cause of the schizophrenia or schizoid condition subsequently diagnosed as afflicting Mr Crawford; and . That these conclusions were open to Enderby J notwithstanding the contrary indication in the pattern of symptoms described by reliable evidence, the progression of those symptoms and the result of the psychometric tests admitted into evidence. WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) In the present case, the controversy concerning the weight to be given to the suggested advantages of the primary judge in observing the expert witnesses giving their testimony is not determinative. The conclusion which Enderby J reached on the facts was clearly open to him on the expert evidence which was called. His Honour's conclusions have not been shown to be wrong. Reviewing ie whole of the evidence and claiming no excuse "from me task of weighing conflicting evidence and drawing its own inferences and conclusions", this Court should in my opinion reach the same conclusions on the factual disputes arising out of ie expert testimony, which Enderby J reached. It follows that the factual challenges fail. The judgment which Enderby J entered should, to that extent, be confirmed. I also agree with the opinion which Sheller JA has expressed about the meaning of ie provision in me articles of association of NSWMDU imposing a limit of $500,000 for each act or omission complained of. Although the matter is not entirely free from doubt (see 31 NSWLR at 490 ff; 11 ACSR at p 425 I have now been persuaded that the limit imposed by article 57, is, as Sheller JA has concluded, of no application in this case. Here, there were continuing acts or omissions, each one of which led to a claim, or potential claim, by Mr Crawford against Dr Bailey. In me way ie matter proceeded at first instance, Mr Crawford should be held to ie two acts or omissions contended for on his behalf. They will be sufficient to sustain the judgments which Sheller JA has proposed. ENLARGEMENT OF GROUNDS OF APPEAL Finally, I agree with what Sheller JA has written in respect of the remaining matters in ie motion for ie enlargement for the grounds of appeal. ORDERS To secure orders of the Court, I agree in the orders proposed by Sheller JA. Although arrived at in a different way, we both agree that Enderby J's substantive judgment against the Estate of Dr Bailey should not be interfered with. We both agree that Mr Crawford has access to NSWMDU (either directly under the Act as I would hold - or indirectly through the Estate's entitlement to indemnity as Sheller JA concludes). Neither of us believes that Mr Crawford is limited to the empty entitlement of a large verdict against the Estate. Its coffers were probably empty when this litigation began. If not they must surely now be so as a result of these prolonged and multitudinous proceedings. I therefore agree that the court should make the orders which Sheller JA has proposed. Mahoney JA On 3 September 1993 this Court handed down judgments dealing with the matters which the parties had asked the Court to consider in advance of the final determination of the appeal. The parties contemplated that a decision upon the matters then in question might avoid or at least limit argument upon the issues of fact to be determined in these appeals. This was a proper course for the parties to follow: the material before the Court at trial and placed before this Court on appeal was very extensive. Following the handing down of the Court's judgments on 3 September 1993, further and detailed oral argument took place. On one view it is not necessary for me to do more than to adhere to what I said in my judgment of 3 September 1993. However, the other members of the Court have, as it has been necessary for them to do, dealt again with the submissions made since that date. For the purpose of assisting the present parties and others, I shall set forth the conclusions which I have formed, and which follow from my previous judgment, upon the matters which, following 3 September 1993, the parties have urged in argument. I shall deal with, inter alia, issues of fact which, on one view, do not arise for decision 12 UNREPORTED JUDGMENTS by me. However, those issues of fact are of importance to Mr Crawford and, possibly, to other parties whose proceedings await decision. I shall therefore indicate the conclusions which I have formed in relation to them. Some twenty years ago or more, Harry R Bailey, a psychiatrist, treated patients at Chelmsford Private Hospital in Pennant Hills. Some twenty-four of them died: Gill v Walton (1991) 25 NSWLR 190; (1993) 177 CLR 378. About 100 of Dr Bailey's patients have, the Court is informed, claimed against Dr Bailey or (since his death) his legal personal representative damages for what happened to them. The Court is now dealing with the claim of Maxwell Duncan Crawford, one of those patients. Mr Crawford is now in a sad condition. When he first consulted Dr Bailey in 1969, he was coping with the main stresses of his life and his psychiatric problem was an anxiety neurosis. He undoubtedly suffered serious injury whilst in the doctor's care. He now suffers from schizophrenia or a schizophrenic-like disorder. In his present condition he has heard "voices", his personal affect has greatly deteriorated and, it is claimed, he is incapable of maintaining employment. His claim is that his present condition was caused by what Dr Bailey did. In 1980, he sued Dr Bailey. (I shall for brevity use the doctor's name to comprehend both him and, where appropriate, his legal personal representative. I shall refer to this proceeding as "the Bailey proceeding"). That proceeding has not been completed. Dr Bailey died in September 1985. In 1988 he sued the New South Wales Medical Defence Union Ltd. (In my previous judgment I referred to this company as "MDU". I shall continue to do so. The Court has taken steps to make clear that this body differs from, inter alia, the English body having a somewhat similar role and description). Mr Crawford sued MDU because he feared that Dr Bailey's estate could not meet the judgment he hoped to obtain against it. The articles of association of MDU provided a form of indemnity to Dr Bailey and it in turn has, it has been assumed, an insurance cover. Accordingly, Mr Crawford has pressed a claim directly against MDU purporting to rely on s6 of the Law Reform (Miscellaneous Provisions) Act 1946. The two proceedings were heard together on 28 February 1992. Enderby J gave judgments for Mr Crawford both against Dr Bailey and against MDU. Each of them has appealed to this Court against those judgments. Those appeals are now to be determined. 1. THE NATURE OF THE MAIN PROCEEDINGS: In order to understand the issues which are now to be determined, it is necessary to indicate the nature of the two proceedings and the relationship between them. On 3 September 1993 the members of this Court indicated views in relation to some of the issues in these proceedings. Because of what was there said and the effect of the views expressed, I shall state the nature of the proceedings in general terms and without the exceptions and qualifications which would be necessary in a full and detailed statement of them. In order to understand the issues which are now to be determined, it is necessary to indicate the nature of the two proceedings and the relationship between them (a) The Bailey proceeding: WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) Mr Crawford was admitted to the Chelmsford Hospital on 25 December 1973. He was subjected to Deep Sleep Therapy. He was discharged on 25 January 1974. He claims that, by virtue of various acts and omissions, Dr Bailey was negligent in his treatment of him and that that negligence is his cause of action. He claims that, because of that negligence, he suffered damage of various kinds: his sciatic nerve was injured and he suffers foot drop and limps; he suffered brain damage; and that brain damage led to his schizophrenic condition. Dr Bailey does not now deny that there was negligence in his treatment of Mr Crawford or that that negligence caused injury to the sciatic nerve and the consequences of it. However, Dr Bailey denies that the negligence caused brain damage or the schizophrenic condition. Accordingly, in this proceeding, the formal issues were: a limitation issue; a negligence issue; and a damages issue. At the time of the trial the limitation issue had been concluded against Dr Bailey; the negligence issue was conceded; and the damages issue was effectively the only issue in dispute. Subject to what I shall say in respect of the limitation issue, that position remains. (b) The MDU proceeding: In this proceeding, there were four main issues: the liability of MDU to Mr Crawford; limitation; the nature of the indemnity available; and the quantum of the indemnity available (which I shall describe as "damages"). 2. THE PRESENT STAGE OF THE PROCEEDINGS: The parties have brought to this Court appeals not only in the Bailey and MDU proceedings but also other proceedings brought by other claimants. The material placed before the Court is both voluminous and complicated. At the suggestion of the parties, the Court dealt initially only with the Crawford proceedings and with only certain aspects of those proceedings. On 3 September 1993 the members of the Court published their then views on the issues which had been argued. In summary, the position which then emerged was: (a) As to the Bailey proceeding: The limitation issue was concluded in favour of Mr Crawford and, accordingly, he was entitled to maintain the proceeding, subject to the possibility of the rescission of the order for extension of time which, at an earlier stage, had been granted by Master Allen. The liability issue was conceded in favour of Mr Crawford. The only outstanding issue was the damages issue. (b) As to the MDU proceeding: The limitation issue was decided for Mr Crawford. The liability issue had two aspects: that relevant to negligence and that relevant to s6 of the Law Reform (Miscellaneous Provisions) Act 1946. The negligence issue was not a live issue: it was conceded that Dr Bailey's treatment of Mr Crawford was negligent. But it was necessary to determine whether, in the circumstances, Mr Crawford was, under s6, entitled to proceed directly against MDU upon the claim that it was an insurer within the section. Kirby P held that he was. Sheller JA held that there was a separate contract of insurance between MDU and Dr Bailey not constituted by the articles of association but arising from them and what was done by the parties, and that Mr Crawford could sue MDU under s6 upon that contract. I held that there was no right to sue MDU under s6 or otherwise. Consequently, it was necessary for Kirby P and Sheller JA to decide whether, within the assumed insurance, indemnity was granted by MDU in respect of one or more "act or omission" within the terms of the insurance. They expressed their views upon this but, as I understand the views expressed, no final decision was arrived at. 14 UNREPORTED JUDGMENTS The damages issue was not determined. On the basis that I shall adhere to my views expressed on 3 September 1993 (to this I shall refer subsequently), the outstanding issues for decision by me are as follows: in the Bailey proceeding, I must determine whether Mr Crawford has established any, and what, damage as flowing from Dr Bailey's negligence and whether, as a consequence of that decision, there should be a change in the view previously expressed that the limitation issue should be decided in favour of Mr Crawford. In relation to the MDU proceeding, Mr Crawford must, in my opinion, fail. Therefore, no further issue remains for decision by me. 3. DAMAGES: As I have said, Mr Crawford has claimed that Dr Bailey's negligence caused relevantly two things: the sciatic nerve injury and its consequences; and brain damage leading to a schizophrenic illness. For the purposes of this proceeding, Dr Bailey does not now contest that he was negligent and that his negligence caused the sciatic nerve damage and its consequences. He does contest that it caused brain damage or the schizophrenic state. I shall therefore confine my attention to this second category of damage. Mr Crawford contends that the treatment in 1973-1974 caused brain damage and that it was that brain damage which caused his schizophrenic condition. Dr Bailey denies both that brain damage was caused and that (if it was caused) it led to the schizophrenic condition. The existence of brain damage is at the centre of Mr Crawford's case in this regard: it is not suggested that the schizophrenic condition, which admittedly now exists, was related to Dr Bailey's negligence otherwise than by reason of its having (as Mr Crawford alleges) been brought about by the brain damage. It is therefore convenient to consider first whether Dr Bailey's negligence caused the brain damage alleged. More accurately, the issue for the court at this stage is whether the finding by Enderby J that Dr Bailey's negligence caused such brain damage is one from which this Court should differ. I shall consider, first, the evidence relied upon to establish brain damage and then whether this Court may properly differ in this regard from the learned judge. (a) Did the treatment cause brain damage?: It is, I think, not substantially in contest - at least, I think it is clear - that what Dr Bailey did could have caused brain damage. This could have occurred in one or both of two ways. The principal submission made by Mr Parker QC for Mr Crawford was that, due to the negligence, the supply of oxygen to Mr Crawford's brain was, during the treatment, stopped or reduced and that this anoxia or hypoxia caused damage to the brain. The suggestion was that Mr Crawford, during his period of deep sleep, developed pneumonia or a similar restrictions upon his bronchial tract, that the restricted the oxygen available to his brain, that the electro-convulsive therapy (ECT) administered during the deep sleep stopped or reduced the effectiveness of his central nervous system and accordingly the flow of oxygen to the brain, and that because of one or more of these, the supply of oxygen was stopped or restricted to the extent that brain damage occurred. The second possible way in which the flow of oxygen was affected was suggested by Dr Burns, a thoracic physician called for the plaintiff. Mr Crawford was, at the relevant time, subject to a high fever. It was Dr Burns' view that such a fever could itself cause relevant brain damage. That view was, it was suggested, not, or not effectively, contradicted by any witness. WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) It was not, I think, in contest but that either of these things, if it occurred, could result in relevant brain damage. It was not contended in argument that, if brain damage did occur, it was caused in any other way. The contest was as to whether brain damage did in fact occur. It is therefore necessary to consider whether the evidence disclosed the existence of brain damage at the relevant time. Expressed in non-medical terms, the evidence suggested two ways in which the existence of brain damage could be shown: by the more direct "imaging' procedures available; and/or by inference from other signs and symptoms exhibited by Mr Crawford. It was suggested by the evidence that, if brain damage had been caused, the damage might appear on the images produced by the CAT or MRI procedures. It is not necessary to pursue the nature of these procedures because it is accepted that neither of them showed signs of brain damage. It was, I think, accepted that that fact did not establish that there was no brain damage. It remained for the existence of it to be determined by other more clinical means. In that regard the suggestion was essentially twofold: that a person having relevant brain damage will exhibit certain signs and symptoms and that he will exhibit these in a particular pattern. The argument before this Court was, I think, conducted mainly on the basis that it was necessary for the plaintiff to show both the existence of the relevant signs and symptoms and the exhibition of them in the pattern suggested by expert witnesses. In deference to the argument of Mr Sullivan QC, I shall in the first instance deal with the issues upon that basis. However, I do not think that the evidence as to brain damage was such that the plaintiff failed unless he established both of these things, ie, both the existence of the signs and symptoms and their existence in the suggested pattern. Some of the expert witnesses were, in my opinion, prepared to infer the evidence of brain damage from the existence of some of the relevant signs and symptoms even though the time when they appeared and the progress of them did not follow precisely the pattern which the signs and symptoms of brain damage would, according to the classical pattern, follows. The main signs and symptoms relevant in this regard were described in various ways. In Dr Evan Davies' evidence (895 et seq) reference was made to the following: intelligence or abstract thinking (906), memory (especially post-traumatic memory defects) (906,910), concentration (906), loss of vocabulary (901), personality changes (907-8), ability or lack of emotional control (908) and irritability (908). Dr Taylor (760 et seq) and Dr Todd (833 et seq) also referred to signs and symptoms which were, I think, of this general kind. Mr Sullivan QC for MDU submitted that, to show that brain damage had occurred, it was necessary to show that these or other relevant symptoms occurred at particular times and/or in a particular pattern. It was, I think, the view of most, if not all, of the psychiatric witnesses and, I am inclined to think, of the psychological witnesses who dealt with the matter, that for an inference of brain damage to be drawn from the existence of such signs and symptoms, it was necessary that the signs and symptoms appear in a particular pattern. They should first appear within a short time, eg, six months of the trauma in question; thereafter the signs and symptoms should remain at approximately the same level or improve, for a period of some two years; and after that period there should be no significant deterioration in the patient's condition. This, though not, of course, the invariable pattern, was, I think, seen by the witnesses as being an important 16 UNREPORTED JUDGMENTS matter in diagnosing cases of brain damage. (I have stated this matter in a way which, though oversimplified, is sufficient for present purposes). Before coming to the evidence of the witnesses as to whether and when such signs and symptoms existed, it is necessary to refer to some of the complications which affected the diagnosis of brain damage in this case. First, there was the (possible) blurring of Mr Crawford's symptomatology. During the period from his discharge from hospital in January 1974 until approximately 1977, Mr Crawford had been taking various drugs to relieve his condition. It was suggested in argument that those drugs would produce some of the relevant signs or symptoms and/or mask the effect which otherwise would be produced by the trauma and that therefore inferences as to brain damage could not confidently be drawn from the fact that such signs or symptoms did or did not exist. Second, there was the variation in the symptoms of true schizophrenia and the exhibition of schizophrenia-like symptoms by other conditions. It is clear that at some time after 1977 Mr Crawford exhibited schizophrenic signs and symptoms. The nature of schizophrenia as a disease or syndrome is, of course, affected by much uncertainty, in relation to its signs and symptoms and otherwise. It has been suggested, for example, that the signs and symptoms which a true schizophrenic condition exhibits may differ between individual patients and/or from time to time. It has been suggested that signs and symptoms which ordinarily would suggest the existence of a true schizophrenia are exhibited by conditions which are not truly schizophrenia. Some of the witnesses, eg, Professor Kiloh, in diagnosing or categorising Mr Crawford's present condition, referred to schizophrenia and schizophrenia-like conditions. (I have for brevity used the term schizophrenic condition to comprehend both of these). The significance of this lies, inter alia, in the effect if may have upon the diagnosis of brain damage. Thus, as the argument inferred, signs or symptoms which in an otherwise normal person might base an inference of brain damage, might in this case be produced by the schizophrenic condition from which he was suffering. Accordingly, the inference of brain damage from such signs or symptoms might not be reliable. An additional matter was suggested. As I have said, according to the classical pattern of brain damage, after some two years after the initial trauma the patient's relevant condition will not further deteriorate. If it does further deteriorate, that is an indication that that which affects the patient is not brain damage but something else. In the present case, it was clear that from some date, perhaps 1980, Mr Crawford's condition did deteriorate. This alone might be a negative indication against brain damage if the deterioration was in respect of particular capacities relevant in diagnosing brain damage. But, of course, that deterioration might, in part or whole, be due to the onset of schizophrenia or a schizophrenic-like condition. This in turn made it more difficult to determine whether his admitted deterioration was a negative indication in diagnosing brain damage in 1974. It was in such a context as this that it was necessary for the trial judge to determine whether what had happened in the Chelmsford Hospital had caused brain damage. I come now to consider the evidence relating to these matters. The evidence is substantial. All of it must. of course. be considered. However, I shall confine what I say to the matters which, in argument, were seen as the matters of most relevance. WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) In considering this evidence, it is important to have in mind the chronology of events. Mr Crawford left Chelmsford Hospital on 25 January 1974. He returned to work on or about 6 February 1974. During 1974 his conduct was observed by several witnesses who gave evidence: his then wife, his mother, and certain workmates, Mr Kogel, Mr Watson and Mr Lowe. In or about December 1975, Mr Crawford was referred by Dr Bailey to a Dr Evan Davies, a psychologist, to whom from time to time Dr Bailey had referred patients for psychometric assessment. Dr Evan Davies had tested Mr Crawford in 1969 and he gave comparable tests in 1975. Mr Crawford ceased to be under Dr Bailey's care in about 1977. He came under the care of Dr Smith on or about 10 October 1980. The evidence suggests that, by 1980, he had commenced to exhibit some signs of a schizophrenic-type condition. By late 1983 or early 1984 he was exhibiting florid schizophrenic symptoms: he was hearing voices and exhibiting bizarre type thought and behaviour patterns frequently exhibited by schizophrenic patients. Mr Crawford was, before he entered Chelmsford Hospital, employed by a motor company ("Leyland"). He returned to that employment in February 1974. He was dismissed by Leyland in October 1974 at the same time as Leyland dismissed a number of other employees. In February 1975 he obtained employment with the University of New South Wales as a technical officer. He remained with the University for some five years, leaving in February 1980. In December 1979 Mr Crawford entered into a contract of employment with a company in Bougainville. That employment commenced in February 1980. He was not able to perform his duties satisfactorily in Bougainville and as a result his employment with the company was terminated in August 1980. He returned to Sydney. From September to November 1980 Mr Crawford was employed briefly by two other businesses. In March 1981 he was employed by a South Australian company ("Horwood Bagshaw"). That employment ceased in late 1982. I come first to consider whether Mr Crawford exhibited signs and symptoms of brain damage during the period of some six months following his discharge from Chelmsford Hospital in January 1974. The assessment of the evidence is of particular importance in determining whether Mr Crawford suffered brain damage. Subject to what I have said elsewhere, the view of the experts was that, if he suffered brain damage at Chelmsford, he would have shown a relevant deterioration in his mental capacities during the first six months or so: if he did not, the diagnosis of brain damage was not warranted. The evidence of the various lay witnesses requires careful consideration. The assessment of it involves determining how far the witness should be accepted as credible. It involves determining what part of a witness's evidence should be relied on: in some cases, the evidence of the witness was not internally consistent. And it involves a choice between conflicting witnesses. I am conscious that, having regard to the way in which the appeal and, I think, the trial were conducted, the Court's findings in this regard are of particular importance to the parties. However, I shall not set out in this judgment a fully detailed analysis of what the witnesses said. This was undertaken in the argument, oral and written. As I have indicated, my conclusions as to this aspect of the appeal are of importance only in the case against Dr Bailey; they are of no relevance in the case against MDU. If my brethren differ on this aspect, my conclusions may 18 UNREPORTED JUDGMENTS be of relevance. Therefore, I shall still summarily give the conclusions which I have formed upon the main aspects of the evidence. Mr Crawford himself said that, after the treatment at Chelmsford, his memory worsened and his intellectual capacity deteriorated. His evidence must, of course, be carefully scrutinised. But, if accepted, it provides some support for his claim that brain damage should be inferred. The evidence of Mr Crawford's then wife established, in my opinion, that during this early period there were changes in him of relevant kinds. These changes related to his mental functioning and to other things. She referred, eg, to forgetfulness, lack of concentration, change in personal habits, and other things. Iam conscious that "the Chelmsford experience", as Mr Parker QC described it, was apt to cause mental and physical upset in a normal person; in a person having an anxiety neurosis or the like, it could well disturb his pattern of behaviour during succeeding months. After leaving the hospital, he was under medication prescribed by Dr Bailey. I am conscious also that, as Mr Sullivan QC suggested, some of Mrs Crawford's evidence would support the view that such changes were not noticeable until, eg, August 1974 or thereabout. However, on my assessment of Mrs Crawford's evidence as a whole, I incline to the view that she did see relevant changes in him during this early period. Mr Crawford's mother also spoke as to changes which she observed in what he did and how he behaved. These ladies spoke as to changes in his personal habits, his personal hygiene, the coarseness of his language and his personal interests, in reading, mechanical things and the like. Mr Parker QC relied strongly in this regard upon the evidence of Mr Kogel. Mr Parker QC described him as "the most important witness" in the case. He was a person who worked with Mr Crawford, both before and after the Chelmsford experience. He ceased working with him by about October 1974. His evidence indicated, in my opinion, a deterioration in concentration and a significant loss of memory. He suggested, for example, that Mr Crawford had more or less forgotten the knowledge of metallurgy which he had had prior to January 1974. Dr Evan Davies suggested that loss of recent memory was more significant in diagnosing brain damage and that, while loss of pre-trauma memory was of significance, no distinction was to be drawn between loss of technical and loss of other pre-trauma memory. But, however this be, Mr Kogel's evidence went further. He referred to difficulty which Mr Crawford had in coping with various types of work and in keeping up with the work. He suggested he was vague and had memory losses and acted in a peculiar way when simple requests were made of him. My own assessment is that Mr Kogel's evidence, if accepted, would provide significant support for the conclusion that, within this period, Mr Crawford exhibited signs indicative of brain damage. Against these three witnesses, Mr Sullivan QC placed Mr Crawford's fellow employee at Leyland, Mr Watson. The evidence of Mr Watson was to the effect that he had not noticed any relevant change in his conduct or behaviour during this period. In my opinion, the trial judge accepted the evidence of the plaintiff, his former wife, his mother and Mr Kogel that during this period there was a relevant deterioration in his mental condition. His Honour commenced his statement of the effect of that evidence by saying: "Having regard to the type of person I have found the plaintiff to be before he went into Chelmsford, I now cite some of the evidence regarding observations made of him afterwards which I accept". (Emphasis added). His Honour referred in terms of approval to Mr Crawford's WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILAY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) then wife and mother and the evidence that they gave. It is proper to assume that, in accepting these witnesses, his Honour was to an extent affected by what he saw of them in the witness box during evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167. I come now to the psychometric testing of the plaintiff. This part of the evidence played an important part in the reasoning by the trial judge to his conclusions that Mr Crawford suffered brain damage. Ordinarily, I would feel it proper to accept the judge's assessment of the relevant witnesses and for that reason to come to the same conclusion. But, with respect, I am of opinion that the judge's assessment of this part of the evidence was flawed. Accordingly, it is not sufficient, or proper, that I decide this issue in that way. This portion of the evidence is of particular significance in deciding whether Dr Bailey should pay damages based upon Mr Crawford's mental condition and the schizophrenic aspects of it. I shall therefore examine the psychometric evidence, indicate why I do not feel constrained to adopt merely the judge's conclusions, and come to my own conclusion in relation to it. Dr Evan Davies applied testing procedures to Mr Crawford in December 1975. These tests and the conclusions drawn from them, if accepted at their face value, showed that, between 1969 and 1975, there was no deterioration in those matters relevant for the diagnosis of brain damage. The results were, within statistically acceptable deviation, more or less the same. All other things being equal, such tests, done in December 1975, would indicate that during the months following January 1974, there had been no such deterioration in Mr Crawford's intellectual functioning as would suggest brain damage. The tests were therefore, if accepted, strong evidence negativing the occurrence of brain damage. They were seen as such by, I think, the four psychiatric witnesses, Dr Kiloh, Dr Smith, Dr Morse and Dr Bell. Mr Parker QC necessarily attacked the validity of the tests and their conclusions. He suggested a number of defects or irregularities affecting them. I shall not lengthen this judgment by dealing with each of them. Dr Evan Davies was a person of apparent experience and training. He was firm that the tests he administered were sufficient to warrant the conclusions that he had drawn and to base the suggested inferences. I do not think that any of the psychiatric witnesses saw what he had done as significantly affecting the validity or the reliability of his results. It was suggested that other psychological or psychometric witnesses, eg, Dr Todd and Dr Taylor, cast doubt upon his conclusions and the inferences to be drawn from them. For myself, I do not see what they said as affecting the validity of those tests to the extent that it was not proper to take them into account in determining whether, in December 1975, Mr Crawford was displaying the signs and symptoms which, had brain damage occurred, would have been evident. It is, I think, significant that none of the psychiatric witnesses rejected the results provided by Dr Evan Davies because the tests were wrongly designed or wrongly administered. The assessment of his capacity to test patients may have been within their direct experience or expertise: they may have known his work. But however that be, I do not think that the plaintiff succeeded in destroying the effect of Dr Evan Davies' tests by the questions that were put to any of the psychiatric witnesses. 