Appeal Outcome: Special leave application refused with costs by the High Court - 16 May 2008 New South Wales Court of Appeal CITATION: Monie v Commonwealth of Australia [2007] NSWCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 17 & 18 May 2007 JUDGMENT DATE: 3 September 2007 JUDGMENT OF: Mason P at 1; Beazley JA at 2; Campbell JA at 3 DECISION: In substance, appeal allowed, verdict for Peter Monie for $238,750 plus interest; verdict for Jennifer Monie for $50,000 plus interest; new trial for Sam Monie on causation and quantum of damages (if any) excluding economic loss. Further submissions to be made concerning costs. CATCHWORDS: TORTS – negligence – essentials of action for negligence – duty of care – duty of care owed by Commonwealth Employment Service to prospective employer – where prospective employee referred by Commonwealth Employment Service was ex-offender – where Commonwealth Employment Service aware that prospective employee was ex-offender – where Commonwealth Employment Service failed to inform prospective employer that prospective employee was ex-offender – where employee subsequently shot employer – whether Commonwealth liable for damages suffered by employer - TORTS – negligence – voluntary assumption of risk (volenti not fit injuria) – requirements for finding of voluntary assumption of risk – where employer consented to having an ex-offender work and live on property – whether employer voluntarily consented to risk of being shot by employee - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Osborne v London and North Western Railway Company (1888) 21 QBD 220 - Randwick City Council v Muzic [2006] NSWCA 66, applied - TORTS – negligence – contributory negligence – elements of contributory negligence – causation – where employer failed to adequately interview prospective employee – where employee subsequently shot employer – whether employer's failure to adequately interview was causative of damages suffered - TORTS – negligence – damages – assessment of general damages – past loss – interest on past loss – future loss – date as at which assessment of damages should occur on appeal - TORTS – negligence – damages – psychiatric illness – whether recognisable psychiatric illness suffered - Tame v New South Wales - Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed - TORTS – negligence – damages – economic loss – whether negligent act causative of economic loss sustained by farm business - TORTS – negligence – damages – causation – where damage caused by combination of negligent act and other factors – whether negligent act causative of damage - March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed - COURTS AND JUDGES – pleadings – statement of claim – case abandoned – where statement of claim amended – whether part of case abandoned by amendment of statement of claim - COURTS AND JUDGES – witnesses – credit finding – adverse credit finding by trial judge – role of appellate court - APPEALS – where trial judge erred in making adverse credit findings – where adverse credit findings resulted in failure of plaintiff's case – role of appellate court – need for retrial Motor Accidents Act 1988 Privacy Act 1988 (Cth) LEGISLATION CITED: Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules Andjelic v Marsland (1996) 186 CLR 20 Baker v Willoughby [1970] AC 467 Brogan v McGeary (1995) Aust Torts Reports 81-342 Coulton v Holcombe (1986) 162 CLR 1 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported) Keighley, Maxsted & Co v Durant [1901] AC 240 Letang v Ottawa Electric Railway Company [1926] AC 725 Manly Council v Byrne [2004] NSWCA 123 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Marsland v Andjelic (1993) 31 NSWLR 162 Meade v Mantrell (NSW Court of Appeal, 27 March 1975, unreported) Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 CASES CITED: Monie v Commonwealth of Australia [2003] NSWSC 1141 Monie v Commonwealth of Australia [2006] NSWSC 505 MPB (SA) Proprietary Limited v Gogic (1991) 171 CLR 657 Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 Nicholson v Nicholson (1995) 20 MVR 186 NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported) O'Brien v McKean (1968) 118 CLR 540 Osborne v London and North Western Railway Company (1888) 21 QBD 220 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Randwick City Council v Muzic [2006] NSWCA 66 Richard Martin Tory v Michael Megna [2007] NSWCA 13 Roggenkamp v Bennett (1950) 80 CLR 292 Smith v Baker & Sons [1891] AC 325 Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 Weiss v The Queen (2005) 224 CLR 300 Peter John Monie - First Appellant PARTIES: Jennifer Monie - Second Appellant Samuel Monie - Third Appellant Commonwealth of Australia - Respondent FILE NUMBER(S): CA 40375/06 COUNSEL: D F Rofe QC; A J Tudehope - Appellants R S McIlwaine SC; B J Skinner - Respondent SOLICITORS: SK & Associates, Armidale - Appellants Australian Government Solicitor, Sydney - Respondent LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20043/01 LOWER COURT JUDICIAL OFFICER: Barr J LOWER COURT DATE OF DECISION: 13 June 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505 HEADNOTE FACTS The first appellant is a farmer and grazier in northern New South Wales. In 1993 he sought the assistance of the Inverell office of the Commonwealth Employment Service ("CES"), a Commonwealth government agency, to fill a job vacancy on his family farm. The family farm was operated by a partnership consisting of the first appellant and a family company; the first appellant, second appellant (who is the first appellant's wife) and third appellant (who is the son of the first and second appellants) were each shareholders in the family company, and resided in a homestead on the farm. The CES referred Winsor, a person who was interested in the job and who had seen the job advertised at the Inverell office of the CES, to the first appellant for an interview. The first appellant, after first interviewing Winsor in a brief, perfunctory interview, hired Winsor, and invited Winsor and his wife to move into a cottage on the property. Approximately three months prior to his gaining employment on the farm, Winsor had been released from prison after serving approximately nine-and-a-half months for offences including assault occasioning actual bodily harm. In the period of somewhat less than four years leading up to his release, Winsor had spent one week short of two years in custody. Winsor's criminal history included forty-one convictions for offences ranging from breaking, entering and stealing, to obtaining benefit by deception. At the time of referring Winsor to the first appellant for interview, the CES was aware that Winsor was an ex-offender. However, the CES did not seek Winsor's consent to inform the first appellant about Winsor's criminal history; nor did the CES reveal Winsor's criminal history to the first appellant. Approximately three months after commencing work on the farm, whilst the first appellant was alone in the homestead of his property one evening, Winsor, who was outside the homestead, shot the first appellant four times. The first appellant sustained injuries to his right wrist, face, right shoulder, and left arm. Approximately four months after the shooting, the first appellant suffered a transient ischaemic attack ("TIA"). A second TIA, to which the shooting contributed, followed some 7 years after the shooting, and marked a decline in the first appellant's condition. Additionally, the first appellant also suffered substantial psychological damage. The shooting also impacted upon the family farm business. The business had intended to develop and carry on a cattle stud. However, the appellants asserted that the shooting frustrated these plans and most, but not all, of the stud cattle were sold at dispersal sales following the shooting. Additionally, the second appellant suffered psychological damage, and the third appellant claimed damages for nervous shock. The appellants sued the respondent in negligence, claiming that the respondent had breached a duty not to refer Winsor as suitable for employment or to refer Winsor only after disclosing his criminal history. The trial judge found that the respondent owed the appellants a duty of care, and that the respondent had breached that duty by referring Winsor without informing the appellants of his criminal history. However, the trial judge found that the first appellant had failed to make reasonable enquiries and was negligent, assessing the contributory negligence at half that of the respondent. Moreover, the trial judge found that Winsor, about two weeks before the shooting, had told the third appellant that he had been in gaol, and that Winsor had probably said that his incarceration was for assault. The trial judge also found that the third appellant relayed this information to the first appellant. On the basis of this finding, the trial judge held that the appellants had voluntarily assumed any risk, consequent upon Winsor's violent propensity, that Winsor might repeat his violent criminal activity and occasion the appellants loss and damage. Accordingly, the trial judge found that the appellants' action failed. The trial judge did, however, assess the first and second appellants' general damages and economic loss, but rejected the third appellant's claim for damages, finding that he had not suffered a recognisable psychological or psychiatric disorder. The trial judge's rejection of the third appellant's claim for general damages was partly based on the trial judge's finding that the third appellant was not a credible witness. The appellants appealed against the trial judge's findings in relation to contributory negligence, voluntary assumption of risk, the first appellant's quantum of general damages, the economic loss sustained by the partnership, and that the third appellant did not suffer a recognisable psychological or psychiatric disorder. The respondent cross-appealed in relation to the partnership's economic loss, the finding that the second appellant had suffered psychological damage, the quantum of the second appellant's general damages, and the finding that the CES knew that Winsor was an ex-offender (and hence that it was liable for the appellants' losses). HELD (per Campbell JA; Mason P and Beazley JA agreeing): 1. As to liability: a. On the evidence, the trial judge was not in error in finding that the CES knew that Winsor was an ex-offender. b. The CES, having knowledge that Winsor had prior convictions that were relevant to the proposed employment and the circumstances of that employment, owed the appellants a duty of care not to refer Winsor as suitable for interview, or to refer Winsor only after informing the appellants, with Winsor's consent, of Winsor's criminal history. c. Accordingly, the trial judge's finding that the respondent had breached its duty of care by referring Winsor without disclosing his criminal history, and was therefore liable for the damage thereby suffered by the appellants, was correct. 2. As to voluntary assumption of risk: a. Voluntary assumption of a risk involves consenting to the particular thing being done which would involve the risk. Smith v Baker & Sons [1891] AC 325, applied. b. Mere knowledge that a risk exists is not the same as consenting to the risk. Smith v Baker & Sons [1891] AC 325; Letang v Ottawa Electric Railway Company [1926] AC 725, applied c. Before a defence of voluntary assumption of risk applies, a defendant must establish that the plaintiff perceived the existence of the danger, fully appreciated it, and voluntarily agreed to accept the risk. Osborne v London and North Western Railway Company (1888) 21 QBD 220; Randwick City Council v Muzic [2006] NSWCA 66, applied. d. The first appellant, having knowledge that Winsor had been in gaol, consented only to having a man who had been in gaol work and live on his property; he did not consent to the risk of being shot. e. The second appellant, in addition to not knowing that Winsor had been in gaol, did not consent to the risk of suffering psychological damage or financial loss. f. The third appellant, whilst having knowledge that Winsor had been in gaol, did not voluntarily assume the risk that he might suffer psychological damage as a consequence of the first appellant being shot. g . Query whether the voluntary assumption of risk by one person would be sufficient to deprive other persons a right to recover damages for psychological damage and financial loss that were consequent upon the damage suffered by the first person. 3. As to contributory negligence: a. The type of carelessness for a plaintiff's own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained. b. Whilst the first appellant showed some carelessness for his own interests by failing to ask Winsor about his previous work experience and whether he had the skills needed to carry out the particular job that was on offer, the interests concerning which the first appellant showed carelessness were his economic interests. c. The risk that the first appellant might suffer economic loss through employing an unsuitable employee is a different risk than the risk that the first appellant might be the victim of a gratuitous and unprovoked act of violence of a very serious kind. d. Accordingly, the careless manner in which the first appellant interviewed Winsor was not a contributing cause of the damage that the first appellant suffered by reason of being shot by Winsor. e. There was no ratification of the first appellant's hiring of Winsor by the second and third appellants because: i. Before there can be a ratification of A's actions by B, it is necessary for A to have purported, at the time of acting, to be acting on B's behalf. ii. The first appellant, at the time of hiring Winsor, was not purporting to act on the second and third respondents' behalves. 4. As to the re-assessment of damages for personal injury on appeal: a. The time as at which general damages for personal injury should be assessed on appeal is, prima facie, the date of the award by the appellate court. O'Brien v McKean (1968) 118 CLR 540; Baker v Willoughby [1970] AC 467, cited. b. Where the statutory maximum amount of damages has increased between the date of trial and the date of the appeal, the appellate court makes a re-assessment of damages by reference to the maximum amount of damages that is current at the date of the appeal. Marsland v Andjelic (1993) 31 NSWLR 162; Nicholson v Nicholson (1995) 20 MVR 186; Brogan v McGeary (1995) Aust Torts Reports ¶81-342; GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported), applied. c. The prima facie principle that the appellate court should assess damages for personal injury as at the date of the award by the appellate court may be inappropriate where the ultimate aim of providing compensation for the extent to which the condition of the plaintiff has been worsened by the tort is better achieved by the appellate court making the assessment as at the date of the trial. d. The appellate court has the power to backdate the order it makes with respect to damages so that it takes effect from the date of the orders of the trial judge. Nicholson v Nicholson (1995) 20 MVR 186; Brogan v McGeary (1995) Aust Torts Reports ¶81-342; NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported), applied. e. If an appellate court re-assesses damages at the date of the appeal but backdates the order to take effect from the date of the trial, careful attention must be given as to how interest will run on that order so as to avoid providing double compensation. f. Where the appellate court re-assesses only one element of an award of damages, it may be necessary to consider whether interest should run from the date of the award below on those elements that are not re-assessed but from the date of the award in the appellate court on those elements that are re-assessed. g. In the present case, it is not necessary to backdate the running of interest on any general damages assessed to the date of the order below. 5. As to the quantum of the first appellant's general damages: a. The element of the tort of negligence that requires the negligent act to cause damage can be satisfied even if the negligent act is one of a number of conditions that together are sufficient to produce that damage. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, followed. b. The evidence in the present case supports the conclusion that both of the TIAs that the first appellant suffered were a consequence of: his vascular system being weakened through years of hypertension; the stress he endured at the time of the shooting; and the events subsequent to the shooting. c. The trial judge was in error in concluding that the first appellant would have suffered the second TIA in any event. d. The task in assessing general damages is to pick a figure that puts a value on the extent to which the first appellant has had increased pain and suffering and loss of enjoyment of life as a consequence of the shooting, beyond what he was likely to suffer if the shooting had not occurred. e. The first appellant's general damages are assessed at $228,750. 6. As to the first and second appellants' economic loss: a. The trial judge was not in error in taking the view that it was not more likely than not that the stud venture would have continued at the scale of operations it had at the time of the shooting, if the shooting had not occurred. b. The trial judge was not in error in assessing the first and second appellants' economic loss at $20,000. 7. As to the second appellant's general damages: a. Damages are recoverable in negligence only for a recognisable psychiatric injury; they are not recoverable for emotional distress, grief, sorrow, anxiety, annoyance, despondency, fright or embarrassment that is not part of a recognisable psychiatric injury. Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317, followed. b. However, such emotions are compensable when they are part of a recognised psychiatric illness. c. The trial judge was not in error in preferring the view of two psychiatrists and one psychologist over the view of another psychiatrist and finding that the second appellant had suffered an adjustment disorder. d. When considering whether the trial judge made an error by awarding damages that were too high, the appropriate time to consider the assessment of damages is as at the time of trial. e. The trial judge was not in error in assessing the second appellant's general damages at $40,000 as at the time of the trial. 8. As to the third appellant's general damages: a. The reasons that the trial judge gave for being dissatisfied with the third appellant's credit were unsound and cast doubt on the overall conclusion concerning the third appellant's credit. b. Accordingly, the trial judge's rejection of the third appellant's claim for damages for psychiatric illness was erroneous. c. Whilst it would be highly desirable for this Court to reassess the third appellant's damages itself, it is not in a position to do so because it is not in a position to assess the acceptability of the medical reports on which the third appellant relies. d. Accordingly, there is no alternative but to have a new trial on the issue of whether the third appellant has suffered any damage that is compensable in tort in consequence of the shooting. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40375/06 SC 20043/01 MASON P BEAZLEY JA CAMPBELL JA 3 September 2007 PETER MONIE & Ors v COMMONWEALTH OF AUSTRALIA Judgment 1 MASON P: I agree with Campbell JA. 2 BEAZLEY JA: I agree with Campbell JA. 3 CAMPBELL JA: PART A – INTRODUCTION Nature of the Proceedings 4 Mr Peter Monie ("Peter") is a farmer and grazier. When he was alone in the homestead on his property on the evening of 15 June 1993 he was shot four times. The assailant was a young man, Mr Darren Winsor ("Winsor"), who had been engaged on 22 March 1993 to work as a station hand on the property. Winsor had come to work there after being referred by the Commonwealth Employment Service ("CES"). Winsor had a criminal history, and had been released from gaol on 14 December 1992. The CES had not told Peter, or anyone in his family, about Winsor's criminal history. They would not have employed him if they had known. 5 Peter, his wife Mrs Jennifer Monie ("Jennifer") and his adult son Mr Samuel Monie ("Sam") each brought proceedings against the Commonwealth, asserting that the circumstances in which Winsor was referred involved negligence on the part of the CES, and that each of them had suffered loss in consequence of that negligence. It has always been common ground that the defendant, the Commonwealth of Australia, is liable for any tort that any officer or officers of the CES might have committed in connection with the CES's referral of Winsor. 6 There was a long delay in bringing these proceedings on for trial. The plaintiffs moved, in June 2000, for leave to bring this claim out of time. That leave was granted. The plaintiffs' claim was heard by Dowd J on 24 May 2002, and over the period 3-17 June 2002 inclusive, with judgment being delivered on 4 December 2003: Monie v Commonwealth of Australia [2003] NSWSC 1141. That decision was reversed by the Court of Appeal on 7 April 2005, and a new trial ordered: Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25. The retrial occurred commencing on 31 January 2006 before Barr J, with judgment being given on 13 June 2006: Monie v Commonwealth of Australia [2006] NSWSC 505. Barr J dismissed the plaintiffs' claim. The present appeal is from the orders made following that retrial. The Plaintiffs 7 Peter was born on 27 November 1928. Thus, he was aged about 64 years at the time he was shot. Jennifer was born on 23 January 1939, and so was aged 54 at the time Peter was shot. Sam, their eldest son, was born on 28 July 1967, and so was aged 25 at the time of the shooting. 8 PJ Monie & Co Pty Ltd ("the Monie Company") is a company of which Peter and Jennifer were the directors. Peter, Jennifer and all their children were shareholders in it. Peter and the Monie Company carried on in partnership the business of cattle and sheep grazing at a property called Thornleigh, about 32 kms from Bingara. That business was carried on under the name Thornleigh & Co. Winsor 9 Winsor was born on 30 December 1970, the son of an Aboriginal mother and a non-Aboriginal father. He regards himself as Aboriginal. His father managed and part-owned a cattle and sheep property in the Tamworth district. He left school at the age of 12, and worked full time on the farm. He could then read and write, but not in running writing. On the farm he learned all the normal duties of a farm labourer. He was not permanently employed, however, and received unemployment benefits from time to time, the first time being when he was 15 years and 9 months of age. 10 By March 1993 he had a total of forty one criminal convictions, the first of them arising from an offence of stealing committed in May 1984, when he was 13½ years old. Of his convictions, two were for breaking, entering and stealing; three were for assault (including one involving assault occasioning actual bodily harm); one was for public mischief; eleven were for other crimes of dishonesty; six were for driving offences; and one involved a breach of a bond. The trial judge summarised his prison sentences by saying, at [20], that he: "… was in prison for three separate periods, the first running from 26 April to 18 December 1989, the second from 6 June to 27 December 1990 and the third from 2 March to 14 December 1992. During a period of somewhat less than four years he had spent one week short of two years in custody." 11 Winsor has been tried before a jury and found guilty of the attempted murder of Peter. He was sentenced to serve a period of imprisonment, which had expired by the time of the trial from which this appeal is brought. The trial from which this appeal is brought was conducted on the basis that although the defendant made no admission that Winsor fired the shots that injured Peter, neither was any submission made that Winsor did not cause Peter's injuries. The Circumstances of Winsor Coming to Work at Thornleigh 12 The trial judge made the following findings: "2 Thornleigh & Co used to take on labour from time to time and dealt on occasions with the Inverell office of the CES. In March 1993 further labour was needed and Mr S Monie, on behalf of Thornleigh & Co, spoke about it to an officer of CES. As a result, a labourer, Darren Winsor, went to the property for an interview. He spoke to Mr P Monie. … On 22 or 23 March 1993, having interviewed Mr Winsor, Mr P Monie offered him the job and told him that he and his wife could move into the labourer's cottage, which was situated a short distance from the homestead. Mr Winsor accepted and it was agreed that he and his wife should move into the cottage on 23 March and that he should start work on 24 March. That is what happened. On 1 April 1993 Mr P Monie and Mr Winsor signed an agreement which recorded, inter alia, the commencement of employment on 24 March. 