Reported Decision : (2004) Aust Torts Reports 81-761 New South Wales Court of Appeal CITATION : CUBBON, CUBBON & BATES v ROADS AND TRAFFIC AUTHORITY OF NSW [2004] NSWCA 326 HEARING DATE(S) : 27 July 2004 JUDGMENT DATE : 23 September 2004 JUDGMENT OF : Handley JA at 1; Sheller JA at 2; Tobias JA at 105 DECISION : In relation to Kenneth Neil Cubbon - see paragraph 57-58; In relation to Geoffrey Warren Cubbon - see paragraph 82-83; In relation to Lynda Aileen Bates - see paragraph 103-104 CATCHWORDS : NERVOUS SHOCK - mother and sister killed in car accident - when not present at scene of accident or aftermath - proximity test - Tame v New South Wales, Gifford v Strang Patrick Stevedoring - whether incorrect test for causation applied - whether caused or materially contributed to recognised psychiatric illness - costs of cross-appeal LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1944 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205 CASES CITED : Jaensch v Coffey (1984) 155 CLR 549 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Geoffrey Warren Cubbon - Appellant PARTIES : Kenneth Neil Cubbon - Appellant Lynda Aileen Bates - Appellant Roads and Traffic Authority of New South Wales - Respondent FILE NUMBER(S) : CA 40230/02; 40231/02; 40232/02 COUNSEL : L King SC/J T Kearney - Appellants S Harben SC - Respondent SOLICITORS : Michael Evers & Co - Appellants Sparke Helmore - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 1012/99; 1013/99; 1009/99 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40230/02; 40231/02; 40232/02 DC 1012/99; 1013/99; 1009/99 HANDLEY JA SHELLER JA TOBIAS JA CUBBON, CUBBON & BATES v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES The appellants, Geoffrey Warren Cubbon, Kenneth Neil Cubbon and Lynda Aileen Bates are siblings and are the children of Thomas Norman Cubbon and Dorothy Jean Cubbon (Mrs Cubbon). Their sister was Maree Annette Cubbon (Maree). On 5 March 1997, Mrs Cubbon and Maree were both killed as the result of a motor vehicle accident. The appellants brought proceedings in the District Court against the respondent, alleging that the motor vehicle collision, which resulted in the deaths of Mrs Cubbon and Marie, was caused by the negligence of the respondent. Each of the appellants claimed to have suffered nervous shock as a result of the accident and its aftermath. In each case, the trial Judge dismissed the appellant's claim and as a consequence dismissed the respondent's cross-claims against Australian Associated Motor Insurers Limited (AAMI). In relation to each claim, the trial Judge found that the respective appellant had, on the evidence, enjoyed a close and loving relationship with both Mrs Cubbon and Maree. However, Geoffrey's claim failed on the basis that the trial Judge was not able to make a finding that, on the balance of probabilities, the major depression from which Geoffrey suffered was caused by the shock and distress, which he experienced on 5 March 1997. In relation to Kenneth and Lynda, her Honour held that the necessary degree of proximity to the circumstances of the motor vehicle accident had not been established because neither Kenneth nor Lynda attended at the scene of the accident and the distress experienced when they viewed the damage to the car did not take place until several days after the accident. Notably, the trial Judge handed down her decisions in the three proceedings before the publication of the High Court decision in Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205. All three appellants applied for leave to appeal on the ground that the trial Judge had applied an incorrect test of the degree of proximity required by law. Geoffrey and Lynda also sought leave to appeal on the basis that his Honour applied an incorrect test of causation and that the decision in relation to causation was against the weight of the evidence. On 11 February 2003, the Court granted each plaintiff leave to appeal and the RTA leave to cross-appeal against AAMI. AAMI filed a response submitting to the orders of the Court. Held: Per Sheller JA, Handley and Tobias JJA agreeing: 1. Direct perception of an incident or its aftermath is not in all cases a necessary requirement for a claim for damages for negligently inflicted psychological or psychiatric injury not consequent upon physical harm. Tame v New South Wales and Annetts v Australian Stations Pty Ltd applied; Gifford v Strang Patrick Stevedoring Pty Ltd applied. In relation to Kenneth Neil Cubbon: 2. Once distance in time and space, in the sense that Kenneth had not been present at the scene of the accident nor its aftermath in the morgue or the hospital on the night of the accident, was put aside as essential to the recovery of damages for nervous shock, the necessary degree of proximity was established by the trial Judge's finding that Kenneth enjoyed a close and loving relationship with both Mrs Cubbon and Maree. 3. As no other defence to the claim was found by the trial Judge or pressed by the respondent, the appeal in relation to Kenneth must be allowed. 4. No reason in principle was advanced as to how, after the decision of the High Court in Gifford was known, the RTA could justify defending Kenneth's appeal and at the hearing of the appeal the RTA abandoned any attempt to do so. As a result, Kenneth was put to unnecessary cost, together with worry and concern. Rosniak v Government Insurance Office (1997) 41 NSWLR 608 applied. As a consequence of this, the RTA should pay the costs of Kenneth from 18 July 2003, a date one month after the High Court decision in Gifford was published, on an indemnity basis. In relation to Geoffrey Warren Cubbon: 5. The test for causation, which the trial Judge should have applied, was whether the RTA's negligence, resulting in the deaths of Mrs Cubbon and Maree, caused or materially contributed to the major depression from which Geoffrey suffered. 6. There was medical evidence that Geoffrey, by at least 1999, was suffering from major depression. The evidence of Dr Lambeth clearly intended to indicate that the circumstances of the deaths of Mrs Cubbon and Maree and the aftermath to which Gregory was exposed at the morgue and the hospital and beyond, materially contributed to the recognised psychiatric illness of depression. This evidence was not challenged or contradicted or in any way undermined. 7. Accordingly, it was not open to the trial Judge to conclude that the death of Geoffrey's mother and sister and the circumstances and aftermath of these deaths, so far as they affected Geoffrey, did not cause or materially contribute to the recognised psychiatric illness of major depression. In relation to Lynda Aileen Bates: 8. Believing, as she apparently did, that Lynda could succeed only if she demonstrated that the real cause of her depression was shock, it was understandable that her Honour reached the conclusion that she did. However, the question that should have been asked was whether the circumstances of the death of Mrs Cubbon and Maree and the sequelae of that event as experienced by Lynda caused or materially contributed to the major or chronic depression as described by Doctor Dyball. 9. If the trial Judge had not been diverted by the attempt, possibly encouraged by the medical reports, to inquire whether shock was a major or precipitating cause of Lynda's illness, she would have found in favour of Lynda. In relation to the Cross-Appeal: 10. In all three appeals, RTA and AAMI agreed that AAMI would contribute 35 percent of the verdict and costs awarded against RTA. 11. In relation to Kenneth Cubbon, on 20 February 2004, the lawyers acting on behalf of RTA, wrote to AAMI setting out an offer to resolve the matter with Kenneth and AAMI. Bearing in mind AAMI was advised that there was no basis upon which Kenneth's appeal could be defended, AAMI should from 20 February 2004, pay RTA's costs of the cross-appeal on an indemnity basis. Legislation: Law Reform (Miscellaneous Provisions) Act 1944 as amended Cases cited: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205 Jaensch v Coffey (1984) 155 CLR 549 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 ORDERS In relation to Kenneth Neil Cubbon 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $79,453.40 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal, those costs to be paid from 18 July 2003 on an indemnity basis; 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $79,453.40 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim; 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal, those costs to be paid from 20 February 2004 on an indemnity basis. In relation to Geoffrey Warren Cubbon 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $88,209.01 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal; 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $88,209.01 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim; 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal. In relation to Lynda Aileen Bates 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $89,246.55 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal; 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $89,246.55 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim; 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40230/02, 40231/02, 40232/02 DC 1012/99, 1013/99, 1009/99 (Newcastle) HANDLEY JA SHELLER JA TOBIAS JA Thursday, 23 September 2004 CUBBON, CUBBON & BATES v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES Judgment 1 HANDLEY JA: I agree with Sheller JA. 2 SHELLER JA: Introduction These three appeals from decisions given by her Honour Judge Sidis on 6 March 2002 were heard together. The plaintiffs and appellants, Geoffrey Warren Cubbon, Kenneth Neil Cubbon and Lynda Aileen Bates, are siblings and the children of Thomas Norman Cubbon and Dorothy Jean Cubbon (Mrs Cubbon). Their sister was Maree Annette Cubbon (Maree). 3 On 5 March 1997, Mrs Cubbon and Maree were both killed as the result of a motor vehicle accident. The plaintiffs were then respectively aged 33, 37 and 38. They each brought proceedings in the District Court against the defendant and respondent, Roads and Traffic Authority of New South Wales (RTA), alleging that the collision between the Mazda motor vehicle, in which Mrs Cubbon and Maree were travelling on the Pacific Highway at Swansea, and another vehicle was caused by the negligence of the RTA. The RTA ultimately admitted negligence. Each of the plaintiffs claimed to have suffered severe nervous shock as a result of what happened to Mrs Cubbon and Maree and its aftermath. The trials took place in Newcastle at the end of January and beginning of February 2002. The plaintiffs brought their claims, inter alia, pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 as amended. In each of the proceedings, RTA cross-claimed against Australian Associated Motor Insurers Limited (AAMI). Both RTA and AAMI admitted breach of duty of care. The percentages of contribution to damages and costs awarded to the plaintiffs were agreed before trial between RTA and AAMI. 4 Judge Sidis handed down her judgments in the three proceedings before the publication of the decisions of the High Court in Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205. These High Court decisions marked a change in the understanding of the law relating to claims to recover damages for psychological or psychiatric injury not consequent upon physical harm. In Tame at 344 [66] Gaudron J said: " 'Sudden shock' may be a convenient description of the impact of distressing events which, or the aftermath of which, are directly perceived or experienced. And it may be that, in many cases, the risk of psychological or psychiatric injury will not be foreseeable in the absence of sudden shock. However, no aspect of the law of negligence renders 'sudden shock' critical either to the existence of a duty of care or to the foreseeability of a risk of psychiatric injury. So much should now be acknowledged." 