20 UNREPORTED JUDGMENTS Mr Parker QC not merely attacked the way in which Dr Evan Davies administered the tests and the conclusions he drew from them. He juxtaposed them to the tests done by other psychologists, Dr Todd and Dr Taylor. Both concluded that Mr Crawford had suffered cognitive impairment resulting from organic brain damage. Dr Todd tested Mr Crawford in October 1980. I infer that he would have preferred that additional tests be applied. However, he had applied tests which, he thought, were sensitive to brain damage from hypoxia or anoxia. He took into account the medication to which Mr Crawford had been subject. But he concluded that such brain damage had occurred. Dr Taylor tested Mr Crawford in September and October 1983, October 1989 and August 1990. He saw his tests as sensitive to brain damage from such causes. He referred to the "perseveratory" errors which his testing disclosed and saw these as of significance in the diagnosis of brain damage. He saw the medication taken by Mr Crawford as apt to affect the extremes of the results from the tests, the "peaks and troughs", but not as affecting the basic profile disclosed, from which the diagnosis was to be made. In determining the condition of Mr Crawford during the early months after his Chelmsford experience, it is necessary to consider the overall significance of this psychometric evidence. In doing so, at least four issues arise: (i) what is the significance of psychometric evidence in the diagnosis of brain damage, or brain damage of this kind; (ii) whether the Evan Davies evidence can or should be preferred to the Todd and Taylor evidence; (iii) what part the present psychometric evidence plays in the diagnosis in this case; and (iv) whether this Court can or should differ from the trial judge's conclusions in this regard. (i) The witnesses did not spell out, in a conceptual or systematic way, the significance for diagnostic purposes of the (as I have described it) psychometric evidence. It is therefore necessary to draw inferences from what was said and the approaches adopted by the expert witnesses, to express conclusions in lawyers' rather than medical language, and inevitably to oversimplify what is involved. The evidence suggested that the diagnosis of brain damage can be made from the two main bodies of information to which I have referred, imaging and clinical. In this case, the information derived from imaging neither established nor excluded brain damage. Clinical information, in the sense in which I have used the term, includes the signs and symptoms exhibited by the patient and these include both the signs exhibited during psychometric testing and those otherwise observed by the clinician making the diagnosis. A clinician undertaking a diagnosis will, of course, use for the purpose all of the signs and symptoms exhibited by the patient, however derived. But it is the nature and significance of the psychometric evidence which is here in question. In psychometric testing, the person administering the tests ("the clinician') places the patient in particular situations and observes and records what he does. The significance of what the patient does is or may be relevant in at least two respects. If the patient shows (during the tests or otherwise) the classical signs of brain damage, eg, loss of recent memory, difficulty of cognition, and the like, which were not present before, that alone may help to base the diagnosis of brain damage. But, of course, the conceptual basis of this testing goes beyond this. Greatly oversimplified, the basis of such testing is: that experience has shown that a person who has brain damage will act in a particular way when subjected to particular tests and that if the patient acts in that way, it is possible or proper WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) to infer that brain damage has occurred. However, the diagnosis of brain damage, and so the nature of the testing processes, are much more complicated. In cases of the present kind, there is no single sign or symptom, or group of them, which is a necessary and sufficient indication or contra indication of brain damage; at least, it was not suggested that there is. Therefore, the diagnosis involves the quantification of the results of the testing of the patient, the assessment of probabilities, and the like. Tests may be designed merely to determine how a patient will react, ie, what signs and symptoms he will display in a given situation. Thus, they may be designed merely to show that the patient has difficulty in remembering or in thinking logically. But in the present case it was suggested that the tests went further. Part of the attraction of psychometric testing lies in the postulate that the significance of the actions of a patient in a given situation (the signs and symptoms he displays) can be assessed, not merely according to the individual judgment of a clinician, but in terms of numbers. Conceptually, two things at least are often involved. First, the tests are, in principle, so designed that what the patient does can be measured or expressed in terms which can be measured against what other patients have done in similar situations. And, second, those measurements are compared with what experience has shown that others have done ("the patient has scored x and experience has shown patients who score x in such tests have brain damage''). Accordingly, tests, to the extent that they depend on quantifications of this kind, remain subject to degrees of uncertainty. They depend upon the extent to which experience of what brain damaged patients do can be quantified in this way, that is, upon the extent to which human experience of such matters can be reduced to numbers. This is, in general, a matter for determination by the expert witnesses. But, in addition, probabilities are apt to be involved. If no test result be a necessary or sufficient indication of brain damage (it was not suggested there were such), then it is necessary to assess, according to some calculus of probability, the probability that in the instant case the result evidences brain damage. All of these matters are, I think, relevant in deciding the significance of the psychometric tests and the conclusions drawn from them in this case. (ii) The Evan Davies evidence was that, by the end of 1975, there was no indication of brain damage in the psychometric tests administered; the Todd and Taylor evidence was that, from 1980 onwards, there was. It is necessary to examine this conflict. The Evan Davies evidence related directly to the initial period after the Chelmsford experience, the Todd and Taylor evidence to the period of 1980 and later. In the circumstances, and subject to what I have said elsewhere, this is not of importance. If, in 1980 and thereafter, there was brain damage, the damage arose from the Chelmsford experience: no other cause was suggested. It is, of course, necessary to exclude the later noted conditions, schizophrenia and other things, as the cause of the brain damage. But it was not suggested that that occurred. Therefore, the issue is whether the tests did or did not disclose brain damage. A number of matters were explored: was Dr Evan Davies sufficiently expert; did he administer the correct tests for brain damage; were they then the best tests for the purpose; and did he draw the correct conclusions from the results of them. None of the psychiatrists criticised his capacity as such. As I have said, it may be that they knew of and accepted his capacity in the field. It was to the second and 22 UNREPORTED JUDGMENTS third of these to which attention was directed. Considering the matter by reference to the written record, I would not conclude that these issues should be answered adversely to him. He saw the tests as sufficiently directed to the diagnosis of brain damage and as basing the conclusions that he drew. I do not think that such criticisms of this as were made by Drs Todd and Taylor established that the tests were not proper for the purpose. I think that their criticisms, if not merely peripheral, at least went mainly to the questions whether his tests were the tests best suited to the diagnosis of brain damage. By reference to what appears on the written record, I would not conclude that the Evan Davies evidence was less reliable than the Todd-Taylor evidence. There is an important factor favouring the Evan Davies evidence, namely, the context of it. Dr Evan Davies had tested Mr Crawford twice before the Chelmsford experience. He was tested within the year after it and for the purpose of treatment. The comparison between his condition before and after the treatment would have been present to Dr Evan Davies' mind. On the other hand, perhaps the post 1980 tests were more particularly directed to the evidence of brain damage than those of 1975. None of these things is conclusive. I must come therefore to the conclusions of Enderby J. His Honour accepted the Todd-Taylor evidence. He referred in terms to the conclusions which they expressed. Ordinarily I would regard myself as constrained to accept those conclusions. Each of the psychologists gave evidence before the judge. I would ordinarily accept that, absent indications to the contrary, the judge was influenced in his acceptance of witnesses by what he saw of them: Abalos v Australian Postal Commission (1990) 171 CLR 167; Louth v Diprose (1992) 175 CLR 621 and the cases there referred to. See generally Minter v Police Tribunal of New South Wales (Court of Appeal, 21 May 1992, unreported). The trial judge's advantage operates, or may operate, in respect of expert witnesses: see Chambers v Jobling (1986) 7 NSWLR | at 25. See generally Western Australia v Watson (1988) Aust Torts Reports 68, 289. But an appellate court may depart from the conclusions of a trial judge where, inter alia, it appears that he has not made use, or proper use, of the advantage that he had: Voulis v Kozary (1976) 50 ALJR 59. In the present case, the trial judge did not refer in relevant respects to the Evan Davies evidence. He did not indicate his understanding of that evidence, how he contrasted it with the Todd-Taylor evidence, or why he preferred the latter to the former. It is not necessary that a judge, in his judgment, refer to every aspect of the case or every step in the reasoning to his conclusion: see generally Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Nor should it be readily inferred that, because evidence is not referred to, it has been overlooked: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Fabre v Arenales (1992) 27 NSWLR 437 at 449, 452. Such an inference is warranted only where a reference to the evidence is to be expected. Where the purpose of the judgment is to articulate conclusions rather than to detail reasoning or where, as here, the facts are complex and the judgment is necessarily long, such an inference will not ordinarily be drawn. However, the contrast of the psychometric evidence in this case is of considerable significance. It was, in my opinion, to be expected that the judge would deal with it. As I shall indicate the acceptance of the Evan Davies evidence would not be determinative of the existence of brain damage but it would be a matter of considerable importance in assessing the whole of the evidence on this issue. If he did not in fact deal with it, he would, I think, have failed properly to WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) assess all of the evidence. In Fabre v Arenales (1992) 27 NSWLR 437, I referred to the processes of reasoning which may be followed in the course of fact finding and I shall not repeat the detail of what I there said. As I there said, a judge must, in deciding an issue of fact, take into account all of the evidence that is relevant to it. But he may in some circumstances put aside evidence where that is simply unacceptable. But the Evan Davies evidence was not evidence which could simply be put aside as a mere preliminary to the acceptance or rejection of the Todd-Taylor evidence. Unless it was rejected or at least significantly qualified, it was difficult for the judge to accept the Todd-Taylor evidence as the judge did. In the circumstances, I do not think that the Evan Davies evidence can be put aside as the judge did. On the face of it, it was no less acceptable than the Todd-Taylor evidence. There was no reason why a person approaching ie diagnosis of brain damage in this case would not give credence to it. The main psychometric witnesses did not, for example, merely put it aside as inherently flawed or for reasons of that kind. Therefore, it would be rejected and the Todd-Taylor evidence preferred to it if, essentially, Dr Evan Davies was to be rejected for reasons of the kind referred to in Maynard v West Midlands Regional Health Authority (1984) 1 WLR 634 and Chambers v Jobling (1986) 7 NSWLR 1 at 25. But I am satisfied that that is not the reason why the judge put his evidence aside in this case. What a judge, including this judge, does is to be inferred from the judgment and its context. If the judge had concluded that Dr Evan Davies was to be put aside for a reason of this kind, he would, I think, have said so: see R v Harrow Crown Court, Ex parte Dave (1994) 1 WLR 98 at 105. The conflict of the psychometric witnesses was too important to be ignored or to be left to an Abalos inference. I have therefore come to the conclusion that, having adopted the evidence of the plaintiff's then wife and mother and of Mr Kogel, the judge failed fully to appreciate the importance of the Evan Davies evidence and failed to grapple with the conflict to which it gave rise. Therefore, considering both bodies of evidence, I do not think that there is a sufficient reason why the one should be, in the relevant sense, preferred to the other. (iii) I come therefore to consider what part the psychometric evidence plays in deciding the present issue, viz, whether Mr Crawford suffered brain damage at Chelmsford Hospital. In this regard, two things were suggested: that from the results produced by the psychometric tests, a diagnosis could without more be made whether brain damage had occurred, and that, however that be, those results were of assistance, with other clinical observations, in the making of that diagnosis. At the trial, the expert witnesses differed as to the role of psychometric evidence of this kind in the diagnosis of the brain damage. Some of them, eg, Drs Todd and Taylor at least, were of the opinion that, from psychometric evidence alone, a diagnosis of brain damage can be made. Those witnesses believed that, from the quantitative measurements made in such testing, a diagnosis could be made. Other witnesses (of whom Dr David Bell was possibly the most emphatic) believed that the results obtained from such testing were not of themselves sufficient to base a diagnosis in a case such as the present. In this regard, the judge said he was "impressed by Mr Taylor's evidence" and accepted "that psychometric testing has within it the capability of eliciting information and facts on which opinions can be formed by psychologists as to whether the brain damage has occurred or not". 24 UNREPORTED JUDGMENTS Insofar as it may be relevant, my own conclusion from the printed record would be that the results of psychometric testing alone would not warrant the diagnosis of brain damage. This, I think, was the general thrust of the evidence of the psychiatric witnesses. But the issue was a live one at the trial and in this regard the judge relied on (was "impressed with") what Dr Taylor said to the contrary. The reasons for and against what he said were not explored in principle: the witnesses essentially juxtaposed their conclusions rather than their reasons in this regard. There was nothing inherently improbable in the one view or the other. In these circumstances, I think that this Court should adopt the judge's conclusion that Dr Taylor's view was to be preferred. If this be done, it is in principle necessary to decide whether the Evan Davies evidence or the Todd-Taylor evidence is to be adopted: if the former, then there was no brain damage; if the latter, it should be inferred that brain damage had occurred. However, it is not necessary to pursue further this difficult matter because, for the reasons to which I shall refer, I think the issue of brain damage can be decided in a different way. That brings me to the second of the two things to which I have referred: the role of psychometric evidence as an aid to the overall clinical diagnosis of brain damage. All of the psychiatric witnesses and, I think, of the psychometric witnesses generally agreed that, if psychometric results did not alone disclose brain damage, what they showed could and should be taken into account as matters from which, with other and clinical observations, brain damage could be diagnosed. The other things would include, inter alia, such accounts of Mr Crawford's behaviour as was accepted from, eg, the former wife, the mother, and others. In the process of such a diagnosis, the clinician would be faced, inter alia, with (as I have concluded) two sets of psychometric results, the Evan Davies and the Todd-Taylor results, each apparently acceptable on their face but inconsistent one with the other. This, I imagine, is not an unprecedented situation. It would be for the clinician to make the diagnosis upon the whole of the material, including the two sets of psychometric results, giving each such weight as the clinician's expertise and judgment and his assessment of the other material, suggested. This, I think, is what has been done in this case. I see no error of principle in the psychometric evidence being dealt with in this way. (iv) I come now to the view that this Court should take of the conclusions of the trial judge as to the psychometric evidence and the use which he made of it. As I have indicated, this is a matter of some importance. The trial judge saw and heard the expert evidence at length and, in a long judgment, expressed his conclusions covering it. He concluded, inter alia, that a diagnosis of brain damage could be made from psychometric results alone, that he accepted the psychometric results of Drs Todd and Taylor which suggested brain damage, and that therefore the treatment of Mr Crawford had caused brain damage. If, in accordance with the principles to which I have referred, this Court is constrained to accept those conclusions, that concludes this issue in the plaintiff's favour. But, as I have indicated, I believe that the judge's failure to deal with the Evan Davies evidence means that this Court is not so constrained. This Court may make its own assessment of the psychometric evidence. It may do so - at least, I would do so - in the manner to which I have referred. I would see it as not conclusive, but as a factor to be taken into account in the overall diagnosis of brain damage. To that extent this Court is not in principle bound to accept the reasoning and the conclusions of the trial judge on this aspect of the matter. WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) That brings me to the determination of the issue whether the Chelmsford experience caused brain damage to Mr Crawford. The trial judge concluded that it did for, I think, two main reasons: because the psychometric results of Dr Todd and Dr Taylor established that it did; and because some of psychiatrists thought that it did and he accepted their opinion. I shall not adopt the first reason, for the reasons to which I have referred. It is the second reason to which I now come. Some of the psychiatric witnesses, eg, Professor Kiloh, opined that Mr Crawford had suffered brain damage in the Hospital; some, eg, Dr David Bell, opined that he had not. The judge accepted the former conclusion. Mr Sullivan QC and Mr Brereton have submitted that he was wrong. As the result of the argument, two questions arise: whether, on the printed record, the judge's conclusion was right; and whether, upon the Abalos principle, this Court is constrained to accept the judge's conclusion. There was evidence for and against brain damage: the evidence did not preponderate on one side or the other. Mr Parker QC submitted that, with the months following his leaving hospital in January 1974, Mr Crawford showed the signs and symptoms indicative of brain damage: the judge accepted the evidence of his former wife and his mother and of Mr Kogel to that effect. The evidence as to how he acted while employed in the University during 1975-79, in Bougainville in 1980 and in South Australia in 1981-82 provided some support for the view that his relevant intellectual capacity was then not what it would have been. The Todd-Taylor psychometric evidence supported that diagnosis. And there were psychiatric witnesses who accepted it. Mr Sullivan QC and Mr Brereton referred, inter alia, to the witnesses who saw nothing unusual in Mr Crawford's conduct, to the Evan Davies evidence and the psychiatric opinion of, eg, Dr Bell. They referred to the difficulties affecting the diagnosis of brain damage in this case: to the main ones of these I have referred. There is on the printed record nothing which compels the choice of one body of evidence rather than the other. In some cases, one body of evidence will contain, eg, internal contradiction and the acceptance of it will be inconsistent with some accepted, agreed or established fact or principle; there was, in my opinion, nothing of that kind in the present case. It was contended for the defendants that, for a diagnosis of brain damage, there must be signs and symptoms of the relevant kind, that they must accord with the pattern to which I have referred, that they did not do so, and accordingly that the plaintiffs evidence of brain damage should not be accepted. As I have said, the general thrust of the psychiatric evidence was that there was a classical pattern of this kind. But it would, I think, be a mistake to see that evidence as establishing a pattern of the rigidity which the submissions of Mr Sullivan QC sometimes suggested. Thus, the pattern, as formulated in argument, suggested that the relevant signs and symptoms of brain damage should appear in about the first six months. But the evidence did not, I think, establish a cut off period which was sharp and rigid. Some at least of the psychiatric witnesses would have accepted the onset of the relevant signs and symptoms within a longer period and, a fortiori, the recognition of the evidence of them at a later date than six months. The pattern was, in my opinion, seen by the witnesses more as a diagnostic guide ian as a template. Understood in this way, I do not see what was said as to the pattern of signs and symptoms as a basis for choosing one part of the evidence rather than the other. 