3 There was in 1993 a scheme called Jobstart, administered by CES, one aim of which was to encourage and assist those who were out of work to get back into work. By the scheme, CES paid to the employer of any eligible worker a subsidy calculated at a particular rate for a nominated period of time. The rate and duration of the subsidy varied according to the history and attributes of each eligible worker. … 21 Mr Winsor was released from gaol on 14 December 1992. He had previously been registered with CES at Gunnedah as unemployed and knew the names of some of the staff at that office. He went to that office after his release and registered as unemployed. After two or three weeks an officer told him about a job CES had on its books at the Oxford Hotel, Inverell. Mr Winsor was interested and the officer let him use the CES phone to ask for an interview. Mr Winsor went to Inverell, was interviewed and was offered the job. He accepted and started work. 22 Mr Winsor appeared unsure in his evidence whether he had let CES know that he had taken the job. At first he said that he had not and later that he had. I think that the employer, having referred the vacancy to CES, would certainly have informed CES that the job had been filled. I am satisfied that by either or both means CES learned that Mr Winsor was employed at the Oxford Hotel, Inverell. His employer did not apply to CES to subsidise Mr Winsor's wages. Mr Winsor remained in that job for a continuous period of more than two months until 22 March. 23 Mr Winsor wanted to get back to farm labouring work. On 22 March he went to the office of the CES at Inverell and saw a card in the window. He could read enough of it to learn that it advertised the sort of job he was interested in. His evidence was that he went into the office and spoke to an officer, who read to him the rest of what was on the card. Mr Winsor understood that the job was of a farm or station hand, that experience was necessary, that an immediate start was possible and that to apply he needed to contact somebody called Peter. The officer obtained a file, looked up a telephone index and wrote a name and a telephone number on a piece of paper, which she handed to Mr Winsor. Mr Winsor told the officer his name but she did not write it down. She asked him what experience he had had in farm work and he told her. She did not ask him if he was registered with CES and he did not tell her that he was. He left the office and telephoned Thornleigh & Co. An appointment was arranged. … 25 Although I doubt some parts of Mr Winsor's evidence, and am satisfied that in one particular respect he lied, I think that his account of what happened in the office of CES at Inverell, though perhaps incomplete, is probably accurate. His evidence was consistent with earlier accounts he had given and he had no motive to lie about the matter. 26 In due course Mr Winsor was interviewed by Mr P Monie, who offered him the job. Mr Winsor did not say that he had ever returned to or telephoned the office of CES, and I think that he probably did not. There must have been communication between Thornleigh & Co and CES, though evidence is lacking about what information then passed between them. In October 1992 and early in March 1993 the plaintiffs had employed workers referred to them by CES and had successfully applied for Jobstart wage subsidies, so the plaintiffs knew what procedures had to be followed. … 72 … Even if he had been able to read properly, Mr Winsor could not have arranged an interview without the assistance and co-operation of the officer he spoke to. I am satisfied that by providing Mr Winsor with sufficient information to enable him to telephone Thornleigh & Co for an appointment, and with the expectation that that what he was about to do, the officer referred Mr Winsor to Thornleigh & Co. … 84 … Mr Winsor took away the paper written by the officer at CES and telephoned Thornleigh & Co. I am satisfied that he spoke to Mrs Sally Barton, the Monies' daughter, and that she interviewed him in part. I am satisfied that she directed Mr Winsor to attend at a time that she named and that he compiled with that direction." The Shooting 13 The trial judge made findings about the circumstances in which the shooting occurred: "8 …During the evening of 15 June 1993 Mr P Monie was standing in the kitchen of the homestead at Thornleigh when he was shot with a bullet from a .22 rifle, fired from outside the house. The bullet entered his neck and lodged in his mouth, destroying a tooth. Mr P Monie was terrified and in pain. He was alone in the house. He left the kitchen and made for the telephone. He managed to put a call through to friends and asked them for help. He also asked them to inform Mr and Mrs Bull, relatives of his who lived in the district. Then, as he stood in the living room, he was shot three more times through the window. One bullet struck his left arm, another entered his right shoulder and another struck his right wrist. 9 Shortly afterwards, Mr Winsor entered the house, affecting not to know what had happened and offering help. He took Mr P Monie in his vehicle towards Bingara. The friends Mr P Monie had spoken to met them and took Mr P Monie the rest of the way. He was admitted to Bingara Hospital and from there transferred to Tamworth Base Hospital where he underwent surgery." 14 The window of the kitchen of the house through which Peter was shot on the first occasion faced in a different direction to the window of the living room of the house through which Peter was shot on the second, third and fourth occasions. Thus, his assailant would have had to walk around the corner of the house, and seek Peter out, to be able to fire the second, third and fourth shots. PART B – LIABILITY The Basis of the Trial Judge's Finding of Negligence 15 The trial judge upheld the plaintiffs' contention that the CES was under a duty not to refer Winsor to Thornleigh & Co as suitable for interview, or else to refer him only after informing Thornleigh & Co, with Winsor's consent, what it knew about his criminal history. 16 A fundamental part of the reason for holding that that duty existed was that his Honour held that, at the time the CES made the referral on 22 March 1993, it knew that Winsor had spent time in prison. He reached that conclusion by relying upon three separate strands of evidence. The First Strand – CES Documentation and Practice 17 Payment of a subsidy under the Jobstart scheme depended upon an agreement being entered between the employer and the Commonwealth. There was a standard form for such a Jobstart individual agreement. The body of the form included provisions obliging the employer to provide the employment and certain work experience, for the employer to provide certain reports to the CES, for the Commonwealth to make payment of a subsidy at a particular rate for a particular period, and for the employer to use its best endeavours to provide ongoing employment beyond the Subsidy Period. There was also a schedule that gave various details appropriate to the particular employment to which the agreement related. 18 The standard form of Jobstart individual agreement was entered concerning Winsor's employment. Some parts of the form were filled out by an unidentified person who the trial judge was satisfied was an officer of the CES. That person filled out Winsor's name and address, and details in the schedule identifying the job as being one of a station hand under the Federal Pastoral Industry Award, and the work as stock work, welding, fencing, tractor driving, horse riding, repairs and maintenance. The schedule was also completed to contain a statement that the rate of pay was $375 per week and the subsidy, payable for 18 weeks from 24 March to 27 July 1993, was $220 per week. 19 In that state, the form was sent to the Monies. Jennifer wrote in Peter's name in the space identifying the employer, and wrote the date 7 April 1993. Peter signed the form, and Jennifer signed as witness and repeated the date. 20 Donna Papworth, a CES Financial Delegate, signed the body of the form on behalf of the CES on 13 April 1993. She signed the schedule on 14 April 1993. A "Checking Officer" also signed the schedule on behalf of the CES. 21 There was no provision on the form for Winsor to sign, and he did not do so. 22 The Schedule in its final form contained a space in which to state the "PASS Program Category". That space was filled in, in handwriting, with the entry "W13". The evidence does not disclose whether that entry was on the schedule at the time it went to the Monies. Nothing on the form or schedule gave any indication of what a PASS Program Category was, or what the code "W13" signified. 23 In fact, PASS is an acronym for Program Administration Statistical System. PASS is a computer system that was used to monitor the expenditure by the CES on labour market programs. It was not the only computer program operated by the Department in 1993 – as well there was another computer system known as Job System. It was the Job System program that was used primarily to record the personal details of jobseekers. I infer that the Job System program would be one place where the information about Winsor's convictions would be likely to be recorded, if the CES knew about those convictions at all. That inference is based on the description just given of the Job System program, and the CES's need to know whether a person was an ex-offender, for the purpose of the CES administering certain of its programs. 24 The trial judge found: "51 According to a document called PASS Data Guide as at October 1992, Exhibit BC, those qualifying as W13 - Especially Disadvantaged - in the Jobstart program were those jobseekers coded as follows - 11, 14, 19, 21, 22, 26, 41, 44, 50 and 51. 52 According to the PASS coding card as at October 1992, Exhibit BB, placement eligibility codes included these - 11 aboriginal 14 disability 19 youth at risk 21 JET sole parent 22 spouse of a beneficiary 26 older unemployed (55 – 64 yrs) 41 migrant professionals with overseas qualifications 44 ex-offenders 50 DSP recipient 51 SA recipient." 25 The Gunnedah office of the CES had a record of its transactions with Winsor since his release from prison. At the time, the CES had a computer system that enabled computer records that had been generated in one office to be accessed from another office. The records would include both entries in the PASS computer program, and entries in the Job System computer program. 26 In 1998 the CES was wound down. It closed on 30 April 1998. The first a relevant officer of the Commonwealth knew of any proposed claim by the Monies was in September 1999, when Mr Maurice Rowe became aware that the Monies had filed a summons in the Supreme Court of New South Wales seeking an extension of time in which to commence proceedings. By September 1999 the Job System program did not exist any longer, and Mr Rowe was unable to obtain any of the information that had been contained in it. Searches and enquiries by Mr Rowe failed to locate any documents relating to Winsor, or his placement with the Monies, other than some PASS printouts made on 23 September 1999. Thus, as the trial judge found, "29 … It seems possible that other forms or records may have been made by CES at that time, stating or explaining at least how the category W13 was arrived at. If there was any such record it did not survive long enough to come into evidence." 27 Other missing evidence is that neither Ms Papworth nor the Checking Officer were called, or their absence explained. 28 The trial judge found: "30 Instruction manuals were maintained in the offices of CES in the administration of what was called an Employment Access Program, the intent of which was to assist those who were out of work to obtain and remain in work. [Part of the Program was] Jobstart. CES had office manuals which instructed officers how to deal with applications for the Jobstart allowance. 31 It is apparent from various versions and editions of manuals put into evidence that CES brought up to date and reissued its manuals from time to time. For the most part the following recitation of eligibility criteria is taken from copies of manuals and associated documents published in October 1992 and May and November 1993, though there is no reason to doubt that their provisions applied in March and April 1993. There was no evidence to suggest that the criteria for eligibility of applicants underwent any significant change over that time." 29 His Honour, at [33], set out passages from the manual that had been published in November 1993: "Chapter 2 deals, inter alia, with assessing the eligibility of persons seeking employment for entry into programs administered by CES, including Jobstart. The abbreviation EAP is used to denote Employment Access Program. These extracts are relevant - At p16 – General EAP eligibility refers to a jobseeker's overall eligibility for the EAP. It is based on the jobseeker's: o residence status, General eligibility o age, o registration as unemployed, and o efforts to improve their employment status. For more information, see Page 18, "General Eligibility". Eligibility status for particular programs refers to: Eligibility status o the components of EAP the jobseeker is eligible for, and o how long the jobseeker must be unemployed before becoming eligible for certain components. The eligibility status is based on the eligibility group to which the jobseeker belongs. For more information, see Page 21, "Eligibility Status". At p18 - Jobseekers meet this requirement if they are: o currently registered as unemployed ("UE"), Registered as unemployed and seeking improvement in employment status o away from full-time education and training, or o seeking to improve their employment status (eg. Changing from part-time work to full-time work, or casual part-time work to permanent part-time work). Note: For further information on EAP and jobseekers working part-time, see Page 20, "EAP assistance for job seekers working part-time". At p21 - Eligibility Status Introduction This topic explains the jobseeker's eligibility for assistance under the Employment Access Program (EAP). Each jobseeker has an eligibility status, which is determined by membership of an eligibility group. The eligibility status determines: Eligibility status * the elements of the EAP the jobseeker is eligible for, and * when the jobseeker becomes eligible for assistance. The eligibility group a jobseeker belongs to decides their eligibility status. There are three eligibility groups: Eligibility groups * general access * 'especially disadvantaged', and * immediate access. At p22 - Eligibility Groups Introduction The eligibility group a jobseeker belongs to determines their eligibility status. This topic examines the three eligibility groups. The three eligibility groups are: Eligibility groups o general access (see page 22), o 'especially disadvantaged' (see page 23), and o immediate access (see page 24). General access General access to the EAP is based on a jobseeker's duration of registration. The number of EAP elements available increases the longer a jobseeker is unemployed. Most program elements set a minimum registration period for access. If a jobseeker has no other form of disadvantage, they will become eligible when this period is reached. The period of registration is the number of weeks or months from registration to program commencement, as recorded by JOBSYSTEM At p23 - Jobseekers who are identified as especially disadvantaged are eligible, after one month's registration, for those EAP components available in the first twelve months of registration (see page 25, "Eligibility Timing"). Especially disadvantaged jobseekers are: o Aboriginal and Torres Strait Islander people (see Page 23, "Aboriginal and Torres Strait Islander people"), o jobseekers with disabilities (see Page 23, "Jobseekers with disabilities"), o jobseekers aged 50 or older who have been actively seeking employment, o homeless people, Especially disadvantaged Jobseekers o ex-offenders (see Page 24, "Ex-offenders"), o spouses of Newstart Allowance recipients, o youth at risk (see Page 24, "Youth at risk"), and o migrant professionals with overseas qualifications, who may be eligible for a JOBTRAIN Migrant Bridging course. Note: There is an expanded definition of "Especially Disadvantaged" jobseekers for SkillShare. See Volume 7 Section 2 "SkillShare" for detailed information. Especially disadvantaged jobseekers include people of Aboriginal and Torres Strait Islander descent who: Aboriginal and Torres Strait Islander People o identify as Aboriginal or Torres Strait Islander people, and o are accepted as Aboriginal or Torres Strait Islander people by the community in which they live. Jobseekers with disabilities includes jobseekers who: Jobseekers With Disabilities o have a physical, intellectual or psychiatric impairment which makes it difficult for them to obtain or keep employment; and o who is assessed by the CES as work ready with assistance. At p24 - Ex-offenders are jobseekers who are rejoining the workforce within 6 months of having been released from: Ex-offenders o prison/incarceration after serving a sentence, or o a minimum of 26 weeks on remand. At p25 - Eligibility Timing Introduction A jobseeker's eligibility group determines when they become eligible for elements of the Employment Access Program (EAP). This topic examines the timing of eligibility for EAP programs. Eligibility at registration The following table shows the elements of EAP that different groups of jobseekers become eligible for at registration If eligibility is based on… The jobseeker is eligible for… o Self Help Job Search Kit o Fares Assistance general access· o Relocation Assistance o Immediate Minor Assistance o NEIS (with conditions, see Volume 6 Section 6 "New Enterprise Initiative Scheme") o LEAP o All general access measures and the following: 'especially disadvantaged' o Special Intervention Assessments o JOBSTART (for ex-offenders) o All general access measures and the following: o Special Intervention Assessments and Training o Job Clubs Immediate access· o JOBSTART (basic elements only) o JOBTRAIN o In addition to the above, DRP clients are eligible for: o Work Experience Program for People with Disabilities o Post Placement/Training Support for People with Disabilities At p26 - After 4 weeks registration, 'especially disadvantaged' jobseekers become eligible for: o Special Intervention training, o Job Clubs, o JOBTRAIN Eligibility after 4 weeks registration o Accredited Training for Youth (AYT) o JOBSTART, o SkillShare. Note: Spouses of JOBSKILLS eligible clients are eligible for JOBSKILLS after 4 weeks registration if aged 21 years or more. After 3 months registration, general access jobseekers become eligible for: Eligibility after 3 months registration o Special Intervention assessment and training, and o Job Clubs. After 6 months registration, general access jobseekers become eligible for: Eligibility After 6 months registration o JOBTRAIN o JOBSTART, and o SkillShare. At p27 - When eligibility lapses The following table explains when eligibility for EAP assistance lapses. If the jobseeker… The eligibility for EAP lapses when the jobseeker has… o is receiving Job Search Allowance (JSA), or o had more than 6 weeks full-time work (subsidised or unsubsidised), or o has been registered for less than 12 months o let their registration lapse for longer than 6 weeks due to other reasons o is receiving Newstart Allowance (NSA), or o had more than 13 weeks full-time work (subsidised or unsubsidised), or o has been registered for 12 months or longer o let their registration lapse for longer than 13 weeks due to other reasons. At p28 - When a jobseeker whose eligibility has lapsed returns for further assistance: Handling lapsed jobseekers o the jobseeker must requalify for assistance under each program component in the usual way, o you must reassess any disadvantaging characteristic (eg does the jobseeker still have status as a JET jobseeker, or can the jobseeker still be considered as an ex-offender?)" 30 Of the categories of "especially disadvantaged jobseekers" to which Winsor might have belonged, the evidence does not show that he fell, strictly, within the category of "Aboriginal and Torres Strait Islander people". That is because, though he was of Aboriginal descent and identified as Aboriginal, there was no evidence that he was accepted as Aboriginal by the community in which he lived. It is possible, however, because he is shown as such on the PASS printouts that Mr Rowe obtained on 23 September 1999, that he was at one time categorised by the CES as an Aboriginal person. It also appears, from those PASS printouts, that, at least at some time, he was categorised as a "jobseeker with disabilities". His limited reading ability probably counts as an "intellectual impairment" which would make it "difficult to obtain or keep employment". There is no direct evidence (apart from the inference that arises from him being categorised as a person with disabilities on the September 1999 PASS printouts) that suggests he had been assessed by the CES as "work ready with assistance". However, the fact of his having been employed at the Oxford Hotel, and his still having that job on 22 March 1993, provides some ground for concluding that he could well have been assessed as a "jobseeker with disabilities". He also, clearly, fell within the category of an "especially disadvantaged jobseeker" by reason of being an "ex-offender". 31 Notwithstanding that Winsor may have been an "especially disadvantaged jobseeker" on three different accounts, the "Eligibility at registration" part of the manual at page 25 shows that, of the various "especially disadvantaged" jobseekers, it is only ex-offenders that are eligible for Jobstart at registration. As appears from the "Eligibility after 4 weeks registration" heading on page 26, especially disadvantaged jobseekers other than ex-offenders are eligible for Jobstart only after four weeks registration. 32 "Registration" means (from the "general eligibility" criteria at page 16) registration as unemployed. However it appears, from page 18, that seeking improvement in employment status suffices. Winsor, in seeking to take up work as a station hand, may well have fulfilled that criterion. 33 From page 27 of the manual, it follows that eligibility for EAP assistance (including Jobstart) lapses if a jobseeker in the lowest category had more than six weeks full time work. 34 His Honour sought to find, by reasoning rather than by explicit evidence, an explanation for how it could have happened that, no later than 13 April 1993, CES officers could have assessed Winsor as someone who qualified, immediately from the date of his employment by Thornleigh & Co, for subsidy under the Jobstart scheme. He reasoned as follows: "34 The events relevant to Mr Winsor's eligibility were these - (i) Mr Winsor was released from custody on 14 December 1992. He registered as unemployed. As an unemployed ex-offender he was classifiable as especially disadvantaged. If there had been an application at the time he would have qualified for immediate inclusion in the Jobstart program. (ii) About three weeks after his release Mr Winsor started doing the unsubsidised job at the Oxford Hotel. (iii) Six weeks after the commencement of that job his Jobstart eligibility lapsed. Although one cannot be precise about the date, it was certainly before 22 March 1993. (iv) Between 7 and 14 April 1993 CES considered Thornleigh & Co's Jobstart application. (v) CES then knew, by reference to records made at Gunnedah, that Mr Winsor had registered as unemployed on 14 December 1992 and that he had more than six weeks previously taken up the job at the Oxford Hotel. (vi) CES assessed Mr Winsor as especially disadvantaged: code W13 and authorised the subsidisation of his wages under the Jobstart program from the day he became employed by Thornleigh & Co, 24 March 1993. 