5 In each case, Judge Sidis dismissed the plaintiff's claim and from those decisions they now appeal. At the same time and as a consequence of the dismissal of the plaintiffs' claims, her Honour dismissed RTA's cross-claims against AAMI. Findings of the trial Judge 6 Importantly, in each claim her Honour found that the respective plaintiff had, on the evidence, enjoyed a close and loving relationship with both Mrs Cubbon and Maree. In Jaensch v Coffey (1984) 155 CLR 549 at 555 Gibbs CJ said: "Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery." See also Gifford at 1208 [11]-[12], 1215-6 [46]-[50], 1222 [86] and 1225 [103]. 7 On the evening of 5 March 1997, Geoffrey was at home with his father when the police arrived at about 11 pm and told them that Mrs Cubbon was dead. They were taken in a police vehicle to the morgue in Newcastle where Geoffrey and his father identified Mrs Cubbon's body. They stayed with her for five to ten minutes. Geoffrey described what he saw and said he was shocked on seeing his mother. The police told Geoffrey and his father that Maree had been critically injured. As they were leaving the morgue at about midnight they were told that Maree had died. They went to John Hunter Hospital where they identified Maree. Geoffrey described what he saw and said that on identifying Maree he was devastated. He felt numb and shocked. He went from the hospital to the home of Lynda. 8 At the time of the accident Kenneth was living alone in a Housing Commission flat. At about 1 am on the morning of 6 March his sister Lynda and her then partner came to his flat and told him about the death of Mrs Cubbon and Maree. Not long thereafter he viewed the Mazda car in which they were driving at the time of the accident. He saw the smashed area of the car and dried blood and other "stuff" within the car. 9 Lynda was at her home on the evening of 5 March 1997 when her brother Geoffrey telephoned her at about 10.50 pm to tell her that Mrs Cubbon was dead and that Maree was in intensive care at the John Hunter Hospital. She arrived at the hospital at about midnight where she was told that Maree had died. She was advised against seeing her. On the following Friday she went with Geoffrey, and she believed Kenneth, to the police holding yard. She was looking for Maree's jewellery. On confronting the scene on the passenger side of the car she vomited. 10 All three plaintiffs viewed the bodies of Mrs Cubbon and Maree before the funeral and were disturbed by their appearance. 11 Geoffrey gave evidence of his employment history after the accident, his problems with sleeping and his loss of interest in various sporting activities. Ultimately problems developed with his father at the family home. In August 2000 he met the lady who was to become his wife. They started living together in September or October 2000 and married on 7 April 2001. The trial Judge found that since the development of this relationship, Geoffrey had slept better although he still had occasional nightmares and continued to take anti-depressant medication. He anticipated returning to work. He had been certified able to return to work on suitable duties. 12 The trial Judge was satisfied from Geoffrey's evidence and from the medical evidence that Geoffrey had suffered from a psychiatric disorder or major depression from which, at the time of the hearing, he had substantially recovered. Her Honour said that on the evidence he appeared to cope reasonably normally with his sudden bereavement, taking some time away from his employment, returning to work showing signs of great distress but after a while apparently returning to normal. He did not seek medical attention in relation to his psychiatric condition until September 1997. Previously he had sought treatment in July 1997 concerning neck pain after a game of cricket. By September 1997, two other circumstances of significance were affecting his outlook on life, the conflict in the family home upon his disapproval of his father's activities involving other women and his determination to establish the responsibility of the RTA for the deaths of Mrs Cubbon and Maree. Her Honour said: "(4) The result of this evidence is that, applying the principles of law that are set out above, I am not able to make a finding that on the balance of probabilities the major depression from which the plaintiff suffered was caused by the shock and distress which he experienced on 5 March 1997." Accordingly, the claim failed. 13 Kenneth had suffered a nervous breakdown at the age of 14 and received treatment by way of psychotherapy at that time. As a consequence of his breakdown he left school at the Year 8 level. He has never worked in full time employment. In 1979 he was convicted of armed robbery and served a prison term of three years for this offence. He had been addicted to alcohol, heroin and other illegal substances. As previously stated, by March 1997 he was living alone in a Housing Commission flat. 14 In July 1997, while visiting his Social Security Department caseworker he collapsed in a trance. He was taken to the Newcastle King Street Group Practice where he was interviewed by Dr Hopkins, who referred him to the Shortland Clinic at James Fletcher Hospital for treatment. He subsequently consulted Dr Gibbs, his general practitioner. He had previously taken anti-depressant medication and at the date of the trial was taking Zanax regularly. His condition was worse than it had been. He complained of poor sleep, stress, body aches and anxiety about whether other members of his family might similarly be taken. He had difficulty concentrating and spent much time alone in his flat regarding it as a safety zone. 15 His relationship with his father had deteriorated since the accident and he had not visited him since the end of 2001. He denied his condition in the first four months after the motor vehicle accident had been normal, stating that he had never been normal since the accident and never would be again. He explained the absence of early medical consultation on the basis that he had not realised that he was suffering serious illness. He disagreed that his psychiatric condition was the result of dysfunction within the family or the result of his attitude to the RTA. 16 Her Honour said, after referring to the fact that Kenneth went with other members of the family to the police holding yard at Belmont some days after the accident: "I acknowledge that the legal authority to which I have referred indicates that there is a degree of flexibility and therefore judgment involved in determining which events fall within the ambit of the aftermath of an accident. I do not, however, understand that the terms extends to circumstances which occur more than a day after the accident and which are not forced upon the plaintiff, in the sense of being present at the scene of an accident or immediately thereafter confronting the distressing sight of an injured loved one as medical attention is provided. With regret therefore, I find that the plaintiff has not established the necessary degree of proximity to the circumstances of the motor vehicle accident which took the lives of his mother and sister to qualify for a verdict against the defendant." 17 Lynda, after consulting her general practitioner on 6 March 1997, was provided with medication to assist her to sleep. She later was prescribed anti-depressant medication, which she was continuing to take at the time of the trial. She claimed to have considered suicide. There was evidence in her medical records that she had been provided with anti-depressant medication in October 1996 during a period of difficulty coping with the behaviour of her eldest daughter. She agreed she suffered from neck pain in the past and had suffered from headaches from time to time before the accident. 18 Judge Sidis said that on the issue of proximity, the plaintiff did not attend at the scene of the accident. There was no evidence she was exposed to any distressing phenomena when she attended the hospital. There was evidence she collapsed when told of the death of Maree. It was also suggested that she may have suffered greater psychiatric damage through being prevented from seeing her sister's body at the hospital. There was no medical evidence on this aspect of the events of 5 March 1997. She went with her brothers to the police holding yard and suffered from significant distress at the sight of the damage to the car. 19 Again, the trial Judge remarked that this event did not fall within the ambit of the aftermath of the accident and found that the plaintiff had not established the necessary degree of proximity to the circumstances of the motor vehicle accident, which took the lives of her mother and sister, to qualify for a verdict against the defendant. 20 It should be observed immediately that the High Court has held in Tame and Annetts that direct perception of an incident or its aftermath is not in all cases a necessary ingredient for a successful claim for damages for negligently inflicted psychiatric injury; see Gifford v Strang Patrick Stevedoring Pty Ltd per Gleeson CJ at 1207 [5]. For that reason, the decisive reason for Judge Sidis' conclusion that the claims of Kenneth and Lynda failed is one not now regarded as decisive under the law as explained by the High Court. Appeals 21 In each case, Judge Sidis assessed damages in anticipation of the possibility of an appeal. In each case the damages assessed were less than $100,000. Quantum is not in issue between the parties. Each of the plaintiffs applied to this Court for leave to appeal and RTA applied for leave to cross-appeal against AAMI. At the hearing of those applications on 19 December 2002 they were adjourned pending the outcome of the hearing of Gifford in the High Court. On 11 February 2003, the Court (Mason P and Ipp JA) granted each plaintiff leave to appeal and the RTA leave to cross-appeal from the decisions of Judge Sidis. On 17 September 2002, AAMI filed in the Court of Appeal a response submitting to the orders of the Court. AAMI did not appear on the leave applications nor on the hearing of the appeals. Kenneth's appeal 22 Although the RTA filed written submissions contesting Kenneth's appeal, at the hearing counsel for the respondent, Mr Harben SC, accepted that this appeal must succeed. Judge Sidis dismissed Kenneth's claim because her Honour found that he had not established the necessary degree of proximity to the circumstances of the motor vehicle accident, which took the lives of Mrs Cubbon and Maree, to qualify for a verdict against the RTA. Until the High Court's decision in Tame, it had been understood that one of the control mechanisms to restrict liability in negligence for psychiatric illness not consequent upon physical harm "within practicable bounds" was a sudden shock and a direct perception of a distressing phenomenon or its immediate aftermath. In the words of Gummow and Kirby JJ in Tame at 394 [225], with which Gleeson CJ and Gaudron J agreed at 333 [18] and 340 [51]: "Distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge concerning that phenomenon, may be relevant to assessing reasonable foreseeability, causation and remoteness of damage in a common law action for negligently inflicted psychiatric illness. But they are not themselves decisive of liability. To reason otherwise is to transform a factor that favours finding a duty of care in some cases into a general pre-requisite for a duty in all cases. This carries with it the risk of attribution of disproportionate significance to what may be no more than inconsequential circumstances." 