26 UNREPORTED JUDGMENTS Were I deciding the matter on the written record, I would find it more probable than not that the Chelmsford experience did cause brain damage. Where the opinions of experts differ and there are no compelling internal reasons for concluding that one or other is wrong the Court must make a choice between the alternatives. It may, of course, conclude merely that the evidence is in fact evenly balanced and no preponderance for the plaintiff has been shown. But such cases are rare and I do not think that this is such a case. In this case, I would be influenced by the evidence of the former wife, the mother, and Mr Kogel. The judge's acceptance of their credibility should be accepted by this Court. If what they said be accepted, there was an important change in Mr Crawford's functioning after he left the Hospital. It occurred or was recognised by them during the first six or more months, certainly by the time he left his employment with the Leyland company in October 1974. The changes were, at least in part, of the kind relevant to the diagnosis of brain damage. I am conscious of the factors, the ongoing medication or other factors, which could affect his mental functioning at that time and the consequent difficulty in isolating and deciding issues of causality. But I am satisfied, on the basis of an appropriate probability, that there was a relevant change in him following his treatment in the Hospital. Post hoc is not, of course, propter hoc and I appreciate that, in adopting the conclusions of some of the psychiatrists (Professor Kiloh and Dr Smith) I must put aside the conclusions of other and distinguished psychiatrists (Dr Bell and Dr Morse). But if after the treatment at the Hospital, there was a significant and relevant change, the Court is entitled to conclude that the treatment caused or relevantly contributed to that change: see generally Tubemakers Ltd v Fernandez (1975) 2 NSWLR 190; (1976) 50 ALJR 220. I am supported in coming to this conclusion by, as I think it was, the trial judge's acceptance of Professor Kiloh in preference to the opposing psychiatric witnesses. Enderby J did not state in terms that he adopted Professor Kiloh's conclusions because of his assessment of him in evidence before him. It is arguable that he adopted his conclusions for other reasons, eg, because of the support he saw to have been given to them by the psychometric results of the Todd-Taylor evidence. If he did, that might for the reasons I have given affect the extent to which he made proper use of his advantage as trial judge and accordingly the extent to which this Court is constrained by his preference for Professor Kiloh. I think it is probable that his Honour accepted Professor Kiloh because of what he saw of him, in a sense to which the Abalos principle would apply. If this be so, then that constrains this Court to accept what he did. If that be so, it supports the conclusions which otherwise and independently I would adopt. It was argued for the defendants that Mr Crawford's mental conditioned to deteriorate for a period after January 1974, that that was too long to be consistent with the pattern of signs and symptoms caused by brain damage and that therefore no brain damage had occurred. This was referred to in the evidence of some at least of the expert witnesses. It may be accepted that his functioning did deteriorate until the time at which the schizophrenic illness had, on any view, intervened. But there were other causes, or possible causes, of this. He had had a neurotic condition. What he had gone through at the Hospital may well have affected a normal person for a long time. He was under Dr Bailey's treatment for some time and heavily medicated. And there was the condition which ultimately manifested itself in the schizophrenic illness from which he is now suffering. WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) The continued deterioration such as occurred up to about 1980 was not seen by Dr Kiloh or Dr Smith as inconsistent with brain damage. Having regard to the nature of the "pattern" of symptoms of brain damage to which the evidence referred, I do not think that, insofar as what occurred was deterioration on relevant mental functioning and not the result of such other factors, it should lead to the conclusion that there was not initially brain damage. (b) Did the brain damage cause (or contribute to) the schizophrenic illness?: The trial judge held that the brain damage worsened Mr Crawford's neurotic condition, that it changed him from a person with anxiety depression to one "who was qualitatively worse with a significant diminution in mental capacity". This, given brain damage, is not, I think, seriously challenged. But the main contest was as to whether the brain damage affected the schizophrenia. In principle two questions have been raised: (i) can brain damage cause a schizophrenic illness; and (ii) (if it can) did it do so in this case. Enderby J answered both questions in the plaintiffs favour. (i) This question was not formally conceded. But I am not sure how far it was seriously in contest - if it was, I would answer it for the plaintiff. That was the thrust of the expert evidence which the judge accepted. Greatly oversimplified, the defendant's main contention was to the following effect: the plaintiffs later condition was schizophrenia; schizophrenia results from genetic factors, not from trauma or brain damage, and accordingly such brain damage as resulted from the Chelmsford experience did not cause or contribute to the onset of the schizophrenia. The plaintiff's reply, again oversimplified, was therefore: it is not true that trauma or brain damage may not cause (true) schizophrenia; the plaintiff s condition is not (true) schizophrenia but a schizophrenia-like condition, and the aetiology of that condition is or may be different from that of (true) schizophrenia; and in any event the state of knowledge of the aetiology of schizophrenia and schizophrenia-like conditions is not so well established as to enable it to be said that brain damage will not cause such a condition. The contention of the defendants would have been strong if the evidence from the expert witnesses had been unanimous upon the nature of the plaintiff's condition and the aetiology of (true) schizophrenia. I do not think that it was. The evidence of Professor Kiloh and, I think of Dr Smith, supports the approach suggested for Mr Crawford. As to the plaintiff's condition, Enderby J, at the commencement of his judgment said: "It is not in dispute that the plaintiff began to develop the first signs of paranoid schizophrenia towards the end of 1983 and that he subsequently became and remains today in a condition of paranoid schizophrenia with the prognosis that he will remain a schizophrenic for the rest of his life." Dr Smith, in his evidence, dealt with the questions put to him upon the basis that the condition was schizophrenia: at least, he did so in a substantial part of his evidence. However, in other parts of the evidence, the suggestion emerged that there are, as I have described the, "schizophrenic-like conditions", being conditions which are not true schizophrenia but which exhibit some of the signs and conditions of a true schizophrenia. I think that the evidence of, eg, Professor Kiloh suggested that the signs and symptoms displayed by Mr Crawford might indicate something other than a true schizophrenia. I would infer from the evidence as a whole that the knowledge of the conditions giving rise to such signs and symptoms it not yet finally definitive, in the sense of being able to distinguish between the two conditions and the signs and symptoms apt to be generated by 28 UNREPORTED JUDGMENTS the one or the other. Some time was spent at the trial referring to medical literature. I do not find the literature referred to as decisive upon this or other relevant issues but it is, I think, suggestive of a state of medical knowledge in relation to schizophrenic and schizophrenic-like conditions of the kind to which T have referred. But however that be, there was support in the expert evidence for the conclusion that, though (true) schizophrenia usually arises from a genetic condition, it can arise also from other sources of which brain damage is one. Dr Smith expressed that opinion in terms and his Honour accepted his evidence in this regard. I think an inference to that effect can be drawn from, eg, the evidence of Professor Kiloh. (ii) In the case of some kinds of mental illness, there may be a distinction to be drawn between an event which is merely the occasion of the onset of the illness or its symptoms and one which causes the onset of the illness or its symptoms: see Hoffmueller v The Commonwealth (1981) 54 FLR 48. Whether a tortfeasor whose act is merely the occasion of such onset is liable in damages for it remains to be definitively considered by the High Court. Such issues have not been raised in this case. What is in issue here is whether there was, in the relevant sense, a causal relationship between the treatment and resulting brain damage and the onset of schizophrenia. There was evidence that the brain damage caused to Mr Crawford did cause his schizophrenic condition. Dr Smith said that I was more likely than not that his condition resulted from the brain damage and his Honour accepted that opinion. And I would infer from Professor Kiloh's evidence that he was of a similar opinion. I see no reason in the evidence warranting a refusal by this Court to accept such an opinion. It is, I think, not clear that the other medical witnesses expressed a firm view that, if there was brain damage, and if brain damage could cause a schizophrenic condition, it did not cause that condition in the present case. But, insofar as there was evidence to that effect, I do not think that this Court should accept it. There are at least two reasons for this. First, given the assumptions which are here to be made, there is nothing illogical or contrary to existing principle in the view that the brain damage caused to Mr Crawford did in fact produce schizophrenia. There is nothing in the nature of the condition upon which a lay person can judge whether one conclusion or the other is correct; the views or the reasons from them, one side or the other, do not preponderate. In this sense, the decision involves the choice between experts. There is nothing in the terms of the judge's judgment to require that the Court over-rule his choice of the experts favouring the plaintiff. Second, the two main causes of the onset of schizophrenia were, according to the evidence, brain damage and the genetic endowment of the patient. There was nothing to suggest that Mr Crawford was genetically inclined to schizophrenia. In the absence of any other likely cause, there is no error in an inclination towards brain damage as the cause of what in fact had occurred. The evidence of Dr Smith referred to this and his Honour in his judgment accepted it. Again, I am not convinced that the medical literature to which reference was made was such as to warrant the rejection of the considered view in this regard of Dr Smith. For these reasons, I do not think that this Court is warranted in departing from the conclusions of Enderby J that brain damage resulted from Dr Bailey's negligent treatment of the plaintiff and that that brain damage caused or contributed to the onset of his schizophrenic condition. WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) 4. RECONSIDERATION OF THE COURT'S PREVIOUS CONCLUSIONS: During argument it was submitted for the defendants that the Court can and should reconsider conclusions expressed by it previously on some of the matters at issue in these appeals. Having regard to the conclusions which I have expressed, I see nothing which warrants conclusions different from those which I have previously expressed. If and insofar as it is open to this Court to reconsider the rulings or the orders made by trial judges or by this Court in relation to matters of limitation, there is nothing in the conclusions which I have reached which would warrant such a course. It was submitted that Court, or members of the Court, should re-examine the conclusions reached relating to the right of Mr Crawford to sue MDU. At the time of the oral argument, these submissions were made mainly if not wholly for the defendants. The conclusions of members of the Court as already expressed by them have differed in relation to certain aspects of this matter. The importance to Mr Crawford of a right to recover from MDU has been stressed: the Court has been informed that little (if any) recovery may be expected from the estate of Dr Bailey. In deference to the submissions made I shall refer again to one of them, viz, the right of MDU to terminate the rights granted to Dr Bailey by the articles of association. This matter may be of relevance in other cases. I shall therefore refer again to the reasons why in my opinion MDU was entitled to do what it did. Mr Crawford's right to recover against MDU depends, in this regard, upon two things: Dr Bailey's right to an indemnity from MDU; and Mr Crawford's right to sue MDU in respect of that indemnity, in reliance upon s6 of the Law Reform (Miscellaneous Provisions) Act 1946. I have in my previous judgment dealt with s6: I adhere to my previous opinion that s6 does not prevent MDU doing what it did, to terminate Dr Bailey's right to an indemnity. It is the first matter, Dr Bailey's right to claim an indemnity from MDU under the Articles of Association, to which I shall now refer. In view of what has been said in argument, I shall spell out again the detail of my views on this matter. The essential question is: the extent of the power of MDU to refuse to indemnify a member or former member - in this case, Dr Bailey - against liability for the negligent treatment of a patient. In the main, two aspects of this question have been argued: whether MDU has a discretion to refuse such an indemnity; and (if it has) was the discretion exercised in such a way in this case that its refusal to indemnify should be put aside. As I have indicated in my previous judgment, I am of opinion that MDU has such a discretion and that it was exercised in a way in which it was open to be exercised. It will assist in the examination of the matter if I state in chronological order the main events here relevant and the dates on which they occurred. 18 January 1934 MDU incorporated December 1973-1974 Mr Crawford's treatment in Chelmsford Hospital 1980 Mr Crawford sued Dr Bailey September 1985 Dr Bailey died and accordingly ceased to be "a member" of MDU: see Article 15(a) 3 October 1985 MDU resolved that assistance to Dr Bailey be terminated 8 October 1985 Mrs Bailey, as executrix, requested assistance from MDU in relation to Mr Crawford's claim 30 UNREPORTED JUDGMENTS 7 November 1985 MDU resolved that request be refused. 1988 Mr Crawford MDU 1990 MDU resolved "pursuant to its powers generally and in particular its power under old Article 60" to refuse indemnity. The acts by which MDU purported to deny indemnity or assistance to Dr Bailey are essentially two: the resolution of 3 October 1985 and the resolution of 1990. The issues have been put in various ways during argument but in the end what is to be decided is whether, by one or other of these, MDU could and did effectively determine any claim which Dr Bailey had to indemnity. I shall deal first with the resolution of 3 October 1985. The right of MDU to do what it then purported to do depends, of course, upon the terms of the Articles of Association of the company at the relevant time. This has been argued upon the basis that the relevant articles are those in existence on 3 October 1985. As far as can be ascertained from the material before this Court on appeal, the Articles before that date do not appear to have been tendered or dealt with below. It is, in my opinion, proper that the rights of MDU in this regard be decided on that basis. That was the basis on which the matter was dealt with in Oswald v Bailey: see (1987) 11 NSWLR 715 at 718, 734. Enderby J dealt with the matter upon that basis. In my judgment of 3 September 1993 I held that the relevant Article then in force was Article 60. As far as is here directly relevant, that Article provided: "60. Notwithstanding the provisions of Article 57 where the action, proceeding, claim or demand is one in respect of which the Union shall give indemnity to a member under Article 57 and all conditions entitling such member to such indemnity have been fulfilled but before such action, proceeding, claim or demand has been finalised, such member ceased to be a member of the Union under the provisions of these Articles the Council shall have complete and absolute power and discretion to refuse to indemnify such member or his legal representative in the case of his death either wholly or in part and subject to such conditions as the Council may impose and...". I then held as follows: (a) That, on the construction of Article 60, MDU was entitled to refuse indemnity to Dr Bailey; more accurately, Dr Bailey having died in September 1985, MDU was entitled to resolve, as it did, that no indemnity be given to his estate. (b) That MDU was not disentitled so to refuse to indemnify Dr Bailey by reason of estoppel, waiver or the like arising from the fact that Dr Bailey had been represented in the litigation against him by solicitors nominated by MDU: see Oswald v Bailey (1987) 11 NSWLR 715 at 718, 734; or otherwise. (c) That if a claim to an indemnity arose not from the operation of the Articles of Association but from a contract (the Articles of Association being treated as an offer, to be accepted by Dr Bailey by payment of his membership fee or otherwise), that did not assist Dr Bailey because such a contract would, by its terms, provide that MDU could refuse indemnity in the circumstances set out in Article 60. (d) That if the power to refuse the indemnity to Dr Bailey had, on its proper construction, to be exercised bona fide, no claim had been made at the trial that MDU had not acted bona fide, no such issue had been litigated, and, on the evidence before the court on appeal, a finding that it had not been exercised bona fide should not be made; and WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) (e) That it was therefore not necessary for me to consider the effect of any subsequent amendments to the Articles of Association. In deference to the submissions made following the delivery of the judgment of 3 September 1993, I shall expand what I said in relation to these matters. (a) The construction of Article 60: In my opinion, it is clear that Article 60 was intended to operate so as to give to MDU a very wide discretion and to enable that discretion to be exercised at any time before the litigation in question "has been finalised". That which, at the most, members might claim under the Articles of Association was to have MDU "indemnify" them: that is the effect of the Article by which the members' rights were granted: Article 57. "Indemnity" is, I think, intended to have the effect which, in an insurance context, it would ordinarily have. Article 57(2) provided that the member or his personal representatives should be indemnified "in respect of any legal claim for damages or costs arising from any claim or claims which may be made upon him or them arising out of any act or omission on the part of such member done or omitted while he is a member...". "Legal liability for damages or costs..." would, of course, ordinarily accrue at the time when the relevant "act or omission" had been done or omitted. In my opinion, Article 60 makes clear the intention of the draftsman that the discretion of MDU "'to refuse to indemnify such member or his legal representative...' should be capable of being exercised notwithstanding that a claim to indemnity had arisen in that way and, further, notwithstanding that any other "conditions entitling such member to such indemnity had been fulfilled" and notwithstanding that the relevant court proceeding had been commenced, provided that it had not been "finalised". As at 3 October 1985 Mr Crawford's action against Dr Bailey had been commenced but not, of course, finalised. Mr Crawford's action against MDU had not been commenced: it was commenced only in 1988. Accordingly, in my opinion, the discretion given by Article 60 entitled MDU to refuse the indemnity sought. That indemnity would, of course, be the one then sought: an indemnity against the damages or costs arising from Mr Crawford's action against Dr Bailey, commenced in 1980. The claim by Mr Crawford against MDU was, in strict form, not one in which Dr Bailey or his estate would incur any "legal liability for damages or costs arising from..." any matter referred to in Article 57(2). It is therefore arguable that that proceeding was not one to which directly Article 57(2) applied; it is arguable that the indemnity referred to in Article 57(2) could be claimed only in respect of the result of the direct action by Mr Crawford against Dr Bailey. Mr Crawford's action against MDU is, on such a view, an ancillary or collateral proceeding dependent upon Dr Bailey having, at the relevant time, the right to indemnity against the "damages or costs" ordered to be paid or arising from the 1980 proceeding. But however this be, Article 60 gave MDU the right, on 3 October 1985, to do what it did. (b) Estoppel, waiver or the like: As I have said, these matters do not appear to have been litigated before Enderby J; his Honour was not, I think, called upon formally to decide them. Any claim to relief based on estoppel, waiver or the like would be essentially a claim that the right of MDU under Article 60 to "refuse to indemnify" Dr Bailey had been lost by such a means. There was, I think, nothing in the evidence to ground a claim by Dr Bailey - personally or by his estate representative - that there had been such. If, in the material before the court, there was such a claim, I do not think that it would prevent the exercise of the power under Article 60. As I have 32 UNREPORTED JUDGMENTS indicated, that power was, by the terms of Article 60, stipulated to exist notwithstanding that all conditions had been fulfilled other than the finalisation of the relevant litigation. Accordingly, matters which would ordinarily go to the fulfilment of the relevant "conditions entitling such member to such indemnity" would not as such operate to waive the right given or to estop the exercise of it. It would be necessary to show something more. There is in my opinion nothing more established in the present case. Accordingly, if such an issue remained open, it is not one on which Dr Bailey or Mr Crawford would succeed. (c) Contractual claim to indemnity: It was submitted, as an alternative, that Dr Bailey's claim to indemnity lay not in the Articles of Association as such but in a contract of the kind to which I have referred. This submission derives, I think, from observations of Priestley JA in Oswald v Bailey; it is the view which, I think, commended itself to Sheller JA in this case. I do not think that this is a ground upon which Dr Bailey or Mr Crawford should succeed. I am of opinion that the right proffered by the Articles was one which was intended to be available from the operation of the Articles alone and not otherwise. The payment of premiums was something provided for or contemplated by the Articles as an incident of membership generally or of a particular kind; at least, the payment was a condition of the entitlement to particular benefits under the Articles. The fact that the Articles themselves were to be the primary source of the right to indemnity appears, in my opinion, from the terms of Article 57(2). That Article is in presently operative terms: it provides that "the Union shall indemnify each member...". It is the Article which purports to create the right to indemnity. I do not see the context as one in which the right to indemnity was intended to arise from some subsequently made contract. However, if a contract were to be implied, it would in my opinion be one which would incorporate the relevant provisions of the Articles of Association. Accordingly, if, as I have indicated, the effect of Article 60 was to grant to MDU the right to "refuse to indemnify" the member notwithstanding Article 57, such a right of refusal would in my opinion be part of the implied contract. (d) Bona fide exercise of the discretion: Submissions were made before this Court suggesting, in one form or another, that the act of MDU in refusing to indemnify Dr Bailey was ineffective because it was not done bona fide. I doubt that this issue was raised at the trial: I do not understand what was said by Enderby J to deal with such an issue. But however that be, on the evidence before the Court, I would not conclude that the exercise of the discretion was not one which was authorised by Article 60. There is no material which, in my opinion, should lead to the conclusion that the decision was motivated by considerations of a mala fide nature. If it is permissible or necessary to speculate why MDU refused the indemnity to Dr Bailey, in general it may be that MDU, in the light of what was alleged against Dr Bailey, may have wished not to be associated with a practitioner who had acted in that way. I do not think that this contention assists Mr Crawford's case. (e) Subsequent amendments to Article 60: In 1988 Mr Crawford sued MDU directly. In 1990 MDU resolved 'pursuant to its powers generally and in particular its power under old Article 60" to refuse indemnity. I infer that it saw this as a precaution arising from the fact that a subsequent proceeding had been commenced. I am inclined to think, for the reasons to which I have referred, that the precaution was not necessary: the refusal of an indemnity had already been made. It was suggested that the WAEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Mahoney JA) amendments to the Articles of Association subsequently made and what MDU did in this regard evidenced mala fide such that the denial of the right to indemnity was not effective. If the denial had already been effected, this argument fails. But, if what was done in 1990 be considered according to its terms, I see nothing which would deprive what was done of its effect. I am conscious of, as I have described them, the pejorative terms of the judgment of the trial judge in this regard. I do not join in that view. What, by 1990, had been revealed in relation to Dr Bailey's actions was appalling. It is understandable, in my opinion, that reputable medical practitioners would wish to dissociate themselves from what was done; it is understandable that they might wish not to be seen to provide financial support for a person who had done what Dr Bailey had done. To do this would, of course, save money. But that is not sufficient to impugn the bona fides of what MDU did. If and insofar as it was necessary for MDU to rely upon what was done in 1990, I see nothing mala fide in what was done. It was suggested that, insofar as amendments to Articles of Association were then effected or relied on, the amendments were, under the Company legislation, ineffective. If that were so, then Article 60 remained in force and the resolution of 1990 relied on it. I see no objection to Articles of Association being amended for proper purposes even though it has an effect such as the present. There was before the Court no evidence which in my opinion should lead the Court to conclude that the amendments were made for reasons which would render them invalid as amendments of the Articles of Association. In deference to the submissions made by Mr Parker QC, I have expanded what, in my judgment of 3 September 1993, I said in this regard. I have done so because the matter may be relevant both in respect of Mr Crawford and other plaintiffs. But, in the end, I remain of the conclusion which I then expressed, namely, that MDU effectively terminated any right which Dr Bailey had to indemnity. Following the preparation of these reasons, further submissions have been made by the parties. The Court has been informed that on 13 May 1994 the High Court, in a matter of Mannix v McMillan, refused leave to appeal from the decision of this Court (1993) 31 NSWLR 538. In doing so the High Court expressed the opinion that "the interpretation which they favoured (the majority of the Court in Mannix) is the correct interpretation of the words which the legislature has chosen to use in these provisions". The High Court accordingly confirmed the views expressed as to the operation of the Law Reform legislation on which Mr Crawford has relied. Mr Parker QC has, in written submissions, submitted that the Court should determine the present matter upon the basis that the Articles of Association relevant for present purposes were not those in force in 1985 but those in force in December 1973-January 1974. For the reasons I have given as to the construction of Article 60 the power to refuse indemnity existed at the time the indemnity was refused notwithstanding that the right to it arose (if it did) under earlier Articles. If the right was based in the Articles, such rights as previously existed were of their nature subject to proper amendment of the Articles. I would not conclude that ie amendment adopting the relevant Articles 57 and 60 was made other than bona fide. If the claim to indemnity was, contrary to what I have said, based on an implied contract, the contract would, I think, have arisen each year on the payment of subscription or the like and accordingly would have come into effect 34 UNREPORTED JUDGMENTS at the time when Article 60 was part of the Articles of Association and accordingly would have embodied its provisions. I make these observations in deference to Mr Parker's present submissions. I am not satisfied that the material in relation to earlier Articles was formally before the Court although copies of the documents were provided to ie Court at later stages. Those documents were of assistance in considering the construction of the relevant Articles, Articles 57 and 60. I do not think the Articles were intended to supplement the evidence before this Court or to raise issues not litigated below. However, if and insofar as a different case is to be considered I think that that case fails, for the reasons I have given. I remain of the opinion expressed by me on 3 September 1993. Sheller JA On 3 September 1993 the Court delivered judgment on some of the issues raised by these appeals. In order to explain the issues addressed in this judgment it is necessary to state again the background of the proceedings before setting out the facts in greater detail than has been done in the Court's previous judgments. Enderby J heard two proceedings. The first was commenced by the respondent Maxwell Duncan Crawford (Mr Crawford) on 28 November 1980 against Dr Harry Bailey (Dr Bailey) and continued after his death on 8 September 1985 against Dr Bailey's widow as Executrix of his Estate (the Estate). The second was commenced by Mr Crawford against the New South Wales Medical Defence Union (NSWMDU) as Dr Bailey's insurer. Both proceedings were founded on allegations by Mr Crawford that, as a result of Dr Bailey's negligence when Mr Crawford was a patient in the Chelmsford Private Hospital (Chelmsford) in December 1973 and January 1974, he suffered brain damage and, in consequence, schizophrenia or a schizoid condition. Mr Crawford also alleged he suffered injury to his right leg and foot in the form of foot drop, a paralysis of the anterior leg muscles, an effect of which is that the foot cannot be held at right angles. On 17 December 1980 Master Allen (as he then was) made an order pursuant to s58 of the Limitation Act 1969 extending time for commencement of the first proceedings. Accordingly no limitation point arose at the hearing of those proceedings. The institution of the second proceedings is explained by the following matters. Prior to 4 November 1982 the Articles of Association of NSWMDU obliged it to indemnify Dr Bailey, as a member, or his personal representatives on his death, in respect of any legal liability for damages or costs arising from any claim or claims which might be made upon him or them arising out of any act or omission on his part while a member. On that date the articles were amended to leave to the Council of NSWMDU the sole and absolute discretion to determine whether the NSWMDU would assist a member by granting indemnity and to provide that the Council might in its sole and absolute discretion terminate any grant of assistance or indemnity and thereafter cease to assist any member in whose favour a determination had been made to assist. Although NSWMDU had resolved to indemnify Dr Bailey on notification of Mr Crawford's claim against him and had taken over his defence of the action, on 3 October 1985, after his death, the Council resolved to terminate assistance to the Estate. This led Mr Crawford to seek and ultimately on appeal to obtain leave to commence the second proceedings. To these proceedings, founded as they were on s6 of the Law Reform (Miscellaneous Provisions) Act 1946, various defences were raised including the effect of the resolution to terminate assistance to the Estate and the Limitation Act. Enderby J rejected these defences and found in WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) favour of Mr Crawford's claim. On 25 June 1992 in the first proceedings he ordered the Estate to pay Mr Crawford $586,196 and NSWMDU as cross defendant to pay the Estate as cross claimant $500,000 and in the second proceedings ordered NSWMDU to pay the Estate $500,000 such payment to be deemed satisfaction of the order in the cross claim in the first proceedings. He ordered NSWMDU to pay the costs of the Estate on the cross claim and the costs of the Estate of the second proceedings in each case subject to a proviso that such costs not exceed $438,000. His Honour's reasons were contained in two judgments of 28 February 1992 and 25 June 1992. APPEALS From these decisions there are three appeals; appeal No 40127 by NSWMDU against the Estate, the grounds for which are set out in a consolidated notice of appeal dated 26 August 1992; appeal No 40128 by NSWMDU against Mr Crawford, the grounds for which are set out in a consolidated notice of appeal dated 26 August 1992; and appeal No 40134 by the Estate against Mr Crawford, the grounds for which are set out in a notice of appeal dated 27 March 1992. In the second of these appeals there are a notice of cross appeal and notices of contention by Mr Crawford and in the third appeal a notice of cross appeal by Mr Crawford. The hearing of the appeals has so far been divided into two parts. On 3 September 1993 the Court delivered judgment dealing with the issues referred to in the President's judgment as: . the statutory charge issue (s6 of the Law Reform (Miscellaneous Provisions) Act); . the special contracts issue; . the limitation issue; . the level of indemnity issue; and . the costs issue. By a majority the Court in substance upheld the judgment below on those of the issues argued which it considered it was then able to decide and re-listed the appeals for further hearing. On 15 October 1993 NSWMDU filed a summons in which it sought orders as follows: 1. That it have leave to make further submissions in respect of the meaning and scope of s6 of the Law Reform (Miscellaneous Provisions) Act; 2. That the cross claim be dismissed; 3. That it have leave to file a supplementary notice of appeal; 4. That it have leave to be heard on costs. In the supplementary notice of appeal NSWMDU sought to argue two matters; first that s6 of the Law Reform (Miscellaneous Provisions) Act did not apply to "claims made and notified" policies where the event giving rise to the claim for damages occurred prior to the commencement of the period of the policy; and secondly that if the Court did not find that Mr Crawford suffered brain damage the extension of time granted by Master Allen should be revoked. In my judgment of 3 September 1993 I concluded that the policy evidenced by the Articles of NSWMDU was not a "claims made" policy so that the first matter sought to be raised is academic. As to the second matter, in light of the opinion I have formed about these appeals it does not arise. Accordingly, in my opinion, NSWMDU should not be granted leave to file the supplementary notice of appeal. 