35 Given the CES rules and practice about the lapsing of jobseekers' eligibility for Jobstart benefits, the judgment that Mr Winsor was eligible for immediate Jobstart subsidy calls for explanation. It was not submitted that Mr Winsor could have fallen into any of the "immediate access" categories of eligibility. It seems to me that CES were bound to take account of the effect of the Oxford Hotel job and to conclude that Mr Winsor's eligibility had lapsed. The assessor was then obliged to reassess Mr Winsor and decide whether he re-qualified for assistance. According to the manual, an applicant registered for less then twelve months who qualified as especially disadvantaged would have to wait a further four weeks to re-qualify for assistance. The only exception was for ex-offenders, provided they could still be so considered: p28. Mr Winsor could still be so considered because his status as an ex-offender ran for six months and was still current in April 1993. That question would therefore have been answered in his favour. 36 It seems to me that Mr Winsor could not have been assessed as eligible for immediate Jobstart benefits unless the assessor considered him an ex-offender. It follows that when, on or after 7 April 1993, CES assessed Mr Winsor's eligibility for the Jobstart program it knew that he had, within the last six months, been released from serving a prison sentence." The Second Strand – Admissions by CES Officer 35 By July 1993, Peter and Sam had been told by the police about Winsor's criminal record and "about the police's opinions of Mr Winsor's propensities". Unsurprisingly, they went to the Inverell office of the CES to complain about the CES not having told them. They each gave evidence of having spoken to a woman. The evidence did not enable the trial judge to make a finding about who that woman was. According to Peter, the conversation was: Peter: "Why weren't we notified of Darren Winsor's criminal record?" The officer: "I know all about his criminal record, Darren's criminal record." Peter: "Why is the Commonwealth entitled to know everything that he did whereas us being private?" The officer: "We are not obliged to say anything about that." 36 According to Sam, the conversation was: Sam: "Anne, how on earth could you have sent somebody to us with a long criminal history?" The officer: "Sam, unfortunately we were unable to disclose that to you because you are private enterprise whereas if you were a government organisation I could have divulged that to you." 37 At the time, the Privacy Act 1988 (Cth) bound the Commonwealth: section 4(1). 38 The CES counted as an "agency" within the definition in section 6 Privacy Act. Section 16 obliges an agency not to do an act that breaches an Information Privacy Principle. Section 14 identifies the Information Privacy Principles. One of those principles is Principle 11: " Limits on disclosure of personal information 1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless: (a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency; (b) the individual concerned has consented to the disclosure; (c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person; (d) the disclosure is required or authorised by or under law; or (e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue." 39 The trial judge took the view that, under Principle 11, it would have been unlawful for any officer of the CES to divulge Winsor's criminal history to any potential employer unless Winsor first consented. It is not necessary to decide whether that conclusion of law is correct – what matters is that that Principle, together with some departmental practices and instructions to which I will later refer (see para [60] below) provided a basis upon which it is understandable that an officer could have taken the view that the CES was restricted in disclosing Winsor's criminal history. His Honour held: "41 It would not have been surprising that Mr P Monie and Mr S Monie should go to CES and complain. It would not have been surprising that whoever they spoke to should know exactly what they were talking about. Everybody in the office must have known about the shooting. It would not be surprising if the officer had a ready answer. Although, for reasons which I shall explain, I am generally reluctant to accept the unsupported evidence of Mr S Monie on controversial matters, I am satisfied that a conversation of that kind took place. What the evidence shows to my mind is that in July 1993 an officer was prepared to make a statement on behalf of CES, apparently having knowledge of the matters she spoke about and authority to say what she said, justifying the silence of CES. 42 The officer was obviously speaking about things CES knew and did not disclose at the time that it considered and approved Thornleigh & Co's Individual Jobstart Application and organised subsidisation of Mr Winsor's wages. Such things could be ascertained from the computer records. However, nothing the officer said is any indicator of the state of knowledge of any individual officer in the Inverell office of CES on 22 March 1993." 40 His Honour, correctly, regarded this second strand of evidence of providing proof that was independent of support for that conclusion provided by the first strand that the CES knew of Winsor's conviction on 22 March 1993. The CES had that knowledge on 22 March 1993 even though no individual officer in the Inverell office was shown to have had that knowledge on 22 March 1993. That conclusion is consistent with the view that the trial judge took, that information that Winsor was an ex-offender was contained in computer files that were available to Inverell CES officers on 22 March 1993 but which were not checked before Winsor was referred to the Monies for employment. The Third Strand – Winsor's Statement to a CES Officer at Gunnedah 41 The third strand of evidence provided a source from which the CES's knowledge of Winsor's criminal history could have come. His Honour, at [43], referred to the following cross-examination of Winsor: "Q. Did you ever tell the people at Gunnedah, that is the CES people at Gunnedah, anybody in the office, that in fact you had been in prison? A. I don't want to answer that because I want to speak to him before I answer that question or the Judge. Q. You just answer it unless the Judge corrects you on it please. A. There's two ways. In that question I can answer that two ways, yes I did and no I didn't, but by the CES going in and asking the lady for the forms and filling them out no I never ever told her as a CES worker that I'd been incarcerated or been in trouble with the law but yes she knew that outside of work, like as a person that I knew outside of the -- Q. Do I understand you to say that you told a person who worked in the CES office that you had been in prison but that you told her not in the CES office but outside the office? A. Yeah." 42 He concluded: "44 It seems at least possible that Mr Winsor's reliance on the silence of the officer he had befriended was misplaced and that CES knew from that source that he had been in prison." 43 He regarded this third strand as not sufficient in itself to satisfy him that the CES knew about Winsor's criminal history, but as being supportive of the other evidence. Evidence Favourable to CES's Lack of Knowledge 44 His Honour took into account some evidence in favour of the CES not knowing of Winsor's convictions: "45 Mr Winsor's evidence was that he did not tell the officer on 22 March that he had been in gaol. All he told her was his name, his experience and that he was interested in applying for the job. Notwithstanding the caution with which I approach the evidence of Mr Winsor, and I shall explain why later in this judgment, there seems no reason why I should not accept that evidence. He entered the office apparently on the spur of the moment. He had not previously dealt with anybody at that office. He had no reason to speak about his current job or his prior dealings with CES at Gunnedah." 45 The officer at the Inverell CES who spoke to Winsor on 22 March 1993 has not been identified, beyond Winsor's evidence that he spoke to a woman. There is no direct evidence that that officer gained access, by online computer or otherwise, to any records generated by the Gunnedah office. There is no direct evidence that she then knew that any office of the CES had a record of Winsor. The trial judge has found that the information that Winsor gave the officer on 22 March 1993 "was insufficient to allow an assessment of his eligibility for entry to the Jobstart programme". However, there is no finding that immediate eligibility for Jobstart was a characteristic that the Monies required any applicant for the job to have. 46 The trial judge, at [48], made findings about the form in which the CES maintained its computer file concerning Winsor: "The file was kept in a form that allowed entries to be removed, new entries to be made and details changed from time to time. The result was that once a change was made, the historical record prior to that change was lost. Only the latest version was kept." 47 The printouts from the PASS system that Mr Rowe made on 23 September 1999 were in evidence in this case. However they contain entries that were made after Winsor was assessed, on or prior to 14 April 1993, as being eligible for payment of Jobstart subsidy from 22 March 1993. On their face, the printouts contain a notation of Winsor's employment having ceased on 17 June 1993, followed by the comment "DARREN CHARGED WITH ATTEMPTED MURDER OF EMPLOYER". The last payment of any kind that the printouts record being made relates to a period 16 June 1993 to 13 July 1993. The printouts contain no entry in relation to any job being sought, any job contact being provided, or any payment being made, in relation to any date after 13 July 1993. The printouts do not identify the date of every change to the PASS file. However, they contain a record of having been last changed by someone at the Gunnedah office on 29 February 1996. 48 One printout contains the following entry: "UE Date: 14Dec1992 Comm Date: 24Mar1993 Expd Cessn: 27Jul1993 Prog Cat: W13" 49 His Honour, correctly, explained that entry as follows: "54 14 December 1992 was the day on which Mr Winsor was released from prison. The commencement date of Mr Winsor's employment with Thornleigh & Co and the subsidisation of his wages was 24 March 1993. The subsidy was then expected to end on 27 July 1993. Program category W13 corresponded to the category written on Mr Winsor's Schedule." 50 His Honour continued: 54 … There is this entry, however, which at first appears inconsistent with my conclusion - Elig: 14 Characteristics: 11 14 16 55 I am unsure what "Elig: 14" means. Characteristics 11, 14 and 16 denote that the subject is aboriginal, has a disability and has other special needs. Jobseekers with "other special needs" (category 16) would not qualify as especially disadvantaged. Those with characteristics 11 or 14 would. Notably absent from the record is code 44: ex-offenders. 56 Mr Winsor's status an ex-offender expired on 14 June 1993 and the file itself states that it has been amended since that date. There seems no reason why, at any time after 14 June 1993, the file should not have been amended to delete Mr Winsor's eligibility as an ex-offender, particularly given the sensitive nature of such information. His aboriginality, his reading disability and his consequent special needs would, of course, have remained relevant and there would have been every reason to retain reference to them on the file. 57 By this reasoning the state of the record on 23 September 1999 is not inconsistent with Mr Winsor's classification on 22 March 1993 as having placement eligibility code 44: ex-offender." The Challenge to the Finding of CES's Knowledge 51 On this appeal, the Commonwealth challenged the trial judge's finding that the CES knew, on 22 March 1993, that Winsor was an ex-offender. The basis on which that submission was made is as follows: "(i) There were no records of the defendant in support of the finding; (ii) There was no evidence that CES followed the procedure in the manuals or other rules and practice in order to assess Mr Winsor for Jobstart; (iii) There was no evidence that CES took into account the effect of the Oxford Hotel Job obtained by Mr Winsor; (iv) There was no evidence that the assessor considered Mr Winsor an ex-offender; (v) His Honour accepted that whatever was said by an unknown officer following the shooting was not an indicator of the state of knowledge of any individual officer in the Inverell office of CES on 22 March 1993; and (vi) There was no evidence that as a result of a conversation between Mr Winsor and an employee of CES at Gunnedah any officer in the Inverell office of CES knew on 22 March 1993 that Mr Winsor [was] an ex-offender." 52 Concerning basis (i), if an organisation is one that maintains records in a systematic manner, and has not destroyed any of the relevant records by the time of trial, absence of records can be a powerful means of proof. However the CES in 1993 was not such an organisation. Its practice of maintaining files in a running form on computer, and making deletions from them from time to time in a way that did not leave any record of the form of the file before amendment, means that absence of records of knowledge that he was an ex-offender is, in the present case, not a particularly powerful consideration. This is particularly so when some of the CES records were destroyed after the CES's cessation of operations, and when the destroyed records, such as the Job System records, are the very ones where one would expect to find the information recorded, if it had ever been known. And particularly is that so when there was evidence from Winsor, in the course of an interview with senior counsel that the trial judge accepted as being a basis for concluding that Winsor had told Sam about having been in gaol, that: "Like, when you go in to fill out the dole and that, they give you a questionnaire thing to fill out and it says um, have you been in prison, yes or no, and I always ticked yes and that's why it is so hard to find a job." 53 Concerning basis (ii), the purpose of the manuals relating to assessment of Jobstart is to enable benefits to be provided to those people who are entitled to them, and not provided to those who are not entitled to them. The administration of the Jobstart program involves the expenditure of public money, pursuant to a law that establishes entitlement to the benefits in question. It would be both surprising and disturbing if the benefit scheme was administered other than in accordance with a regular course of procedure, such as that laid down by the manuals. If indeed it were the case that the scheme was sometimes administered otherwise than in accordance with the manuals, that fact would have been within the knowledge of the CES officers. The Commonwealth called no officer of the CES to give any such evidence. In my view the trial judge was justified in acting on the basis that the procedures laid down in the manual had been followed. 54 Concerning basis (iii), I have set out at para [12] above the trial judge's finding that the officer at the Gunnedah CES let Winsor use the phone to ask for an interview. Winsor's evidence about how that happened was: "… the lady behind the desk, she dials the phone number and passes the phone to you. That's what I mean she was there with me when we rung up". 55 When a CES officer has provided a job contact, and allowed the CES phone to be used in this fashion to arrange an interview, there would be nothing surprising in the CES wanting to know the outcome of the interview. It had an ongoing interest in whether Winsor obtained employment, because if he obtained employment, its obligations both to continue to pay him unemployment benefits, and to provide other assistance to which an unemployed person in his position was entitled, would cease. As well, effective conduct of its operations would require that it not continue to hold out to other jobseekers that a particular position was available if that position had been filled. The defendant did not tender any record of the dates on which benefits were paid to Winsor, or explain its absence. In these circumstances, I see no error in his Honour's conclusion that the CES learned that Winsor was employed at the Oxford Hotel. Once it had that knowledge, to actually take it into account in assessing the eligibility of Thornleigh & Co to receive a Jobstart subsidy in connection with employing him, is just one example of the CES following the procedure in its manual for assessment of benefits. 56 Concerning basis (iv), I assume that the "assessor" referred to is the person who assessed Mr Winsor as someone in relation to whom payment under the Jobstart scheme could be made immediately. While there is no direct evidence of the thoughts of Ms Papworth or the unidentified "Checking Officer" on these matters, that is because the defendant did not call them. In the absence of direct evidence, the process of reasoning that his Honour engaged in, set out in the first strand of evidence on which he relied, and supported by each of the second and third strands, is not shown to be in error. 57 Concerning basis (v), the fact that is asserted in this basis is correct. However, what matters for the present case is whether any individual in the Inverell office of the CES on 22 March 1993 knew, or ought to have known, that Winsor was an ex-offender. As his Honour found, at [78], concerning breach of duty: "The officer who dealt with Mr Winsor failed even to ascertain that he was registered. She failed to ascertain that he was an ex-offender." 58 That Ms Papworth and the Checking Officer could ascertain it prior to 13 or 14 April 1993 is strong evidence of what was in the CES's records on 22 March 1993. Further, the second strand of the trial judge's reasoning gains its force from being an admission in July 1993 relating to what was in the knowledge of the CES, as an institution, and ascertainable from its records at the time of the referral on 22 March 1993, even though no individual officer of the Inverell office had actually ascertained the information at the time. 59 As to basis (vi), for the same reasons as apply concerning basis (v), the actual lack of knowledge of any individual officer of the Inverell office of the CES on 22 March 1993 is, in the circumstances of this case, not to the point. 60 Another matter appropriate to take into account in deciding whether his Honour is in error in having concluded that the CES records as at 22 March 1993 probably included a reference to Winsor's ex-offender status, is that the CES at relevant times had in force manuals instructing its officers about the procedures to be followed when dealing with ex-offenders. There was some uncertainty in identifying the precise manual that was in force in the period between 14 December 1992 and 22 March 1993. However, a common theme of those manuals that were in evidence was that various details of the sentence or conviction should be recorded, but they could not be disclosed without the jobseeker's consent, and, even if consent to disclosure was given, there should not be disclosure unless it was relevant to the suitability of the ex-offender for the particular job being applied for. If the view was taken that the conviction was relevant to the job being applied for, but the job applicant refused to consent to it being disclosed, the manual required that the job applicant not be referred for that job. 61 When the CES had these procedures in place for dealing with ex-offenders, it increases the likelihood that, if a CES officer knew that Winsor was an ex-offender, that fact would have been recorded. 62 All the grounds of cross-appeal relating to the question of breach of duty of care depend upon the Commonwealth successfully challenging the finding that the CES knew that Winsor was an ex-offender on 22 March 1993. I am not persuaded that his Honour was in error in making that finding. Thus, these grounds in the cross-appeal fail. The "Cases Abandoned" Point 63 The case went to trial on the basis of a Further Amended Statement of Claim that was filed on the first day of the hearing. It included the following allegations: "21. … at all material times the defendant, its servants and agents at the CES, were under a duty of care to the plaintiffs to exercise reasonable skill and care in referring to the plaintiffs persons suitable for employment at Thornleigh. 22. Further and in the alternative the plaintiffs say and the facts are that the defendant, its servants and agents at the CES with actual or constructive knowledge of Winsor's past criminal record were under a duty of care not to refer Winsor to Thornleigh & Co, if Winsor did not agree to his criminal convictions being revealed to the plaintiffs, those criminal convictions being relevant to the proposed employment and the circumstances of that employment. A. PARTICULARS OF NEGLIGENCE (a) Failure to screen or properly screen proposed candidates for employment at Thornleigh in accordance with the criteria given by Samuel to the CES and/or with the nature and location of Thornleigh. (b) Failure to select or appropriately select for referral an appropriate candidate for employment at Thornleigh. (c) Failure to assess or properly assess the location and employment environment at Thornleigh when referring Winsor to Thornleigh & Co. (g) Referring Winsor as a candidate for employment at Thornleigh without disclosing and being able to disclose to the plaintiffs the aforesaid criminal record of Winsor. (h) Negligently representing either expressly or impliedly the following: (i) that all due care would be taken to screen and refer only those persons who were suitable for the employment being offered by the employer; (ii) that the circumstances of the employer, including its location, size and nature would be taken into account when referring persons for employment; (iii) that only those persons who had been carefully selected as suitable for the employment being offered by the employer, talking into account the location, size and nature of the employment being offered, would be referred to the employer; (v) that the person referred for employment would not constitute a risk to the business, personal health and safety of those persons with whom he was to work in employment; knowing and intending that the plaintiffs would rely upon such representations, and the plaintiffs in fact relying on the same. (i) Failing to advise the plaintiffs that in respect of the character and background of the person referred to them by the CES, they should rely upon their own inquiries. (j) Failing to have a system or process which from time to time updated details of the job seekers background so as to reveal any criminal convictions had by the job seeker since his/her original registration. (k) Failing to adhere to and follow the procedure laid down in the 'Ex-offenders' part of the 1984 CES Manual when referring Winsor for employment at Thornleigh. (l) Failing to adhere to and follow the procedure laid down in the May 1993 document 'Jobseekers who are Ex-Offenders' when referring Winsor for employment at Thornleigh. (m) If on the date when Winsor was referred for employment at Thornleigh, the 1984 Manual had been withdrawn and the May 1993 document had not come into operation and effect, failing to have any guidelines setting out procedures to be applied when referring Winsor for employment at Thornleigh and failing to employ the common sense procedures laid down in both or either of the 1984 CES Manual or the May 1993 document." 64 The Further Amended Statement of Claim deleted allegations that had previously been made in paragraph 21 that the defendant had a duty to exercise reasonable skill and care in selecting and/or recommending to the plaintiffs persons suitable for employment at Thornleigh. It deleted from paragraph 22 an allegation that the defendant had a duty of care to warn the plaintiffs of the material risks associated with employing Winsor at Thornleigh. It also deleted from the particulars of negligence the following allegations: "(d) Failure to disclose to the plaintiffs that Winsor was a person with a long history of criminal convictions including convictions for acts of dishonesty and of violence to persons. (e) Failure to warn the plaintiffs that Winsor was a person with a long history of criminal convictions including convictions for acts of dishonesty and of violence to persons. (f) Failure to warn the plaintiffs that there were material risks associated with employing Winsor at Thornleigh." 