23 Once distance in time and space, in the sense that Kenneth had not been present at the scene of the accident nor its aftermath in the morgue or the hospital on the night of the accident, is put aside as essential to the recovery of damages for nervous shock, the necessary degree of proximity was established by her Honour's finding that Kenneth enjoyed a close and loving relationship with both Mrs Cubbon and Maree. Accordingly, as no other defence to the claim was found by her Honour or pressed by the RTA, Kenneth's appeal must be allowed with costs and RTA's cross-appeal allowed with costs Indemnity costs 24 At the conclusion of the argument, Mr King SC, who appeared for the appellants, applied for an order that the RTA pay Kenneth's costs of his appeal from the date of the decision of the High Court in Gifford on an indemnity basis. Written submissions were filed on behalf of Kenneth and RTA about this claim. 25 The RTA relied upon an affidavit by Gavin Jensen, the solicitor who had the carriage of the matter on its behalf, of 6 August 2004, to which no objection was taken. It appears from Mr Jensen's affidavit that from 18 October 2003 when Mr Jensen telephoned the solicitor for AAMI, efforts were made by him to reach agreement to settle the proceedings with Kenneth Cubbon. Not unreasonably, Mr Jensen was of the view that in the interests of his client the appeals and the cross-appeal should be settled at the same time. On 23 January 2004, RTA served a Calderbank letter on AAMI, which led to a counter offer which was rejected. Discussions and negotiations took place but the matter proceeded to hearing on the appeal, because the RTA was unable to reach agreement with AAMI about the amount of AAMI's contribution or, when that was agreed, the costs of the cross-appeal. However, none of this can stand in the way of Kenneth's entitlement to have his costs paid by RTA on an indemnity basis. 26 No reason in principle was advanced as to how, after the decision of the High Court in Gifford was known, the RTA could justify defending Kenneth's appeal. The RTA abandoned any attempt to do so when the appeal was called on for hearing. As a result, Kenneth was put to unnecessary cost, not to mention worry and concern, to no purpose whatever; see generally Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. The consequence of this is that the RTA should pay the costs of Kenneth from 18 July 2003, a date one month after the decision of the High Court in Gifford was published, on an indemnity basis. As will be seen from what follows, it seems to me appropriate that AAMI should contribute 35 per cent of the costs so payable by the RTA on an indemnity basis. Costs of the cross-claim 27 On 18 September 2003 Mr Jensen telephoned Ms Tania Smart, a solicitor at Ferguson Lawyers (Ferguson Holz), who acted for the cross-respondent, and said words to the effect of: "We should settle Kenneth, and run Lynda and Geoffrey". 28 On 25 November 2003, Mr Jensen had a telephone conversation with Ms Smart to the effect of: Jensen: "We have instructions to settle Kenneth Cubbon on the basis of a settlement up to $110,000 inclusive based on the judgment of Judge Sidis of $79,453.40 plus costs. AAMI will have to pay their 35 per cent contribution, and will have to pay RTA's costs on the cross-claim." Smart: "I will get instructions and will get back to you." 29 On 22 January 2004, Mr Jensen telephoned Ms Smart and had a conversation to the effect of whether she had instructions to attempt settlement of Kenneth Cubbon on the best terms to $110,000 inclusive, with the cross-respondents' to contribute 35 per cent. Ms Smart responded that she had sought instructions but had not received instructions. 30 On 23 January 2004, Mr Jensen wrote a letter to Ferguson Holz under the heading "Without Prejudice Save as to Costs" referring to Kenneth Cubbon v RTA and AAMI noting that the matter had been listed for a leave to appeal application in the Court of Appeal on 11 February 2004. The letter continued: "As discussed with you previously we consider there are no reasonable grounds to argue that Kenneth Cubbon should not be given leave to Appeal, or that his Appeal should not be allowed, given the evidence and law. You will recall that Judge Sidis noted in her Judgment that were she to be found in error as regards Kenneth Cubbon not being entitled to nervous shock damages, then she assessed his damages in the sum of $79,453.40 plus costs. You will recall that there was an agreement between the Roads and Traffic Authority ('RTA') and AAMI Insurance ('AAMI') that breach of duty of care for the accident itself was apportioned 65 per cent to the RTA, and 35 per cent to AAMI. Accordingly, we offered to resolve this matter on the following terms, in order to avoid the further costs of the Leave to Appeal Hearing and the Appeal Hearing itself: (a) That the matters be settled on the best terms to $79,453.40 plus costs of $30,546.60, being an inclusive amount of $110,000.00. (b) That AAMI contribute 35% to that amount being the sum of $38,500.00. (c) That RTA contribute 65% to that amount representing the sum of $71,500.00. (d) That AAMI meet RTA's costs of the Cross-Claim. We note that this offer was conveyed to you by telephone call on 25 November 2003, but that you still do not have instructions. On a without prejudice basis we are instructed to offer to resolve this matter with Kenneth Cubbon and with AAMI on the following basis: 1. That Kenneth Cubbon's matter be settled on the best terms to $79,453.40 plus costs of $30,546.60, being an inclusive amount of $110,000.00. 2. That in the event that Kenneth Cubbon does not accept the sum of $30,546.60 for costs, that the costs be resolved by agreement between Kenneth Cubbon, RTA and AAMI, or by way of assessment. 3. That AAMI contribute 35% to Kenneth Cubbon's damages and costs. 4. That RTA contribute 65% to Kenneth Cubbon's damages and costs. 5. That AAMI meet RTA's costs of the Cross-Claim. In the event that AAMI does not agree to settle the matter on terms discussed above, and in the event that the matter progresses to Appeal, we shall rely upon this correspondence in seeking an order that AAMI pay Kenneth Cubbon's and RTA's legal costs of and associated with the Leave for Appeal Hearing and the Appeal Hearing itself." 31 On 4 February 2004, Ms Smart telephoned Mr Jensen and said words to the effect of: "We have instructions to contribute $38,500.00 on a settlement up to $110,000.00 inclusive of costs, with each party to meet their own costs on the cross-claim." 32 On 4 February 2004, Mr Jensen telephoned Ms Smart and said words to the effect of: "Your offer is rejected. I am instructed to counter-offer that we settle the plaintiff's claim on best terms to $110,000.00 inclusive, with AAMI to contribute 35 per cent up to a maximum of $38,500.00 inclusive. We press AAMI to pay RTA's costs of the cross-claim." 33 Ms Smart responded with the words to the effect of: "I will get back to you." On 10 February 2004, Ms Smart called Mr Jensen and the following conversation took place: Smart: "The application for leave is on tomorrow. We have instructions to resolve Kenneth on the basis that AAMI contribute $38,500.00 and RTA's costs of the cross-claim to 24 September 2001." Jensen: "What is the relevance of that date?" Smart: "It was when the agreement on the 35 per cent breach of duty of care was made." Jensen: "I cannot see the relevance as you had not conceded at that time that your 35 per cent breach of duty of care equated to a liability to contribute 35 per cent towards the plaintiff's damages. The plaintiff's entitlement to damages was still in dispute." Smart: "You could always settle with the plaintiff and then seek recovery. The only issue being the extent of quantum." Jensen: "No, there is a verdict in both our favours at present. Accordingly, if I settled, your judgment verdict still stands, accordingly I cannot settle on that basis. I will get instructions." 34 On 10 February 2004, Mr Jensen telephoned Ms Smart and said words to the effect of: "Your previous offer is rejected. We seek AAMI pay RTA's costs of the cross-claim in full. My counsel also has concerns about leaving Kenneth in the mix." 35 On 10 February 2004, Mr Jensen spoke to Kenneth Cubbon's solicitor, Michael Evers, and asked what amount the appellant wanted to resolve the appeal, and Michael Evers said words to the effect of: "Ken is out for justice, he will not resolve for anything less than the judgment amount flagged by Sidis, interest and costs as agreed or assessed." 36 On 10 February 2004, Mr Jensen telephoned John Hughes of the RTA and said words to the effect of: "The plaintiff is not prepared to settle for less than the judgment amount, costs and interest. Costs on the basis of as agreed or assessed. There is not much we can do about this, on balance we should settle on this basis provided AAMI meet our costs and their portion." 37 On 10 February 2004, Mr Jensen telephoned Ms Smart and she replied with words to the effect that: "I have no instructions, AAMI is to get back to me tomorrow." Mr Jensen replied: "I will call you from court tomorrow." 38 On 11 February 2004, Ms Smart telephoned Mr Jensen and said words to the effect of: "AAMI repeats the previous offer." Mr Jensen said words to the effect of: "I do not have instructions to accept your previous offer, therefore the matter of Kenneth Cubbon will be forced to proceed." 39 Leave to appeal was granted on 11 February 2004. On 12 February 2004, Mr Jensen telephoned Ms Smart and had a conversation to the following effect: Jensen: "Leave has been given to all three, Geoffrey, Kenneth and Lynda. The Court of Appeal asked why there was no appearance for AAMI." Ms Smart: "We have filed a submitting appearance on behalf of AAMI, we submit to whatever the Court decides. Can we sort out costs?" Jensen: "How can we when three appeals are still in progress. However, I will ask the plaintiffs' solicitors for a written bottom line offer in Kenneth." 