36 UNREPORTED JUDGMENTS The first and second orders sought concerned the effect of this Court's decision in McMillan v Mannix (1993) 31 NSWLR 538 and the refusal of the High Court on 13 May 1994 to grant special leave to appeal from that decision. The Court received written submissions and heard argument on this and also on costs, the matter raised in the fourth order sought. The issues remaining for consideration when the appeal came on for further hearing on 15 November 1993 were: . whether Mr Crawford suffered brain damage; . if so, whether the schizophrenia or schizoid condition subsequently diagnosed was caused by brain damage; . the effect of the clause in the Articles of Association of NSWMDU limiting indemnity "in respect of all claims arising from any one act or omission"; . whether in light of the decision in this Court in McMillan v Mannix the Court should reconsider its earlier judgment of 3 September 1993; and . the extent to which Mr Crawford's recoverable costs against the Estate or NSWMDU should be treated as part of the indemnity limited under the policy to a fixed amount. The appellants' grounds of appeal challenged many of the bases for his Honour's conclusions about the injuries Mr Crawford claimed he suffered and causation. The written submissions developed these contentions comprehensively. However in oral submissions the challenge was narrowed to the following: whether Mr Crawford suffered brain damage and, if he did, whether this caused his schizophrenia. The appellants did not dispute that: . at least from 1984 Mr Crawford suffered from schizophrenia; . if he suffered brain damage, this resulted from his treatment at Chelmsford; . Dr Bailey was responsible for any injury to Mr Crawford while he was being treated at Chelmsford; and . Mr Crawford suffered the injury alleged to his foot and leg while at Chelmsford as a result of Dr Bailey's negligence. Most of the expert medical opinion was provided not by treating doctors but by specialists retained by the parties well after the event. It is useful at this stage to identify the expert psychiatrists. Dr Smith and Professor Kiloh were called on behalf of Mr Crawford and Drs Morse and Bell on behalf of the appellants. BACKGROUND The respondent was born on 19 August 1947. Mr Crawford's upbringing as a boy and young man was strict. His family members were devout Christians with strong Presbyterian beliefs. Enderby J said that his father seemed to have been definite and unyielding in his beliefs. In 1968 he met Diane Marie Frances Crawford (Mrs Crawford) whom he married on 5 May 1969. She was 18 and a Roman Catholic, a fact which produced new, continuing and increasing tensions and pressures between Mr Crawford and his father. After Mr Crawford matriculated at High School he started work at a bank and then moved on to become a trainee metallurgist with Australian Iron and Steel. He qualified as a metallurgist at Sydney Technical College. Mr Crawford did not stay with any of his jobs very long and had difficulties with some of the people he worked with. He was considered a little absent minded. On 29 May 1972 he was employed by British Leyland Motor Corporation of Australia Ltd (Leyland) first on 29 May 1972 as an Assembler and then from 22 June 1972 as a Technical Officer (Metallurgist) within the Product Quality Laboratory. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) Mrs Crawford described Mr Crawford as a handsome looking man who was clean living, sensitive, kindly and thoughtful. She said "he had a dry sense of humour I enjoyed his company thoroughly.. He seemed to me a bright, intelligent man " She spoke of his talents in fixing things and his love of various games and other activities. While his Honour accepted these descriptions as honestly given and in accord with how Mr Crawford was remembered in his pre-Chelmsford days, he discounted them as being a little inclined to view the past through rose coloured glasses. On 2 May 1969, when he was 21 years old, Mr Crawford first consulted Dr Bailey. His Honour regarded it as clear on the evidence that at an early stage of his adult life Mr Crawford had problems of "an emotional kind" He accepted Dr Smith's opinion, with which Professor Kiloh agreed, that Mr Crawford before he went into Chelmsford was a person who had a neurotic or reactive tendency to anxiety and depression but was not a person who had any endogenous type of depression or any kind of psychiatric illness. Mr Crawford continued to consult Dr Bailey spasmodically, once more in 1969, seven times in 1970, seven times in 1971, four times in 1972 and then, after a break of over twelve months, twice in November 1973 when he was prescribed drugs known as Mandrax and Marsilid. Shortly afterwards he started acting strangely. He became extremely active and did not need much sleep. Enderby J said: "On Christmas Eve, 1973, he was behaving strangely and out of character He was 'very high and elated as though on drugs and behaving completely different[ly] from what should have been normal for him. He awakened on Christmas Day with a pounding heart and with pains in his chest and blurred vision and feeling very weak thinking he was having a heart attack." His Honour remarked that Mr Crawford's drug intake led some of the doctors to think that his change of behaviour on Christmas Day resulted from the synergetic effect of the drugs with certain foods he may have been eating. He said that Mandrax, a sedative type of drug, although no longer legally available, was notorious for its side effects, a view expressed by Dr Smith. The medical evidence indicated that there were three diagnostic possibilities that could explain the condition which took Mr Crawford into Chelmsford. These were: 1. that there had been an acute exacerbation of his anxiety state or his neurotic depression; 2. that he may have been having side effects of Mandrax; and 3. that he was having a reaction to the Marsilid, the monoamine oxidase inhibitor, known to be a drug with a potential for serious side effects if mixed with certain food compounds or certain other drugs. His Honour's findings about the effects of Mandrax and Marsilid involved his accepting the evidence of a specialist clinical pharmacologist, Professor Campbell, in preference to views expressed by medical witnesses called on behalf of NSWMDU. In the result on Christmas Day 1973 Mr Crawford was admitted to Chelmsford as a patient of Dr Bailey and there subjected to a treatment called deep sleep therapy coupled with electro-convulsive therapy (ECT). Enderby J observed that "deep sleep" was a form of therapy which was then falling into disuse and which had not been used for many years. ECT is a form of therapy that has an induced effect similar to that of an epileptic fit. Mr Crawford was kept at the hospital in a deep sleep condition, that is to say an induced coma, until 7 January 1974. No further ECT was administered after that date. Mr Crawford was discharged from the hospital on 25 January 1974. 38 UNREPORTED JUDGMENTS TREATMENT AT CHELMSFORD Enderby J found that there was sufficient evidence to draw the following inferences concerning Dr Bailey's responsibility for the treatment Mr Crawford received at Chelmsford: (1) Mr Crawford was Dr Bailey's patient; made with Dr Bailey with his consent and the consent of his family; (3) Dr Bailey was the treating doctor in overall charge of Mr Crawford; and (4) Dr Herron administered ECT's on Mr Crawford on behalf of Dr Bailey in accord with the instructions of Dr Bailey. His Honour was satisfied: "that such a situation gave rise to a duty of care and responsibility on the part of Dr Bailey to supervise and monitor and care for the well being of the plaintiff such that if those duties were not met and negligence occurred, the responsibility lay with Dr Bailey In the circumstances of this case, that duty of care remained during the whole of the plaintiffs time at Chelmsford on Dr Bailey and was not delegated by Dr Bailey to any of the staff at the hospital or to Dr Herron This was in part because of the special risks that were involved and the dangerous and unusual nature of the treatment that Dr Bailey was subjecting the plaintiff to." None of these findings is challenged. Chelmsford was a hospital with which Dr Bailey had many dealings and with which he was familiar. He sent patients there to be deeply sedated and given ECT. In his judgment of 28 February 1992 his Honour recorded the details of Mr Crawford's treatment after his admission to the hospital. In the course of this he remarked that Mr Crawford was perhaps not always a reliable witness. Many of the details of this treatment are not significant for these appeals. Enderby J found that Dr Bailey, after having been told something over the telephone about Mr Crawford's behaviour on Christmas Day, arranged for him to be admitted to Chelmsford, put into "deep sleep" and given ECT. Being sedated Mr Crawford was given his first ECT by Dr Herron on 26 December 1973. Instructions were given by Dr Bailey for ECT in the absence of any knowledge by those administering it as to the drugs then being taken by Mr Crawford or taken by him prior to his admission. His Honour said that whilst one can be very critical about aspects of the case he described as showing a deplorable lack of system, which was accepted by Mr Sullivan QC, who appeared for NSWMDU at the trial and on these appeals, he could not find that any of these actions by themselves caused Mr Crawford to be injured in any way. His Honour continued: fact that the deep sleep was continued and ECT was given to the plaintiff during a time when I find he was suffering from pneumonia. What I have said to date indicates a degree of recklessness and arrogance in the treatment of patients but the more serious facts occur when shortly after being sedated the plaintiffs temperature began to rise and when by the 27th and 28th December he had developed a high fever." In summary his Honour found that: 1. On each of the days from 27 December 1973 to | January 1974 ECT was administered; 2. By 27 and 28 December 1973 Mr Crawford had developed a high fever; 3. This would have signalled to any competent reasonable practitioner that Mr Crawford was suffering from some kind of infection; 4. The most common form of infection in an unconscious patient in such circumstances is pulmonary infection or pneumonia; 5. Mr Crawford was suffering from pneumonia, WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) 6. It was common ground that pneumonia would be accompanied by breathing difficulties with an associated risk of denial of oxygen to the tissues and to the brain, 7. It was common ground that shortage of oxygen to the brain can cause brain damage; 8. On 27 and 28 December 1973 and 1 January 1974 Mr Crawford was observed to be incontinent of urine, which confirmed he was in a coma; 9. On 28 December 1973, unconscious and probably suffering from pneumonia, "extra medication" was given for that fever and pneumonia. ECT was continued; 10. On 31 December 1973 Mr Crawford was noted as restless which according to the evidence given indicated pneumonia and the risk of shortage of oxygen. ECT was given again; 11. On 1 January 1974 he was "sucked out" several times during the night and he had a continuous cough. All of this indicated continuing pulmonary problems; 12. On 2 January 1974 Mr Crawford was still incontinent and coughing badly. He still had a high temperature and had to be "sucked out" several times during the night. He was still being given antibiotic drugs for his infection; 13. On 3 January 1974 another decision was made to continue the ECT on the instructions of Dr Bailey. On that occasion, a large dose of Amytal, a hypnotic or sleep inducing drug was given to continue the deep sleep. ECT was given by Dr Herron. Disprin was given for Mr Crawford's temperature. Mr Crawford was still deeply unconscious and on this date was seen for only the second time by Dr Bailey. Although his temperature was still high indicating continuing pneumonia Dr Bailey decided to continue the ECT; 14. On 4 January 1974 Mr Crawford was restless, yet coma inducing drugs were administered to continue the deep sleep. Mr Crawford had been given penicillin for the infection, but this was now changed to the stronger antibiotic Ampicillin, another antibiotic, no doubt in an attempt to cure the pneumonia which was persisting; 15. On 5 January 1974 Mr Crawford was restless and calling out. He was incontinent and unconscious and fell out of bed; 16. On 6 January 1974 he was noisy and expectorating copious amounts of sputum; 17 On 7 January 1974 Mr Crawford was noted as being "very difficult to keep sedated" and still "incontinent of urine". On that date the last ECT was given. Professor Campbell gave evidence that it was likely that Mr Crawford was suffering from "hypostatic pneumonia" using that expression in a broad sense. His Honour's conclusion that Mr Crawford was suffering from pneumonia involved a rejection of a contrary view expressed by Dr Morse. His Honour found that the symptoms described as existing at least as early as 1 January 1974 should have meant to a reasonably competent medical practitioner or nurse that at this time Mr Crawford was suffering from pneumonia with risks of anoxia (denial of oxygen to the brain) or hypoxia (reduction of oxygen to the brain). On the evidence any reasonably competent doctor at that stage would have carried out an examination of Mr Crawford. There is nothing in the records to show that any such examination occurred. His Honour accepted the evidence of Professor Torda, a specialist in anaesthesia and intensive care, who expressed the opinion that: . By 2 January 1974, even if they had not been stopped earlier, both the ECT and the deep sleep should have been stopped, because of the pneumonia and the associated risks of a denial of oxygen. 40 UNREPORTED JUDGMENTS . On 3 January 1974 there was another opportunity for the ECT and the deep sleep to be discontinued but it was not. To carry on in this way was unnecessary and dangerous. . On 5 January 1974 Mr Crawford was in a delirium state which pointed to a continued condition of pneumonia. . On 6 January 1974 the fact that Mr Crawford was noisy and expectorating copious amounts of sputum indicated continuing pneumonia. . The ECT should have been discontinued much earlier than it was because coupled with the ordinary risk of a lack of oxygen from the dysfunction of his lungs due to pneumonia and the effect of a lack of oxygen on the brain, the risk of a further lack of oxygen occurring in the brain during the actual induced ECT seizure was very real. . Because of the electric surge induced in Mr Crawford during an ECT, a greater shortage of oxygen would occur. . Mr Crawford was at risk from all manners of threats while he was in this condition. Enderby J said: "T have little difficulty in finding that in a negligent way, the plaintiff was exposed to a real and unnecessary risk of brain damage while he was in Chelmsford I also have little difficulty in finding that was a result of a failure on Dr Bailey's part to care for the plaintiff in a proper and reasonable manner It was foreseeable that brain damage could occur in such a situation. With the risk being there and the plaintiff being wrongly and unnecessarily exposed to that risk, the next question is did the plaintiff actually suffer brain damage or some other form of damage because of what was being done to him at Chelmsford?" His Honour went on to review the evidence of Mr Crawford's treatment at the hospital after 7 January 1974. On 11 January 1974 an appointment was made for Mr Crawford to have an electroencephalograph (EEG) on the following Monday. This indicated to the specialists called by Mr Crawford that Dr Bailey had become concerned at this stage that some organic damage may have been done to Mr Crawford's brain during the course of the "treatment". This suggestion, his Honour said, was not seriously challenged. He regarded it as more likely than any other explanation offered. His Honour did not accept, on my reading of the evidence not surprisingly, other explanations proffered by Drs Morse and Bell. An EEG does not seem to have been given. BEHAVIOUR AFTER CHELMSFORD Understanding of the evidence is helped by a brief chronology of some surrounding events. On 6 February 1974 Mr Crawford returned to work at Leylands. In August 1974 he and his family moved to live at Narara near Gosford. On 31 October 1974 Mr Crawford was retrenched by Leylands. From March 1975 until the end of 1979 he held a position in the School of Metallurgy at the University of New South Wales. He then went to work for seven and a half months as a Metallurgical Technician in primary metallurgy to Bougainville Copper at Bougainville. From March 1981 until January 1982 he was employed as a Foundry Manager by Horwood Bagshaw in Mannum, South Australia. In December 1981 Mrs Crawford left the matrimonial home and returned to Sydney. In early 1982 Mr Crawford followed and was employed for a short time by Malco Engineering. He lived with his parents at Greenacre before moving into a caravan park at Ettalong. In December 1983 his father died. In June 1985 his marriage was dissolved on his application. In October 1985 schizophrenia was diagnosed. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) Enderby J reviewed the evidence of observations made of Mr Crawford after he went into Chelmsford, evidence which his Honour accepted. He said: "Although it is difficult, I try to separate out from the descriptions given those that are to be explained by reference to the plaintiff's leg or his taking of drugs from those that may be explained by reference to brain damage It has to be borne in mind that during these early times, the plaintiff was still ingesting large quantities of drugs and these may have masked other symptoms and may also have been thought at the time by the observers to be the reason for his changed behaviour. The plaintiff was continuing to see Dr Bailey up until 1977." Enderby J referred first to Mr Crawford's evidence that he had changed. "He says his memory significantly worsened He says he forgot most of his knowledge and learning regarding metallurgy He said he had to retrain himself when he went back to work. He said his own opinion of himself was that his intellectual capacity was worse after Chelmsford than before accept his evidence in this regard partly because it is amply confirmed by other lay witnesses and the psychometric testing." The appellants challenged these findings. A reading of the transcript of Mr Crawford's evidence and a comparison of it with the evidence given by Mrs Crawford, Mr Crawford's mother and Mr Kogel (an employee of Leyland in 1973 and 1974 who worked there with Mr Crawford as a metallurgist in one of the laboratories) and accepted by his Honour shows that Mr Crawford's recollection when giving evidence of past events was on occasions inaccurate and in many cases slight. For example in his evidence in chief he said "Mentally, I felt on top of the world " Asked "Can you tell us in your own words whether there was any change in your behaviour and your ability to perform tasks after Chelmsford?" he answered: "I noticed that I had forgotten most of my metallurgy, and I had to train myself again in metallurgy when I went back to work " Asked in cross examination about his return to his job at Leylands a few days after he was discharged from Chelmsford in 1974 and whether he had any problems doing the work he answered: "I noticed that my metallurgy was rather lacking and I had to retrain myself in the jobs at work " He said he did not have to read text books again and that he had not forgotten the basic techniques but that he had forgotten how to use particular machines "in that particular laboratory". Mr Crawford's mother saw Mr Crawford from time to time after he was admitted into Chelmsford but not regularly or frequently. The first occasion was about two days after the deep sleep therapy had ceased. She said: "When I saw him his mouth was hanging loosely he could hardly speak. You could not understand half of what he was saying. He started to cry He told us that he had been hallucinating He thought that he had taken the family for a drive in the car and had an accident and he was the only one left Therefore, he thought we were all dead and when the family came in we had to let him touch us to show that we were still alive." His Honour said that although this was a qualitative change from Mr Crawford's pre-Chelmsford condition it was as likely that it was only an immediate sequel to the deep sleep therapy as it was to be a result of brain damage. He continued: "However, whilst it is equivocal and difficult to interpret, my firm opinion overall is that both the plaintiff's wife and the plaintiff's mother over time observed significant changes in the plaintiff after he was discharged from Chelmsford that are not to be explained by the condition of his leg or by the 42 UNREPORTED JUDGMENTS references to drugs I take into account that they may have thought the changes in him were the result of drugs but the evidence is otherwise and very compelling Apart from his leg, which was still swollen and blue and such that the had to wear a sleeping boot, and that he had huge bruises on his hip bones he was totally disorientated Apart from his memory being much worse than it had been before, he no longer enjoyed reading. His interests in mechanical objects had changed His capacity to work on such objects had changed. His interest in music had disappeared His personal characteristics had altered. His manner of speech had become coarse He swore in front of women, something he never did before His standards of personal hygiene changed and fell to a state where he had to be prompted to shower and reminded of what to wear and when to wash He became like a child needing to be prompted to do things Mrs Crawford said 'He was not as spontaneous and fun loving after he came out of Chelmsford, as he had been before' She said 'He just wasn't the person he was prior to going into Chelmsford'." There is evidence of these changes and not much dispute that they occurred. Enderby J did not explain by what process he was able to distinguish changes which were the result of drugs. The thrust of the appellants' argument was not so much that the changes did not occur but that they occurred progressively over a period of time in some cases years after Mr Crawford's discharge from Chelmsford. Such progressive changes were said to contraindicate brain damage. The paragraph above cited from his Honour's judgment condenses most of Mrs Crawford's evidence about the changes in her husband after his release from Chelmsford. In addition she stated in her evidence in chief in answer to questions by Mr Parker QC who appeared at the trial and on this appeal for Mr Crawford: "There was a deterioration of everything he liked doing. He liked music too and he liked listening to records and on - it just went by the - it just went by the way too. Q. Well now, on the subject of this sort of interests in mending things, mechanical watches and things like that, can you describe to the Court what he used to do before Chelmsford? A. He was a rather talented man He could put his hand to fixing lots of things, Q. And after Chelmsford? A. After Chelmsford he still repaired things and he still had a love of repairing things for a while but I noticed that he would say: 'Oh it needs this' or 'It needs that' and he would be going out and buying parts and getting extra things for his bits and pieces and still the thing wouldn't work, or on the occasion it did work I sometimes found it wasn't necessary for him to buy an those bits and pieces or different things because one instance, he fixed a lawn mower once and he said: 'It should go right' and he didn't turn the petrol on and, of course, the mower didn't start so he stripped the whole thing right back to the start. Q. Before Chelmsford did Mr Crawford, the plaintiff, play any sports? A. He loved tennis, loved swimming He loved going to the beach. He used to take me down to the beach to run along the sand. Q. After Chelmsford can you describe whether he partook in any of those activities? A. No He couldn't play sports after that He was paralysed in the right foot so, therefore, most of his activities were curtailed Even driving, which he loved He couldn't manage to drive for longer than 30 minutes at a time because the calliper dug in deep into his calf muscle." WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) A reading of Mrs Crawford's evidence indicates that it was honestly given. Like the evidence of most lay witnesses called to recount events years after they occurred, it suffered from inconsistency and imprecision. But it was open to Enderby J to accept and to summarise her evidence in the language he did. There were factors other than brain damage capable of affecting Mr Crawford's behaviour such as the ingestion of drugs which continued throughout the years after he left Chelmsford. Over these years his behaviour changed In some ways it improved and in others it deteriorated. Thus Mrs Crawford said that during the period Mr Crawford was employed at the University of New South Wales Mr Crawford began to use a notebook. She said that in 1979 he was more like an old man. In 1980 after he had gone to work in Bougainville his memory was terrible. In 1981 when Mr Crawford was employed in South Australia Mrs Crawford said his memory was not very good at all. "It hadn't improved He had trouble remembering people's names, couldn't put names and faces together. He held a reasonably responsible job there and people didn't like getting called by the wrong name and it put a lot of extra pressure on him " Mr Crawford became extremely aggressive. She described an incident of aggression directed to one of their sons. Asked if he had had a violent temper before Chelmsford she replied: "No He had a temper but not a violent temper and it was just progressively getting worse." In cross examination Mrs Crawford gave evidence of some improvement in Mr Crawford's behaviour in 1977 when he came under the care of a Dr