65 Also deleted from the allegations of negligent representation in particular (h) were allegations that there was any representation concerning candidates who would be selected or recommended, and an allegation of a representation: "(h) (iv) that the person referred and/or recommended for employment would not constitute a risk to the business of the employer;". 66 Mr McIlwaine SC, for the Commonwealth, submitted that, in light of the cases that the plaintiffs had abandoned by deleting these allegations, it had not been open to the trial judge to find that by referring Mr Winsor to Thornleigh & Co for interview without any disclosure of his criminal record, the defendant was in breach of its duty of care. 67 I do not agree. The case that the plaintiffs were presenting at trial is to be ascertained by reference to the allegations that were contained in the Further Amended Statement of Claim. It is incorrect to argue, as Mr McIlwaine did, that because there had been a deletion of an allegation of negligence by failure to disclose, or failure to warn, it was not open to the plaintiffs to make a case that relied upon the compound allegation that it was negligent to refer Winsor without disclosing and being able to disclose his criminal record. When a deletion is made from a statement of claim, the effect is not to prevent the plaintiff from relying in any way on the matters that have been deleted. Rather, the plaintiff can rely upon the matters that have been deleted only to the extent that those matters remain in the statement of claim after amendment. Voluntary Assumption of Risk 68 Even though the trial judge found that the CES owed a duty of care to the plaintiffs, and had breached that duty, he entered a verdict for the CES. The basis for that verdict was his Honour's finding that there had been a voluntary assumption of risk. 69 The factual basis for that conclusion was a finding that, about two weeks before the shooting, Sam had visited Winsor at the cottage where Winsor and his fiancé lived on the property. His Honour found that in the course of that conversation, Winsor told Sam that he had been in gaol, and probably said that it was for assault. 70 While Peter was in Tamworth Base Hospital recovering from his injuries, he was interviewed by two police officers, and signed a statement dated 16 June 1993. Paragraph 11 of it was: "I yelled out, 'You've got me again in the wrist, Darren. Give us a fair go, I've done nothing to upset you.' At this stage I was absolutely terrified and honestly believed that I was about to die. I have never been so scared in all my life. I can't explain why I thought it was Darren WINSOR firing at me because the house was lit up and I couldn't see anyone outside in the darkness. My son Sam informed me about a week ago that WINSOR has spent some time in gaol and this made me feel a little uneasy." 71 On 25 June 1993 Peter signed a further statement for the police, correcting some details in his earlier statement, but making no change to Paragraph 11. 72 Though Peter and Sam both denied that Sam had told Peter that Winsor had spent time in gaol, the trial judge found that each of those denials was false, and made because each of Peter and Sam believed that the plaintiffs' case would be damaged if Peter were found to have such information. 73 The appellants contest the finding of voluntary assumption of risk, without challenging the conclusion of the trial judge that Winsor had told Sam he had been in gaol for assault. Rather, they challenge the legal correctness of the process of reasoning by which his Honour arrived at the conclusion that the fact that Sam had been told that Winsor had been in gaol for assault, and that Peter had been told that Winsor had been in gaol, led to a conclusion of voluntary assumption of risk. His Honour's reasoning process was as follows: "128 It may be correct to say that a casual confession by Mr Winsor that he had been in gaol for assault might not justify dismissal, might not of itself reveal circumstances bad enough to overcome the fact that Mr Winsor appeared to be a satisfactory worker. I am quite prepared to accept the statements of the plaintiffs, particularly that of Mr P Monie, that if they had known about Mr Winsor's criminal history on 22 or 23 March they would not have employed him. However, by the time they learned that he had been in gaol for assault, they were in quite a different position because of important things that had happened in the meantime. Mr Winsor had been working on the property for about ten weeks. His continuation in the job suggests that he was working satisfactorily and had built up some goodwill. Mr S Monie had suggested that he obtain a truck driver's licence. There was apparently a future for him in the job. He offered at least a potential advantage to Thornleigh & Co in that he lived in the cottage and was available to be spoken to, and perhaps to be asked to assist, outside ordinary working hours. His position in that respect was different from that of Mr Gallagher, who resided in a village about fifty kilometres away. There were other advantages for Thornleigh & Co as well. Mr Winsor's labour was subsidised. Thornleigh & Co could recoup all but $155 of Mr Winsor's award wage of $375 per week. The subsidy still had about six weeks to run. Thornleigh & Co saved itself a further $30 per week which it withheld as rent for the cottage. The subsidy was particularly valuable because the business was not showing a profit. There was no guarantee of any immediate replacement if Mr Winsor should be dismissed. If he was dismissed, there was no guarantee that his replacement would be eligible for wage subsidy or be prepared to live on the property. 129 By denying knowledge of what Mr Winsor told Mr S Monie, the plaintiffs have put it out of their power to explain why they decided not to require Mr Winsor to tell them exactly what he meant when he spoke to Mr S Monie and to give a precise account of his criminal history so that they could assess the position and decide whether to continue to employ him or dismiss him. I have summarised the advantages to the plaintiffs of his continued employment. It is not speculation, I think, to say that in deciding to ask no questions and make no change the plaintiffs had in mind some or all of those advantages. They might also have wondered whether, if they did ask Mr Winsor for a full account and it turned out to be innocuous, they would risk damaging a work relationship they had come to value. 130 However these things may be, the plaintiffs decided to close their eyes and take the risk. No doubt that was why, as Mr Monie told the police, he felt a little uneasy. By deciding to keep their eyes closed and hope for the best the plaintiffs voluntarily assumed any risk, consequent upon Mr Winsor's violent propensity, that he might repeat his violent criminal activity and perhaps occasion them loss and damage. From that time onwards, which was well before the time of the shooting, the defendant ceased to be responsible in law for its breach of duty. Accordingly, the plaintiffs have failed in their action." 74 The justification for the defence of voluntary assumption of risk was explained by Lord Herschell in Smith v Baker & Sons [1891] AC 325 at 360 as being: "One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong." 75 Voluntary assumption of a risk involves consenting to the particular thing being done which would involve the risk: Smith v Baker & Sons (at 338). Mere knowledge that a risk exists is not the same as consenting to the risk: Smith v Baker & Sons (at 337, 362); Letang v Ottawa Electric Railway Company [1926] AC 725 at 730. As well, before the defence applies, "the whole risk" must be voluntarily incurred by the plaintiff: Smith v Baker & Sons (at 337). "There must be an assent to undertake the risk with the full appreciation of its extent": Smith v Baker & Sons (at 369 per Lord Morris). The defence applies only when "… the plaintiff freely and voluntary, with full knowledge of the nature and extent of the risk he ran, … agreed to incur it": per Wills J, Osborne v London and North Western Railway Company (1888) 21 QBD 220 at 224, approved in Letang v Ottawa Electric Railway Company (at 731). In Roggenkamp v Bennett (1950) 80 CLR 292 at 300 a majority of the High Court (McTiernan and Williams JJ), quoting Halsbury's Laws of England, 2nd ed, vol 23, at pp 716-718, said that before the defence applied: "… the plaintiff must be shown not only to have perceived the existence of the danger, for this alone would be insufficient, but also that he fully appreciated it and voluntary accepted the risk." 76 In Randwick City Council v Muzic [2006] NSWCA 66 at [48], Hunt AJA (with whom Handley and Ipp JJA agreed) said that before a defence of voluntary assumption of risk applies, a defendant: "… must establish that the plaintiff perceived the existence of the danger, that he fully appreciated it and that he voluntarily agreed to accept the risk: Roggenkamp v Bennett (1950) 80 CLR 292 per McTiernan & Williams JJ (at 300), Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1997, unreported) per Clarke AJA (Grove AJA agreeing) and Canterbury Municipal Council v Taylor [2002] NSWCA 24 per Ipp AJA (Spigelman CJ & Mathews AJA agreeing) at [141]–[148]." 77 Applying those principles in the present case, I conclude that the trial judge was in error in deciding that any of the appellants had engaged in a voluntary assumption of risk. 78 So far as Peter was concerned, all that he is shown to have known is that Winsor had been in gaol. It is possible to be in gaol for a multitude of offences, many of which do not involve any violence at all. Even if Peter could be taken to have consented to having a man who had been in gaol working and living on his property near his house, that is a long way short of consenting to the risk of being shot. 79 Even if it had been the case that Peter knew that Winsor had not only been in gaol, but had been in gaol for assault, there are many circumstances in which an assault, of sufficient seriousness to warrant a period of imprisonment, can be committed. Even if Peter could be taken to have consented to having a man who had once been gaoled for assault working and living on his property near his house, that is also a long way short of consenting to the risk of being shot. 80 So far as Sam is concerned, the case he presented at trial was that he had suffered psychological damage as a result of Peter having been shot. There may be room for argument about whether, if Peter had voluntarily consented to the risk of being shot, that would be sufficient to deprive Sam of any right to receive damages for psychological injury consequent upon Peter having been shot. In circumstances where Peter has not voluntarily consented to the risk of being shot, it is not necessary to decide whether any such argument would succeed. 81 Alternatively, the question of whether Sam's action fails by reason of a defence of voluntary assumption of risk might depend upon whether Sam himself had voluntarily assumed the risk of the particular injury concerning which he sues. If that be the correct way of approaching the matter, the defence of voluntary assumption of risk would also not succeed. That is because, even though Sam knew that Winsor had been in gaol for assault, there is no basis for concluding that Sam was aware that Winsor might shoot Peter, or that he (Sam) might suffer psychological damage as a consequence of Peter being shot, or that Sam voluntarily undertook the risk of suffering psychological damage as a consequence of Peter being shot. 82 The case Jennifer presented at trial was that she had suffered both psychological damage and financial loss as a result of Peter having been shot. If the availability of the defence of voluntary assumption of risk, concerning Jennifer's claim, depends upon Peter having voluntarily assumed the risk of being shot, that defence would fail because Peter is not shown to have voluntarily assumed the risk of being shot. If the availability of the defence of voluntary assumption of risk, concerning Jennifer's claim, depends upon Jennifer herself having voluntarily assumed the risk of suffering the particular types of damage concerning which she sues as a result of Peter having been shot, there is no evidentiary basis for concluding that she was aware that Winsor had been in gaol (whether for assault, or for any other crime), or that she consented to the risk of suffering the type of loss for which she sues as a result of Peter being shot. Thus, likewise, the defence of voluntary assumption of risk fails so far as Jennifer's claim is concerned. Contributory Negligence 83 The trial judge, correctly, made findings on matters that had been argued before him even though, given his finding concerning voluntary assumption of risk, they did not affect the order he made. One such matter was an allegation of contributory negligence by the plaintiffs. 84 Though the trial judge, at [84], made a finding that Sally Barton, the daughter of Peter and Jennifer, was telephoned by Winsor and that "she interviewed him in part", he makes no finding about what that "interview in part" involved. However, it is implicit in the way his Honour dealt with the topic of contributory negligence that nothing of substance beyond fixing a time and place for a further interview occurred. No counsel suggested otherwise on the appeal. 85 Peter was not well enough to give evidence at the second trial. The transcript of his evidence at the first trial was received in evidence instead. 86 According to Peter's evidence, on the day when he knew Winsor was due to come for an interview, he was droving cattle along a road, to take them to another property where they were to be agisted. His evidence includes the following passages: "Q. If you were going to appoint a time to interview him for a job, then how did you expect him to know where you were, if at least for part of the day you were going to be away from the homestead on a road that you would not expect him to use to travel to the homestead? A. I made arrangements with the CES to meet him on the road where we were taking cattle down the road. … Q. How do you know that it suited him to meet you on the road whilst you were droving the cattle? A. I made arrangements with the CES. Q. But how did you know it would suit Mr Winsor? A. I don't know, but that was the arrangements made and obviously it did suit him because he came. Q. You knew that the person that you wanted to fill this vacancy was someone that you would wish to live on the property? A. That's correct. Q. And someone who you would want to know something about their experience? A. I arranged with a man from CES, with Michael Gallagher, and that man was very satisfactory and I applied then for – Darren applied for the job there and I went with – very happy with the first fellow I interviewed and I just had – I was flat out on the day. I said – I met him on the road and I was happy to – he was clean and very respectable and I thought, "The CES has sent him down, they have done all the back part, I will give him the job". … Q. And I suggest to you that you said to him words to this effect, … "How much experience have you got on a farm?" A. No. Q. Are you denying you said that to him, or are you saying you can't remember. A. No, I didn't say that to him. Q. Isn't that something that you would want to know before you employed someone, how much experience they had had on a farm? A. I relied on the CES to – they recommended him and that was good enough for me. Q But wouldn't it be of interest for you to know what kind of experience he had had in order to know whether he was going to be suitable to do the task which you wished him to do? A. I arranged all that with the CES and they knew the type of man I required. Q. Did you ever speak to anyone at the CES and set out what you say you wanted? A. My son would have made those arrangements. Q. Do you know whether you son did? A. No, I don't … Q. Can you tell us the conversation you had with him, using his words and your words, about the property? A. I said, "Are you interested in the job?". He said, "Yes, I am". I said, "The job is yours then". I said, "The cottage is available for you if you want it" and he said, "Yes, that would be great" and I said, "Right, I am busy at the moment, I have got to keep going". He said, "Well, I will start – I will take the job and move my things down tomorrow", the day after he inspected, and then he started work the day after that." 87 The trial judge said that, on Peter's evidence, the interview "94 … was little better than perfunctory. According to his evidence, he asked for and saw no references. He asked Mr Winsor nothing about his work history. … 97 Mr P Monie denied asking Mr Winsor what experience he had had, saying that he relied on CES. They had recommended him and that was enough for him." 88 The trial judge, at [93], said of Peter's evidence on this topic: "I found Mr P Monie's evidence about the interview unimpressive. He was at pains to give the impression that he had relied at all times on CES to send a person who would be suitable for the job, as though CES were in some way warranting the suitability of persons referred for interview. I think that insofar as he did so, Mr P Monie relied on the evidence he believed Mr S Monie had given or was to give about dictating criteria to Mrs Arca." 89 Sam gave evidence at the retrial, and I would infer also at the first trial, that he had had a conversation with a CES officer, Mrs Anne Arca, at the time of seeking the CES's assistance in finding an employee, and that in that conversation he had listed numerous characteristics that such an employee would need to have. According to Sam, Mrs Arca said she would sort out potential candidates. The trial judge at the retrial was not prepared to accept Sam's evidence on that topic. 90 The trial judge, at [98], summarised Winsor's evidence about what Peter had asked him: "He asked what experience Mr Winsor had had and where he was living. He asked about references and Mr Winsor gave him some. There was a discussion about living in the cottage on the property. Mr P Monie asked him when he could start." 91 The trial judge did not regard it as important to choose between the two versions of the conversation. In his view, (at [99]), what was relevant about the conversation was common to both versions: "On either version, Mr P Monie paid no attention to the matter of Mr Winsor's experience or relevant history. He knew from his experience with Mr Bostelaar and Mr Gallagher that CES might have sent him someone who had been out of work for a considerable period of time. Yet he never asked about Mr Winsor's time out of work or what he had been doing during that time." 92 Mr Bostelaar and Mr Gallagher were employees of Thornleigh & Co who had recently come to work there after being referred by the CES, and in connection with whom Thornleigh & Co was paid a Jobstart subsidy. Critical to his Honour's findings concerning contributory negligence was the following: "102 …I am not satisfied that CES warranted the suitability of Mr Winsor to do the job. I am not satisfied that there was any conversation about "criteria" in the terms contended for by Mr S Monie. I do not think that when he interviewed Mr Winsor Mr P Monie believed that there had been. I do not think that Mr P Monie ever believed that CES had done the work of selection for him. 103 The responsibility to decide whether Mr Winsor was suitable for the job was Mr P Monie's. It was not a function that had been delegated to CES. The whole purpose of the interview was to enable Mr P Monie to find out all he needed to know about Mr Winsor so as to make an informed decision. In my view Mr P Monie failed to ask the questions that any reasonable employer would have asked. If he had done so he would, provided Mr Winsor answered truthfully, have obtained the information he needed to make a proper decision whether to run the risk and employ Mr Winsor in spite of his criminal antecedents. 104 In my opinion Mr P Monie's failure resulted not from any reliance on CES but from the fact that he was in the middle of a job that demanded his close attention. So he took the risk." 93 It had been submitted to the trial judge that no question could reasonably have been asked that would have led to disclosure of his criminal propensity, because any direct question asked of him would probably have elicited a lie. His Honour did not accept that submission. Rather, he found, in substance, that Winsor would probably tell the truth if asked about his criminal record, but would not mention it if not asked. He concluded: "107 … But however his evidence is viewed, I do not accept that there would be no purpose in asking a job applicant, ex-offender or not, about his work and other relevant history because it should be assumed that he would never reveal anything adverse to his application. To take such an attitude would in my view be an abdication of responsibility. 108 In my opinion Mr P Monie's failure to make reasonable enquiries was negligent. I rate his negligence as half that of CES' negligence and assess responsibility for the existence of the risk on and after the commencement of Mr Winsor's employment on 24 March at two-thirds to CES and one-third to Mr P Monie on behalf of the plaintiffs." 94 The appellants attack, first, the apparent finding by his Honour that any contributory negligence on the part of Peter should be regarded as committed on behalf of Jennifer and Sam. The trial judge accepted that Peter was the only person who had the responsibility to decide whether to employ Winsor, that Peter generally managed the affairs of Thornleigh & Co, and in any event Sam was absent at the time of Winsor's application. In light of that finding, it could be accepted that Peter was acting on behalf of Thornleigh & Co when he employed Winsor. But Thornleigh & Co was a partnership between Peter and the Monie Company – Jennifer and Sam were not partners in it, only shareholders in the Monie Company. There was no evidence that in any other way Jennifer or Sam requested Peter, either expressly or impliedly, to act for them in engaging a station hand. In those circumstances, any contributory negligence on the part of Peter was not engaged in on behalf of either Jennifer or Sam. 95 I have given consideration to whether it could be said that Jennifer and Sam were bound by Peter's act of hiring Winsor, through ratification. While it is true that Jennifer and Sam knew and accepted that Peter had hired Winsor, and lived and worked alongside him in the weeks following his hiring, it is not shown that Peter had any actual authority, at the time of the hiring, to act on their behalf in hiring Winsor. As well, it is not as though Peter was purporting to act on their behalf in hiring Winsor. Any question concerning ratification arises only when A lacked actual authority to act on behalf of B at the time A acted, but later it is alleged that B is bound by (or can take the benefit of) A's action. But before there can be ratification of A's action by B, it is necessary for A to have purported, at the time of acting, to be acting on B's behalf: Keighley, Maxsted & Co v Durant [1901] AC 240; Dal Pont, Law of Agency (2001) para [5.7]–[5.8]. That is not the case here. The action of Jennifer and Sam in living and working alongside Winsor is no more ratification of Peter's action in employing Winsor than is the act of any employee who works alongside a fellow employee who the employer has chosen negligently. 96 The appellants also attack the trial judge's conclusions that (a) Peter engaged in any contributory negligence at all, and (b) that any contributory negligence on Peter's part should be assessed as high as 33⅓%. 97 In considering the trial judge's decision concerning contributory negligence, I bear in mind the reticence that an appellate court should ordinarily exercise before it alters a trial judge's assessment concerning contributory negligence: Manly Council v Byrne [2004] NSWCA 123 at [103]-[105] and cases there cited. 