40 On 12 February 2004, Mr Jensen telephoned the appellants' solicitors and asked for a bottom line settlement amount in writing. On 16 February 2004, Ms Smart telephoned Mr Jensen and said words to the effect of: "I want a firm figure in Kenneth." 41 On 18 February 2004, the appellants' solicitors wrote confirming Kenneth's instructions that in order to settle the matter he would accept the following: 1. Appeal be upheld; 2. Verdict of her Honour as to quantum be entered as a judgment in favour of the appellant for the sum of $75,000.00 plus out of pocket expenses in the amount of $453.40; 3. Interest on the judgment from date of judgment to date at the relevant court rate; 4. Costs to be agreed or assessed. Mr Evers asked for the respondent's solicitor's client's instructions. 42 On 20 February 2004, Mr Jensen wrote to Ferguson Lawyers enclosing the letter dated 18 February 2004 from the plaintiff's solicitor and continuing: "We are instructed to resolve this matter with Kenneth Cubbon and with AAMI on the following basis: 1. Appeal to be upheld; 2. That Kenneth Cubbon's matter be settled on the best terms to $75,000.00 plus out of pocket expenses in the sum of $453.40; 3. Interest on the Judgment from date of Judgment to date of settlement at the relevant court rate; 4. That costs be resolved by agreement between Kenneth Cubbon, RTA and AAMI, or by way of assessment; 5. That AAMI contribute 35% to Kenneth Cubbon's damages, interest and costs; 6. That RTA contribute 65% to Kenneth Cubbon's damages, interest and costs; 7. That AAMI meet RTA's costs of the Cross-Claim. In the event that AAMI does not agree to settle the matter on terms discussed above, and in the event that the matter progresses to Appeal, we shall rely upon this correspondence in seeking an order that AAMI pay Kenneth Cubbon's and RTA's legal costs of and associated with the Appeal Hearing." 43 On 24 February, 2004 Ferguson Lawyers wrote to Mr Jensen asking him to quantify the costs of the cross-claim. On 3 March 2004 Mr Jensen wrote back itemising the costs and disbursements for the cross-claim for settlement purposes. On 12 March 2004, Mr Jensen telephoned the cross-respondent's solicitors and had a conversation with Stephen Ferguson to the following effect: Jensen: "Have you got instructions yet to settle Kenneth Cubbon in accordance with our Calderbank offer of 20 February 2004 and to pay our costs of the cross-claim?" Ferguson: "Why are you entitled to costs for the cross-claim?" Jensen: "Because if the Court of Appeal finds that Judge Sidis was in error in her Judgment in giving a verdict for the defendant, then she likewise was in error in dismissing the cross-claim and we are entitled to a verdict in that event on the cross-claim in line with your 35 per cent breach of duty of care admission, and costs follow the event." Mr Ferguson said he would seek further instructions. 44 On 18 March 2004, Ferguson Lawyers wrote to Sparke Helmore: "We are instructed to offer $8,000 for your costs and to agree to a figure of $38,500 to settle the plaintiff's claim." On 14 April 2004, Mr Jensen telephoned the cross-respondent's solicitor and left a message for clarification as to the offer contained in the letter of 18 March 2004. On the same day, Mr Jensen telephoned the appellant's solicitor and noted that he hoped to be in a position to make a further offer in Kenneth Cubbon's matter. 45 On 14 April 2004 Mr Jensen wrote to Ferguson Lawyers informing them that the appeal had been listed for call-over the next day. On 15 April 2004 Ferguson Lawyers wrote to Sparke Helmore confirming that they had filed a submitting appearance. The letter continued: "Whilst it is not our intention to be in Court for the hearing of the appeal, in the event that there are any settlement negotiations with respect to any of the abovementioned proceedings, we will obviously need to become involved and would appreciate it if you could advise us immediately should settlement negotiations be commenced." 46 On 15 April 2004, Mr Jensen telephoned the cross-respondent's solicitors and spoke to Melinda Drew, a solicitor. Jensen: "Does your letter dated 18 March 2004 mean that AAMI will contribute the sum of $38,500 as towards a settlement with the appellant of $110,000 and if we settle for less than $110,000 that AAMI would contribute 35 per cent of the settlement sum in accordance with the breach of duty of care agreement of 65 per cent to RTA and 35 per cent to AAMI?" Melinda Drew: "Yes." Jensen: "I will then get instructions from RTA to make an offer of $100,000 inclusive." Mr Jensen then got instructions from his client and on 18 April 2004 telephoned Michael Evers, the appellants' solicitors, and had a conversation to the following effect: Jensen: "We have instructions to put an offer in Kenneth's matter of $100,000.00 inclusive, with AAMI to pay $35,000.00 and RTA to pay $65,000." Evers: "I will get instructions, but Ken wants the judgment, costs and interest." Jensen: "I know that, but I put the offer that I am in a position to put to you on behalf of both RTA and AAMI and I want a formal response to that offer." 47 On 18 June 2004, Mr Jensen telephoned the cross-respondent's solicitors and left a message for Ms Drew to call him. On 23 June 2004, Mr Jensen again telephoned Ms Drew and had a conversation to the following effect: Jensen: "I have put the offer of $100,000.00 inclusive to the appellant but it appears that the appellant wants the judgment, costs and interest. I have asked for a formal counter-offer." Melinda Drew: "I will not be attending the Appeal, given our submitting appearance." 48 On 23 June 2004, Mr Jensen telephoned Mr Evers and left a message for Mr Evers to get back to him. On 19 July 2004, Mr Evers telephoned and said "I have instructions to proceed to a judicial interpretation, unless you concede that her Honour was incorrect and that Ken is entitled to his award." Jensen: "I have a difficulty given that I need instructions from not only the RTA but also AAMI. Could you please provide me with a formal sum, extrapolated to a total dollar figure?" Evers: "I will get onto it." 49 On the morning of the appeal, Mr Jensen again telephoned the cross-respondent's solicitors and was told that Ms Drew was not in and that Mr Ferguson had "stepped out of the office". Accordingly, the matter proceeded to hearing on the appeal with no further settlement discussions taking place. On 5 August 2004, Mr Jensen telephoned Ms Drew as a matter of courtesy and advised her as to what occurred when the appeals were heard on 27 July 2004. 50 On 5 August 2004, Ferguson Lawyers wrote to Sparke Helmore referring to the conversation and continuing: "We understand from your telephone conversation, their Honours have reserved their decision, however they have sought some additional information by way of submissions and also requested that 'Consent Orders' be prepared. In the first instance, would you please advise of any orders which their Honours have made, and the respects in which they require additional information. In respect of any Consent Orders that are to be signed between your client and our client we request that you forward a draft of those orders so that we may obtain the appropriate instructions." 51 On the same day Mr Jensen wrote back to Ferguson Lawyers as follows, after referring to the earlier telephone conversation and the hearing in the Court of Appeal: "The Counsel for the Appellants, Mr L King SC sought that the Respondent pay the Appellants costs of the Appeal in the matter of Kenneth Cubbon on an indemnity basis from the time that the High Court handed down their decision in the matter of Gifford v Strang Patrick Stevedoring Pty Ltd (2003) HCA 33 18 June 2003). We submitted that the Respondent had been unable to settle the Kenneth Cubbon Appeal due to the Cross Appeal and the attitude of the Cross Respondent, and that the Respondent/Cross Appellant sought to rely upon Calderbank letters in respect of costs in the Kenneth Cubbon appeal. The Court of Appeal directed the Respondent/Cross Appellant to file an Affidavit and to file submissions in respect of the Appellant's application for indemnity costs in the Kenneth Cubbon appeal. The Court of Appeal also asked for assistance regarding the orders to be made in respect of the Cross Appeal proceedings generally. We consider that the following orders would be appropriate in respect of the Cross Appeals: 1. In relation to all 3 matters, in the event that the appeals are successful, that the 'putative' award enumerated by Judge Sidis together with interest on that award in each matter be met by the Cross Respondent to the extent of a 35% contribution in each matter. 2. That in the event of the appeals being successful, that 35% of the costs of Lynda Bates and Geoffrey Cubbon in respect of the District Court proceedings and the Court of Appeal proceedings be met by the Cross Respondent. 3. In the event of the appeals being successful, in the matters of Lynda Bates and Geoffrey Cubbon that the Cross Respondent meet the costs of the Respondent's/Cross Appellants Cross Claim proceedings and Cross Appeal proceedings. We shall deal with costs in the appeal of Kenneth Cubbon separately by Affidavit and written submissions." 52 The letter went on to invite Ferguson Lawyers to make their own submissions to the Court of Appeal in order to protect their client's interests. 53 The RTA seeks an order that AAMI pay the RTA's costs of the cross-claim and cross-appeal up to 20 February 2004 (see the letter of 20 February 2004 from Mr Jensen to Ferguson Lawyers set out above) and from that date that AAMI meet RTA's costs of and associated with the appeal on an indemnity basis. 54 On 10 August 2004, Ferguson Lawyers wrote to Sparke Helmore as follows: "Your letter of 6 August was received 9 August 2004. Although you describe the Submissions in the matters other than Kenneth Cubbon as Joint Submissions we see that you are seeking an order for costs of the Cross Appeal as well as the Cross Claim. The order for costs of the Cross Appeal, given the submitting Appearance and settlement, will certainly be opposed. We invite you to take instructions to abandon that part of the Submissions. As to the Submission in Kenneth Cubbon your Affidavit in support does not mention the extensive negotiations which followed the making of your offer. We are seeking Instructions but it may be that an Affidavit in reply will have to be put on and the matter re-listed for argument. You have not indicated in your correspondence any time frame including the time frame within which your Submissions were due at the Court of Appeal. Bearing in mind that the first notice we had of any such Application was in your telephone call of 5 August 2004, we seek a further 21 days for response. Would you please confirm your agreement." 