Williams. She said he picked up. He wasn't as dopey but he still had problems. "Q. But the problems you had indicated, the coarsening of language and so on and personal hygiene, they went away didn't they? A. He was not as bad, life picked up, we were happier Life picked up in that time." Asked if she had noticed a dramatic improvement in his language and his personal hygiene she replied: "Yes, he did improve " "He still swore but he didn't swear as much." "He had a temper, it was bad but it wasn't anything as bad as what it got to be in South Australia in 1981 " She then gave the following evidence: "Q. If I just pause on that, the development of the very bad or violent temper, the temper which was significantly different; the temper he had had before Chelmsford, I suggest didn't occur at all until 1981 Would you agree with that? A. No, he still got a temper He still got frustrated when he tried to work on things He still didn't work on things as much as what he did prior to it but he did work on things, he did lose his temper but I would say later on he just got worse It was a different type of temper. Q. I don't think I made myself clear I think you said he had a temper before Christmas 1973? A. Yes I don't say he was an angel He was a normal person." Mrs Crawford recounted incidents of neighbours' complaining about Mr Crawford's swearing. She said: "I asked him, I begged him, pleaded with him to control his temper." Asked about his memory lapses she said he had his ups and downs, highs and lows in his personality. Asked about the difference between pre-Chelmsford and after Chelmsford she said: "They were a lot more dramatic He would go long times without sleep He would talk a lot, sometimes he would decide he was going to become a minister " She said he did appear to be dazed or on drugs the whole time between 1973 and 1977. "I would say his hygiene even worsened later on." 44 UNREPORTED JUDGMENTS "Q. So that his hygiene for instance appeared to deteriorate between February 1973 and 1977 when he started seeing Dr Williams Had this improved and then got worse again in 1985? A. No, it even got worse before 1985." She accepted that prior to Chelmsford he had been called the absent minded professor "but nothing like this" "I can't personally recall him forgetting people's names before 1973" In this part of her evidence she was being cross examined about the period in 1981 when Mr Crawford was working in South Australia. She said he tried very hard not to lose his temper. Later in cross examination she gave the following evidence. "Q. If I can ask you to concentrate on the period from the time that your husband was released from Chelmsford in February 1973 until when he started seeing Dr Williams in 1977; you have recounted that he had memory problems and you mentioned I think that he had trouble remembering names ff I first ask you for a bit more detail about that memory problem; was it a situation where he could not remember names of people he had recently met or he could not remember names of people he had met a long time ago and were former associates? A. I think it would have been people he met recently. Q. Did he have any problems remembering things from a long time ago? A. No, he seemed to be able to recall stuff from a long time ago He seemed to have a better memory for long term, than what I did. Q. So it was only what you would call his short term memory that seemed affected? A. I would say that. Q. So he didn't have any problems remembering what he had learnt at metallurgy at university or college? A. He didn't seem to have a great deal of problems as far as I know. Q. I made a mistake when I asked you the period It should be February 1974 In the period from February 1974 until he started seeing Dr Williams, did you notice anything about him and his ability to remember time sequences? A. No, I am afraid I cannot remember anything about time sequences." She also gave evidence of some improvement from the period Mr Crawford started consulting Dr Williams in 1977 to the time he went to Bougainville in 1980 which she thought was a bad move. She noticed a deterioration in him from the time that she left him in 1981. After some expert medical evidence had been called on behalf of Mr Crawford, Mrs Crawford was recalled for further cross examination. During this she conceded that she could not remember the actual date but it was before 1977 that Mr Crawford's habits first started to deteriorate. Asked when these things first became noticeable to her she said: "...P?'d say it was once we had move up into our place at Narara and we moved up there in August 1974, Q. So it was August 1974 or afterwards that you noticed that first change? A. No, there was [sic] problems before August 1974, yes Q. What were the problems you observed before August 1974? A. As I said before, he was dopey Q. Perhaps I can try to clarify it a bit Is it true to say in regard to the matters mentioned by you, needing to be reminded to change his socks and so on, you did not notice those things happening? A. I can't remember them prior to that I have got recollections in my mind of the bedroom at Narara but I can't think of any instances that happened before that. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) Q. Similarly, passing wind in company which is something according to Dr Smith that you told him happened, when was the first occasion that you remember that occurring. A. I'm afraid I don't remember Q. It could be any time between - A. It did happen a lot in the later years, I can't remember when it actually first started, no Q. When you are referring to the later years, the later years of your marriage? A. Yes. Q. That is 1980/81? A. Or even 1977. Q. And the use of coarse language or the increased use of coarse language, when can you first remember that occurring? A. I would say that would have been fairly early in the picture after Chelmsford. He always did swear as I said when he was working on cars but not in front of people. Q. I know it is difficult but can you try to give the first recollection you have of that occurring? A. No, I'm sorry, I don't remember Q. Can you recall where it was when it happened? A. Its like asking what you had for breakfast 17 years ago. Q. I appreciate that - A. I mean these things happen and you don't take notice of them and they just start off being minor little things and they just built up over the years. Q. And the first time you had to turn your mind to when it occurred, I take it was in 1980? A. Yes I suppose that would have been. Q. What makes you think that it was early on that the coarsening of the language started, you must have some reason for saying that? A. Its just memories of Duncan working on his car and swearing in front of the neighbours. Q. Which neighbours were they? A. I have already told you, they were the Evans that lived next door to us, the Johnsons that lived across the road and the Jacksons who lived next door to the people there. Q. They were in Narara? A. Yes, in Narara. Q. Is it true to say your first memories of that conduct also occurred after you moved to Narara in August 1974? A. It is possible that he did swear at mum's place I have a recollection of a neighbour there complaining there to mum and her name was Mrs Burns. Q. But you don't remember when? A. It would have to have been after Chelmsford because we only lived there for a little. Q. Is it true to say that you observed Duncan's temper to be getting progressively worse in all the time leading up to your separation in 1981? A. Yes. Q. Is it true to say the first violence you can remember towards a human occurred in 1981? A. Mmm. Q. Is that right? A. Yes, that is correct. Q. And is it true to say that - A. There was threatened violence to people but never actual violence. Q. Until 1981? A. Yes Q. And Duncan before Chelmsford you said to have a temper if things went wrong when working on his car didn't he? A. Yes. Q. And after Chelmsford he would still display temper when things went wrong working on his car didn't he? A. Yes but he had a lot more frustrations then SULLIVAN: Q. Did Duncan continue to swear and pass wind in public after 1977? A. Yes but not quite as much. He was a little bit more aware of himself." 46 UNREPORTED JUDGMENTS She agreed that his temper, hygiene and capacity for violence got progressively worse up to 1981 and beyond. She referred to his spluttering and spitting up when they moved to Gosford in 1974. " it was embarrassing". Enderby J referred to the evidence given by the fellow employee Mr Kogel. His Honour said: "Mr Kogel described the plaintiff pre-Chelmsford as not being a free mixer and a person who had problems but he described how after Chelmsford, the plaintiff, wearing a leg brace, had returned to work and was promptly demoted This was not likely to have been because of his leg injury because his previous position had been one where he was to some extent a supervisor Mr Kogel said that post Chelmsford the plaintiff had trouble coping with what were really more simple types of work and that he could not keep up with such work and that he was vague and would dream off and have memory lapses He too said he had forgotten a lot of what he had been taught He also said the plaintiff could react like a brick wan when talked to and would react totally irrationally to simple requests All of this points to a significant change in the plaintiffs mental condition after Chelmsford." This summary is not entirely accurate but in substance accords with the evidence given. After 1 March 1974 Mr Kogel was called the machine shop metallurgist. Before going to Chelmsford Mr Crawford had supervised the work of Mr Kogel. After Mr Crawford returned the positions were reversed. It is not strictly accurate to say that Mr Crawford was demoted. Mr Kogel denied this and said "... just his job function changed." However he reiterated that he became Mr Crawford's supervisor. Mr Kogel said that he never really got on with Mr Crawford a person he described as not freely mixing with other employees after work. He did not go off to the pub. Mr Kogel said that before Mr Crawford went away late in 1973 he had completed about 60 - 70 percent of a document called "Salvage of Defective Castings", a works process specification for repair and rework of castings. Mr Crawford spent a lot of time on this specification. He did the work by himself and did not appear to take other than the proper time to do it. It was a type of work which had never been done before in the company and was proceeded with in a very cautious and careful way "because of the nature of what it required the production people to do with the specification once it was finished." Mr Kogel gave the following evidence about Mr Crawford after his return to Leyland in 1974. "Well, when he came back to work he was wearing this leg brace He didn't tell us too much about what had happened to him but he was, a decision was made by the management at that time after consultation with him- OBJECTION HIS HONOUR: Q. I think it is only your own observations of him when he came back? A. Basically he was removed from the position that he held and I was then put into that position. Q. Did you notice any changes in him apart from what was on his leg A. Yes, certainly He had some trouble coping with a different position He was then given one of the clerical positions which was done by one of the trainees normally I took over his job and he just then settled down to this other position. PARKER: Q. Did he go on and finish the particular task which had been 60 percent completed before he went away? A. No, he couldn't show any interest in that and part of my function then was to complete that and issue that in July 1974 WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) HIS HONOUR: Q. Did you yourself notice any changes in him, personality or as you have described it before, after he came back? A. He seemed very vague and he seemed to dream off a lot and he had memory lapses Even during this clerical position, he had trouble keeping up. Q. This is after he had been away and came back? A. Yes, and we had a young guy who was our new trainee and we often had to get him to help out so that he would keep up with the job." Mr Kogel described a particular incident in September 1974 involving a microscopic sample. He said: "Q. Will you tell us what happened? A. I had asked Duncan to take a sample. It was to do with a machining problem of an aluminium block and the normal procedure is to take a cross section of where the machining problem is, prepare it, look at it under a microscope and then try and, from the evidence, come to some conclusion as to why there is a problem. It is a procedure that normally takes 30 to 40 minutes I had trouble getting Mr Crawford to perform this very simple task, in that he kept on saying 'It is not going to tell me anything, it is not going to do anything, I don't see why I have to do it' and of course, and I suggested to him that he do it anyway and that we both look at it and I would prove to him that he was wrong and I found it took something like a day and a hag before I could get that task completed." Asked about Mr Crawford's knowledge of basic metallurgy in 1974 Mr Kogel said: "Well in some ways it seemed like he had forgotten a lot of what he had been taught and this particular instance was such a simple situation that it stayed in my memory because it was sort of the story you told at the pub afterwards, because it was just so incredible that somebody would put up so much fuss over what was such a simple request." Mr Kogel's evidence was not undermined by cross examination. Asked whether Mr Crawford appeared less nervous in 1974 than 1973 he pointed out that Mr Crawford had a less demanding job "so he wasn't in the same situation as before when he would be forced to deal with different people and different workloads. " Referring to the incident in September 1974 he said: "IT would probably describe it as bloody minded. That is the way I saw it at the time, just obstruct[ive]ness, couldn't see the point I think I explained it to him half a dozen times, what we wanted and it was like talking to a brick wall." Mr Kogel acknowledged that he did not know that Mr Crawford in 1974 was on medication. It never crossed his mind that Mr Crawford was. However this may be, in the context of the evidence as a whole it was open to Enderby J to conclude that Mr Kogel's evidence pointed to a significant change in Mr Crawford's mental condition after Chelmsford. He made no reference to the opinions of Drs Morse and Bell that what Mr Kogel observed was evidence of negativism: "Refusal to cooperate with even most simple and reasonable requests" said to be a symptom of schizophrenia. NSWMDU called Mr Watson, who was in charge of the laboratories at Leylands during a period which included 1973 and 1974 and who described Mr Crawford as being before Chelmsford an average rather than an outstanding worker. Apart from his lame leg Mr Watson observed no significant change after Mr Crawford's return to Leylands. Mr Watson, giving evidence in October 1990, had been asked, as his Honour elicited, to recall the events of 1973 and 1974 two months previously. There was no reason why Enderby J should not prefer, as clearly he did, the evidence of Mr Kogel to the extent of any conflict not 48 UNREPORTED JUDGMENTS explained by Mr Watson's hazy recollection after sixteen years. Equally his Honour could prefer the evidence of Mr Crawford's immediate family to that of a Mr McElhinney, also called by NSWMDU, the best man at Mr Crawford's wedding, who saw Mr Crawford quite frequently after he came to live at Narara and said he observed no changes in his personality or behaviour. The relationship between the two families, to the extent it existed, depended upon the friendship between the wives. Enderby J continued: "Many examples of what I have cited could be given but the overall opinion is that he changed from being a person who was perhaps vulnerable to stress and a person who suffered from anxiety depression, into a person who was qualitatively worse with a significant diminution in mental capacity. He was never the same person again. If one adds to this process of reasoning the evidence of the psychometric tests given by the psychologists the scales come down on the side of brain damage." PSYCHOMETRIC TESTS Enderby J referred to psychometric tests of Mr Crawford in 1983, 1989 and 1990 by a psychologist Mr Taylor, to whom Mr Crawford was sent by his solicitor. His Honour said there was "some evidence from some of the psychiatrists who gave evidence that psychometric testing is not able to ascertain whether brain damage has occurred or not. n His Honour did not accept this evidence. He was impressed with Mr Taylor's evidence and accepted that psychometric testing had within it the capability of eliciting information and facts on which opinions could be formed by psychologists as to whether brain damage had occurred or not. His Honour said: "Reasoning based on psychometric testing which in turn is based on statistical information is often more likely to be scientifically based than clinical observation." Mr Taylor came to the opinion that the plaintiff was suffering from a significant cognitive impairment and he confirmed that the plaintiff had significant memory difficulties and a significant emotional disorder. Overall, the results of his tests favoured the hypothesis that brain disorder or brain damage had occurred." On 4 November 1983 Mr Taylor furnished a "Psychological Report" on Mr Crawford. He set out the results of tests under three headings: (a) Intellectual functioning; (b) Memory functioning and (c) Personality. The tests used were the Wechsler Adult Intelligence Scale - Revised form (to determine intellectual functioning); the Graham and Kendall Memory for Designs Test and Wechsler Memory Scale (for memory functioning); and the Minnesota Multiphasic Personality Inventory (MMPI), two parts of which were scales of Organic Symptoms (Wiggins 1969) and Caudality (Williams 1952) (for personality). The Wechsler Adult Intelligence Scale revealed a verbal scale IQ of 114 (above average), a performance scale IQ. of 102 (average) and a full scale IQ. of 109 (high average). Amongst the sub-tests or subscales for the verbal scale was Digit Span and for the performance scale were Picture Arrangement and Digit Symbol. The results for Digit Symbol appeared low. Amongst the sub-tests for the Wechsler Memory Scale was paired associate learning the results of which also appeared low. Under the heading "Personality Test results" Mr Taylor said: "Mr Crawford's results on these tests indicate that he has an affective disturbance and there are also many elements of a psychotic rather than a neurotic disturbance His personality profile is also most consistent with a person who is suffering from a brain damage syndrome. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) With regard to this latter feature the scales of organic symptoms (Wiggins 1969) and Caudality (Williams 1952) were both significant in their results." Mr Taylor reported: "Mr Crawford's assessed current level of intellectual functioning is within the high average to above average range However his results indicate a marked discrepancy between his verbal scale IQ. and his performance scale IQ. (almost one standard deviation) and this would be considered to be a statistically significant discrepancy Such discrepancies are typically found amongst brain damaged patients There was also a good deal of variation in his individual sub-test results with his lowest result being obtained on the digit symbol sub-test of the Wechsler Intelligence Scale This sub-test involves new learning and is considered to be sensitive to deterioration following organic brain damage Some of the factors involved in this sub-test include freedom from distractability, sequencing skills, convergent production, and integrated brain functioning In this sub-test he particularly became rather confused and frequently got lost. On the Wechsler Memory Scale his overall result was again quite significantly lower than his result of general mental functioning as obtained on the Wechsler Adult Intelligence Scale This discrepancy would indicate quite a significant memory disturbance The sub-test in the Wechsler Memory Scale in which he obtained by far the weakest result was that of the paired associate learning sub-test In this he again became quite disorganised and disoriented and had extreme difficulty in even correctly remembering easy associations Throughout the three trials of this sub-test he was not able to provide and correct responses on the meaningless associations This is again a new learning task. The overall patterns of cognitive and memory test results therefore suggest Crawford has indeed suffered from a good deal of loss of cognitive and memory functions These appear to be more in associative memory areas and in sequencing tasks He does show a good deal of cognitive disorganization and associative learning difficulties are quite apparent These difficulties would quite clearly grossly affect his ability to function in life and would inhibit him from holding down meaningful employment where either stress or very complex tasks were involved. Personality tests results reveal that he has quite significant behavioural and emotional adjustment difficulties as were outlined earlier in this report. More specifically there are indications from his test results that he does have a brain damage syndrome and this was specifically seen on the organic symptoms subscale and the cordiality subscale He has many problems in impulse control including the control of angry feelings and also does have problems with interpersonal relationships He has quite a negative self image. Depression is also a feature of his disorder and he has quite inadequate resources to cope with his emotional symptoms. The overall impression gained from the tests administered to Mr Crawford is that he is very significantly debilitated and it seems doubtful from these results that he will ever be able to function very adequately By this I mean that he will continue to have quite significant problems in interpersonal relationships and I would be very doubtful that he would be able to settle down to a meaningful relationship in a family situation. Also I would find it difficult to see how he could ever hold down a job both because of his cognitive and personality factors Because of the length of time that he has had these problems it would appear then that there is little chance of meaningful recovery in the future Therefore I feel that his prognosis is rather poor." 50 UNREPORTED JUDGMENTS Mr Taylor's opinion was subjected to a long and sustained cross examination, which covered his qualifications and experience for the task undertaken, the adequacy of the history he took, his ignorance of Mr Crawford's current medication, his competence to administer the MMPI, the weight of his opinion when compared with the opinions of others largely expressed in the literature and his use of language in saying in his report that the scales of organic symptoms and caudality "were both significant in their results" Mr Taylor accepted in cross examination, a substantial proportion of which was directed to this last topic, that in 1990 at the time he was giving evidence he would have written the passage differently. "" with the greater level of cognitive tests available I would probably give them a greater less degree of significance, a much greater less degree of significance. In 1983 we did not have available to us the sophisticated tools we have today " Asked if he resiled from what he had written then he said: "Tt is not a question of resiling What it comes down to is since 1983 I have research which provides much less predictive validity for those two scales which wasn't - which I hadn't seen prior to that time. That is what I am saying. Asked later in cross examination whether he maintained that the overall profile of the 1983 MMPI was most consistent with a person suffering from brain damage syndrome Mr Taylor said: "The overall profile in 1983 is consistent with a man who is suffering from quite significant emotional disturbance That is also what I have said and I have said that there are consistencies and traits or tendencies and if you interpret my report in that way, that there are indications of brain damage coming from those two scales The organic symptom scale which reports symptoms that could be the stage of a psychological disorder and the caudality scale The organic symptom scale being in the significant range." A few questions later he said that he did not place a lot of reliance in 1983 on the results of the MMPI test in coming to an opinion that Mr Crawford had brain damage. " if I hadn't administered the MMPI[,] I would have come to the same conclusion." Psychometric tests are designed to measure performance and compare the measurements with average measurements recorded when similar tests are conducted on people with and without various disorders including brain damage. Mr Taylor relied upon the pattern emerging from the tests conducted by him in 1983 and in 1989 and 1990. In those later years he conducted new tests in addition to the Wechsler Adult Intelligence scale and "some form of' the MMPI. On 11 October 1989 he reported: "Mr Crawford's results indicate that he is functioning at a reduced level when compared with the assessment of 1983. It is probably not conceivable to suggest that there has been further organic deterioration affecting his cognitive functioning, although neurological advice should be sought in this regard." On 27 August 1990 he reported: "In fact, the total pattern of his performances was very much the same, although he presented as being emotionally more stable during this consultation than during the 1989 assessment. This is not to say that all his results were exactly the same fas indeed they were not), but that the same pattern of results was obtained, ie he appeared to have similar strengths and weaknesses across both assessments. This being the case, it does add weight to the suggestion that the problems he is encountering are due to brain damage rather than to any psychiatric illness. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) It is also clear that Mr Crawford must have been able to function a good deal better than this throughout most of his life prior than going to Chelmsford, as there is no possibility that he could currently function as a metallurgist or in any professional capacity, with his current problems. Further evidence that his difficulties have arisen as a result of the treatment he received in Chelmsford Hospital come from statements made by significant people in his life, including an ex-boss, his wife, and his mother. None of these people indicated that he appeared to them to have any serious psychological problems, although he was known to become depressed and irritable. These two symptoms can be present in many people who do not go on and become psychotically disturbed. There did not appear to be any real basis for suggesting that he experienced any identity crisis over and above normal growing up, and there was certainly no suggestion of any loss in his reality testing from information obtained through interviewing his wife or mother. It would therefore appear that his problems, as far as these people are concerned, have largely arisen since he received treatment in Chelmsford Hospital. His test results appear to be consistent, which I would not expect to be the case if he were indeed suffering from the effects of thought disorder accompanying a serious psychiatric disturbance at the time the assessments were carried out. If this were the case, then there would be likely to appear a much greater degree of inconsistency in his test performances. This has not been the case, and this would lend more weight to the suggestion that his cognitive impairment is organic rather than psychiatrically-based. This is not to say that he does not indeed have some significant psychological problems which have also been commented upon. He continues to experience auditory hallucinations and also has symptoms of depression and anxiety. Mr Crawford himself does display very little insight into his problems, and when asked directly about his symptoms he can name only a few. I feel confident that the profile presented by the three assessments conducted with Mr Crawford do fairly accurately state the nature of his cognitive impairment and it is unlikely that there win be a lot of change in the future. A. basic factor which must be taken into account here is that in his present test results, Mr Crawford simply could not have functioned in a professional role as he was able to prior to going to Chelmsford Hospital. His current employability is non-existent, and in his current state there would not seem to be any type of employment at an which he could handle sufficiently well to be able to hold down a job." Mr Taylor on these later occasions "did not work out" what Mr Crawford's score was on the organic symptom subscale or the caudality subscale. He said: "T have always said, if you read back to the transcript tomorrow, you will find that I have said consistently it was the total pattern of performances of cognitive tests that I mainly relied upon in reaching that diagnosis." Enderby J was impressed by Mr Taylor's evidence. My reading of it does not affect me in the same way. The following is an example of his evidence on medication: "Q. When you tested him are you saying that you were unaware as to whether or not he was on any medication? A. When I tested him I can't tell you now whether I was aware or not at the time - that's what I am saying - I am unable to. 52 UNREPORTED JUDGMENTS HIS HONOUR: Q. From the point of view of forming opinions Mr Taylor I suppose it is pretty obvious it would be a relevant matter to consider, would it not, whether or not he was under some kind of drug regime at the time of the test? A. Your Honour my experience again - I have to come back and say that people who are on drugs, within three or four weeks accommodate to those drugs, and if they don't, then the medication levels are either changed or the medications are changed. It is most unusual to get a person over a number of years to experience extreme cognitive impairment and that same drug be maintained. It just doesn't happen. Q. The impairment is the result of the drug? A. Yes, and as Lezak himself (sic) said that such impairments, if they occur can easily be reversed by taking the patient off the medication, or changing the medication. BOZIC: Q. Or changing the medication? A. Or reducing the level. Q. You have no idea whether that was done in Mr Crawford's case, do you? A. I would say that any competent psychiatrist who was administering the medication and was perceiving the person had cognitive impairment would have done it. I have worked with many psychiatrists over the years and the answer is I would assume it was done if he was found to be impaired. The substance of the attack on Mr Taylor's diagnosis and Mr Taylor's answer is usefully gathered together in the last part of his cross examination which was as follows: "In 1983 when you tested Mr Crawford, is it fair to say that you relied principally on the Wechsler adult intelligence scale, the Wechsler memory scale and the Graham and Kendall memory for design tests? A. Yes, I did. Q. And I suggest to you that on those tests there were some features consistent with brain damage? A. Yes, there were. Q. But that is as far as one can go? A. In terms of location of damage you mean or in terms of the type of impairment involved? Q. What I am suggesting is that it is simply not possible on the basis of your 1983 testing to do more than draw attention to certain features which may be suggestive of brain damage? A. Well, that is not strictly true, because you look at what is involved in the tests in which he performed fully. For example, on the Graham and Kendall designs test we essentially have a non-verbal, short term, visual memory test. His function in that Obviously involves impairment in short term, visual, sequential, non-verbal memory. On the impaired associate memory test of the Wechsler memory scale he clearly had a lot of difficulty with new learning involved in associate learning processes, again a specific area. On the digit symbol test of the Wechsler adult intelligence scale, that test involves factors loading primarily on attention, concentration, verbal encoding. Okay, that is taking it further - that is why I disagree with you. Q. What I am suggesting to you is that while one can draw attention to those features which you say are consistent with brain damage, it is simply not possible to diagnose brain damage simply on the basis of those tests? A. In 1983 that was the practice. Q. With the benefit of hindsight or the benefit of sitting here in 1990, would you agree with this proposition, that one cannot diagnose brain damage on the basis of those three tests? A. On the basis of hindsight, I would say that those three tests would pick up something and tell me yes, there is a very likely organic WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) cognitive impairment present due to brain damage which would then investigate further, as indeed I have in the subsequent assessment. Q. Would you agree with this proposition: That the results you obtained are difficult to interpret unequivocally in view of possible effects of medication or situational factors? A. The medication changed over the three assessments that I assessed him but the results came up in the same pattern. Q. Iam talking about 1983, do you understand? A. I am sorry, you didn't say that. 1983, again the same probable proposition exists that I put before, that he had been on the medication for a substantial period of time; on the experts I have quoted to you, it should have nil effect or little effect on his cognition. Q. What I suggest to you is that you have completely overshot the mark as far as the conclusions that legitimately can be drawn from that testing. Do you understand that? A. I understand, but asking it like that, I am certainly not going to brief you. If you are going to have an impediment or impairment in visio motor speed caused by medication on the digit symbol sub-test it would also be manifested on other sub-tests which are equally if not more time dependent. Q. I suggest to you it is simply not appropriate for a clinical psychologist to diagnose brain damage on the basis of limited psychometric testing? A. With the benefit of hindsight, you are putting this to me, aren't you? Or are you asking me as to the way I would have felt in 1983? Q. No, I am asking you, sitting here today in the witness box, whether you agree with that proposition? A. I would still say that if I was reviewing him for the first time, the results that I obtained then, knowing what I know about the tests Luse, I would still say this man is suffering from organic impairment consistent with a pattern that would occur with organic brain damage. Q. But you have diagnosed brain damage? A. That is what I have just said. Q. I suggest to you that, given the varying amounts of medication he has been on over the years, and the fact that he developed diagnosable schizophrenia, it is virtually impossible on the basis of the testing that you carried out in 1989 and 1990 to distinguish between the effects of schizophrenia and organic brain damage? A. If the test patterns had altered substantially, I think I would be inclined to agree with you. However, the same test patterns were obtained across the three assessments, albeit he obtained globally better in some assessments than others to the factors of emotional stress The same pattern of performances exists even with different medications. Q. I suggest to you once again that in that regard you have gone far beyond what can legitimately be inferred from the tests? A. I don't know if you go further beyond when you are actually sampling discrete pieces of observable behaviour, which is what was done in each of the three assessments spanning approximately three hours per assessment, not drawing conclusions but observing discrete patterns of behaviour, which is what psychological tests are, at first hand knowledge. Q. They can assist someone to come to a diagnosis of brain damage when taking into account the whole clinical picture, can they nor? A. That is true. Q. And that is about as far as psychological testing can go? A. Well, I don't know quite what you are getting at. I have been in the situation of giving cognitive tests to people charged with attempted murder, who I have thought this fits a pattern of temporal lobe disorder, had the person referred to a neurologist and that was confirmed I don't know if you are saying that I shouldn't have done that, but it made a big difference in the sentence. 54 UNREPORTED JUDGMENTS Q. I am saying to you that in your reports you have gone far beyond what is appropriate for a clinical psychologist to do in relying on psychological testing? A. No. Categorically no. Q. You deny that? HIS HONOUR: He just has. That was as clear a denial as I have ever heard. BOZIC: Q. In 1983 when you diagnosed him, you didn't conduct a clinical interview with him, did you, other than what is in those notes? A. The clinical interview extended over the period of three hours in which the assessment was conducted. I don't just say, 'here is a test. When you finish that one, do this one. "It is certainly punctuated with conversation. Q. And the matters of history that you relied on are in your notes, is that right? A. Not all of it. No, I have already indicated that to you earlier, sir." He then gave the following evidence in re-examination: "BATES: Q. I think you said you have been testing for some 20 years and during that period can you estimate the number of patients who you would have tested who were on some kind of medication at the time of the testing? A. Thousands. Q. What would the average length of time of testing be? A. I take about three hours Q. And during that period of three hours, what is your situation in relation to the patient? A. You mean how I was seated? I am sitting directly opposite the patient on the other side of the desk. Q. During the period of that three hours are you observing the patient the whole time or part of the time? A. Continually. Q. What kind of things are you looking for? A. I am looking for lapses in concentration. I am looking for - what do you call them - gaps in awareness such as petit mal. I am looking at the possibility of thought disorder, non co-operativeness, lack of motivation, those sort of factors, anxiety. Q. Would you also, amongst other things, be looking for analgesic drugs or medication effects? A. Of course, because if it is going to be there, there is going to be a behaviour correlation of perhaps a slowness or a lapse in some technical skill. Q. Have you ever tested patients whom you have come to the conclusion have been affected, while the test is going on, by medication? A. Yes, I have. Q. In what way did that manifest itself to you? A. It manifested itself in a way that I really felt that I wasn't getting everything across the whole spectrum of the test, it was so affected that I made the decision - this is in the context of my work at Mount St Margaret Hospital - where I then approached the psychiatrist and said, 'We either have to take the patient off the medication to do the assessment or wait about a month until the patient is settled on the medication before doing the testing.' Q. What you described, is that your usual practice? A. It is a constant practice. Wherever that happens, that is my practice. Q. If you had formed the opinion in this case that Mr Crawford had been suffering medication effects, what would you have done? A. Precisely the same thing I would have got back in touch with his solicitor and said that I felt that is the case. I would have gained confirmation of if there had been any change recently in medication, and either way I would have asked to see him again in another month's time. Q. That was on each of the occasions that you saw him? A. That has been my constant practice for the last 20 years. " WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) The cross examiner conceded that the results of the tests conducted by Mr Taylor were consistent with brain damage. The point at issue was whether the tests enabled a diagnosis of brain damage. Mr Taylor said it did and his Honour accepted this. Mr Taylor explained what was said to be inconsistencies between his reports and his own and others' current opinions particularly as to the effect of the ingestion by Mr Crawford of drugs upon test results and the significance of the organic symptom and caudality tests, which consistent with his Honour's being impressed by his evidence and his acceptance of his opinions, his Honour must have found satisfactory. It was open to him to do so despite opinions given in evidence by two psychologists called by NSWMDU, Dr Davies and Dr Shores, to which I will return later. Mr Todd, another psychologist called on behalf of Mr Crawford, prepared a psychometric evaluation as a result of an examination of Mr Crawford on 14 October 1980. Mr Crawford was referred to him to be tested with a view to eliciting evidence to confirm a hypothesis of brain damage or eliminate it. Mr Todd used the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale, the Benton Visual Retention Test and the Spielberger Anxiety Inventory. He reported: "1. Wechsler Adult Intelligence Scale Mr Crawford's obtained IQ. scores on this occasion were: Verbal IQ -115 (bright normal); Performance IQ. - 99 (average); Full Scale IQ. - 109 (average). There was evidence for apparent relative deficits on the Digit Span, Digit Symbol and Picture Arrangement sub-tests. Dr Davies' test results from March 1969, do not provide details of the WAIS subtest scores. However, the reported IQ. of 110 is not significantly different from the currently obtained IQ. values. Dr Davies report of a percentile rank of 63 for 'immediate memory', probably derived from the Digit Span subtest, would not appear to differ significantly from my own result if it is assumed that an age-scaled score of 10 would be equivalent to a percentile rank of 50. 2. Wechsler Memory Scale Mr Crawford's Memory Quotient of 96 was within the 'average' range, though significantly below the value of both the obtained verbal IQ and the level of the patient's inferred previous level of intellectual functioning. His age scaled score of 9 (Mean = 10); Standard Deviation = 3) on the Associate Learning subtest was below expectation and the marked discrepancy between old and new associations is suggestive of organically determined impairment." Later in his report he said: "Mr Crawford's recall of one of the prose passages on the Logical Memory subtest of the WMS was commensurate with his level of intellectual potential and his Digit Span result, though below expectation, does not seem (from Dr Davies' results) to have changed significantly from the 1969 value. Indeed, the percentile rank quoted by Dr Davies in his report of December, 1975, was 75 which is slightly better than that obtained in 1969 and significantly better than the level of performance indicated by my own result (age - scaled score = 10). However, the poor result on the Associate Learning subtest, of the WMS is significant and needs to be accounted for. Mr Crawford's visual recall would appear to be intact. n Mr Todd agreed in cross examination that his Digit Span result was irrelevant to the diagnostic question at issue in the case. In the last paragraph of his report Mr Todd said: 56 UNREPORTED JUDGMENTS "T would suggest that Mr Crawford be re-tested at a suitable future date and perhaps, be given some further more specialised tests of cognitive functioning His current results are difficult to interpret unequivocally in view of the possible effects of medications and/or situational factors." His Honour quoted from a passage in the cross examination of Mr Todd in which, referring to the Picture Arrangement and Digit Symbol sub-tests, he said: "Both of these sub-tests of the Wechsler Adult Intelligence Scale, both for different reasons, are known to be sensitive to organic brain damage, either diffuse or, in the case of picture arrangement, specifically localised for example with respect to the frontal temporal region." Referring to the last paragraph in his report the witness said: "What I am intending to imply in that concluding paragraph Mr Sullivan is, as a scientist I am aware of the probable co-determination of its deficits by one or more factors and I am suggesting the importance of eliciting further scientific evidence to, first of all, evaluate further a form for verifying the hypothesis of organic brain damage and seek to obtain further evidence to look at the relative contribution of the medication effects as a co-determining factor. SULLIVAN: Q. Is it true to say at the time you did the report you had insufficient material before you in coming to an unequivocal conclusion about the possible effect of such other factors? A. What I was attempting to convey in the report, and I must add, that it was intended largely as a preliminary report and not one in which I had engaged in a great deal of explication - a full explication of what was in the report would have included a statement to the effect that there was a pattern of highly significant deficits which is, in itself, compatible with what is typical with certain types of organic brain damage, particularly those - for example, let me see, carbon monoxide poisoning or brain damage due to anoxia or hypoxia and to further evaluate the co-determining factors more evidence was required in the form of valid neuropsychological assessment So, that last paragraph was intended not so much to extricate, but having stated in the body of the report that a significant deficit pattern had been observed it was to suggest it was important to elicit this further evidence to explore the findings of that test and to induce more evidence to test the hypotheses." Mr Todd said that he was employed as a research clinical psychologist specialising in neuropsychological assessment for which he underwent workshops and training by Professor Kevin Walsh who was a professor of neuro psychology in Melbourne. Since December 1982 he had moved into a slightly different, somewhat overlapping field, called psychoneuro-immunology. He was cross examined at length. Reading his evidence I find it persuasive. Asked towards the end of his cross examination by Enderby J as to his present opinion Mr Todd said that it remained: "that the most likely explanation, the most probable explanation of the results was that organic brain damage of a specific type to particular areas of the brain was responsible for the pattern of deficits observed overall......... My own conclusion, trying to maintain my integrity as a scientist is that the most probable explanation and the explanation which provides the best fit to the data is that of the presence of organic brain damage due to anoxia and affecting specific areas of the brain." He would not agree that the interpretation of psychometric results by themselves, even in the most expert hands, is not a useful tool in diagnosing brain damage. Enderby J elicited the following evidence from him: "HIS HONOUR: Q. Tell me this, do you find in your work that there is sometimes a foreignness WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) between psychologists and psychiatrists. The word foreign is not exactly the right word I am looking for, but a separateness or even an alien character. Considering they are both working in the field of the mind, there is some kind of recognition and rejection one to the other? A. Yes. I think that reflects two things. Firstly, there are political issues of course. With regard to another matter in social systems, health care systems generally, but beyond the political issue I think more substantially the issue is in the area of specialised domains of training. Psychologists for example have much more specialised training in scientific evaluation and multi-field statistics. The role of the psychiatrist is primarily and has traditionally always been that of treating a clinical diagnosis but without using highly evolved technology. They do use CA. T scans and other things these days. His primary role is clinical diagnosis and treatment. That of the psychologist in this type of thing is as specialist scientist in conducting substantive brain behaviour research and developing valid instrumentation to assist in differential diagnosis. The psychologist is generally far more trained in research methods including multiforce statistics and mathematics." Mr Todd emphasised the poor results achieved in the Associate Learning sub-test. He did not particularly comment on the Digit Symbol sub-test and did not mention MMPI. Despite the views of the psychiatrists who gave evidence on both sides upon which the appellants placed great reliance it was, in my opinion, open to his Honour on the evidence of Mr Todd to conclude that psychometric tests could elicit information and facts from which valid opinions could be formed by psychologists as to whether brain damage had occurred or not. ENDERBY J'S CONCLUSIONS ON BRAIN DAMAGE When Enderby J came to the question of whether, on the probabilities, Mr Crawford suffered brain damage as a result of his experience in Chelmsford, his Honour reiterated that in the circumstances there was a real risk of brain damage. He observed that the medical experts could go no further than say that, because of Mr Crawford's unconscious condition, the extremely heavy doses of coma inducing drugs he had been given and the fact that he was probably suffering from pneumonia, all when he was being subjected to ECT, he could have suffered brain damage. Because of changes in Mr Crawford after his treatment at Chelmsford the medical experts called on his behalf believed the treatment had caused brain damage. The experts called by NSWMDU were not so persuaded. His Honour found that, if brain damage had occurred, nothing in Mr Crawford's life or in his history could have caused it other than his treatment at Chelmsford The appellants now accept this. Having referred to the evidence of Mr Taylor and Mr Todd his Honour quoted Professor Kiloh: "Putting this together I find it very hard to explain them in any terms other, than that he suffered some brain damage while in Chelmsford." The expert psychiatrists called by NSWMDU were not mentioned in his Honour's reasons. On the balance of probabilities Enderby J found that brain damage did occur. He was inclined to the view that brain damage was of a relatively minor kind. He further found that the problems induced in Mr Crawford as a result of the brain damage exacerbated his neurotic condition and made it worse. He said that after Chelmsford there was a more or less steady quantitative deterioration with "Chelmsford" having been the "watershed". Mrs Crawford related the change particularly to the time Mr Crawford was at the University of New South Wales between 1975 and 1980. His Honour made the 58 UNREPORTED JUDGMENTS comment, which attracted criticism from the appellants, that it is notorious that universities are very accommodating to their employees in such situations. The appellants submitted that the approach taken by his Honour was too simple a one for such a complicated medical issue. For this purpose appellants relied upon the evidence of all the expert psychiatrists called by both sides. The appellants particularly criticised the test expressed by his Honour in determining whether Mr Crawford suffered brain damage: "Apart from the psychometric tests it is only if one considers the plaintiff after Chelmsford, and finds that his condition qualitatively changed from what it had been before and such as to point to or suggest brain damage, and if there was no other reason than Chelmsford for that brain damage to have occurred, that the conclusion may follow that what was done to him in Chelmsford caused the brain damage. " ENDERBY J'S CONCLUSIONS ON SCHIZOPHRENIA Enderby J was satisfied on balance that Mr Crawford's brain damage with its sequelae led to and contributed to the later onset of schizophrenia. He found that without the brain damage the probabilities were that schizophrenia would not have occurred. He referred to the evidence of Dr Smith, who said that schizophrenia although it usually arises on a genetic basis can arise from other sources one of which was brain damage and added: "The evidence regarding the link with schizophrenia with brain damage indicates it is particularly likely in people who have damage to the limbic system. In other words the areas of the brain that determine emotion, those being in the frontal and temporal lobes." Dr Smith said that Mr Crawford's demonstrated behavioural and cognitive problems were consistent with damage either to the frontal lobe or temporal lobe of the brain. His Honour said there was no evidence that Mr Crawford had any genetic disposition to schizophrenia. Dr Smith thought that Mr Crawford would not have become schizophrenic had it not been for the brain injury at Chelmsford and that it was well established in the 1960's that there was a relationship between brain damage and schizophrenia. "It is true that in saying this he referred to an article by Davison and Bagley which has been criticised but I do not believe that he was restricting his opinion only to the research referred to in that article." The status and relevance of the article by Davison and Bagley was a matter of debate on the appeals. Professor Kiloh said that he thought that one had to take quite seriously the chance that Mr Crawford's brain damage was responsible for his schizophrenia. "One cannot say that with any certainty. But understand he has no family history of schizophrenia, so there is no suggestion he had the right genes to develop schizophrenia spontaneously; and we know brain damage can give rise to schizophrenia, usually after an interval of this nature, and therefore I think one can make out a good case for his schizophrenia being secondary to his brain damage [a]nd caused by it." Professor Kiloh thought the knowledge about such matters was the same in 1973 as it was at the date of trial and that the link between brain damage and schizophrenia was and would have been well known. He too referred to the paper of Davison and Bagley. Enderby J concluded by saying: "The matter is controversial but on the whole, on the evidence in the case, I find that the plaintiff's schizophrenia condition was a consequence of the negligent treatment he suffered in Chelmsford. On the probabilities it would not have happened without 'Chelmsford'." WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) The appellants submitted that Davison and Bagley's paper did not support or was of insufficient authority to support the opinions expressed by Dr Smith and Professor Kiloh and accordingly, since these opinions were based on the paper, they should be rejected. FUNCTION OF THE APPELLATE COURT In Coghlan v Cumberland [1898] 1 Ch 704 at 704-5 the English Court of Appeal acknowledged that it is often very difficult to estimate correctly the relative credibility of witnesses from written depositions. When the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the appellate Court always is, and must be, guided by the impression made on the judge who saw the witnesses. Recently both the High Court and this Court has had to consider how findings of fact by a trial judge should be treated when challenged on appeal. In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 McHugh J, with whom the other members of the Court agreed, quoted from the speech of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 in which he said that the course of the trial and the whole substance of the judgment must be looked at. The matter does not depend on the question whether a witness has been cross examined to credit or has been pronounced by the judge in terms to be unworthy of it. "If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone." "Consequently" McHugh J said "where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas [1947] AC 484 at 488." In Devries v Australian National Railways Commission (1993) 67 ALJR 528 the High Court summarised some of the principles in two joint judgments. Each judgment approached the question differently. Brennan Gaudron and McHugh n emphasised that the circumstances were limited in which the appellate Court might intervene to substitute its own view of the facts. They said at 531: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. See Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his[[or her] advantage' (SS Hontestroom v SS Sagaporack at 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (Brunskill at 844)." Deane and Dawson JJ at 532-3 emphasised the appellate court's duty to draw its own conclusions and overrule findings of fact that are wrong. They said that the appellate court on an appeal by way of re-hearing must set aside a challenged finding of fact which is shown to be wrong, allowance being made for the advantage which the trial judge had in seeing and hearing the witnesses give their evidence where the finding is wholly or partly based on the trial judge's assessment of the trustworthiness of those witnesses. The importance of that 60 UNREPORTED JUDGMENTS advantage will vary from case to case (see Watt or Thomas v Thomas at 488); it may be of little significance if the finding is affected by a mistake or misapprehension. If it is not so affected, the appellate court must assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as distinct from a consideration of the content of the evidence. The habitual liar may be confident and plausible, the conscientious truthful witness may be hesitant and uncertain. In Devries at 532, Deane and Dawson JJ said: "Tn a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the 'court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions'. (The Glannibanta (1876) 1 PD 283, per James LJ, Baggallay JA and Lush J, at 287 referred to by Dixon CJ and Kitto J in Paterson v Paterson (1953) 89 CLR 212 at 219). The appellate duty in such a case cannot, in our view, be explained in any short exhaustive formula. (Note, in that regard, that the reference to 'glaringly improbable' in the joint judgment in Brunskill at 844 was by way of 'example')." Their Honours said the appellate duty was correctly identified in a passage in the judgment in Coghlan v Cumberland part of which I have quoted. The importance of the trial judge's estimate of the witness varies from case to case and witness to witness. Furthermore as Deane and Dawson JJ have said the duty of the appellate court cannot be explained in any short exhaustive formula. The reasons, or absence of them, expressed in the judgment for reaching a particular conclusion may call for appellate intervention. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 McHugh JA, as he then was, pointed out that, where legislation gives a right of appeal against a decision if the basis of the decision, is not properly articulated, the losing party may be effectively deprived of his right of appeal. His Honour said that if an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons but it is necessary that the essential ground or grounds upon which the decision rests should be articulated. "In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (1977) I NSWLR 697 at 701 and 713. " In Mifsud v Campbell (1990) 21 NSWLR 725, a case resulting from a motor car collision, this Court ordered a new trial where the trial judge had given judgment in favour of a defendant without making mention of evidence that very shortly after the accident there was a strong smell of alcohol coming out of the defendant's vehicle and that the defendant had expeditiously departed from the scene. The trial judge did not discuss these unchallenged facts or the inferences which they might support or the effect which those inferences might have had upon the solution of the issue of negligence. This Court concluded that there had been a miscarriage of justice. Samuels JA gave the principal judgment. He said at 728G that in his view the judgment established that the trial judge simply excluded pertinent matters of evidence from consideration. In Chambers v Jobling (1986) 7 NSWLR 1 at 25 Mahoney JA remarked that the principle that an appellate court will pay appropriate regard to the position of advantage of the trial judge in assessing the evidence of a witness applies, with appropriate limitations, to the evidence of experts. His Honour referred to the WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) speech of Lord Scarman in Maynard v West Midlands Regional Health Authority (1984)1 WLR 634 at 637 and a passage quoted by his Lordship with approval from a judgment of Brandon LJ, as he then was, speaking of expert evidence in Joyce v Yeomans (1981) 1 WLR 549 at 556: "There are various aspects of such evidence in respect of which the trial judge can get the 'feeling' of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in a witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the transcript, although plain to the trial judge. I mention only two aspects of the matter, but there are others." Mahoney JA's judgment was a dissenting one but in Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299 two members of this Court, Clarke and Handley JJA, found his Honour's reasons persuasive particularly as they had been supported by later authority. Clarke JA, with whose reasons Handley JA agreed, said at 299: "In Abalos, for instance, the evidence of at least one of the witnesses was that of an expert. Again in Wilsher v Essex Area Health Authority [19881 AC 1074, Lord Bridge clearly indicated that the general principles relating to the power of an appellate court to interfere with the trial judge's findings as to which witnesses should be accepted applied equally in the area of expert evidence. His Lordship said (at 1091): 'where expert witnesses are radically at issue about complex technical questions within their own field and are examined and cross examined at length about their conflicting theories I believe that the judge's advantage in seeing them and hearing them is scarcely less important than when he has to resolve some conflict of primary fact between lay witnesses in purely mundane matters'." In Ahmedi the issue was whether a motor vehicle accident Or some other unknown cause had triggered off episodes of a condition of manic depression suffered by the plaintiff. There were various factual matters which pointed against a causal connection. The defendant appealed against a verdict for the plaintiff. There was contest between the plaintiffs medical expert and a psychiatrist who saw her on behalf of the defendant. In the course of the appeal attention was drawn to various aspects of the plaintiffs witness's evidence which, it was submitted, threw considerable doubt on his final conclusion. At 300 Clarke JA said: "There is, no doubt, a temptation to question evidence of a causal link when the gap between the happening of the incident said to have caused the later problems and the problems themselves is as long as two years. g I had been the trial judge this factor would have led me seriously to question the acceptability of Dr Chuchkovich's evidence. But once that evidence has been accepted by a trial judge who saw the doctor give evidence I must necessarily bow to the position of advantage enjoyed by that judge. There is, in my view, simply no basis for this Court accepting Dr Haik's conclusions upon the basis of disquiet resulting from the gap of which I have spoken." Kirby P, who dissented, said at 291 that the issue was not one of credibility but of the logical persuasion and internal consistency of the medical opinion stated: "Tn most cases it is not the honesty of the expert's opinion which is in question - it is the preference for one opinion over another. On that task, logic and likelihood are a far safer guide than appearance of the witness in the witness box. 62 UNREPORTED JUDGMENTS I would not follow Lord Bridge's dictum in Wilsher v Essex Area Health Authority, cited by Clarke JA I regard it as wholly unconvincing, and, with every respect, the product of loose reasoning." There are cases where a conflict in expert opinion can be resolved by a court by logical analysis. This may be because of the area of discourse or of the way the evidence is elicited and challenged by the parties. But there are also cases, of which this is one, where the expert opinion is formed by witnesses of high competence and capacity in specialised fields applying to an assumed factual situation the results of many years' study and experience. The impression made on the trial judge of such evidence is extremely important. Here the trial judge had the opportunity, having heard every word of the expert evidence and the various challenges made to it, to assess that evidence, weighing the argument and taking account of the ability or inability of the witness to articulate it. It is significant in this case that we are concerned with diagnosis of an organic condition of the human brain. When Professor Kiloh was being cross examined about what the appellants argue is the classical pattern for the evolution of brain damage, he remarked "Diagnosis is based on statistics or probabilities. That is the better term because it does not involve actual mathematics. The whole of medicine is probabilities." In answer to questions directed to the same matter he said a little later: "I was going to say that there would very rarely, perhaps it is experience to say frequently when you have a patient you do not see the classical picture. This is what makes medicine so difficult because diagnosis then depends on a wide knowledge of possibilities. If it were purely all causes were classical, you wouldn't need doctors. " In this area of discourse, in my opinion, it is overly ambitious for an appellate court to proceed on the basis that it can resolve a dispute between different opinions, honestly held, by logic without regard to the trial judge's advantage in seeing the witnesses examined and cross examined at length or to what Lord Brandon described as the "feeling" of the case which a trial judge can but the appellate court cannot get in the same way by reading the transcript. In Government Insurance Office of New South Wales v Luong (Court of Appeal, 2 April 1992, unreported) Mahoney JA, with whose judgment Priestley JA and I in substance agreed, said that the trial judge in arriving at his conclusions that there was brain damage, and damage to the extent to which he referred, relied to a significant extent upon the impact of the witnesses who gave evidence before him and in particular the expert medical witnesses. At 6-7 of his judgment Mahoney JA said: "Where, as in my opinion is the case in the present appeal, the trial has been influenced by the impact of the witnesses before him, then the considerations to which reference was made in the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 apply. At least they apply to the extent to which reference was made in this Court in the decision in Ahmedi v Ahmedi (1991) 23 NSWLR 288, and to which I referred in a dissenting judgment in Chambers v Jobling (1986) 7 NSWLR I at 25-6. They limit the extent to which this Court may interfere." He added "The principles to which the reference was made by Clarke JA and Handley JA in Ahmedi v Ahmedi are principles which, in my opinion, have a beneficial effect in the administration of justice. I do not mean that, by those principles or the acceptance of them this Court is bound to do what is not just, or to give effect to conclusions which are contrary to the law, to the intention of Parliament, or to the facts. WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) The principle involved is essentially this. In determining which of conflicting witnesses is to be accepted, the trial court may be influenced in appropriate cases by what it sees of the witnesses before it and may legitimately take those matters into account. It does not follow that in every case the court will be assisted by, as it is sometimes misleadingly described, the demeanour of a witness. Whether it will be so assisted must depend upon the circumstances of the case. And the court will always call in aid, for testing what a witness has said, the rules of logic, internal consistency and other matters insofar as they are relevant or of assistance in the particular case. But, as it has been said in other cases, it has now been accepted that this principle can be of assistance in the process of dispute resolution in some cases. If, in the particular case, the trial judge has been so assisted, then the attitude which this Court must take to the position of advantage of the trial judge in that regard is clear." In summary for the appellants to succeed it is not enough to say that Enderby J did not refer to the evidence of some witnesses or expressly reject part of the evidence. A reading of the evidence shows the cross examination of the expert witnesses involved substantial challenges to their competence and credibility. Enderby J in assessing fundamental differences of opinion had an advantage denied to this Court. It is for the appellants to show that he acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. EXPERT EVIDENCE AND CAUSATION It is also necessary in this case to consider the part played by expert evidence in proving to the required standard that a causal relationship existed. In Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 725 Murphy J said: "Tf expert evidence establishes that the relationship is possible (that is, it is a reasonable hypothesis or one consistent with scientific knowledge) the proof to the required standard (civil or criminal) that the relationship existed in the case under consideration may then be achieved by further evidence (expert or non-expert)." Barwick CJ expressed the same opinion on the point. The other two members of the majority (Gibbs and Mason JJ) did not expressly dissent from it. In my opinion the law is as Murphy J stated it. His Honour rejected the contention that expert evidence, when necessary to found the hypothesis or possibility of the causal relationship on which a civil case is based, must amount to opinion that, on the balance of probabilities, the relationship in fact existed. Barwick CJ's short judgment at 721 was to like effect. Both he and Gibbs J agreed with the reasons for judgment of Mason J, as he then was. Mason J, it seems to me, expressed the matter differently but to like effect. He quoted extensively from the evidence of the plaintiffs expert, an orthopaedic surgeon, who conceded that experts had expressed a view contrary to his. The evidence given by this expert was in his Honour's opinion capable of being understood by the jury as a statement by an expert that trauma in the form suffered was a cause of the plaintiffs disability. The evidence left it open to the jury to infer that on the probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard to other significant circumstances. In this Court (Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190) the two members of the majority of the Court, Glass and Mahoney JJA, accepted that a finding of causal connection may be open when the expert evidence does not rise above the opinion that a causal 64 UNREPORTED JUDGMENTS connection is possible; 197C and 199G. Mahoney JA quoted from the judgment of Herron CJ in EMI (Australia) Ltd v Bes (1970) 2 NSWR 238 at 242 who pointed out that it was not incumbent upon the applicant worker, upon whom the onus rested, to produce evidence from the medical witnesses which proved to demonstration that the applicant's contention was correct. "Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical evidence denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try. " Mahoney JA commented: "I do not read the Chief Justice to mean that, given a possible cause, the reasoning to its being an actual cause is simply 'intuitive' and subject to no limitations. In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause." GROUNDS OF APPEAL The appellants recognised the difficulties in having this Court reverse Enderby J's findings of fact if these were open on the evidence. Their submissions involved, in essence, two steps. The first was to say that his Honour had failed sufficiently to indicate the reasons for his conclusions or for his acceptance of the evidence of particular witnesses. The second was a consequential argument that his Honour's failure to give reasons left it open to say as had been said by the Court in Mifsud v Campbell that part of the evidence had been excluded from his Honour's consideration. In this situation, it was said, this Court was bound to weigh the conflicting evidence and draw its own inferences and conclusions. This would show that the weight of the evidence was against his Honour's conclusion that Mr Crawford suffered brain damage or, that if he did, this caused the onset of schizophrenia. Inevitably these two lines of argument overlapped. It is convenient to deal with the topics of submission in the order in which the appellants propounded them. The arguments were addressed first to the finding that Mr Crawford suffered brain damage and second to the finding that this caused the schizophrenia or schizoid condition from which he now suffers and has suffered since 1983. PATTERN OF SYMPTOMS As I have said the appellants submitted that his Honour approached the issue of brain damage by too simple a formula, namely the evidence of behavioural change after Chelmsford and without regard to the absence of a classical pattern of symptoms referred to by all the expert psychiatrist witnesses. The appellants submitted that the evidence of Dr Smith and Professor Kiloh was consistent with the evidence of Drs Morse and Bell that in determining whether brain damage had occurred it was necessary to determine in detail the timing, trend, consistency and nature of the symptoms suffered by Mr Crawford in the years following his treatment at Chelmsford, in order to see whether they could be WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) explained by brain damage. His Honour made no reference to this classical pattern in accordance with which the symptoms are expected to peak immediately after the insult with improvement over a period of 1-2 years followed by a plateau with no further improvement. As a corollary of this, progressive deterioration of brain functioning following uncomplicated trauma is without scientific basis. The appellants submitted that the evidence of events did not accord with this "classical" pattern and demonstrated a progressive deterioration. Before examining how his Honour approached the question three matters must be borne in mind. As I have pointed out his Honour accepted Dr Smith's opinion that Mr Crawford before he went into Chelmsford was a person who had a neurotic tendency to anxiety and depression but was not a person who had any endogenous type of depression or any kind of psychiatric illness. Second his Honour recognised that observations made of Mr Crawford after treatment could be explained by the injury to his leg or his taking of drugs which may have masked other symptoms and may have also been thought at the time by the observers to be the reason for his changed behaviour. Third his Honour found that "not surprisingly" the problems induced in Mr Crawford as a result of the brain damage exacerbated his neurotic condition. "He continued to be neurotic, although in a way that had been exacerbated and made worse by the brain damage and the natural consequences of that brain damage." Both Drs Morse and Bell were of opinion that prior to admission to Chelmsford Mr Crawford suffered not from a neurotic or reactive condition but from hypomania. His Honour accepted the evidence of Professor Kiloh that Mr Crawford suffered brain damage of a relatively minor kind while being treated at Chelmsford. Professor Kiloh was cross examined at length. He expressed his opinion after a careful review of the evidence before the Court of the nature and timing of events observed after Mr Crawford's treatment at Chelmsford. In cross examination he agreed that his conclusion that more likely than not Mr Crawford suffered brain damage at Chelmsford was based upon the apparent changes which occurred in Mr Crawford's cognitive function and behaviour immediately after Chelmsford and that it was critical in forming his opinion to know precisely how Mr Crawford was immediately he came out of Chelmsford. He was asked: "Q. The reason for that is this, is it not, that the typical evolution of brain damage is that is shows maximally immediately following the insult, then there is a period of improvement for 1-2 years, and then a plateauing effect? A. That is correct." Later in his evidence the following interchange took place: "Q. Just talking about behavioural changes, they follow, don't they, the same pattern in the situation of brain damage as the cognitive function, namely worse at the beginning, then there is an improvement and then there is a plateauing? A. Yes, that is what you would expect in most cases, but sometimes of course this would be the case, particularly with irritability because irritability in the patient or - I'm not quite sure what you call them in this situation - the plaintiff, will initiate irritability on people around them and then you get interaction between, so the plaintiff's irritability may apparently become very much worse. One thing aspires [sic] the other. Q. Did you hear Mrs Crawford say today that Mr Crawford's temper appeared to get progressively worse all the time up to when she left him? A. That is precisely what I have just been referring to. In the situation where the marriage is at risk and so on, and one would not expect it to be happy if they separated, it would not surprise me if his temper with his wife in particular became worse. 66 UNREPORTED JUDGMENTS Q. Did you hear his memory problems seemed to get especially worse in 1981 when he went to Bougainville? A. Yes, I heard her say that. Q. Did you hear her say that his other features of unacceptable behaviour, to use your expression, also seemed to get progressively worse as time went on? A. In Bougainville? Q. No, in this whole period of time from Chelmsford to 1981? A. I have a vague recollection. I will accept that, yes. Q. Will you not agree that the progressive deterioration of those behavioural or disinhibiting examples of conduct contra-indicates brain damage? A. No. Q. And is the reason you say that because of the theory you have developed of an interaction between the people provoking further or increased disinhibition on the patient's part? A. Yes, what I was suggesting is that if one has a behavioural abnormality in its broader sense due to brain damage that in certain situations these will become far more manifest if, for example, the patient's background has become more disturbed, from pressure put on them, they are under more stress, then the features we are talking about will become worse. It does not mean the brain damage has got any worse, it merely means their expression has got worse and I think that is quite acceptable." Professor Kiloh was asked whether having read the evidence and having heard Mrs Crawford in the witness box he agreed that the pattern of Mr Crawford's behaviour changes did not fit the classic pattern following cerebral insult from anoxia. He answered: "He did not show perhaps the traditional pattern that one sees described in textbooks and which in fact is quite common but by no means invariable, because people's behaviour is determined not merely by their brains but by their circumstances, their surroundings and how other people behave to them." Professor Kiloh had read the transcript of evidence of Mr Crawford, of his mother, of Mrs Crawford and of Mr Kogel. His Honour accepted the evidence of Mr Crawford's mother, Mrs Crawford and Mr Kogel as to the changes in Mr Crawford's behaviour which they observed. His Honour also accepted Mr Crawford's evidence in this regard though acknowledging that it had to be treated with some reserve. The appellants say that in part his Honour misstated the plaintiffs evidence. However that may be, Professor Kiloh in concluding as he did took account of all this evidence and of the classical test upon which the appellants now rely. In substance, Professor Kiloh's diagnosis was supported by Dr Smith; Drs Morse and Bell reached a different conclusion. His Honour did not discuss this evidence. I have read it. The evidence of Dr Morse as transcribed did not shift from the opinion that Mr Crawford's subsequent behaviour, particularly his control of it, was inconsistent with brain damage. He made no concession on this. But in part at least his opinion was based upon his diagnosis of hypomania and the consistency of the pattern of Mr Crawford's behaviour which he thought existed before Chelmsford. His Honour's conclusion, open to him on the evidence of Dr Smith, that prior to Chelmsford Mr Crawford's condition was neurotic and reactive, undermined Dr Morse's conclusion. Clearly his Honour rejected this conclusion. There is nothing which makes this result glaringly improbable. Dr Bell was even less inclined to make any concession. Reading his evidence it struck me as falling within that class described by Lord Brandon as displaying signs of partisanship and refusing to make proper concessions. Dr Bell's rejection of the opinions of Professor Campbell, his description of part of the review conducted by Mr Taylor as "unpardonable" and his criticism of the paper of Davison and Bagley as dealing with statistical issues superficially inadequately and incompetently are examples of a confidence which, on issues of WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) this complexity, does not read impressively. It was, in my opinion, open to his Honour to prefer the evidence of witnesses of at least equal eminence who expressed their opinions more moderately and, as I read them, impressively. While it is preferable that a trial judge explain why he accepts the opinion of one expert rather than another if there is conflict, it could not be supposed in the present case, that his Honour overlooked or excluded it from consideration. The acceptance of Mr Crawford's witnesses involved the rejection of conflicting evidence called on behalf of the appellants. This Court is asked to set aside Enderby J's finding of brain damage because there is evidence that Mr Crawford's progressive deterioration did not accord with the classical pattern for the evolution of brain damage. Professor Kiloh explained the reasons for this in a way which his Honour must have accepted. There is nothing glaringly improbable about this explanation. His Honour had the benefit of hearing the evidence and seeing the witness. For my part having read Professor Kiloh's evidence I find it persuasive. EVIDENCE OF PROGRESSION In an attempt to show that the evolution of symptoms was not consistent with the classical pattern, the appellants submitted that the observations of behaviour recounted by Mrs Crawford did not commence until after 1977 and that there was no evidence they occurred immediately after the treatment. Speaking of the weeks following Chelmsford Mrs Crawford gave evidence that Mr Crawford became coarse and would swear in front of women, that his personal hygiene dropped to a state where he had to be prompted as to when to shower, what to wear, when he had to wash, when to get up, that his memory was not great, that as time went by and his drug ingestion was reduced or changed she thought his memory was going to "sort of drop back into place" but it never did, and that he lost interest in reading, music and mending things and in sports and driving. After Dr Smith had given evidence and during the evidence of Professor Kiloh, Mrs Crawford was recalled for further cross examination. The appellants placed considerable reliance upon this. Prolonged attempts were made in cross examination to suggest to Mrs Crawford that the changes took place much later. It is not surprising that after a considerable period of time, as she acknowledged, there was some imprecision about the dates when things happened. His Honour summarised those parts of Mrs Crawford's evidence wherein she referred to Mr Crawford's coarse language, threats of violence, temper getting progressively worse in the time leading up to her separation from him in 1981 and the first violence she could remember towards a human in 1981. I have quoted some of this evidence. Most of it exemplifies the interaction between people to which Professor Kiloh referred. Professor Kiloh was questioned about progressive disorders. It was put to him: "Q. The evidence I can ask you to assume is he continued to deteriorate after 1980? A. I don't think that was progress, I think it was accentuation. Two stages. One was drug withdrawal and the other one was distress and problems with failing marriage and so on." His Honour quoted from Mrs Crawford's evidence, given when she was recalled, that Mr Crawford was not as spontaneous and fun loving after he came out of Chelmsford, as he had been before and just was not the person he was prior to going into Chelmsford. He then cited the evidence of Mr Kogel. There is, in my opinion, ample evidence upon which his Honour could find that Mr Crawford was changed in the ways he referred to. His Honour concluded: "Many examples of what I have cited could be given but the overall opinion is that he changed from being a person who was perhaps vulnerable to stress and a person who 68 UNREPORTED JUDGMENTS suffered from anxiety depression, into a person who was qualitatively worse with a significant diminution in mental capacity. He was never the same person again." The appellants submit that Enderby J failed to consider material evidence of Mr Crawford's treating doctors between 1977 and 1982, none of whom diagnosed or suspected brain damage. This evidence can be of little weight if one accepts, as his Honour was entitled to do, the evidence of those who observed Mr Crawford in his daily activities. In addition to these matters the appellants relied upon evidence that Mr Crawford was able to control his aberrant behaviour a matter said to be inconsistent with brain damage and the results of the CAT scan and a Magnetic resonance imaging (MRI) test neither of which showed signs of brain damage. Dr Smith said "that the fact that the MRI and the CAT scan were normal does not exclude brain damage because virtually every day we are seeing people with particular significant neurological symptoms and signs on CAT scans and MRI are normal ". Asked to assume that any coarsening of behaviour was only evidenced in a home environment and was not evident at work or at the patient's parents' house Dr Smith agreed that that suggested the patient had some control at least over his disinhibitory conduct. "Q. That would suggest, would it not, that the cause of that disinhibitory conduct was not brain damage? A. It might suggest it but I think we discussed the other day that even brain damaged subjects can exert some degree of control over their behaviour. Q. But more often than not brain damaged subjects are people who cannot exhibit control over such matters, are they not? A. Yes. I would accept that Q. Indeed, one of the features you look for when behavioural oddities are apparent in determining whether or not there is brain damage is the ability of the patient to control or otherwise that disinhibiting conduct? A. It is a bit of both. g somebody has disinhibiting personality changes that he is trying to keep in check it does not get away from the fact that he has the underlying disposition. Q. The more successful the patient is to be able to do that, in other words, successfully control it, is contra indicative to brain damage? A. No. It would indicate he had a lesser severity of disinhibition that he could control. It is still compatible with brain damage. It is a matter of the degree of brain damage then." Professor Kiloh said that in most cases one would expect that the CAT scan or MRI scan would reveal some evidence of brain damage "But some people with indubitable brain damage, as evidence by clinical features, return normal CT scans and normal EEG's too. " Asked about the MRI testing he said one would certainly expect that it would be more likely to detect