98 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494, 59 ALR 529 at 532-533, five members of the High Court set out the basic principle: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 99 It can be accepted that Peter's questioning of Winsor was perfunctory. It can also be accepted that Peter did not ask questions that a prospective employer who was acting with reasonable care for his own interests would have asked. Such a prospective employer would have made some enquiries about Winsor's previous experience, and in particular whether he had the skills or experience needed to carry out the particular job that was on offer. It appears from the schedule to the Jobstart individual agreement that the work that Winsor was expected to perform included stock work, welding, fencing, tractor driving, horse riding, repairs and maintenance. While Peter could, and did, observe quite quickly that Winsor had the appearance of being clean and very respectable, that could not have been enough to satisfy him that Winsor had the particular skills that were needed for the job. Those skills were ones that it could not be assumed that any able-bodied young man would have. In engaging Winsor without enquiring into these matters, Peter showed some carelessness for his own interests. However, the interests concerning which he showed carelessness are his economic interests, in that as a result of not enquiring about those matters he might have agreed to employ, and pay, a man who was not well suited to the job. The type of carelessness for a plaintiff's own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained. In fact, the failure of Peter to question Winsor concerning the particular experience and skills he had is not shown to have been causally connected to the particular type of loss that Peter suffered. There was no evidence of Winsor turning out to lack needed skills, or in any other way to be unsuited to the job, in the period he worked at Thornleigh prior to the shooting. 100 The particular type of injury that Peter suffered was of a most unusual kind, involving Winsor engaging in acts of gratuitous and, on the evidence, totally unprovoked violence of a very serious kind. It is such an unusual type of injury that in my view it is not likely to occur to a prospective employer that someone sent to him to fill a job might have a history of criminal violence that could result in such injuries, unless the prospective employer already had reason to believe that the person sent to him might have a criminal history. In this respect, the particular risk that came home is well removed from the sort of risk concerning which a finding of contributory negligence is frequently made, such as when a pedestrian crosses a road without looking properly, or someone accepts a ride in a motor vehicle driven by a person noticeably affected by alcohol. 101 I do not accept that reasonable questioning by Peter of Winsor is likely to have elicited the information that Winsor had been in gaol. Even though I accept that Peter ought to have been aware that some one sent to him by the CES might have been out of work for a considerable period of time, it does not follow that Peter, taking reasonable care of his own interests, ought to have specifically asked Winsor whether he had been in gaol and, if so, for what. Nor do I accept that a prospective employer, taking reasonable care of his own interests, is likely to have enquired about what Winsor was doing during periods when he was not in employment. While there were certain specific skills that someone who could satisfactorily fill the job would need to have, a reasonable prospective employer is likely to have been interested in whether the applicant had those specific skills, not in what the applicant was doing during the time when he was not exercising those skills. The substance of the trial judge's finding is that if Winsor had been asked a direct question about whether he had been in gaol, he would have answered the question truthfully, but he would not have volunteered the information. I accept that it is within the realm of possibility that a reasonable employer in Peter's position might have asked Winsor what he had been doing immediately before his present job at the Oxford Hotel, because sometimes information about how long an applicant has held down jobs, and what were the circumstances of his leaving a job, could provide an indication of the reliability of the applicant. However, I do not accept that it is likely that a reasonable employer in Peter's position would have asked questions that elicited the fact that Winsor had been in gaol. 102 The culpability element in contributory negligence is concerned with a situation where the conduct of a plaintiff is a cause of the particular damage that the plaintiff has suffered. The culpability element enquires whether the plaintiff's carelessness for his or her own interests means that to some extent the plaintiff can be blamed for the injuries he or she has suffered. In some cases, if the failure of a plaintiff to take reasonable care concerning one type of interest that the plaintiff has is a cause of the plaintiff suffering damages to some different type of interest, the culpability of the plaintiff will not be as high as it would have been if the plaintiff had failed to take reasonable care concerning the very type of interest in relation to which he has suffered loss. However, in circumstances where I am not satisfied that the causal element is made out, it is not necessary to consider culpability any further. 103 I conclude that the Commonwealth has failed to establish that Peter has engaged in any contributory negligence at all. PART C – DAMAGES Quantum of General Damages of Peter 104 The trial judge assessed Peter's general damages at $150,000, inclusive of interest. The appellants submit that that assessment is inadequate. There is no cross-appeal concerning Peter's general damages. The Trial Judge's Reasoning 105 The trial judge's reasoning concerning Peter's general damages was as follows: 131 … He was born on 7 November 1928, so he was sixty-four years of age when shot. He had been treated since 1977 by Dr Wakeford, physician. There was a family history of vascular disease. His mother died of hypertension at seventy-two years of age and his father of a coronary occlusion at fifty-seven years of age. Mr Monie had been a smoker but had stopped about ten years before seeing Dr Wakeford. The position in 1977 was that if he ran he suffered palpitations and shortness of breath. He used to suffer aches in his arms, relieved by Disprin. He was tense and worried about the rural economy. Essential hypertension, that is, hypertension without any specific cause, was diagnosed. Mr Monie saw Dr Wakeford regularly from then on. In 1986 a high tibial osteotomy was performed and a pulmonary embolus developed. In 1993 he underwent bilateral total knee replacements. Throughout this period his blood pressure was controlled by drugs. The diastolic reading ranged up to 110. Throughout the whole period he was mildly disabled by back pain, for which he consulted a chiropractor. 132 One of the bullets fired by Mr Winsor struck Mr Monie's right wrist, causing a compound comminuted fracture of the distal ulnar. There were incomplete ulnar nerve palsy and other associated effects. A second bullet penetrated the right cheek and shattered the first molar in the lower jaw. The third and fourth bullets caused mainly subcutaneous injury to the right shoulder and left arm, though there may have been muscle damage. There were entry and exit wounds at those sites. At Tamworth Base Hospital a bullet was removed from the wrist and the right forearm was plastered. Mr Monie remained in hospital until discharged home on 22 June. After allowing time for the facial injury to heal, a dentist removed the roots of the shattered tooth in September 1993. 133 On 19 October 1993 Mr Monie awoke unable to move his right hand. He was dragging his right foot and had a fall. Small hypertensive strokes were diagnosed and because the symptoms did not persist the incident was called a Transient Ischemic Attack (TIA). Dr Wakeford thought that the TIA was causally related to the shooting. I accept his opinion. 134 In the meantime the wrist injury had been slowly healing. By 1995 Dr Davis, orthopaedic surgeon, thought that the condition of the wrist was static. Although the ulnar fracture was not soundly consolidated he thought that it would not cause much of a problem. The continuing disability was due mainly to the damage to the ulnar nerve. There was loss of use of the first and little fingers of the right hand and less power in the hand. There was a loss of sensation in the hand. Dr Davis assessed the permanent impairment of the right arm below the elbow at 30 per cent. I accept that assessment. 135 Mr Monie suffered a further TIA in June 2000. He was admitted to hospital with mild right hemiparesis. Ischaemic changes were seen on a scan and Warfarin was prescribed. Mr Monie remained on that drug until December the same year. In view of the good control that had been maintained over his hypertension over a period of more than seven years since the shooting it is difficult to relate these events to the shooting. Mr Monie was then seventy-two years of age with a history of many years of hypertension. I think that he would probably have suffered the TIA in any event and am not satisfied that the shooting contributed to them. 136 Mr Monie suffered substantial psychological damage. I accept the evidence of Mrs Monie that he became fearful and that he required additional security to be installed at the homestead and that the curtains be drawn. According to Dr Jungfer, psychiatrist, Mr Monie is a stoical person who suffered an acute stress reaction to the shooting. By the date of her first report, 28 May 2002, she considered that the symptoms qualified for post traumatic stress disorder. There were intrusive recollections, difficulty sleeping, mood instability, hypervigilance and an exaggerated startle response. Mr Monie had withdrawn from society and lost interest in activities. I accept the diagnosis. I accept that his condition is permanent and that he will not experience any substantial resolution of his symptoms. It is possible that he can be taught to be less anxious, though one cannot be confident about that. 137 Before the shooting Mr Monie could not run, squat, ride or perform any heavy duties because of his several disabilities. The shooting disabled him further, though he could still carry out some tasks. In view of these matters and taking into account Mr Monie's age and the vicissitudes of life, I assess his general damages at $150,000.00 inclusive of interest." Was the Second TIA Caused by the Shooting? 106 The appellant attacks the trial judge's finding that the second TIA was not shown to be causally related to the shooting. Considering that submission involves examining all the evidence on the topic. 107 Dr Peter Wakeford reported on 24 September 2001: "He was under considerable stress following the attempted murder. The stress was related to suspicion thrown onto his son who later left home for a prolonged period, the problem of lack of information available from the Commonwealth Employment Service in relation to the past employment history of the employees who fired the shots, uncertainties created by an injury to a witness under suspicious circumstances and his physical and emotional disability which has made his life and work difficult. Whilst his blood pressure did remain reasonably controlled during this period he had a number of episodes of transient ischaemic attacks which more probably than not were related to the period of prolonged stress superimposed on a cardiovascular system damaged by his prolonged history of hypertension since the 1970s." 108 In a report on 22 January 2006, Dr Wakeford explained the causal mechanism through which he saw a connection between the shooting and the TIA: "His TIA and subsequent L cerebral infarct were, in my opinion, more probably than not, related to the period of stress caused by the shooting, superimposed on a vascular system damaged by a history of hypertension since the mid-1970s. Acute stress causes Catecholamine release with elevation of blood pressure, pulse rate, platelet adhesiveness and lipid levels. Chronic stress/Post Traumatic Stress Disorder causes complex interactions between psychological, social and biological processes with unusual patterns of neurohormonal secretion of Cortisol, Norepinephrine and Dopamine." 109 The "L cerebral infarct" there referred to was the condition with which Peter presented to Dr Wakeford on 26 June 2000. In the reports it is sometimes referred to as being the "second TIA", and sometimes (with a looser use of language than is really accurate) as the "second stroke". 110 Dr Geoffrey Hibbard, a consultant physician, gave a report on 4 October 2001 to the solicitor for the defendant, in which he expressed the view that the October 1993 TIA was related to the shooting episode. He expressed no view, however, about the second TIA, even though it had happened by that time. 111 Dr Stephen O'Mara, a consultant haematologist and physician, had treated Peter approximately two years before December 2005 for a haematological problem. He gave a report to the plaintiff's lawyers on 14 December 2005. He reports: "He had his next stroke in the year 2000 which led to some more right arm weakness but, more importantly, led to right leg weakness. Since that time he has had an explosion in the number of antihypertensives he has been on … In addition, Peter has had a loss of memory over the last four to five years following the last stroke and he is not oriented to time, place or date any more but has a degree of orientation to previous premiers and previous events, but not very good recollection of current events … I performed a clinical examination in regard to his neurological problems and found that he was unable to undress and he needed assistance to undo the buttons on his shirt. He also needed assistance to get his trousers off and taking his shoes and socks off. He had similar problems dressing. Clinically, on examination, he also had a clumsy right hand but without any definite loss of power suggesting that the loss of function of his right hand could be as much due to the injury to the right wrist as it was to his previous strokes. He is not hyperreflexive in the upper limb but is hyperreflexive on the lower limb with a trading of his right leg. I feel that the leg weakness is due to the stroke but I feel that the upper arm limitation is as much due to his previous gunshot injury to his right wrist as it is to any neurological cause." 112 Dr O'Mara recognised that by then Peter had other medical problems. He had a monoclonal gammopathy, that gave a 20% risk of him having some form of myeloma or bone marrow cancer within the next ten years, but that condition was stable. He had diabetes. As well, he had dementia. Dr O'Mara thought that the dementia was multi-infarct, likely to be progressive over the next five years, and that its basis was probably hypertension. He concluded: "… Peter has a significant upper limb disability which is as much due to his gunshot injuries to his right wrist and left shoulder as it is due to his stroke. He has a lower limb disability which I think is due to his previous stroke… In terms of the cause of hypertension, it is quite possible that the stress associated with both the injury and the ongoing legal action is likely to have contributed to his hypertension as we know that anxiety has the effect of increasing various stress hormones leading to hypertension. Peter's strokes are likely to be sub cortical or lacunar infarcts which are certainly associated with hypertension." 113 At the request of the Commonwealth, Peter was examined in December 2005 by Professor Wilkhen (a cardiologist), and by Dr Hibbard (a general physician). The Commonwealth did not tender any reports from those doctors. 114 Dr Wakeford was the only medical practitioner who had reported on Peter's physical condition who was cross-examined. It was put to him in cross-examination that the event of 26 June 2000 was related to Peter's long-time high blood pressure and cardiovascular condition. The following evidence ensued: "A. Not necessarily. Q. That's most likely, isn't it? A. Anybody who has blood pressure is at risk and I have pointed that out in my reports. He had an underlying risk. He had another episode following the gunshot wound and subsequent stressors with recurring stress after that which I thought, my opinion was more probable than not that contributed, but I'm not denying he has underlying blood pressure and that is a factor in the development of TIA or stroke. Q. I would suggest to you that given the time distance between the shooting episode in June of 1993 and the episode in 2000 it is more likely that what happened in June 2000 is completely unrelated to the shooting in June of 1993? A. My opinion would differ because this man was subjected to tremendous stress after this and it was not what you would call normally experienced stress. If you have acute episodes of stress for about 10 minutes afterwards with the release of hormones in the body you can get elevation of blood, increase in pulse rate, increased stickiness of platelets, increase lipids or fats in the blood stream. The difficulty is that this man had chronic ongoing, in my opinion a chronic ongoing stress. The word post traumatic stress syndrome has been used, not by me, but I think that's a relevant statement. The work on post traumatic stress disorder was done mainly with the military. It's been recognised now as occurring more in civilian situations. It is a complex area but what happens in these people is they do have complex exertions of various hormones which continue to cause these signs that I mentioned earlier in relation to acute effects. Q. Doctor, as I understand what you just said these episodes like the one brought on in June 2000 can be brought on by combination of conditions including stress? A. I'm talking about specific level of stress, yes, which is beyond the expectations that a person might experience. Histories, for example, his stress with his son when he came home, that's stress level sure but it pales in comparison to the stress level associated with the events of the shooting which are well documented. Q. But he had other stressors in his life after the shooting incident, like the death of his son, Michael? A. Yes, but I think the point I'm trying to make is that there is differences between that and the effects of overwhelming experience as stress. The death of a son, yes. He had been ill for sometime. The problems associated with the land, the rainfall, the prices, worrying at night about the bottom line, et cetera, those are stressors we all have and, yes, they can contribute to transient problems -- HIS HONOUR: Q. Were you continuing? A. No, I will stop there." 115 In re-examination he was asked what he had meant by the term "overwhelming experience" used in that cross examination. He replied: "A. A man is at home on his own, he's shot four times, it's 8 o'clock at night, I can only just visualise someone scrambling around to get out of the direction of the gunshot, get a light out, get a telephone, and wondering if he'll be dead the next time. Subsequent to that, there was the stress associated with his son being on the accused list, the bailing of the assailant and living 70 k's out of Inverell and 32 k's out of Bingara with inability to get any supervision from the police in case this recurred. The subsequent events of the trial, the disappearance of a counsel over a balcony with significant injuries, and the fear that this engendered. Also the disruption of the family in relation to the elder son. All these things I would suggest are different from the normal pattern of stress that we experience. Even the death of a child who has been ill." 116 There was no medical evidence that took a different view to that taken by Dr Wakeford about the causal connection between the shooting and the second TIA. The trial judge made no criticism of the evidence of Dr Wakeford. There was no challenge to Dr Wakeford's qualifications, and no cross-examination of Dr Wakeford that in any way could have reflected on his credit. 117 The second TIA has marked a significant decline in Peter's condition. As well as the matters referred to in Dr O'Mara's report, the TIA affected his driving and, after a period when his licence was completely taken away from him at the instigation of his general practitioner, he was given a restricted licence, limiting him to driving within a 10 km radius. 118 The element of the tort of negligence that requires the negligent act to cause damage can be satisfied even if the negligent act is one of a number of conditions that together are sufficient to produce that damage: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509, 521-522, 530. The evidence in the present case supports the conclusion that both of the TIAs that Peter suffered were a consequence of the combination of: his vascular system being weakened through years of hypertension; the stress he endured at the time of the shooting; and the subsequent events of the shooting as listed in Dr Wakeford's oral evidence (see para [115] above). In my view, the trial judge was in error in concluding that he probably would have suffered the second TIA in any event. That error is one that was taken into account in the trial judge's assessment of Peter's general damages, in a way that cannot be disentangled. In consequence, it is necessary to re-assess Peter's general damages. 119 The appellants submitted that the quantum of general damages arrived at by the trial judge was manifestly too low, and that appellate intervention is warranted on that ground alone. When re-assessment is necessary because of the trial judge's finding concerning causation of the second TIA, it is not necessary to consider that submission. Peter's Pre-existing Medical Condition 120 Peter's vascular system was in such a condition that he was at risk of suffering one or more TIAs, even if the shooting had not occurred. However, once the causal connection has been recognised between the shooting and the second TIA, the principled way of allowing for the possibility that he might have suffered one or more TIAs regardless of the shooting, and that left him in as bad a condition as he now finds himself, is by taking account of that possibility as a factor entering into the overall assessment of his general damages. 121 Peter had some significant medical problems before the shooting. The more significant ones were mentioned by the trial judge in para [131] of his judgment, quoted above. In addition, he had always had problems sleeping. In 1991 he was taking medication and sleeping with the head of his bed elevated for oesophageal reflux. His pre-existing medical conditions were likely to have caused him some discomfort, restriction of activities, and distress as he aged, even if the shooting had not happened. The task in assessing general damages is to pick a figure that puts a value on the extent to which he has had increased pain and suffering and loss of enjoyment of life as a consequence of the shooting, beyond what he was likely to suffer if the shooting had not occurred. Date As At which Re-Assessment of Peter's General Damages Occurs 122 A question arises concerning as at what date Peter's general damages should be re-assessed. The time as at which general damages for personal injury should be assessed is, prima facie, the date of award: O'Brien v McKean (1968) 118 CLR 540 at 545; Baker v Willoughby [1970] AC 467 at 490-491, 496; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis Butterworths 2006) para [4.8]. 123 This appeal is by way of rehearing: section 75A(5) Supreme Court Act 1970. On such an appeal, the members of the Court consider for themselves the issues that the trial judge had to determine, and the effect of the evidence that he or she heard (as it appears in the record of the proceedings), applying the law as it is when the appeal is heard not as it was when the trial occurred: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, at pp 208-209; Coulton v Holcombe (1986) 162 CLR 1 at 7. If the appellate court decides that the trial judge has erred in a matter relating to assessment of damages for personal injury, and that it must substitute its own conclusion for that error, that involves, in substance, a new award being made by the appellate court, to the extent that re-assessment occurs. The principle concerning the time as at which the damages should be assessed that was stated in O'Brien should be applied to the new award. Thus, to the extent that the appeal court substitutes its assessment for that of the trial judge, that assessment should, prima facie, be made as at the date of the award in the appeal court. 