55 On 12 August 2004, Mr Jensen replied: "We refer to your letter dated 10 August 2004, and advise the Court of Appeal did not stipulate a time frame in which costs submissions were to be filed. If you require 21 days in order to provide a response we invite you to make such request of the Court of Appeal. We do not presume to be in a position to make any consent agreement which purports to bind the Court of Appeal. In relation to our Joint Submissions on Costs, the submissions were our joint submissions in respect of the matters of Geoffrey Cubbon and Lynda Bates, and the document clearly indicates that the submissions were filed for the Roads and Traffic Authority. The Document does not convey that the submissions are the Joint Submissions on behalf of the Roads and Traffic Authority and on behalf of your client, Australian Associated Motor Insurers Limited. We are not instructed to abandon our Costs Submissions in respect of Geoffrey Cubbon and Lynda Bates. Despite your client filing a submitting appearance, at no time did your client offer to resolve the Appeals in Lynda Bates and Geoffrey Cubbon on the basis of offering to contribute 35% towards the award as assessed by her Honour Judge Sidis, together with 35% of interest and costs. Furthermore, at no time did your client make any concession that the 35% breach of duty of care agreement extrapolated to your client being liable to pay the Appellants any damages. In relation to the Submissions in Kenneth Cubbon and our Affidavit in support, we disagree that our Affidavit does not evidence the material communications that passed between our respective offices in respect of settlement discussions and costs. Obviously, if your records evidence written communications and/or oral discussions which you consider to be material which we have not raised in our affidavit (which we do not admit), then it is a matter for your to prepare an Affidavit enumerating such communications. If you do provide the Court of Appeal any submissions/affidavits, we would be grateful if you could provide us with a copy. As a matter of courtesy, we advise that we shall send your letter dated 10 August and our reply to the Court of Appeal, so they are aware of your concerns." 56 No submissions have been filed on behalf of AAMI on the question of costs. In my opinion, the only arguable question is whether the RTA should have its costs of the cross-appeal in Kenneth's appeal paid by AAMI on an indemnity basis from 20 February 2004. It remained a matter for the RTA to submit to Kenneth's appeal immediately after the decision was given in Gifford regardless of whether it could persuade AAMI to make an equivalent submission in the cross-claim. I do not think on any view that the RTA is entitled to have the whole of the costs of the appeal which it is required to pay to Kenneth on an indemnity basis contributed by AAMI. However, bearing in mind that there was no basis upon which Kenneth's appeal could be defended and the terms of the letter of 20 February 2004, AAMI should as and from that date pay RTA's costs of the cross-appeal on an indemnity basis. 57 I propose the following orders: 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $79,453.40 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal, those costs to be paid from 18 July 2003 on an indemnity basis. 58 RTA and AAMI agreed that AAMI would contribute 35 per cent of the verdict and costs awarded against RTA. On RTA's cross-appeal, the following orders should be made: 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $79,453.40 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim. 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal, those costs to be paid from 20 February 2004 on an indemnity basis. Geoffrey's appeal 59 Without doubt, Geoffrey had been exposed to sudden shock by seeing the bodies of Mrs Cubbon and Maree on the night of, and not long after, the fatal accident. Judge Sidis found that Geoffrey enjoyed a close and loving relationship with both Mrs Cubbon and Maree. Even under the law as understood before the High Court decisions, as a result of these findings proximity was not in question. As I have said, her Honour was satisfied that Geoffrey had suffered from "the psychiatric disorder of major depression from which at the time of the hearing he had substantially recovered." Her Honour's reasons for judgment continued: "6.3 Issue 3 – Shock induced psychiatric disorder (1) I have no doubt that the sudden deaths of Dorothy and Maree caused the plaintiff great grief and sorrow. I have noted his evidence concerning his close relationships with them, his extended visits to their grave sites, his tattoos and his designs of the letterhead and the headstones for their graves. These features indicated a significant depth of grief and sorrow. (2) The difficulties which faced the plaintiff were: (a) on the evidence he appeared to cope reasonably normally with his sudden bereavement, taking some time away from his employment, returning to work showing signs of great distress but after a while, according to Mr Baxter, apparently returning to normal; (b) he did not seek medical attention in relation to his psychiatric condition until September 1997 some six months after the deaths of Dorothy and Maree; (c) the only other record of medical treatment was the consultation with Dr Morrissey in July 1997 concerning neck pain after a game of cricket, an activity which the plaintiff said he had given up after the motor vehicle accident through a general disinterest in such activities; (d) by September 1997 two other circumstances of significance were affecting the plaintiff's outlook on life. They were the conflict in the family home consequent upon his disapproval of Mr Cubbon Snr's activities involving female companions and the plaintiff's determination to establish the responsibility of the defendant for the deaths of Dorothy and Maree. (3) The evidence of Mr Baxter in relation to the deterioration in the plaintiff's work performance was particularly significant. His evidence was that this deterioration began when the plaintiff started to focus on the role of the defendant in the motor vehicle accident so that he became distracted to the point where his performance at work was impacted. The medical evidence also notes the vehemence of the plaintiff's concerns as regards the defendant and the need to obtain justice for his sister." 60 Her Honour concluded in para (4), which I have already quoted, that applying the principles of law that are set out above, she was not able to find that the major depression from which Geoffrey suffered was caused by the shock and distress he experienced on 5 March 1997. Accordingly, his claim failed. 61 Earlier her Honour had summarised the evidence of Mr Baxter, who was the service manager with Newcastle City Holden from 1995 to 1999 where Geoffrey was employed as a motor mechanic at the time of the accident. Mr Baxter had originally hired Geoffrey and was aware of the tragedy affecting his family. He attended the joint funeral as a representative of Newcastle City Holden. Mr Baxter described Geoffrey as a good worker before the motor vehicle accident. He was a senior mechanic capable of working without supervision. He was punctual and his work was of high quality. After the motor vehicle accident, Geoffrey took some time off. Mr Baxter described him as "a mess" on his return, in tears many times a day. On one occasion, Geoffrey collapsed and Mr Baxter drove him home. During this period, Geoffrey was not capable of doing much work at all. 62 After some weeks there was some improvement in Geoffrey's condition. He appeared to have returned close to his normal presentation. In re-examination, Mr Baxter was asked whether after the funeral and coming back to work Geoffrey ever got back to the employee that he had known before. Mr Baxter said: "No, he never got quite there, he didn't get far off it and immediately after he sort of stopped what I thought was the initial grieving period, he seemed to come pretty close to being normal." However, at some point after the initial improvement, according to Mr Baxter, Geoffrey deteriorated and appeared to be pre-occupied with the deaths of Mrs Cubbon and Maree. He was no longer punctual and was spoken to about this. According to Mr Baxter, Geoffrey spoke and thought only about the RTA. His performance became progressively worse. He appeared to focus on the involvement of the RTA in the motor vehicle accident becoming distracted to the point where it impacted on his capacity to perform his work. Mr Baxter had to speak to him about his frequent use of the telephone in relation to issues involving the RTA. Geoffrey started to clash with other mechanics and, after being spoken to by Mr Baxter, he "lost the plot" and threatened Mr Baxter with violence. He then left and went to work for another company. 63 Mr Baxter was involved in the decision to re-hire Geoffrey. While there seems to be some confusion about the dates when Geoffrey left and returned and when Mr Baxter ceased to be service manager with Newcastle City Holden, his evidence was that he had left Newcastle City Holden shortly after Geoffrey returned. He could not comment on what happened during 1998 and 1999. Judge Sidis said: "Mr Baxter agreed that the plaintiff was required to bundy on and off and that he was paid in accordance with time clock records. However, Mr Baxter was not prepared to concede the accuracy of records produced on subpoena by Newcastle City Holden which indicated that the plaintiff took much less time off in 1998 and 1999 than was suggested by his evidence. No witness was called from Newcastle City Holden to attest to the accuracy of these records." 64 Judge Sidis turned to consider the medical evidence which was all in written form. No doctor was required to give oral evidence. In a case such as this, the production of no more than medical reports presents a huge problem for trial judges. In an illuminating passage in his judgment in Tame, Hayne J discusses the distinction drawn in Australia in terms of compensation for emotional distress, non-compensable, and psychiatric injury, compensable. His Honour said at 414 [285]: "Those who are frightened by an event, but suffer no consequence beyond experiencing fear at the time, are to have no claim. Those who mourn the death of another and suffer grief at their loss, but no long-term consequence, again are to have no claim. How is the distinction to be made between compensable injury and non-compensable 'ordinary' or 'normal' emotional consequences?" 65 Hayne J observed [286] that psychiatry and psychology have advanced great distances during the twentieth century and that there may be a radical difference between emotional responses to untoward events that are properly regarded as falling within the range of normal responses to the event, and a psychiatric illness that is brought on by that event. "But if there is a difficulty it does not lie in distinguishing between cases at opposite edges of the field that is being considered. The important question is whether a satisfactory criterion can be identified which will distinguish cases that lie in the middle of that field." His Honour observed [287] that psychiatry distinguishes between mere mental distress and psychiatric illness and that that is an important first step in the inquiry. "Recognising that psychiatry sees that distinction as being one of degree, not kind, and accepts that the distinction may change as medical knowledge expands, presents difficulty." 