brain disease than any other device presently known. That was apparently something he knew less about. In short the matters relied upon by the appellants were considered by the experts called for Mr Crawford. Taking account of this they adhered to the view that he had suffered brain damage. PSYCHOMETRIC TESTS AS EVIDENCE OF BRAIN DAMAGE Enderby J did not refer to what the appellants claimed were the only useful psychometric tests, those of Dr Davies conducted in 1969 before the Chelmsford treatment and in 1975 after it. NSWMDU called Dr Davies to give evidence. Mr Crawford had been referred to him on both occasions by Dr Bailey. He prepared psychological appraisals dated 21 March 1969 and 5 December 1975. In the first under the heading "Diagnostic Features" he said, amongst other things, that there were no signs in the test results for any psychotic mechanisms in his emotional functioning, that there was a high degree of repression, and this manifested itself WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILBY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) in above average hysteroid mechanisms. In the later appraisal he said under the same heading that Mr Crawford had improved immediate memory and better emotional control than in the previous assessment. He was still slow in decision making, however, and was limited in his capacity for anticipatory planning of sequential behaviours. In the first examination Dr Davies used an earlier form of the Wechsler test, the Wechsler Bellevue scale. This was comprised of eleven sub-tests of which two or three were not given. The results were expressed by Dr Davies on a percentile scale. Dr Davies did not have records of the 1969 or complete records of the 1975 scaled scores achieved by Mr Crawford on the Wechsler sub-tests. However he was able, when asked, to convert his percentile figures back. This produced for both 1969 and 1975 a Digit Symbol result of 12 well above the results achieved by Mr Taylor and Mr Todd. The Picture Arrangement result was below average. Dr Davies was asked which if any of the results of Wechsler sub-tests would be affected by organic brain injury due to an hypoxic insult. He said: "Well it would depend on the extent of the injury but if a person did have a brain injured condition from some hypoxic state, in other words some period of deprivation of oxygen, the series of sub-tests you would expect to detect some deficiency in, would be the arithmetic sub-test, the digit span sub-test. You would expect there would be some difficulties manifesting themselves on the block designs. The digit symbol substitution test may be reduced and you would expect the picture arrangement to show some deficit." Asked to express an opinion in respect of the score of 12 on the Digit Symbol test in 1975 he said it was above average "and one would have expected had there been some sort of brain damage occurring with this person, that he would have shown some disturbances in his concentration. Or it may be of course if there was some other severe psychological disturbance occurring, again you might get disturbances in concentration but they wouldn't manifest in the test results. " It was put to Dr Davies that his departures from proper methods were so gross that his method of testing was incompetent. He would not agree that he had departed from the regular method of testing albeit that he had not conducted all eleven sub-tests and had conducted some of the sub-tests in a shortened form. He was also questioned about the time he had taken in examining Mr Crawford on each occasion. He agreed that while a period of an hour to an hour and a quarter might not necessarily be the usual time for such an examination "certainly the task can be done in that time." Dr Shores had examined Mr Crawford on 22 December 1989 and prepared a report dated 5 January 1990. In his report he said: "Mr Crawford has a current neuropsychological profile consistent with widespread brain dysfunction. He has a lowering of his general level of intelligence and has significant memory and learning difficulties. Other areas of cognitive functioning are also impaired. His cognitive dysfunction is of such magnitude that he is not fit for any sort of work on the open labour market. He also complains of an hallucinating disorder. His current condition would appear to be significantly different to his condition prior to his admission to Chelmsford Hospital in December 1973. At that time it would appear he was of normal intelligence had normal learning skills and was holding down a full time job. Furthermore, there is no evidence in the reports that I have sighted that he suffered from any hallucinating disorder prior to the admission in December 1973. It is outside of my area of competence to give an opinion as to whether the treatment received at that time may have caused or contributed to the changes in 70 UNREPORTED JUDGMENTS Mr Crawford. However, it is of interest to note that on psychometric testing in 1975, 1980 and 1983 there is no strong evidence of cognitive decline. The gross cognitive decline would appear to only have taken place since 1983, some eight years after the 'deep sleep' therapy. Any suggestion that his current cognitive state is a direct consequence of the 'deep sleep' therapy would need to include an explanation of the late onset of the cognitive decline." In his evidence Dr Shores said that the results Mr Taylor found in August 1990 were inconsistent with his findings from the beginning of 1990 which he said supported his view that it was "a drug effect as opposed to a brain damage effect in Mr Crawford's case". Asked as to his view on the role of psychometric testing he said: "Psychometric testing is a tool which one uses to elicit behaviour from a person and one judges that behaviour in terms of the known history, to come to a conclusion as to what might be right or wrong with that person at the time. Q. In your opinion is it possible to diagnose brain damage on the basis of psychometric testing alone? A. It would be unwise to diagnose brain damage on psychometric testing alone. Q. Why do you say that? A. Because there are a number of different reasons why people can perform as they do and it is the reasons why they perform as they do that are important, rather than the scores that they get on tests. Dr Shores said that the score obtained by Dr Davies in 1969 and 1975 on the Digit Symbol sub-test was inconsistent with the onset of brain damage. He said further that of all the sub-tests of that intelligence scale that sub-test is considered to be one of the most sensitive to brain dysfunction. Had Mr Crawford suffered brain dysfunction in all likelihood there would be a low reading on that score and that in fact was not the case. Asked about the reports of Mr Todd and Mr Taylor, Dr Shores said that one of the memory tests obtained by Mr Todd raised the question of the possibility of some impairment and the general reaction of memory as opposed to intelligence also raised the question that Mr Crawford was not performing as one would expect. He did not think any more definite conclusion could be reached without more extensive evaluation and testing. He observed of the results obtained by Mr Taylor that the Digit Symbol score was very low and out of proportion to the other scores. "Once again it is a warning sign and raises the question that his level of cognition is not completely stable. " However he said further that he was confused by the results reported by Mr Taylor in 1983. "Tn a person who has a memory disorder because of brain damage or brain dysfunction, their brain is not working properly; it is usual, the first three or four tests, the first three tests which are the higher scores, should be the higher scores because they are not purely in memory and the last four which are much more memory tests, one would expect to see deficits on those and in fact, except for one of them, we have the reverse pattern which does not make clinical sense." The results as they stood did not allow him to draw any conclusions except to say that the case was atypical and one would not expect to find such a result. Consideration of the results from 1969 through to August 1990 revealed to Dr Shores a pattern which in his opinion was inconsistent with organic brain damage. He disagreed with Mr Taylor that the low Digit Symbol score could not have resulted from the ingestion of drugs particularly Lithium. Under cross examination Dr Shores pointed out that Dr Davies did not use the Wechsler memory test when examining Mr Crawford. In his opinion "he would have needed to do at least the intelligence scale and memory scale" in 1975 if the WFEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILEY [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) referral question had been "does the man have brain damage?" He regarded it as necessary to go much beyond even these two tests and said: "In my practice I quite frequently give short forms of the intelligence scale because all I warrant [want?] from the intelligence scale is to get a rough idea of the person's level of intelligence. I use all other tests to determine whether there might or might not be brain dysfunction." Later in his cross examination the following interchange took place: "Q. May Task you this please doctor, I want you to assume that in making the enquiry in 1979, Dr Davies administered the Wechsler IQ. tests but did not do anything else and did not administer the full eleven sub-tests of the Wechsler test and did nothing else? A. Yes. Q. That he was looking for brain damage. I want you to assume that he took no more than about an hour, hour and a quarter to perform the tests and performed the personality tests at the same time in that period. I want to ask you now, assuming those facts which you may nor have known about when you wrote your report, whether you could give any weight at all to the report which Dr Davies gave in 1975? A. What I used from Dr Davies report was his IQ. results and those results I would consider as reliable and valid even thous!h it was only 9 of the 11 sub-tests. Q. Looking however for the purpose of calibration of brain damage, you would agree with me, I suppose, that no weight could be put on Dr Davies report? A. As a test, an assessment of brain damage, yes, I would agree with you." Dr Shores also said that poor results on the paired associate sub-test is a pointer to memory disorder consistent with brain dysfunction. He regarded Mr Todd's results as suggestive of some kind of damage but Mr Taylor's 1983 memory scale results as atypical meaning a pattern he would not expect to find in a brain damaged person. He said further that the scores found by Mr Todd and Mr Taylor on the Digit Symbol test were pointers to brain dysfunction. "T have a number of patients who score quite normally on block design and object assembly who have quite significant demonstrated brain damage and have a low score on Digit Symbol. That is quite a consistent picture." The acceptance by His Honour of the opinions of Mr Taylor and Mr Todd involves in part at least a rejection of the opinions of Dr Davies and Dr Shores. I think it was open to his Honour, particularly in light of the evidence of Dr Shores, to conclude that the results achieved by Dr Davies, bearing in mind the limited nature of the tests, were not such as to deny the conclusions reached by others that Mr Crawford suffered from brain damage. So far as Dr Shores was concerned the main points of contest were the scope of psychometric tests as a diagnostic tool and the effect on test results of drug ingestion. His Honour preferred the opinion of Mr Taylor. There is nothing to suggest that he excluded the evidence of Dr Davies and Dr Shores from consideration. All in all I am quite satisfied that it was open to Enderby J to conclude that the psychometric testing confirmed the diagnosis of Professor Kiloh. SCHIZOPHRENIA Once again Enderby J had the evidence of Dr Smith and Professor Kiloh that the brain damage caused schizophrenia. The appellants' argument was directed at the reliance placed by those witnesses on the paper published by Davison and Bagley. The appellants called Dr Cumming an expert in epidemiology which he said was the study of health problems in human populations employing skills in research design and skills in statistics. It was argued that the cornerstone or underlying premise on which the opinion of Davison and Bagley was based was 72 UNREPORTED JUDGMENTS demonstrated to be doubtful and accordingly their finding, albeit tentative, of causal link should be rejected. However in the course of cross examination of Dr Cumming the following interchange took place: "Q. I take it that when you have said in your report that the Davison and Bagley article does not prove a causal relationship between CNS disorders and schizophrenia, you are talking about causation there in the sense of your 100 percent certainty? A. No, I don't think I would be 100 percent certain. Q. You are talking about something pretty close to 100 percent when you expressed yourself in the final sentences of your report, when you said, 'It certainly does not prove' - this is the Davison and Bagley article, 'causal relationship between CNS disorders and schizophrenia'. When you made that statement you had in mind something pretty close to 100 percent? A. I am not sure that that is true. I have to think what I had in mind. Q. Well, 95 percent? A. Probably lower than that. " This illustrates the distinction drawn by Herron CJ in EMI (Australia) Ltd v Bes It may be the case that medical science will find a possibility not good enough on which to base a scientific deduction. But Davison and Bagley in their paper and Dr Smith and Professor Kiloh in evidence acknowledged the possibility of the causal connection. Dr Smith and Professor Kiloh concluded in the circumstances of this case that brain damage was the cause of schizophrenia. Ido not think that the expert witnesses in placing reliance on Davison and Bagley were proceeding to a conclusion without foundation. As his Honour remarked, Dr Smith said "There is no indication that (Mr Crawford) had any psychotic features prior to Chelmsford." His Honour said there was no evidence he had any genetic disposition to it. Like his Honour I do not think Dr Smith was limiting his opinion to the research referred to in the Davison and Bagley article. Scientific possibility was there and the other evidence sufficiently enabled his Honour to make the finding he did on the probabilities. This involved his rejection of the opinions of Drs Morse and Bell expressed typically by Dr Bell when he said that the results tabulated by Davison and Bagley were either insignificant or irrelevant to the case, an opinion not shared by Dr Smith and Professor Kiloh. CONCLUSION In my opinion Mr Crawford made a strong case that the treatment he received at Chelmsford caused him brain damage and that the brain damage he suffered in time caused schizophrenia. This is the opinion of expert witnesses. That Mr Crawford was exposed to the risk of brain damage at Chelmsford is no longer contested by the appellants. There is ample evidence that after his treatment at Chelmsford his behaviour changed markedly. There is evidence that this was a progressive change. There is evidence that this change may have been induced by the ingestion of drugs. Equally the drug regime may, at least until 1977 when it was altered, have brought about changes of behaviour or may have been treated by observers both lay and professional as the reason for changed behaviour. Brain damage may, as his Honour thought, have been revealed by the psychometric tests. On the other hand the tests may not have revealed it or may have been diagnostically incapable of doing so. The expert witnesses were challenged by extensive cross examination wherein their professional qualifications and competence, their reasoning processes and methods of expression were freely questioned. There was little dispassionate comparison of differing opinions. The approach taken by all parties was to attack the credit of the opposing experts. Having considered the evidence as a whole I think the probabilities that the treatment at Chelmsford caused brain damage favour Mr Crawford. More WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILZS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) importantly the matters relied upon by the appellants in this appeal are largely matters which go to preferring the opinions of one expert to those of another. Enderby J enjoyed a particular advantage denied to us of hearing the witnesses and the answers they gave to the wide ranging challenges the nature of which I have described. I do not think his Honour failed to use or misused this advantage. His conclusions on such matters as the value of psychometric test results were based on his acceptance of some expert witnesses and the rejection, as a corollary, of other expert witnesses. This was open to him and his conclusions are not shown to be wrong or glaringly improbable. His acceptance of these witnesses supports the evidence of two experts, Dr Smith and Professor Kiloh, who taking account of all the facts which counsel for NSWMDU put to them, adhered to the opinion that Mr Crawford had suffered brain damage and in consequence paranoid schizophrenia. His Honour accepted these opinions as it was open to him to do. In my opinion the appellants' challenge on these matters fails. CLAIMS ARISING FROM ANY ONE ACT OR OMISSION Enderby J dealt with this question in his judgment of 25 June 1992 and held that a proper interpretation of the Articles of Association of NSWMDU (particularly article 57) meant that there was a limit of $500,000 for each act or omission complained of in each action. Accordingly, in his Honour's view, there was a limit of $500,000 for the damages flowing from the negligence that caused the brain damage and schizophrenia and another $500,000 for the negligence that that caused the injury to Mr Crawford's leg. Mr Brereton of counsel, who appeared for the Estate, went further and submitted that his Honour had found that the brain damage and schizophrenia were caused or contributed to by at least three separate transactions, a decision on 27 December 1973 to maintain ECT, a further decision on 3 January 1974 to continue ECT and a failure on or about 6 January 1974 to discontinue ECT and deep sleep therapy in addition to Dr Bailey's negligence in failing to ensure that Mr Crawford was cared for by properly instructed nurses resulting in injury to his leg and foot. Thus Mr Brereton identified four separate acts or omissions. The appellants challenged his Honour's conclusions and submitted that the object of article 57 (3) was to link the limit to a cause of action. In this case, as pleaded, there was one. Article 57 has to be read in the context of other articles. Article 61 (a) conferred upon the Council a discretion to exercise powers of assistance to members in cases "where the Council is of the opinion that the act or omission in respect of which any action, proceeding, claim or demand against a member or in the event of his death against his personal representative is brought or made involves or may involve such member in a legal liability, either in addition to or other than the liability particularised in article 57 ". It was submitted that the language of this paragraph supports the contention linking the limit to a cause of action. I have considerable difficulty with this argument. The person responsible for drafting article 57 (3) so as to limit indemnity under that article in respect of all claims arising from any one act or omission to a particular sum no doubt intended a meaningful limitation. Insurance policies designed to cover liability for medical negligence, certainly in the United States, link the limitation of liability to "each medical incident", "incident" being defined to include any act or omission in the furnishing of professional health care services. Policies provide that any such act or omission together with all related acts or omissions in the furnishing of such services to any one person shall be considered one medical incident; see generally R H Long, The Law of 74 UNREPORTED JUDGMENTS Liability (1992 Supplement) 12.08; 12-24 to 12-29. Some such limitation may have been intended in the policy here in question. By contrast policies covering public risk and products liability have been concerned to limit liability where there are numerous claims arising from a single source or cause; see generally F H Heppell, Products Liability Insurance (1967) 33-34; Halsburys Laws of England 4th ed, vol 25, 354; P Latimer; Cases and Text on Insurance Law Australia and New Zealand (1977) para 465. The limitation is commonly linked to one accident or occurrence. In South Staffordshire Tramways Co v Sickness and Accident Assurance Association [1891] 1 QB 407, the English Court of Appeal resolved a difficulty exposed in a case where the policy imposed a limit "in respect of any one accident" by holding that the limit applied to each of the claims of forty passengers in one of the insured's trams which overturned. It was not the overturning of the tram but the injury to each passenger to which the words "one accident" applied. This led, according to Donaldson J, as he then was, in Forney v Dominion Insurance Co Ltd (1969) 1 WLR 928 at 934, to the use of the word "occurrence" instead of or in addition to "accident" with the results discussed by Stephen J in Distillers Company Biochemicals (Australia) Pty Ltd v Ajax Insurance Company Ltd (1974) 130 CLR 1 at 18 and following. The language used here seems to be a unique departure from recognised formulae. It is closer to the intention of the language used in the public risk insurance examples. If as a result of one act or omission there are many claims the indemnity under article 57 is limited in respect of all those claims to the stipulated amount. The limit is not linked to the claims or causes of action but to the act or omission. Thus, in my opinion, it has no application where as here there were obviously continuing acts or omissions which led to the claim made by Mr Crawford against Dr Bailey. The argument put by Mr Parker to Enderby J was that there were two acts or omissions. His Honour held accordingly and I would not interfere with this conclusion. I do not think it is open on appeal now to argue that there were even more acts or omissions. The result is, as Enderby J said, that there was a limit of $500,000 flowing from the negligence that caused the brain damage and schizophrenia and another $500,000 for the negligence that caused the injury to Mr Crawford's leg. Of the total damages awarded of $586,196 Enderby J attributed $524,196 to the former and $62,000 to the latter. This apportionment has not been challenged. Accordingly, in the 1980 proceedings, on the Estate's cross claim against NSWMDU, there should have been judgment in favour of the Estate in the sum of $562,000 and in the 1988 proceedings judgment in favour of Mr Crawford in the sum of $562,000. In both judgments as entered the amount was erroneously inserted as $500,000. Quite clearly this was a slip and did not correctly express Enderby J's decision; Bailey v Marinoff (1971) 125 CLR 529 at 535 and 539, Storey and Kerrs Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449 and following. This Court possesses the power on appeal to correct such a slip, L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590 at 594. In my opinion, although the matter is not a subject of the appeals or cross appeal the Court should correct the judgments and orders to accord with the reasons of Enderby J. COSTS In my judgment of 3 September 1993 I expressed the opinion that Mr Crawford was entitled in the 1988 action to the amount of the insurance moneys payable by way of indemnity for the insured's legal liability for damages and in addition his costs of the successful proceedings. I do not understand NSWMDU WHEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No.2]; v BAILZS [No.2]; BAILEY v CRAWFORD [No.2] (Sheller JA) to dispute this as a matter of principle but Mr Sullivan argued that the order should be limited to those additional costs incurred by Mr Crawford by reason of his having commenced the 1988 proceedings. The agreed indemnity is for damages or costs arising from the claim (article 57 (2)), that is to say, the injured person's claim against the insured. As a matter of language this does not include costs of claims by the insured against the insurer or the injured party against the insurer and hence the costs of the cross claim in the 1980 proceedings or the costs of the 1988 proceedings. The limit of liability in article 57 (3) means that the most that can be recovered by the insured in respect of any one act or omission as indemnity for both damages and costs is the amount stipulated. In Heppell, op cit, at 34 it is observed that legal costs and expenses are not normally subject to a limit "and quite rightly so, for it would be obviously inequitable for an insurer, who takes control of all claims, to reduce the amount of compensation available by conducting a very expensive but unsuccessful defence. "' This inequity is built into the insurance provided under the NSWMDU articles. I would not be inclined to enlarge it beyond the strict meaning of the clause of the article. I confirm my view, expressed tentatively in my earlier judgment in these appeals (1993) 31 NSWLR 469 at 534, that for costs purposes it is not appropriate to treat $1 million as a global amount producing a limitation in respect of the total costs recoverable of $438,000. In my opinion the costs must be apportioned between the claim for brain damage and schizophrenia and the claim for injury to the plaintiffs leg. No doubt this and the question as to which costs should be attributed to Mr Crawford's 1980 action against Dr Bailey and which to the cross claim and the 1988 proceedings will give rise to nice questions on taxation It may be that the parties can devise some arbitrary way of avoiding such questions. McMILLAN AND MANNIX I do not regard the decisions of this Court or of the High Court on the special leave application as requiring me to alter in any way the conclusions I have reached. In particular they do not affect my conclusion that the decision of the majority of the Court in Grimson v Aviation and General (Underwriting) Agents Pty Ltd (1991) 25 NSWLR 422 that the same period of limitation applied to the injured person's cause of action against an insurer under s6 of the Law Reform (Miscellaneous Provisions) Act 1946 as applied to the insured's cause of action against the insurer was wrong. NOTICE OF MOTION The Court having heard argument on the matters the subject of O.1 and O.4 of the notice of motion, orders giving leave in the terms sought should be made. Obviously in light of this judgment O.2 should be refused. As I have already said I think O.3 also should be refused. The costs of the motion should be costs in the appeal. ORDERS I propose the following orders: (a) As to the motion by NSWMDU: 1. The claimant (NSWMDU) should have leave to re-open its argument and to make further submissions; 2. Otherwise motion dismissed; and 3. Costs of the motion, costs in the appeal. (b) As to the appeals by NSWMDU and the Estate of the late Dr Bailey: UNREPORTED JUDGMENTS 4. 5. 6. 10. 11. 12. 13, Appeal No 40127/92 allowed; Judgment and O.2, 0.4 and O.5 in proceedings No 17289/80 set aside; In lieu thereof judgment and orders as follows: 2. That the second cross defendant pay to the second cross claimant the sum of $562,000; 4. The second cross defendant pay the costs of the second cross claimant on the second cross claim, including the costs the second cross claimant has to pay the plaintiff attributable to the plaintiffs claim for damages in respect of injury to his leg with the proviso that these latter costs do not exceed $438,000. 5. Payment by the second cross defendant of O.1 of proceedings No 13757/88 in this Court that order being: 'that the defendant pay to the plaintiff the sum of $562,000' shall be deemed satisfaction of O.2 above. In the alternative, payment by the second cross defendant of the sum in O.2 above shall be deemed satisfaction of order I in proceedings No 13757/88 in this Court. Otherwise the judgment and orders in proceedings No 17289/80 are confirmed. Appeals Nos 40128/92 and 40134/92 dismissed; Cross appeal in appeal No 40128/92 allowed; Judgment and orders in proceedings No 13757/88 set aside; In lieu thereof, judgment and orders as follows: 1. That the defendant pay to the plaintiff the sum of $562,000. This judgment to take effect on 25 June 1992. 2. The defendant pay the costs of the plaintiff. 3. Payment by the defendant of the amount in O.1 above shall be deemed satisfaction of O.2 of the judgment in proceedings No 17289/80 in this Court, that order being: 'that the second cross defendant pay to the second cross claimant the sum of $562,000'. Order that the appellants pay the costs of the appeals; and Order that the cross-respondent pay the costs of the cross appeals but have in respect of such costs a certificate under the Suitors' Fund Act 1951. COUNSEL: Appellant (NSWMDU): Appellant (Mrs Bailey, Estate PLG Brereton / MK Meek of the late Dr H Bailey): Respondent/Cross-appellant RWR Parker QC / PW Bates (Mr Crawford): SOLICITORS: Appellant (NSWMDU): Blake Dawson Waldron Appellant (Mrs Bailey, Estate Stewart Cuddy and Mockler of the late Dr H Bailey): Respondent/Cross-appellant Teakle Ormsby and Associates (Mr Crawford):