124 One consequence of this conclusion is that if a statute fixes the maximum amount of damages that can be awarded for some particular head of damage, and that amount increases between the date of the trial and the date of the appeal, the appellate court makes a re-assessment by reference to the maximum amount of damages that is current at the date of the appeal: Marsland v Andjelic (1993) 31 NSWLR 162 at 168 (this aspect of the decision was not challenged on the appeal to the High Court – Andjelic v Marsland (1996) 186 CLR 20 at 29); Nicholson v Nicholson (1995) 20 MVR 186; Brogan v McGeary (1995) Aust Torts Reports ¶81-342 at 62,424. 125 There is another factor that supports this conclusion. If an appellate court decides it is appropriate to admit fresh evidence on the appeal, but that it is appropriate for the appellate court itself to determine the quantum of damages on a basis including that fresh evidence rather than send the matter back for a new trial, the court is necessarily deciding the matter by reference to evidence that is different to the evidence that was available to the trial judge, and evidence that deals with facts at a date that is later than the trial. Likewise, if the appellate court sends the matter back for a new trial, any assessment of damages that is made at that new trial will be made as at the date of the award in the new trial, not as at the date of the original trial. Thus, in these situations, the outcome of an appeal can be that damages come to be re-assessed as at a date different to the date of the trial. Consistency suggests that, even when the appellate court assesses damages on the basis of only material that was before the trial judge, it should ordinarily make its award with damages being assessed as at the date of the award on the appeal. 126 This conclusion accords with the decision of Brooking JA (with whom Hayne JA agreed) in GEF Packaging Services Pty Ltd v Turner (Victorian Court of Appeal, 5 September 1995, unreported). His Honour said, at 6-7: "An assessment of damages for personal injuries is made by having regard to the purchasing power of the currency at the date of the award: O'Brien v McKean (1968) 118 CLR 540 at 544-545 per Barwick CJ, at 553 per Taylor and Menzies JJ and at 559 per Windeyer J; Ruby v Marsh (1975) 132 CLR 642 at 647 per Barwick CJ and at 665 per Stephen J; Wright v British Railways Board (1983) 2 AC 773 at 777-778 per Lord Diplock; Johnson v Perez (1988) 166 CLR 351 at 356 per Mason CJ, at 373-376 per Brennan J, at 381 per Deane J and at 387-388 per Dawson J; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663. Accordingly, the appellate court, while having regard to the value of money at the time of the challenged award in considering whether it should be set aside as excessive or inadequate, will, if it comes to re-assess damages, do so in the light of the value of money at the time of the re-assessment: Meade v Mantell , an unreported decision of the Court of Appeal of New South Wales given on 27 March 1975. There the judgment below was 28 months old and the purchasing power of money had declined substantially in the meantime. Similarly, in Beneke v Franklin (1975) 1 NSWLR 571 (another decision given during the same period of very high inflation) Moffitt P at 587-588 and Samuels JA at 613-614 both accepted that, if damages were to be re-assessed by the Court of Appeal, it would be necessary to have regard to the value of money at the time of the re-assessment. That damages must be re-assessed on appeal by having regard to the value of money at the time of the re-assessment is recognised by Professor Luntz, Assessment of Damages for Personal Injury and Death, 3rd Ed, para 12.1.2 and para 12.2.8, who regards this is the consequence of the principle that the assessment of damages must be in the money of the day." See now Luntz, Assessment of Damages for Personal Injury and Death , 4th ed, paras 12.1.2 and 12.2.8. 127 But it should be recalled that the principle stated in O'Brien is only a prima facie rule. There are some other factors that, in a particular case, might mean that the preferable methodology for achieving the ultimate aim of assessment of damages for a tort that causes personal injury, namely to provide compensation for the extent to which the condition of the plaintiff is worse than it was likely to have been had the tort not been committed, is better achieved by the court making the assessment as at the date of the trial. One factor that tends in that direction is that most damages appeals are conducted using only evidence that relates to the condition of the plaintiff up to the date of trial. That factor may have different weights depending on matters like how long has passed between the date of trial and the date of appeal, how inflation has been running in that time, and whether the task on assessment is of the more impressionistic kind involved in assessment of general damages or the more (though far from completely) mathematical approach that is involved in assessment of damages for loss of earning capacity. Another related factor is that there is a difference between the rate of interest that is allowed on a judgment under the court rules, and the rate of interest that is allowed on the pre-assessment component of general damages in accordance with MPB (SA) Proprietary Limited v Gogic (1991) 171 CLR 657. In Nicholson v Nicholson Kirby P (with whose orders Mahoney and Meagher JJA agreed) considered a case under the Motor Accidents Act 1988, where the maximum damages that the statute permitted for non-economic loss had risen between the date of the trial and the date of the appeal, and the trial judge had made an order for damages in the plaintiff's favour. The Court of Appeal made an order that substituted the assessment of the Court of Appeal for that of the trial judge, but backdated it to take effect from the date of the orders of the trial judge. Kirby P (at 186) said of such an order: "This is an ordinary order which is made by the court where, in damages appeals, it substitutes its assessment of a plaintiff's entitlement for that of the trial judge. The purpose of providing in such terms is to permit a plaintiff to secure the benefit of interest upon the sum found to be proper as from the date of the original judgment so that the plaintiff is not penalised by loss of interest by reason of an established error and the passage of time." 128 That practice of backdating a variation of an order made in favour of a plaintiff has subsequently been followed in this Court in NSW Insurance Ministerial Corporation (formerly GIO of NSW) v Gomes (No 2) (NSW Court of Appeal, 3 December 1998, unreported) and Brogan v McGeary at 62,424 (to give only two of many possible examples). 129 If an appellate court re-assesses damages at the date of the appeal but backdates it to take effect from the date of the trial, that can itself require careful attention to be made to how interest runs on that backdated amount. For example, if the maximum amount of damages that a statute permits to be awarded for a particular head of damage has increased between trial and appeal, the running of interest on the backdated amount may need to be adjusted to take account of the maximum amount of damages that was able to be awarded from time to time: Nicholson. If there has been significant inflation between the date of the trial and the date of the award of the Court of Appeal, and that inflation is a significant reason for the increase in the award that is made by the Court of Appeal, that may provide a reason for no interest to run on the judgment between the trial and the appeal: Meade v Mantrell (NSW Court of Appeal, 27 March 1975, unreported) at 6. Generally, the court would need to take care that the effect of backdating to the date of trial an award of damages made as at the date of the appeal was not to provide an element of double compensation. Obviously, any part-payments that had been made to the plaintiff would need to be taken into account in how interest ran. 130 Similarly, if an appellate court decides to re-assess only one element of an award of damages, care would need to be taken in formulating any order concerning the running of interest on the award. In particular, it may be necessary to consider whether interest should run from the date of the award below on those elements of the assessment made by the trial judge that remain unaffected, but from the date of the award in the appellate court on those elements that have been quantified by the appeal court. The course that will be taken in deciding from what date interest should run for each of the different figures, will be guided by the fundamental principle that an award of damages aims to be compensatory. In giving these examples of how the running of interest on the amount of any award might be affected by the date as at which the assessment is made, and whether the award is backdated, I am not seeking to be exhaustive. 131 In the present case, where no award of damages has been made by the trial judge, and where the component of damages that I am now considering is damages for non-economic loss, it is, in my view, not necessary to backdate the running of interest on any general damages assessed to the date of the trial judge's order. 132 It also should be recognised, however, that the practicalities of the time taken for judgment production mean that no great precision can be achieved in fixing a date as at which damages are assessed. For example, in the present case some months will pass between the time of the hearing of the appeal and the time of delivery of this judgment. It seems to me that the principled way of dealing with this is to fix a date, as close as is practical to the date of the award, for assessment of the damages, and then make an order for interest that allows for any lapse of time between the date chosen as being the date as at which assessment will be made and the date of the actual order. Hence, I propose to assess the damages as at 15 June 2007, on the basis that that is exactly 14 years after the date of shooting, and fairly close to the date on which order will eventually be made. Re-Assessment of Peter's General Damages 133 Peter has lived with the consequences of the shooting for 14 years to the date of assessment. He was, at that date, aged 78. According to a table entitled "Medium Life Expectancies, Australia, 2006" that was provided to us by counsel in the course of the hearing, a 78-year-old male is expected to live, on average, for another 10 years. 134 The trial judge's summary of the psychological effect of the shooting on Peter, while accurate, does not convey its full extent. The horror of being stalked and shot repeatedly in his own home, by an invisible assailant, has produced permanent changes in his personality and behaviour. He has become more introverted, more self-centred, unwilling to be alone, dependent, extremely conscious of physical security in the house, wary of strangers, and has continued to have nightmares about the shooting. He had worked all his adult life on Thornleigh, and derived much of his satisfaction and sense of worth from being a hard-working farmer who was active and respected in his local community. His reduced physical ability to work following the first TIA, combined with some memory loss, was a significant contributing cause to him ceasing active work earlier than he otherwise would. Even now, he sometimes goes around the farm and looks at some of the stock, but the running of the stock long ago ceased being his responsibility. Overall, the shooting has cast a pall over the final decades of his life. 135 Counsel for both parties accept the damages in the present case should be calculated on common-law principles, and are not subject to any limitations arising from statute. 136 In assessing general damages for Peter's past pain and suffering and loss of enjoyment of life, the court seeks to put a value on the extent to which his conditions of life, in consequence of the shooting, are worse than they are likely to have been if the shooting had not occurred. In forming this assessment, the court needs to take into account what the likely consequences of his pre-existing medical conditions would have been, if the shooting had not occurred. Damages are awarded only for the extent to which the shooting has made his conditions of life worse than it was likely to have been absent the shooting. I would assess Peter's general damages for the past consequences of the shooting at $125,000. 137 Interest should be added to that sum. The usual rate for interest on past general damages is 4%: Gogic; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54. If the damages accrue at an even rate through the past period, interest can be calculated in a way that recognises that the damages accrue evenly by applying 2% to the entire sum of damages for the entire past period, or applying 4% to half the sum of damages for the entire period. In the present case, somewhat more of the damages accrued in the earlier part of the 14 years that passed up to the date of assessment. That is because there has been, with time, some alleviation of Peter's psychological symptoms, though that alleviation is far from total. An adequate way of allowing for that discrepancy in the rate at which damages have accrued is by allowing interest at 2½% on the entire sum for the entire period. The amount for interest on past general damages is therefore $43,750. 138 I assess damages for future loss at $60,000. It is, it seems to me, appropriate to recognise that, the older Peter became, the more it was likely that his pre-existing medical condition would have inhibited his activities and enjoyment of life, even if the shooting had not occurred. When damages are awarded as compensation for the difference between the circumstances in which Peter finds himself in consequence of the shooting, and the circumstances in which he was likely to have found himself if the shooting had not occurred, the increased likelihood of his pre-existing medical condition inhibiting his activities has the effect of depressing the level of damages for the future by comparison with the level of damages for the past. 139 I would assess the figure for Peter's general damages as the sum of the figures for past loss, interest on past loss, and future loss, namely $228,750. Peter and Jennifer's Economic Loss 140 The appellants' case at trial was that they had suffered a significant economic loss because the shooting prevented the carrying on and development of a cattle stud that they were in the process of developing. Most, but not all, of the stud herd was sold at dispersal sales conducted on 21 April 1995 and 9 October 1995. 141 The extent of the dispersal sales can be gauged from the following table: Fin Year Closing Stock Numbers Head Sold 1990 543 1991 574 86 1992 600 92 1993 569 56 1994 532 124 1995 242 346 1996 192 114 1997 194 52 1998 191 36 1999 230 43 2000 270 35 2001 240 26 2002 280 46 2003 294 38 2004 366 60 142 The extent of the dispersal sales can be seen in the reduction from the closing stock number of 532 for the 1994 tax year to the closing stock number of 192 for the 1996 tax year. Thus, over that period, the stock was reduced to about 36% of what it had previously been. However, there has been a gradual build-up of stock numbers ever since then. 143 The trial judge made the following findings about the development, and eventual significant winding back, of the stud business: "141 … Throughout the 1970s and 1980s the business had consisted mainly of grazing cattle. Some of the cattle were registered stud animals. In addition there was some grazing of sheep and some cropping. Mr S Monie wanted to develop the stud side of the business. He left school after the HSC in 1985 and after a year jackarooing completed certificates in artificial insemination and pregnancy testing in animals. He established contacts with studs in Australia and overseas. In 1990 he visited Canada and the United States of America, staying for eight or nine months and studying methods of stud management. He did this, he said, with the encouragement of Mr P Monie, who told him that he would like to improve the Thornleigh business. Mr S Monie purchased the rights in Australia and New Zealand to the use of semen in three particular Hereford bulls. He imported semen. Later he acquired rights over a fourth bull. Semen so imported was used to inseminate Thornleigh cattle and the improvement of the herd began. Records were kept. In 1994 Mr S Monie visited Canada once again to pursue his contacts. He sold semen that he had imported. His intention in June 1993 was to continue to improve the herd and develop a highly rated stud business. 142 However, Mr P Monie was not as enthusiastic as Mr S Monie about the development of the stud. In December 1992 Dr Wakeford, concerned about the stressors affecting him, wrote to his general practitioner, Dr Gassner, saying - I gather there's a bit of tension in the family with the older son at home having been up to the Northern Territory and wanting to do all sorts of things on the place that an older and wiser counsel would defer. 143 That was no idle comment. Dr Wakeford thought that the tension was high and was writing about it because of its effect on Mr P Monie's health. 144 Neither Mr P Monie nor Mr S Monie was prepared to accept in evidence that there was such tension over any differences of opinion they might have had. I think that the tension did exist and that it was significant. I think that the differences of opinion were significant. I think that it was far from settled that Mr P Monie was going to agree to the continued development of the stud side of the business in the way Mr S Monie desired." 144 The net profit of the partnership was as follows: FINANCIAL YEAR NET PROFIT 1991 -43,074 1992 -40,864 1993 -23,168 1994 13,983 1995 81,672 1996 -10,845 1997 13,177 1998 -9,815 1999 -15 2000 13,731 2001 0 2002 0 2003 -39,227 2004 -156,986 145 The loss in the 2004 tax year is largely attributable to $146,471 being paid as partners' salaries. No partners' salaries had been paid at all up to the 2001 tax year. Partners' salaries of $2,340 and $10,920 respectively were paid in the 2001 and 2002 tax years. 146 The partnership was an enterprise that involved trading of sheep, cattle, horses, and stud cattle. The activities relating to horses were very small in the overall scheme of things. The accounts do not segregate out the expenses attributable to those four different strands of the business. Over the period from 1991 to 2000, sheep numbers were gradually run down, until no sheep remained at the end of the 2000 tax year. 147 The general picture that emerges is that the April 1995 dispersal sale caused a profit to arise in the 1995 tax year, and the October 1995 dispersal sale was not enough to prevent a loss arising in the 1996 tax year. The overall picture that emerges is that the partnership business was by and large a loss-making enterprise, that was able to make a profit only by sale of trading stock in a manner that resulted in a rundown in its stock numbers. 148 The evidence contains only some of the financial data that enables the indebtedness of the partnership from time to time to be ascertained. So far as the evidence shows, the indebtedness of the partnership was as follows: Financial Year Total Amount Owed Interest Expense $ $ 1991 398,778 54,150 1992 460,133 60,043 1993 511,409 57,169 1994 510,929 52,996 1995 480,105 59,171 1996 502,395 50,845 149 That table shows that the proceeds of the dispersal sales were not enough to make any significant reduction in the level of indebtedness of the partnership. 150 The trial judge's reasons for rejecting the case for economic loss based on development of the stud business was: "151 Mr P Monie's evidence was that his decision to sell the stud animals was a bad one. He blamed the decision on the shooting, which, he said, had led to his anxiety, sleeplessness and depression. I am not satisfied that the decision to sell resulted from the shooting. Well before June 1993 Mr P Monie had real reservations about taking the business in the direction desired by Mr S Monie. And Mr P Monie was constantly anxious about the business for other good reasons. The pastoral industry was experiencing a long drought. Mr P Monie had a history of low back, knee problems and swollen ankles. Those symptoms, perhaps with his advancing age, resulted in what appears to have been a chronic difficulty with sleeping. It was while he was under the burden of such pressure that he confided to Dr Wakeford at the end of 1992 how worried he was about the proposed expansion of the stud. Of course, the shooting could not have alleviated his anxiety, but its effects have been exaggerated. I am not satisfied that by April 1995 it had any effect upon Mr P Monie's decision to sell the stud animals. I think he sold them for reasons that had been bothering him for a much longer time. I think that he would have sold them in any case." 151 The trial judge assessed economic loss on a different basis altogether, as follows: "153 Mr P Monie was 64 years old when he was shot. He would probably have continued to work for a few more years. His business, however, was unprofitable except in the year in which he sold the better part of the stud animals. The business needed subsidies of one kind and another to keep going. 154 Things would have looked up, of course. The seasons did improve and I think that it might be said that for the remaining few years of Mr P Monie's working life Thornleigh probably suffered a modest economic loss from the disability directly resulting from the shooting. It is all in the past but impossible to calculate. I estimate it at $20,000.00 inclusive of interest. That allowance must be divided between Mr P Monie and Mrs Monie. The Articles of Association of the company and the Partnership Agreement between it and Mr P Monie give no firm idea of the proportions in which benefits might have been distributed between him and Mrs Monie. All is in the end left to discretion. I shall divide the assessed amount equally and allow Mr P Monie $10,000.00." 152 By its cross-appeal, the respondent challenges the award of any damages for economic loss at all. 153 Sam's account, in evidence in chief, of the reason Peter gave him in August 1994 for wanting to run the stud down was: "I just want to disperse the stud and just get rid of our workload. There is so much work involved in the stud". 154 That is consistent with what Peter told Dr Lee in 2000, that the venture involving stud bulls and genetic material "was capital and labour intensive". 155 Sam's account, in chief, of the terms in which, at the end of 1994 or beginning of 1995 he asked his younger brother Ben to come back to the stud was: "Ben I haven't — I'm not handling things at Thornleigh very well, having a bit of trouble keeping face on the job. Obviously worried with stuff that's happened with Winsor and the fact he is out in Gunnedah. I want to offer you the job of taking over Thornleigh from me." Sam's account attributes two causes to his request for Ben to return to Thornleigh – his concern arising from Winsor was one, but "keeping face" was another. 156 I am not persuaded that the trial judge was in error in taking the view that he could not regard it as more likely than not that the stud venture would have continued at the scale of operations it had at the time of the shooting, if the shooting had not occurred. Particularly is that so when the business was loss-making and debt-burdened during the three years prior to the shooting, when Peter was of an age at which it is not unusual even for fit and active men to slow down somewhat, and when Peter had some medical problems that, while by no means incapacitating him, provided him with some physical restrictions. 