66 First, as Hayne J pointed out at 415 [288], there is the fundamental problem of identifying the basis on which the distinction is to be made. "If mental distress and psychiatric illness are the opposite ends of a continuous spectrum of consequences of an untoward event that are consequences not having an identifiable physical manifestation, how big is the middle band of that spectrum? How is that middle band to be divided?" 67 Further questions arise. Is it to be divided according to psychiatric opinion? Is the law to provide a remedy for any injury which prevailing psychiatric opinion will classify as a psychiatric illness? Or is the law to prescribe the criteria by which the distinction is to be made (no doubt leaving it to the expert evidence of psychiatrists or other suitably qualified witnesses to reveal whether those criteria are met in a particular case)? These are the questions which Hayne J postulated [289]. "Much therefore turns on identifying the basis upon which the distinction between (compensable) psychiatric injury and (non-compensable) mental distress is to be made" [290]. Hayne J observed that if the middle band in the spectrum is large, it is evident that the application of the chosen criterion will be difficult and uncertain [291]. His Honour continued at [292]: "Little explicit attention has been given to identifying the basis upon which the distinction between psychiatric injury and mental distress is to be made, beyond noting that it is only the former which is to be compensable. So far, the courts appear to have been content to defer to the way in which psychiatrists distinguish between the two. That may not be surprising when it is recalled that decisions have focused upon the application of other limiting factors such as the requirement for something in the nature of a shocking event but its importance should not be ignored." 68 His Honour considered post-traumatic distress disorder and observed at [293]: "It is at these points, of capacity to participate in ordinary activities, and reports of subjective feelings, that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association, 4th ed, Text Revision (2000) at 464) says that: '[W]hen the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis'. [Emphasis added]" 69 In this case, no doubt, at least in part, for the reason that the question before the trial Judge was whether Geoffrey had suffered nervous shock caused by the aftermath of the accident, no attempt was made to explain the distinction between emotional stress such as grief from which he clearly suffered, and causally related psychiatric injury. Of course, as Mr King SC, who appeared for the appellant, emphasised, it is recognised that there are a variety of circumstances "in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury": per Gleeson CJ in Gifford at 1208 [9]. But the medical evidence did not directly address this. 70 Before the accident Geoffrey played indoor cricket, I assume regularly. The first medical record after the accident was a clinical note of 25 July 1997 by Dr Morrissey noting musculoskeletal pain in the neck which had increased after a cricket game. There was no reference in the note to the motor vehicle accident or its aftermath. In evidence Geoffrey said he did not remember the problem, did not recall reporting it to Dr Morrissey and did not recall playing cricket after March 1997. 71 Temporally the next document was one signed by Dr Christopher Marley and is in the form of a motor accident medical certificate dated 7 September 1997. Dr Marley examined Geoffrey on 6 September 1997 and listed the injuries as "severe endogenous depression with post-traumatic stress disorder". The comment was made that the "patient has taken two weeks off work a few months ago; is working at present at below normal functioning. Needs regular counselling and mediation, may need specialist referral." 72 On 16 October 2001, Dr Marley wrote to Dr Kumar stating that the accident had caused significant loss and distress to Geoffrey and that he was feeling the effects of this to that day, feeling that he had been unable to return to a normal lifestyle. "He felt that part of his distress was involved in his firm belief that his sister was not to blame for the accident and it was the road conditions instead. Mr Cubbon acted over a number of years very strongly to try and vindicate his sister's innocence of the accident, and have the Road and Traffic Authority accept responsibility for the state of the road." Dr Marley went on to state: "Geoffrey Cubbon suffers from moderately severe major depression, prolonged grief reaction and in my opinion post-traumatic stress disorder. … Continuing disabilities have been ongoing depression and prolonged grief reaction resulting in significant low mood, lack of motivation, loss of libido, significant mood swings including anger. Over the last 6-12 months there has been a gradual improvement in some of these symptoms, although they still play a significant part in his day-to-day existence." 73 Judge Sidis observed that in cross-examination concerning the deterioration of Geoffrey's relationship with his father, Geoffrey agreed that their problems started when his father entered into what Geoffrey claimed were relationships with other women within three months of Mrs Cubbon's death. He regarded this conduct as lacking in respect for Mrs Cubbon. He did not approve of his father's trips to the United States or Melbourne. As a result, tension developed in their household and they argued from time to time. Geoffrey refused to do things around the house by way of protest and physical violence occurred on New Years Eve in 1999, according to Geoffrey, because of the way in which his father had treated Mrs Cubbon and also concerning money. He denied that his psychiatric condition related to his attitude to the RTA, though he agreed that he set out to prove that Maree was not responsible for the motor vehicle accident. He also agreed that he was angered by what he regarded as attempts by the RTA at the coronial inquiry to cover up its own neglect by placing the blame for the motor vehicle accident on Maree. He agreed that he spent a lot of time dealing with those issues in order to establish the truth and to obtain justice for Maree. 74 Geoffrey consulted Dr Fitchett on 18 February 1999. Dr Fitchett's clinical notes recorded a history of shock and distress on the part of Geoffrey at what he saw on the night of 5 March 1997 and recorded resentment concerning the RTA and Geoffrey's fight to clear Maree's name. The notes referred to Geoffrey's reporting of the loss of a good friend in Maree and his close relationship with Mrs Cubbon, whom he described as the hub of the family. 75 Judge Sidis summarised the rest of the medical evidence starting with Dr Lambeth, who was first consulted on referral from Geoffrey's solicitor on 3 March 1999. Her Honour said: "4.3 Dr Lambeth was consulted on referral from the plaintiff's solicitor on 3 March 1999, 27 July 1999, 8 March 2000 and 13 November 2001 and on referral from Dr Marley in July 2002. Dr Lambeth reported in 1999 the plaintiff's history of shock and horror on 5 March 1997 and he described the plaintiff as severely depressed and suicidal with poor sleep and anhedonia. Dr Lambeth diagnosed major depression and abnormal grief reaction complicated by major depression. He noted the plaintiff's anger toward the defendant. The same diagnosis was made in 2000 the major cause being said to be the death of the plaintiff's mother and sister and the plaintiff's abnormal grief reaction. In addition to the previous symptoms, Dr Lambeth reported on the dysfunction within the Cubbon family and the plaintiff's estrangement from Mr Cubbon Snr. He recorded: It is evident that Mr Cubbon remains depressed. This is over the loss of his mother and sister and his feelings of helplessness and hopelessness with getting, what he terms, justice. It seems to him, justice will be to vindicate his mother and sister's role in the accident, with blame resting with the Roads and Traffic Authority. After the consultation on 13 November 2001 Dr Lambeth reported improvement in the plaintiff's condition after meeting and marrying his wife and after the admission of liability by the defendant in September 2001. Dr Lambeth's opinion was that the plaintiff remained mildly depressed but was no longer suffering from a clinically significant degree of depression so that the diagnosis of major depression could no longer be sustained. He recommended, however, that the plaintiff continue to take anti-depressant medication for a further period of one year. 4.4 The plaintiff consulted Dr Brash on a treating basis in February 2000. Dr Brash reported that the plaintiff was very focussed on the accident and the blame which he attributed to the defendant. He was concerned that psychotherapy would not assist the plaintiff whilst he was so locked into his feelings of anger and rage towards the RTA … 4.5 For the defendant the plaintiff was examined by Dr George on 21 July 2000 and Dr Dyball on 12 December 2001. Dr George reported that the plaintiff had been consumed by the circumstances of the deaths of Dorothy and Maree. He stated that the plaintiff was not suffering pervasive depression but that he had suffered from a prolonged grief reaction because of the nature of their deaths which had been clouded in controversy. Dr Dyball accepted that the plaintiff suffered from a period of major depression following the deaths of Dorothy and Maree which had persisted until he met and formed a relationship with his wife in August 2000, following which there had been a dramatic change in his life. Whilst there remained some depressive features, according to Dr Dyball, the plaintiff was not disabled by them." 76 Judge Sidis had no doubt that the sudden deaths of Mrs Cubbon and Maree caused Geoffrey great grief and sorrow. However, as will appear, significant parts of the medical reports were not quoted by her Honour. 77 Judge Sidis said in the passage already quoted that the result of this evidence was that "applying the principles of law that are set out above" she was not able to make a finding that on the balance of probabilities the major depression from which Geoffrey suffered "was caused by the shock and distress which he experienced on 5 March 1997." The reference to the principles of law was a reference to that part, in each of the three sets of reasons for judgment, where her Honour summarised the law relating to nervous shock claims as it was then understood. 78 The appellant's principal criticism of this causation finding is that the wrong test was applied. Her Honour had to consider whether the RTA's negligence resulting in the deaths of Geoffrey's loved ones, Mrs Cubbon and Maree, caused or materially contributed to the major depression from which Geoffrey suffered. One is less confident that her Honour applied the correct test if one goes to her judgment in Lynda's claim, a judgment published at the same time in the context of the same general factual background in which her Honour speaks of "the real cause of the plaintiff's depression", "the major or precipitating cause of the plaintiff's illness" and ultimately decided that claim on the basis that she was not satisfied that the evidence established that any nervous shock which Lynda may have suffered, at being informed of the sudden and violent deaths of Mrs Cubbon and Maree, was "the major precipitating cause of the plaintiff's major depression". 79 Looking at Geoffrey's evidence and the medical reports, I think the question of causation can be answered decisively. There is evidence that Geoffrey, by at least early 1999, was suffering from major depression and abnormal grief reaction complicated thereby. However, in his report, following the psychiatric examination and assessment of Geoffrey on 8 March 2000, Dr Lambeth said: "It is evident that Mr Cubbon remains depressed. This is over the loss of his mother and sister and his feelings of helplessness and hopelessness with getting, what he terms, justice. It seems to him, justice will be to vindicate his mother and sister's role in the accident, with blame resting with the Roads and Traffic Authority. If he does not receive this, I doubt if his anger and depression will improve very much at all. At this point in time, I think he has a continuation of his grief reaction, complicated by major depression. … At this point in time, things are complicated by the fact that he has lost his job and has many worries about his future from a financial point of view. This, however, is not the major cause of his depression – the major cause being the death of his mother and sister and his abnormal grief reaction." Clearly Dr Lambeth did not regard the deaths, isolated from their circumstances and aftermath as these affected Geoffrey, as the major cause of his depression. Undoubtedly he meant that the circumstances of the deaths of Mrs Cubbon and Maree and the aftermath to which Geoffrey was exposed at the morgue and the hospital and beyond, materially contributed to the recognised psychiatric illness of depression. 80 In a later report provided as a result of an examination on 13 November 2001 Dr Lambeth referred to his diagnosis of major depression but went on to refer to the history that Geoffrey was much better and that things began to improve in August 2000 when he met his now wife. In the result, Dr Lambeth concluded "the diagnosis of Major Depression can no longer be sustained." 81 Dr Dyball in his report of 12 December 2001 after seeing Geoffrey on that day, said: "Mr Cubbon went through a phase of major depression following the death of his mother and sister and that persisted in one form or another until meeting his now wife and forming a relationship with her in August 2000." Dr Dyball said: "It is impossible to separate his response to the death of his mother and sister in any effective way." This sentence appears to be a response to an enquiry from the RTA's solicitors about causation. 82 This evidence of Dr Lambeth was not challenged or contradicted or in any way undermined. Accordingly, I do not believe it was open to the trial Judge to conclude that the death of Geoffrey's mother and sister and the circumstances and aftermath of these deaths, so far as they affected Geoffrey, did not cause or materially contribute to the recognised psychiatric illness of major depression. In my opinion, his appeal should be upheld and the following orders made: 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $88,209.01 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal. 83 RTA and AAMI agreed that AAMI would contribute 35 per cent of the verdict and costs awarded against RTA. On the RTA'S cross-appeal, the following orders should be made: 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $88,209.01 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim. 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal. Lynda's appeal 84 I have already commented on the erroneous application of the law of nervous shock as understood before the recent High Court decisions and on the erroneous test for causation requiring the plaintiff to establish either that grief was not the "real cause" of Lynda's depression or that "shock" was a major or precipitating cause. 85 Judge Sidis summarised Lynda's evidence. She had left the family home in 1979 when she married. Her marriage ended in 1996. She had four children whom she raised as a sole parent, their ages ranging from 13 to 22 years. Lynda had attended High School to School Certificate level after which she worked in various unskilled occupations until her marriage when she left the paid workforce. At the time of the hearing she was not in paid employment. As I have already indicated, the trial Judge found that she enjoyed a close and loving relationship with both Mrs Cubbon and Maree. 86 I have already described the circumstances in which Lynda learned of the deaths of Mrs Cubbon and Maree. Upon hearing this news, she screamed and collapsed to the floor. She said she was very disturbed by the appearance of Mrs Cubbon and Maree when she saw their bodies before the funeral. 87 The trial Judge summarised her evidence as follows: "3.7 The plaintiff first consulted her general practitioner on 6 March 1997. She was provided with medication to assist her to sleep. She later was prescribed anti-depressant medication which she continues to take. She said that for the first few weeks after the accident she had little interest in life. On one occasion she had telephoned her general practitioner and told her that she could no longer cope and thought that she had become insane. The plaintiff claimed to have considered suicide. 3.8 The plaintiff said that after the motor vehicle accident she slept poorly and dreamed frequently. She dreamed that Maree was asking her to sort out things that had not been settled. Her dreams of her mother involved Dorothy walking into doors and calling out to her. The plaintiff gave evidence of going into a trance like state when falling asleep, feeling as if Dorothy and Maree were taking her into the grave with them. These dreams, she said, continue and are very real. They wake her so that she gets up and turns on the light. In addition, she suffers from flashbacks of the night of the accident, particularly involving the telephone call from Geoffrey. These also wake her so that she gets up. On the day following these frequent incidents, the plaintiff said, she feels very depressed ... 3.9 Of the current dysfunctional state of her family, the plaintiff said she had tried to keep the family together and to provide comfort but she felt that there was no one who could provide comfort to her. 3.10 There is evidence in the plaintiff's medical records that she was provided with anti-depressant medication in October 1996 during a period of difficulty coping with the behaviour of her oldest daughter. She agreed that she had suffered from neck pain in the past and that she had suffered from headaches from time to time prior to the accident." 88 After consulting her general practitioner, Dr Molloy, on 6 March 1997 Lynda continued to consult her regularly. Dr Molloy's clinical notes of 6 March 1997 described Lynda as upset. By 11 March 1997, she was not managing well at all and the notes refer to Lynda being "depressed", "going crazy" and grief counselling was arranged for her at this time. A telephone call of 17 March indicated that she was managing and by 7 April was managing well and beginning to accept what had happened. 89 On 11 November 1999, Dr Molloy reported as follows: "On the 22.8.97, Lynda was seen with symptoms of major depression – loss of interest, poor sleep, early morning wakening and moodiness. She was having difficulties with her children. She was started on anti-depressant medication, Zoloft and advised to cut her excessive caffeine intake (6-8 cups/day). Lynda was reviewed on the 2.9.97 and the 17.10.97. She was feeling better on the Zoloft. In March 1998, Lynda ceased taking Zoloft herself and 'felt terrible' – she recommenced it shortly afterwards. In March 1999, she presented feeling teary because of the impending anniversary of the motor vehicle accident – her Zoloft was increased to 100 mgms and she reported feeling better during the next consultation. Lynda has not been seen since March 1999, for symptoms of depression (she has been seen for other medical reasons). She remains on 100 mgms Zoloft and appears to have no depressive symptoms. Prior to March 1997, Lynda had not been treated for depression. She was given Serapax in October 1996 when she was having difficulties managing her children. Lynda is a single parent to 4 children aged 18 years to 11 years. She does not work outside the home. Her 3rd child has learning and behavioural problems. On 6 occasions between April 1998 and March 1999, consultations included discussions on the difficulties she was having with her children. In summary, Lynda suffered an acute grief reaction following the death of her mother and sister in a motor vehicle accident on the 5.3.97. She was treated with Temazepam and had grief counselling and seemed to respond well. In August 1997, she was diagnosed with major depression and treated with the anti-depressant medication Zoloft to which she had a good response. I believe that the main contributing factor to the onset of depression was the loss of her mother and sister. Continuing difficulties with her own family are also a factor and are one of the main reasons that she remains on her medication currently. Whilst on medication, Lynda is well. I would expect that she will need to remain on medication for the foreseeable future. Her prognosis is good." 90 Judge Sidis said: "4.1 … Dr Molloy reported that in the course of six consultations between April 1998 and March 1999 the plaintiff's difficulties with her children had been discussed. Dr Molloy diagnosed an acute grief reaction following the deaths of Dorothy and Maree, followed by major depression which developed in August 1997. The main contributing factor to the onset of the depression was the loss of her mother and sister whilst continuing difficulties with her family were another factor and were one of the main reasons for the plaintiff's remaining on anti-depressant medication. There were two other reports of Dr Molloy in evidence, together with her clinical notes up to February 2000. There is no reference in any of these documents to the plaintiff's frequent nightmares. 4.2 The plaintiff attended on Barbara Fraser, grief counsellor, on 27 March 1997. She said that the one session of counselling had not assisted and she had not returned." 