157 Part of the basis on which the Commonwealth attacks even the award of damages for economic loss that the trial judge gave is by a submission that there was no evidence that "the seasons did improve". That submission is incorrect. Mr Peter Tremain, an agricultural economist who prepared an expert report for the plaintiffs, said: "After an initial fall between 1994 and 1997, there has been a strong rise in commercial cattle prices from 1997 to 2005, fuelled by: · herd rebuilding during the good seasonal conditions between 1997 and 2001 reducing slaughter numbers, · [several other factors]." 158 That provides a sufficient evidentiary basis for the trial judge concluding that the seasons did improve. 159 Another part of the basis on which the challenge to the assessment of damages for economic loss is made by the Commonwealth is that the business had in any event been loss-making. The trial judge's award is in substance deciding that if the shooting had not occurred there would have been sufficient improvement in the seasons to result in there being $20,000 profit available for distribution. I see no error in his picking that figure. It may be the case that he has under-compensated Peter for economic loss, because if there had been $20,000 profit available for distribution, not only would Peter have received (on the scenario the trial judge adopted) half of that $20,000, but would also not have incurred losses he in fact incurred. However, no appeal is brought on the ground that Peter's damages for economic loss are too low for that reason, so I shall not give that possibility any further consideration. 160 No other challenge is made to the assessment of economic loss at $20,000. 161 The Commonwealth also submits that no part of the economic loss found by the trial judge should have been awarded to Jennifer. The basis for that lies in some facts about the financial arrangements of the Monie family. 162 At the time of the shooting, there were 254 issued shares in the Monie Company. Two "A" class shares, with a face value of $1 each, were held by Peter. Two "B" class shares, with a face value of $1 each, were held by Jennifer. The remaining 250 shares were ordinary shares. They were held in five separate holdings, each of fifty shares. Each of those holdings was held by Peter and Jennifer jointly, as trustee for one of their children, such that each of their five children was beneficially entitled to fifty ordinary shares. 163 The "A" class shares conferred on the holder the right to cast four times the number of votes held by all the other shares, and the right to be governing director. The articles conferred on the governing director power, in practical terms, to do as he liked concerning the affairs of the company, save that the only right to dividend that he had was to a 5% fixed cumulative preferential dividend. The holder of the "B" class shares was entitled, in the events that have happened, only to a 5% fixed cumulative preferential dividend. Both the "A" class shares and the "B" class shares could be converted, at the election of the respective holders of those shares, into ordinary shares. 164 The articles made provision for the ordinary shares to be divided into eight separate groups, each of which was identified by share numbers. Any profits that it was decided should be divided amongst shareholders could be divided only by payment of the fixed cumulative preferential dividend to the holders of the "A" and "B" shares, with any other amount being paid to the ordinary shareholders. The governing director had power to decide that differential dividends should be paid to the holders of different groups of ordinary shares. 165 The Commonwealth submits that it is a consequence of those facts that there was no capacity to make a discretionary distribution of profits to Jennifer, as all she was entitled to receive from the partnership profits was a cumulative preference dividend on the $2 face value of the B class shares. 166 If they were the only relevant facts, the Commonwealth submission would be correct. However they are not the only relevant facts. 167 In 1996 Peter and Jennifer's son Michael died. In consequence, in 2001 the fifty ordinary shares held on trust for him came to be held as to twenty five by Peter, and as to twenty five by Jennifer. 168 On 27 March 2002 Peter and Jennifer each gave notice to convert their "A" and "B" shares into ordinary shares. On the same day, they each resigned as a director of the Monie Company, and Sam and Ben were appointed as directors in their place. On the same day, Peter and Jennifer each transferred their twenty seven ordinary shares in the company to Ben. 169 I infer that Michael's shares came to be distributed to Peter and Jennifer because they were beneficiaries of his estate. Michael had been, for many years, mentally disabled to some extent. He died aged 26. It would have been open to Peter, had he so desired prior to 27 March 2002, to distribute any partnership profits so that part of them were distributed as dividends on Michael's shares. If that happened, half of those dividends would eventually have flowed to Jennifer. There is no reason to believe that the ultimate destination of the assets in Michael's estate was not able to be known soon after his death, even though it took five years to distribute the shares. In these circumstances, I see no error in the trial judge's decision to divide the $20,000 economic loss equally between Peter and Jennifer. 170 The effect of so doing is to increase the total amount of Peter's damages to $238,750. 171 The reader will recall that the trial judge assessed the economic loss of Peter and Jennifer at $20,000 inclusive of interest. The appellants made no separate challenge to the trial judge having proceeded in this way, rather than actually assessing an amount of economic loss, as at a particular date, and then explicitly allowing interest on it. However, when that assessment is made as at the date of the judgment in the court below, the economic loss component of Peter's overall damages award should bear interest from the date of the judgment in the court below, namely 13 June 2006. Jennifer's General Damages 172 The trial judge awarded Jennifer general damages of $40,000. His reasons were as follows: "155 … She said that the shooting led to feelings of fear of others, particularly that Mr Winsor might return. She became agitated sometimes when driving or when alone. I thought that Mrs Monie gave a fair account of the effects upon her of the shooting and of the progress of Mr P Monie. While she undoubtedly suffered the emotional distress and anxiety one would have expected, I think that things went somewhat further and that she suffered symptoms of a recognisable psychiatric or psychological condition. She saw Mr Hadfield, psychologist, only twice, once in July 1995 and once in July 1997. Symptoms could not have been too serious for her not to need to seek assistance more often than that. No medicine was prescribed and there was no reference to any counsellor or psychiatrist. 156 I accept the evidence of Mr Hadfield that Mrs Monie suffered a resulting fear of the dark and of being alone and experienced increasing vigilance. I accept the evidence of Dr Jungfer, psychiatrist, that Mrs Monie developed an adjustment disorder with anxious features. She saw Dr Roldan for the defendant, who thought that she had suffered an adjustment disorder. Mrs Monie closed down a business that she had been conducting in Bingara because of the need to look after Mr P Monie, but there is no claim that she suffered loss as a result. There is no claim for domestic assistance for the care of Mr P Monie. 157 I do not think that Mrs Monie's illness was of the most serious kind. I would allow her general damages of $40,000.00 inclusive of interest. …". 173 The appellants do not appeal concerning this award of general damages. However, the respondent, by its cross-appeal, contends (a) the trial judge ought not have found that she suffered a recognisable psychiatric or psychological condition, and (b) in any event the quantum awarded is excessive. 174 The Commonwealth points to the undoubted principle that damages are recoverable in negligence only for a recognisable psychiatric injury; they are not recoverable for emotional distress, grief, sorrow, anxiety, annoyance, despondency, fright or embarrassment that is not part of a recognisable psychiatric injury: Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 at [7], 329 (Gleeson CJ); [44], 338-339 (Gaudron J); [193], 382 (Gummow and Kirby JJ). It submits that Jennifer has not established that she experienced "emotions any greater than those excluded by Gleeson CJ" (emphasis added). 175 That submission misunderstands how emotional distress, grief, and the other specific emotions listed earlier, fit into the law concerning liability for negligently inflicted nervous shock. It is incorrect to say that such emotions are not compensable, that they are excluded from the scope of the tort involved in negligent inflicting of nervous shock. Rather, such emotions are compensable only when they are part of a recognised psychiatric illness. It is common for such emotions to be on the list of criteria for the existence of a recognised psychiatric illness. For example, the diagnostic criteria for post-traumatic stress disorder, as listed in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed, (American Psychiatric Association) ("DSM-IV") p 439, include "the person's response involved intense fear, helplessness, or horror". 176 The Commonwealth submits that Jennifer never consulted a psychiatrist nor was prescribed medication as a response to the shooting; that she saw a psychologist, Mr Rob Hatfield, on two occasions; but apart from that had no counselling or other treatment. It submits that she performed her activities of daily living including looking after her husband "without any problems at all". It points out that a psychiatrist, Dr Leonard Lee, gave evidence at the trial, and expressed the view that he did not consider her to be suffering a psychiatric condition when he examined her, at the Commonwealth's request, in 2000 and 2005. 177 Though Jennifer was not present when the shooting occurred, she received the news soon after the shooting happened. She arrived at the Bingara hospital at the same time as Peter arrived, and saw him with a towel covering his face and a large amount of blood on his clothing and body. 178 Mr Hatfield, a psychologist, saw Jennifer on 19 July 1995 and 7 July 1997. At that time he formed the view that her symptoms met some of the criteria for post-traumatic stress disorder, though not all, and that "adaptational issues" were also present. He saw Jennifer again on 1 June 2002. At that time he noted loss of confidence indicated by her withdrawal from community leadership roles. He noted she "… does not feel safe, evidenced by suspicion of strangers who come to the house, the vigilance with locking the house and general security consciousness, reluctance to drive at night, and the fact that she draws the curtains during the daytime. She feels unsafe after dark especially in public places and does not like strange environments. … Jennifer suffers from intrusive thoughts. She goes over the events of the shooting and tries to imagine what it was like for Peter and how he coped and what was going through his mind. Certain cues give rise to these thoughts. They tend to intrude when she is in the laundry, lounge-room (where a bullet hole remains) or kitchen, when she is near the location when she first heard of the shooting, or when the sounds of an ambulance heard (accompanied by physiological responses within Jennifer) while she is in Bingara township. She copes with these thoughts by trying to distract herself as much as possible. Such episodes might last ten minutes and will be experienced as distressing if she is alone or distraction is not readily available. They occur about once a week. " 179 He concluded that her "… symptoms certainly include many listed for Post Traumatic Stress Disorder but some doubt is warranted as to whether their intensity and level of disturbance would satisfy strict interpretations of the criteria expressed by DSMIV. However … there can be no doubt that Peter and Jennifer have and are still suffering psychologically from their ordeal over many years." 180 Mr Hadfield regretted that Peter and Jennifer had not had any counselling. He expressed the view that the time that had elapsed since the original incident had led to the entrenching of some symptoms, and that from the time of "my first meeting with them in 1993, they do not seem to have been able to move on emotionally with their lives." 181 Dr Patricia Jungfer is a psychiatrist who examined Jennifer on 2 July 1998. Dr Jungfer's report includes accounts of numerous emotional effects on Jennifer of the shooting. Dr Jungfer's diagnosis was that her symptomology did not reach the severity criteria of a post-traumatic stress disorder or major depressive illness, but that she had an adjustment disorder with anxious features that resulted in a mild degree of impairment of functioning. 182 Dr Jungfer saw Jennifer again on 22 May 2002. By that time, an additional source of stress resulting from the shooting had appeared, in that Winsor's release from jail was imminent. The diagnosis remained that of a mild adjustment disorder with anxious mood. 183 Neither Mr Hatfield nor Dr Jungfer were required for cross-examination. 184 Dr Fernando Roldan, a clinical psychologist, saw Jennifer, at the request of the lawyers for the Commonwealth, on 19 June 2001. His report was tendered by counsel for the Monies. He reported that she had some residual symptoms of an adjustment disorder with anxious mood, though it was likely that the symptoms were mild, if not in some cases sub-clinical. 185 Dr Alex Apler, a psychiatrist, saw Jennifer on 12 December 2005. His diagnosis was also that of an adjustment disorder with anxious mood. 186 The pages of DSM-IV listing the diagnostic criteria for adjustment disorders were tendered in evidence. On a lay reading, the view is open that her symptoms fit within those criteria. 187 Dr Lee examined Jennifer, at the request of the solicitors for the Commonwealth, on 13 October 2000. His report concludes: "She describes feeling distressed by witnessing her husband's state and describes features consistent with post-traumatic stress disorder. She has had very little in the way of psychological treatment. … Her main ongoing psychological symptoms are a generalised anxiety and resentment at her perception that her life options have been curtailed." 188 Dr Lee saw Jennifer again on 29 November 2005. He reported that, "I do not believe that she currently has a psychiatric disorder caused by the 1993 shooting." 189 Dr Apler was extensively cross-examined. In the course of it he said: "In terms of Mrs Monie it is clear to me she was very distressed, very affected, and her life had changed as a result of the shooting." 190 He resisted prolonged suggestions that the changes she experienced in her life since the shooting did not add up to a psychiatric condition. 191 When the evidence concerning Jennifer's condition is as I have described, it was open to the trial judge to prefer the view of the two psychiatrists and one psychologist who took the view that she had an adjustment disorder with anxious mood, and not to accept the view of Dr Lee. I see no error in the trial judge having taken this course. 192 If one is considering whether the trial judge made an error by awarding damages that were too high, the appropriate time to consider the assessment of damages is as at the time of trial. If this court were to decide that the trial judge had made an error by awarding damages that were too high, and that it should re-assess the damages itself, that re-assessment would take place as at the date of hearing the appeal. But the first question, of excessiveness of damages, must be decided as at the date of trial. 193 At the time of the trial, in early 2006, Jennifer was 67 years old. Her condition had persisted for about 12½ years. She would be entitled to interest on any damages awarded in relation to her past general damages. The table of Medium Life Expectancies, Australia, 2006 shows that a 67-year-old woman is expected to live, on average, in the order of another 21 years. It is true that she retained a level of functioning in the local community, notwithstanding her disability, but that does not mean that the disability is of only a trivial significance. I see no error in the assessment of $40,000 general damages. 194 When Jennifer's economic loss of $10,000 is added, the total damages to which she is entitled is $50,000. Because that assessment is made as at the date of the award in the court below, it should bear interest from that date (13 June 2006). Sam's General Damages 195 Sam made a claim for general damages for nervous shock. On the night of the shooting, Sam had been having dinner at a friend's house in Inverell. His aunt, Mrs Marion Bull, who had been informed of the shooting by the neighbour who had assisted in getting Peter to Hospital, telephoned Sam to inform him that his father had been shot and taken to hospital. Sam's evidence about that telephone call was: "A. She just said that, Marion said to me, "Sam your father has been shot, Charlie has taken him to the hospital and he seems okay but he doesn't - your father said to me to make sure I let you know not to drive back to Thornleigh". Q. What effect did that news have on you at that stage? A. It had a large effect on me. I was initially really shocked, even though from a conversation with my aunt I didn't know whether Dad was shot anywhere that could be life threatening. I didn't know whether he was going to be okay. I didn't know any detail to do with Dad's welfare. All I knew I was just totally shocked and devastated. Q. Your aunt Marion able to give you any information to the effect of how bad it was? A. No, she really didn't know. … Q. You recall anything else that was said? A. She just said that Dad was bleeding badly but she didn't know how, where he had been shot. She didn't tell me any of those sorts of details. So, I was - she didn't - she couldn't tell me who had done it. She couldn't tell me why it happened or what the circumstance was. She just told me that Dad was on his way to hospital." 196 Sam spent the night at the home of his aunt and uncle. The trial judge said: "159 … He said that he was nervous, in a state of panic. He was feeling vulnerable and insecure because he could not comprehend what had happened. On the following day he visited his father at Tamworth Base Hospital. His father described the shooting and that, he said, had an enormous effect upon him. He was guarded because he thought that he had let his father down, having been unable to protect him. He did not sleep that night. He found out about Mr Winsor's record and dismissed him. 160 Mr S Monie said that he developed fear, which included a fear that Mr Winsor might return and continue the attack. Accordingly, he began to carry a shotgun in his vehicle. He kept a shotgun under his bed. There was an occasion in November 1993 when the cat jumped onto his bed in the middle of the night and surprised him. He almost discharged the shotgun. At that, he realised that he had to do something and went to see Mr Hadfield, a psychologist. Mr Hadfield saw him on 25 November 1993. He saw him again, in company with Mr P Monie, on 21 December 1993 and on 10 July 1995. He saw him once more in July 1995 and on 7 July 1997 with Mr P Monie and Mrs Monie." 197 The trial judge found: "163 At the end of 1995 or the beginning of 1996, after the dispersal sales, Mr S Monie left Thornleigh. His younger brother Ben, who had by then completed his studies and was working on the property, remained. Explaining why he had left Thornleigh, Mr S Monie said in evidence that since the shooting he had had an enormous amount of trouble sleeping. He referred to the carrying of the shotgun. He spent a long time planning what he would do if Mr Winsor returned. He was rundown, vigilant and angry. He was not doing his job properly. The dispersal sales played a small part in his leaving. He could not understand why Mr P Monie had decided to sell the stud animals." 198 After leaving the property, Sam engaged in work that did not involve farming or grazing. 199 Sam saw a number of professional people for assessment in connection with the evidence in this case. At the instigation of his own lawyers, he saw Dr Jungfer and Dr Apler, both of whom are psychiatrists. At the instigation of the defendant's lawyers, he saw Dr Roldan, a consulting psychologist, and Dr Lee, a psychiatrist. 200 The trial judge said: "166 Dr Jungfer, Dr Apler and Dr Roldan expressed the view that Mr S Monie has suffered or continues to suffer from post traumatic stress disorder. The difficulty with these opinions, however, is that they all depend upon an uncritical acceptance of what Mr S Monie has told them from time to time. Nowhere do his assertions of fact appear to have been questioned or tested. There appears to be no objective evidence or test available for any of those assertions. 167 I have already referred to the tendency of Mr S Monie to exaggerate, even knowingly depart from the truth. He told Dr Roldan that Mr Winsor had been in trouble with the law for "rapes and bashings" and had been suspected over the mysterious disappearance of someone in Tamworth. He told Dr Roldan and others that the Crown Prosecutor had been thrown over the balcony and that on hearing of this Mr Winsor's own barrister, afraid, had asked to be allowed to retire from the case but that the trial judge had refused him leave to do so. There is no evidence of precisely what happened when the instructing officer fell from the balcony or of why he did so, but Mr S Monie's account to my mind bears the strong stamp of exaggeration. I refer again to his implied claim that the road was moved because of Mr P Monie's concern for his safety. 168 Dr Lee does not agree that Mr S Monie meets the criteria for post traumatic stress disorder. He is of the opinion that he has become angry and overprotective. Dr Lee notes that he has had very little in the way of treatment and takes no medication. His opinion is that the anger is a reaction, given his personality style, to the shooting and that he does not require psychiatric treatment. 169 I do not doubt that Mr S Monie has been anxious, even distressed, angry and vindictive. I am also satisfied that he has exaggerated the effects of the shooting on his state of mind. Those practitioners expressing the view that Mr S Monie suffers or suffered from post traumatic stress disorder have accepted uncritically everything Mr S Monie has told them. I am not prepared to do so. I prefer the evidence of Dr Lee. I do not think that Mr S Monie has suffered any recognisable psychiatric or psychological disorder. Accordingly, his claim for damages must be rejected." 201 Thus, a fundamental reason why Sam's claim for general damages was rejected was because the trial judge took an unfavourable view of his credit. That unfavourable view was based upon not only his impressions of Sam as a witness, but also on some more specific matters that he recounts. I shall deal with those more specific matters. Moving the Road 202 The trial judge said: "89 Another is a piece of evidence he gave when describing the effect of the shooting on Mr P Monie. He spoke about locks, by which I think he meant window catches, being put on the house and curtains being drawn. Those things I accept, but Mr S Monie continued - '… right at the front of the house the old road used to run right along the front of the house basically or just outside the garden where you turn into Thornleigh, into the homestead, it was actually moved back over to where it currently is now which is away from the house, it goes back over towards the cattle yards.' 90 The intention, I think, was to give the impression that the road was moved because of Mr P Monie's fear of persons coming close to the homestead. The evidence of Mr Lane, Operations Manager, Gwydir Shire, shows that although the road was realigned after the shooting, that happened because during 1991 Mr Lane considered the existing alignment unsafe. Accordingly he spoke on behalf of the Council to Mr P Monie and secured his agreement to the Council's acquiring the road and realigning it to make it safer for travellers. One result was that, instead of passing hard by the front gate of the homestead, it would be separated from it at their closest point by a distance of perhaps 100 metres or more. Mr P Monie agreed and he and Mrs Monie signed an agreement on 9 November 1991. I accept that although the works were done after the shooting they were done for the reason given by Mr Lane and not because of any effect on Mr P Monie." 203 The passage in Sam's evidence to which the trial judge is referring, is as follows: "Q. I want to take you to a period between the shooting and what is described as a transient ischaemic accident, otherwise sometimes called a stroke, that happened on 19 October 1993, do you remember that incident? A. Yes. Q. I just want to discuss what the situation was between those two dates, the shooting and that date, do you follow? A. Yes. Q. Firstly, when I say the transient ischaemic accident, in relation to your father? A. Yes, yes. Q. What, if anything, did you notice any changes in the house? A. Well we had locks put on the house, we had curtains drawn. We, right at the front of the house the old road used to run right along the front of the house basically or just outside the garden where you turn into Thornleigh, into the homestead, it was actually moved back over to where it currently is now which is away from the house, it goes back over towards the cattle yards. But the main things were that the place was all locked from then on and the curtains were always drawn." 204 The last question was (as is appropriate for examination in chief) a non-leading question, about things that Sam had noticed during the period of time 15 June 1993 to 19 October 1993. It was true that after the shooting the road was moved to a new position, away from the house, and that that work was done by the Council. The deed of 9 November 1991 to which the trial judge referred was one between Peter and Jennifer, on the one hand, and the Council on the other, whereby the Council agreed to construct the road in the new location. The Council made provision for the work to be carried out in its 1993 works budget, which had been submitted to Council in October 1992. When Mr James Lane, the Operations Manager of Gwydir Shire Council, was called to give evidence, he said initially that the works were carried out in 1993, but later agreed that it might have been in 1994 – he was unsure, because he did not have the relevant documentation with him. 205 The question that Sam was asked in evidence in chief did not ask about any causal connections between the shooting and the changes Sam noticed in the house. Indeed, it would have been difficult to frame a question, appropriate to be asked in examination in chief, that directly addressed that topic. It is one of the risks of asking non-leading questions in examination in chief that sometimes irrelevant material will be elicited. That is what happened, it seems to me, in the present case. 206 The cross examination of Sam about moving the road included the following: "Q. And the road leading past the homestead, was the route of that road changed at some stage? A. Yes. Q. And was that after the shooting? A. Yes. Q. That was the reason you say for the route of the road being changed? A. To take the road away from the front of the house. Q. Do you remember the Council paying compensation to the Monies when they took over the road? A. No. Q. Isn't it the fact that the road has always been in the position that it was but was upgraded by the Council after it took over ownership of the road? A. No. Q. You see, the road that runs through the Thornleigh property was a road that was on land owned by Thornleigh wasn't it? A. I can't say exactly who owned the road, I don't know that. Q. Aren't you aware that the Council upgraded the road and took over the land and paid the owners of Thornleigh compensation for doing so? A. No. As I said before the road used to go right past the front of the homestead and then they moved it to where it currently is now which is a good way from the homestead. Q. How long after the shooting do you say the road was moved? A. I can't remember exactly. Q. Who did the moving of the road? A. The Council. Q. Was the road moved do you say before you went and saw the CES in about July or thereabouts in the year of the shooting? A. No, I don't know." 207 There was some vigorous cross-examination of Sam that suggested, first, that the road had never been moved at all and, later, that suggested the road had been moved in 1996. Sam resisted (correctly, on the evidence) each of those suggestions. 208 The cross-examination then continued: "Q. When do you say the road was moved? A. To the best of my recollection the road was moved before the first dispersal sale, so my understanding was that it was moved perhaps late '94 or early '95. I'm pretty sure that it was late '94 because we had to, or we painted all the posts in the, where the new road went through there was a lot of fencing that had been done and we painted all those posts for presentation for the dispersal sale. Q. And do you agree that the Council acquired the land upon which the new road was constructed? A. I don't know that. Q. And the Council put in grids, is that correct? A. Yes. Q. And installed new fencing? A. That's correct. Q. But you won't agree that the reason for the works being done was because of the concerns concerning potential car accidents? A. I don't know that that's what their reasoning was." 209 That is the totality of the evidence concerning moving the road. In my view, there is nothing in it, as it appears in print, that is detrimental to Sam's credit. Effect of the Shooting on Sam 210 The trial judge said: "91 Another example is Mr S Monie's evidence about the effect of the shooting on himself. His case was that, like his father, he became distrustful of strangers and reluctant to disclose his place of residence. After Mr Winsor was released from gaol at the expiry of his non-parole period, he said, he and his wife installed additional security at their house. When it was pointed out to him that anyone could ascertain his address merely by looking up his name in the telephone directory, he told the Court that he had specifically asked for the number to be unlisted but had not realised until after Mr Winsor's release that it was in fact listed. I do not accept that explanation." 211 The fact that one of Sam's telephone numbers was listed in the telephone directory first came into evidence in Sam's evidence in chief: "Q. We have learned that your telephone number, or one of your telephone numbers, was in the Bathurst telephone directory. How did that happen? A. I don't know how it happened. We first found out when Winsor was released from gaol, I think it was about September last year or November, October whenever he was released, Sally -- Q. Your wife's name? A. That's my wife, yes. Sally – we discussed it and said that, you know, that he wouldn't be able to track down necessarily where we lived because our numbers are silent and so forth, and Sally wanted to double check that so she rang inquiry number on her phone, which I think is 1223 and asked for S Monie and it came up. That was the first we knew about that happening. So, yeah, we set about to try and get that sorted but it's already been printed in the next book. Q. That's the current book? A. Yes. Q. 2005? A. I presume it is. The 05 or 06 book. I'm not sure which it is. Q. That will have some months to run? A. I think they told Sally it would be about 8 months or something. Q. Did you deliberately put your number in that book? A. Definitely not. We actually specifically asked for it to be a silent number, and one number is silent and the other number is not silent." 212 Two days later, through the whole of which time Sam had been giving evidence, the topic was returned to in his cross-examination: "Q. And you have the telephone on? A. At home? Q. Yes. A. Yes. Q. You have two telephones don't you? A. Yes. Q. And one telephone number is if I can use the term an open line with the number in the telephone book? A. That's correct. Q. And that line you have still current? A. Yes. Q. You've never sought to cancel it? A. No. Q. And that's the telephone number which is published in the white pages with your address? A. That's correct. Q. And you have a second telephone number which is a silent number, is that right? A. That's correct. Q. Why do you have a second number which is a silent number? A. Because both my numbers are supposed to be silent and Telstra made a mistake. Q. You have never asked Telstra to make the telephone number which is in the telephone book a silent number? A. Yes I have. Q. When do you say you did that? A. When the line was put on. Q. Well, when you discovered, you say that when the line was put on, is that when you moved to Bathurst? A. I don't know whether that was when I moved to Bathurst or before we moved down there. Q. You would have discovered soon afterwards that the line wasn't a silent number wouldn't you? A. No. We made the assumption that because we had requested it to be a silent number as we did the second line, that it was silent. And the only reason we found out was my wife rang them after the guy who shot Dad was released from prison." 213 His evidence in chief and his cross-examination were consistent with each other on this topic. The story he tells is not an inherently implausible one. Documents produced on a subpoena by Telstra show that, as at February 2006, Sam subscribed to two separate telephone services. They appear to both be connected to the one address. One of them, which had been subscribed to since 19 April 2004, was not a silent number. The other, which had been subscribed to since 10 January 2005, was a silent number. At the hearing of the appeal, no counsel could provide any suggestion about why it might be sensible for a person to have one silent number, and one non-silent number, connected to the one address. 214 It is, ultimately, a matter for a trial judge whether he or she accepts evidence that is given before him or her, or does not. However, in the present case, no reason for not accepting the evidence was given, and there is nothing in the evidence as it appears in print that suggests a reason why it should be rejected. Sam's Account of First Hearing of the Shooting 215 I have set out, at para [195] above, the evidence Sam gave about the occasion when his aunt, Marion Bull, telephoned him with news that Peter had been shot. Concerning that evidence, the trial judge said: "123 Nothing Mrs Bull had said conveyed that any person had shot, let alone intentionally shot, Mr P Monie. Yet Mr S Monie acted in a way that suggests that he knew that someone had intentionally shot Mr P Monie. Instead of going to the hospital, Mr S Monie got his friend to telephone the police at Inverell and ask them to block all the roads out of Thornleigh. He himself telephoned another friend and asked him to watch for cars on the road. He and his friend then left for Bingara. On the way they stopped to allow Mr S Monie to telephone his friend again to ask whether he had seen any suspicious cars. Then they continued onto Bingara, but instead of going to the hospital they went to the police station. It was closed. Only then did Mr S Monie go to Bingara Hospital to try to see his father. By then he had been taken to Tamworth. 124 In my opinion Mr S Monie's conduct was telling. It does not directly prove that he believed that Mr Winsor had deliberately shot Mr P Monie but it does prove that he believed that somebody had done so and it gives rise to the question why he had that belief. A possible answer is that he believed that Mr Winsor was likely to inflict injury. In that way it supports the conclusion that Mr Winsor told Mr S Monie that he had been in gaol for assault." 216 It seems to me that Mrs Bull's words to Sam not only conveyed the information that Peter had been shot, but also that, (a) in Peter's view, the situation at Thornleigh was such that Sam should not return there, and (b) Peter, even in the condition he was after having been shot, had been very insistent with Mrs Bull that she give Sam the message that Sam was not to return there. The conversation took place against a background where each of Peter, Mrs Bull and Sam knew that Thornleigh was Sam's home, and the consequence of the message was that in Peter's view Sam, a fit and active man, should not return to his own home to sleep the night. It seems to me that an ordinary inference to draw from that combination of pieces of information is that Peter thought he had been shot deliberately, and that the person who was the source of the danger might still be at Thornleigh. The trial judge was in error in saying that "Nothing Mrs Bull had said conveyed that any person had shot, let alone intentionally shot, Mr P Monie." Exaggeration to Doctors 217 Para [167] of the trial judge's judgment (which I have set out at para [200]) gives instances where Sam is said to have exaggerated or lied. These instances need to be examined. 218 One of Winsor's convictions for assault related to a pub brawl, and another related to a kind of ritual farewell that was given by inmates of a gaol to another inmate who was departing, in the course of which the departing prisoner was injured. It does not seem excessive to describe those as "bashings". There is no evidence of any conviction of Winsor for rape or in connection with the mysterious disappearance of someone in Tamworth, but Sam did not tell Dr Roldan that Winsor had been convicted of these matters, just that Winsor had been "in trouble with the law", and "suspected" concerning them. Peter was taken from the Bingara Hospital to the Tamworth Base Hospital on the night of the shooting. That night two police officers from Tamworth came to the hospital and spoke to Jennifer and her daughter Mrs Anabelle Sides. The police officers told them that night about Winsor's convictions. Sam came to the Tamworth Base Hospital the next day and spent several days there, in the course of which he spoke to Tamworth police officers. There was every opportunity for the police officers to give information to Sam about Winsor's past. It is not proved that Winsor had never been in trouble with the law for rapes, or suspected over the mysterious disappearance of someone in Tamworth. It was not put to Sam in cross-examination that the account he gave to Dr Roldan of Winsor's antecedents was inaccurate. 219 Sam gave evidence in chief about events concerning Winsor's criminal trial, to the following effect. He attended committal proceedings in relation to Winsor in December 1993, after which Winsor was committed for trial at Lismore. That trial was postponed because a forensic witness was killed in a car accident the week before the trial was due to start. The trial was fixed again for October 1995, but the trial was aborted when the Crown prosecutor fell from a 5 m balcony. (On one occasion, when referring to this incident, Sam said the barrister "fell over a 5 m balcony"; on another he said the barrister "got thrown over" the balcony.) At another trial, Winsor dismissed his barrister. That trial was due to recommence in November 1996 at Grafton Court but was postponed due to lack of security. Eventually the trial took place starting in August 1997, at Darlinghurst. 220 It was not put to Sam that this sequence of events was in any way inaccurate. Nor was it put to him that the history he had given to Dr Roldan concerning these events was in any way inaccurate. Dr Roldan records that a history of events concerning the criminal proceedings against Winsor, to similar effect to that given by Sam, had been given to him by both Peter and Jennifer. It was not put to Peter or Jennifer that their accounts of these events were in any way inaccurate. Dr Lee records a history of events given to him by Peter concerning the criminal proceedings against Winsor that is similar to the account given by Sam. Peter was not challenged about this history either. The sequence of events that Sam told Dr Roldan about, concerning the criminal proceedings against Winsor, was thus not shown to be inaccurate. 221 In these circumstances, in my view there was no objective basis that is apparent from the written record for concluding that Sam was exaggerating or lying concerning the events that the trial judge lists in para [167] of his judgment. Falsely Denying that Winsor told him he had been Sent to Gaol for Assault 222 I have mentioned this evidence earlier, at para [72]. No reason has been shown on this appeal to set aside the trial judge's finding that Sam's denial that Winsor had told him he had been sent to jail for assault was false, in the sense of factually inaccurate. 223 His Honour went on to find, however, that Sam's denial of the conversation with Winsor was false because he believed that the plaintiffs' case would be damaged if he were found to have such information. That is a very serious credit finding, amounting to a finding that Sam deliberately gave evidence he knew to be false. Yet no reason is given, independent of the other reasons given concerning Sam's credit, for reaching that view. Conclusion Concerning Sam's Credit 224 It is inherently highly likely that the impression that Sam made on the trial judge in the witness box was something that the trial judge took into account in ultimately forming the unfavourable view he did of Sam's credit. However when, as well, the trial judge gave numerous other reasons for being dissatisfied with Sam's credit, and those reasons themselves appear either to be unsound, or to be, at bottom, dependent upon not accepting Sam's evidence in some respect and therefore not an independent reason, serious doubt is cast on the overall conclusion concerning Sam's credit. In my view, in these circumstances the conclusion at which the trial judge arrived is not one that should stand. 225 If it were possible for this court to re-assess Sam's damages itself, the previous unfortunate history of this litigation strongly suggests that it would be highly desirable for that course to be followed. However, I do not think that this court is in a position to carry out that re-assessment. It is inevitable that Sam's credit will be a real issue that is intrinsically bound up with the acceptability of the medical reports that have found he is suffering from a psychiatric condition in consequence of the shooting. Being able to decide on the printed record that a credit finding is unsafe to act on is one thing, but carrying out a re-assessment of Sam's damages is another. 226 Part 51 Rule 23 Supreme Court Rules 1970 requires that a new trial not be granted because of an error in the court below unless the court is satisfied that some substantial wrong or miscarriage of justice has been thereby occasioned. As explained in Richard Martin Tory v Michael Megna [2007] NSWCA 13 at [28]–[30], in deciding whether the court is so satisfied, the principles on which the proviso is applied in criminal appeals, as explained in Weiss v The Queen (2005) 224 CLR 300, should be applied. Weiss had stated the principles using the procedural langauage appropriate to a criminal trial by judge and jury. Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [23]-[27], stated what those principles are on an appeal from a single judge exercising civil jurisdiction: "First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. … That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence [ Driscoll v R (1977) 137 CLR 517 at 524–525 per Barwick CJ; R v Storey (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487; Festa v R (2001) 208 CLR 593 at 631-633 [121]–[123] per McHugh J] and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record [ Fox v Percy (2003) 214 CLR 118 at 125–126 [23] per Gleeson CJ, Gummow and Kirby JJ] …" [the Court of Appeal is satisfied that the decision reached by the trial judge was the correct one]. 227 Having examined the evidence relating to the credit finding, I am not satisfied that the decision reached by the trial judge was the correct one. Thus, regretfully, there is no alternative but to have a new trial on the issue of whether Sam has suffered any damage that is compensable in tort in consequence of the shooting. 228 Part way through the trial, Sam sought leave from the trial judge to reinstitute a case that he had suffered economic loss in consequence of the shooting. Sam had at one stage put forward such a case, but had abandoned it prior to the trial commencing. The trial judge refused leave to reinstitute that case. No error has been shown in the trial judge refusing that leave. The new trial should be restricted to a question of whether Sam has suffered any general damage. Appeal on Costs Questions 229 The appellants' Notice of Appeal and the respondent's Notice of Amended Cross-Appeal both challenge certain costs decisions that the trial judge has made. At the hearing of the appeal, counsel for both the appellants and the respondent agreed that the correct outcome concerning those matters could be affected by the decision to which this Court came concerning other matters that are the subject of the appeal. Accordingly, save in one respect, those topics have been left to be the subject of further submissions after publication of these reasons for judgment. 230 That one respect is that the trial judge ordered the appellants to pay the Commonwealth's costs of the retrial on an indemnity basis. That order arose from the appellants having failed before the trial judge, and having fared worse than an offer of settlement that had been made to them by a Calderbank letter. When the outcome of this appeal is that both Peter and Jennifer have succeeded in recovering damages, and the question of whether Sam is entitled to any general damages will need to be re-tried, a necessary part of the basis for the trial judge's order has fallen away. Thus, it is appropriate to set aside his order concerning the costs of the retrial, while leaving open at present what order or orders, if any, should replace it. Orders 231 At this stage, the orders that I propose are: 1. Set aside the verdict and judgment in favour of the Respondent. 2. Set aside the order for costs made on 13 June 2006 concerning the costs of the retrial. 3. Verdict and judgment for Peter Monie against the Respondent in the sum of $238,750. That sum is to bear interest at the rate provided from time to time by Schedule 5 Uniform Civil Procedure Rules 2005 (a) as to the amount of $228,750, from 15 June 2007 (b) as to the amount of $10,000, from 13 June 2006. 4. Verdict and judgment for Jennifer Monie against the Respondent in the sum of $50,000. That sum is to bear interest at the rate provided from time to time by Schedule 5 Uniform Civil Procedure Rules 2005 from 13 June 2006. 5. That the matter be remitted to the Common Law Division for a new trial concerning whether Sam Monie has suffered any damage in consequence of the negligence of the Respondent, and, if so, the quantum of any damages to which he is entitled, PROVIDED THAT any such new trial shall not extend to whether Sam Monie has suffered economic loss. 6. Dismiss the Notice of Cross-Appeal, save to the extent that it seeks orders concerning costs. 7. Each party to be at liberty to make such further written submissions as it might be advised concerning any matters relating to the costs of the proceedings below and of this appeal and cross-appeal, in accordance with the following directions: (a) Appellants to file and serve any written submissions within 21 days of the date of delivery of these reasons for judgment. (b) Respondent to file and serve any written submissions within 35 days of the date of delivery of these reasons for judgment. (c) Appellants to file and serve any written submissions in reply within 45 days of the date of delivery of these reasons for judgment. (d) Direct that, in addition to filing and serving any written submissions in hardcopy form, each party provide a copy of the submissions in the electronic form to the Associate to Justice Campbell. (e) Note that, unless the Court otherwise orders, the Court will be at liberty to decide all questions of costs having regard only to such submissions as have been filed and served within 45 days of the date of delivery of these reasons for judgment. ********** 03/09/2007 - Headnote added - Paragraph(s) Not applicable 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. 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