91 On 4 December 2001 Dr Molloy reported as follows: "Further to my last report written on 20.6.2000. Lynda advised me that she had ceased her anti-depressant medication, Zoloft, when seen on 24.3.2001. She had stopped taking it herself and I am unsure of the exact date. Lynda was seen on 30.7.2001 with a recurrence of her depressive symptoms – poor sleep, low mood and lack of motivation. She was having difficulties with her children. She was re-started on anti-depressant medication. Due to problems with side-effects and ineffectiveness, her medication had to be changed twice. Lynda was last seen on 2.11.2001. She was started on a new anti-depressant. After a short period off medication in early 2001, Lynda has had to restart anti-depressants. She also takes occasional sleep medication. She has ongoing difficulties with her children. Her mother and sister were her main support network for dealing with her difficulties. There is current family disharmony with her brother and father. Lynda will need anti-depressant medication in the foreseeable future." 92 This refers to a particular difficulty flowing from the loss of Lynda's main support network for her children and her ongoing difficulties with them. The earlier report referred to counselling she had received in respect of her daughter. 93 Dr Lambeth first saw Lynda on 29 July 1999. He found her suffering from grief complicated by major depression. On 8 March 2000 he reported: "In my opinion, she continues to suffer from Major Depression. This is complicating the grief reaction and she has not come to terms in any way with the death of her mother and sister. I believe this is a direct result of the death of her mother and sister in the motor vehicle accident." 94 On 19 November 2001 Dr Lambeth reported: "This woman remains in a state of Major Depression. It is severe, and is complicating a grief reaction over the deaths of her mother and sister. She simply has not come to terms with this, and it seems in many ways to be getting worse, because she now feels their loss as her children grow up and she anticipates events such as weddings and birthdays, that her mother and sister will not be present and not be able to help her with." 95 The trial Judge said this about the defendant's expert evidence: "Dr George's conclusion was that the plaintiff has suffered a prolonged grief reaction and that her reaction had been prolonged because she had not been able to access supportive grief counselling adequately. He referred to other stresses in the plaintiff's life at about the time of and since the date of the accident and accepted that it was likely that she had suffered a major depression as a result of these factors, coupled with a lack of adequate support. There is no reference in Dr George's report to complaints of frequent nightmares. Dr Dyball reported that the plaintiff told him that her present state was not all that great and that she had some difficulty sleeping and nightmares in the last months and wonders whether it is due to a new antidepressant Luvox that she is taking. Dr Dyball concluded that the plaintiff might well have suffered a major depression which had resolved but that she was left with a dysthymic disorder in the form [of] a chronic depression which is not incapacitating. He accepted the plaintiff's statement of loneliness following the loss of Dorothy and Maree to whom she had been close and who had prior to their deaths played a significant part on the lives of the plaintiff and her children." 96 Judge Sidis had no doubt that the sudden deaths of Mrs Cubbon and Maree caused Lynda great grief and sorrow. She said: "I have noted her evidence of the close bond between the three female members of the family and of the support which Dorothy and Maree provided in connection with the plaintiff's management of her own children and of the loneliness and sadness which she now suffers. I have also noted the comment of Dr Lambeth that the plaintiff may well have been somewhat dependant on Dorothy." The difficulties facing Lynda, her Honour described as follows: "(a) Dr Morissey's [scil – Molloy's] reports indicated that the plaintiff, after a short period of intense grief, appeared to be accepting of the deaths of Dorothy and Maree, she was not prescribed anti-depressant medication until August 1997 at a time when other factors were present, including the conflict within the Cubbon family and the plaintiff's difficulties with her own children; (b) there appeared to be some embellishment on the part of the plaintiff in respect of the nightmares which she claimed to be frequent and relentless, causing her great distress and sleep interruption. The reports of Dr Lambeth were comprehensive in listing the symptoms as reported by the plaintiff. It was not until his report of 12 February 2002 that any reference to nightmares appeared. (c) the real cause of the plaintiff's depression appeared to be grief, not shock, related because of her feelings of sadness and loneliness in managing her children without the support formerly provided by Dorothy and Maree. She feels with some justification, unsupported by the remaining members of the Cubbon family." 97 Judge Sidis said that the reports from Dr Lambeth, Dr Dyball and Dr George tendered at the close of the hearing demonstrated the difficulties involved in selecting one event as the major or precipitating cause of Lynda's illness. 98 In his report of 12 February 2002, to which her Honour referred, Dr Lambeth, speaking of Lynda, and describing her feelings as constituting a severe grief reaction complication by major depression said: "She describes flashbacks of the original telephone call, thinking about it all the time. She describes having nightmares, and these are indicative of the symptoms of a Post Traumatic Stress Disorder. I should point out that Major Depression and Post Traumatic Stress Disorder frequently go together. In more legal terms, I believe that the above description constitutes another example of severe nervous shock, sustained on hearing of the deaths of her mother and sister. The deaths were violent and untimely, and she had no ability to prepare for them. To answer your specific questions: It is very difficult to disentangle the events with respect to being informed of the deaths, attending hospital, viewing the wreck, viewing the bodies, and attending the funeral. One can only state that the sum total effect of these events is to lead to severe nervous shock, and the ongoing psychological injury. Secondly, the symptoms outlined in the synopsis are certainly a good indication of a pathological grief reaction. I do not believe that there are other causes that would be more important in the genesis of the depression suffered by each of these patients. Thirdly, the length of time of suffering indicates chronicity and is, in fact, a quite reasonable test of the reaction being pathological." 99 This is a clear statement that the death of Mrs Cubbon and Maree and the aftermath of that, as Lynda described it, caused or materially contributed to a psychiatric injury, namely major depression and post-traumatic stress disorder. A stage in that process may have been grief reaction. 100 In the report of Dr Dyball of 13 February 2002 referred to, he said: "You ask whether it was the actual death that precipitated the illness or being informed of their death or attending hospital, viewing the wreck, going to the funerals. It is quite impossible to make any scientific judgement regarding this. The likelihood is that it is none of these things individually but rather the combination of the fact that she lost her mother and sister and the sequelae that followed which I have attempted to indicate in my report. I do not think there is any way in which one could sensibly subdivide each of the things that she faced as a consequence of these deaths and say that one or the other was more traumatic than any of them. It is the overall event and its sequelae, which has proved a problem to Ms Bates. As you will know from my report I consider her to be possibly the most stable of this entire family. That she has suffered periods of depression however I do not doubt. You further ask whether she has suffered a post traumatic stress disorder. I do not consider that she has and on the history as given to me the diagnosis is as I made it in the last paragraph of my report that is, that she suffered probably a major depression which in degree resolved leaving her with a dysthymic disorder a form of chronic depression." 101 Believing, as she apparently did, that Lynda could succeed only if she demonstrated that the real cause of Lynda's depression was shock, one can understand her Honour concluding that this was not made out. However, if the question asked was whether the circumstances of the death of Mrs Cubbon and Maree and the sequelae of that event as experienced by Lynda caused or materially contributed to the major or chronic depression described by Dr Dyball, the answer must be in the affirmative. 102 Dr George expressed the view about Lynda's major depression, as diagnosed by Dr Lambeth, that major depressive disorder is multi-factorial in origin. In that report, Dr George referred to many factors and concluded "depression is a dimensional phenomena, and whether its expression is mild or severe depends on many of the above issues. Beyond making these few comments, I cannot comment any further." In a supplementary report of the same date about post-traumatic stress, Dr George concluded: "I do not believe that, in this case, Major Depression and Post-Traumatic Stress Disorder are exclusive diagnoses but would view Ms Bates' symptoms of post-traumatic stress as being submerged into the diagnostic category of Major Depressive Disorder." Orders and costs 103 I am firmly of the view that had Judge Sidis not been diverted by the attempt, possibly encouraged by these medical reports, to inquire whether shock was the real cause or a major or precipitating cause of Lynda's illness, she would have found in favour of Lynda and reached what seems to me to be the proper conclusion as I have described it. Accordingly, in my opinion, this appeal should be upheld and the following orders made: 1. Appeal allowed; 2. Set aside the verdict and judgment for the defendant and in lieu thereof order that there be a verdict and judgment for the plaintiff in the amount of $89,246.55 together with costs to take effect from 6 March 2002; 3. The respondent to pay the appellant's costs of the appeal. 104 RTA and AAMI agreed that AAMI would contribute 35 per cent of the verdict and costs awarded against RTA. On the RTA'S cross-appeal, the following orders should be made: 4. Cross-appeal allowed; 5. Set aside the order of the Court dismissing the cross-claim; 6. In lieu thereof order that there be judgment for the cross-claimant against the cross-defendant for 35 per cent of the amount of $89,246.55 to take effect from 6 March 2002 and that the cross-defendant pay 35 per cent of the costs payable by the defendant to the plaintiff and 35 per cent of the defendant's own costs and pay the cross-claimant's costs of the cross-claim. 7. The cross-respondent to pay the cross-appellant's costs of the cross-appeal. 105 TOBIAS JA: I agree with Sheller JA. ********** Last Modified: 09/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.