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Court in the Act
15 May, 2009  
A most regrettable trial

NSWAppeals’ stinging rebuke of judge’s “fundamentally flawed and inadequate” findings following a 94-day personal injury trial. Nicole Eastaway reports


A former BlueScope Steel occupational health and safety doctor, Angus Mackinnon, is to get a fresh trial of his damages case against the company for psychiatric injury.

The NSW Court of Appeal’s May 8 reasons are highly critical of the trial judge, acting justice David Patten.

Patten, a former president of the NSW Liberal Party, also recently conducted at the behest of Chief Justice Spigelman the judicial inquiry into the murder conviction of Phuong Ngo

imageSee Alex Mitchell’s coverage of some of Patten’s earlier judicial work.

Justice Cliff Hoeben (illo) who wrote the main judgment in the Mackinnon appeal, with whom David Ipp and Robert Macfarlan agreed, said that Patten’s findings on breach of duty were “fundamentally flawed”.

On the issue of causation the trial judge failed to “engage in the intellectual analysis required of him”.

The trial ran for 94 days and on the basis of the critical remarks from the appeal bench it seems to have been a badly managed affair.

Mackinnon had 13 days in the witness box. On the third day of his cross-examination by Michael Joseph for BlueScope he exhibited acute symptoms of mental illness, which required him to be hospitalised.

After three weeks he returned to court and was cross-examined for a further seven days.

It would have to go close to being the longest run trial in NSW’s personal injury history.

Hoeben said:

“It is most regrettable that a trial which occupied so much court time will have to be reheard… Given its history I would anticipate that this matter will be closely case managed… I would anticipate that the medical evidence which occupied 32 hearing days, could be concluded within five days if the evidence were given concurrently.”

Mackinnon reported to Dr Chris Darling at BlueScope’s health and occupational safety department.

The two medicos had a dysfunctional working relationship, clashing frequently about how Mackinnon should do his job.

Darling was concerned that the rehabilitation process be completed as soon as possible so employees could get back to work. Mackinnon was more interested in the treatment itself rather than returning people to work.

Their personalities were also quite different; Darling being described as “strong and forceful” while Mackinnon was said to be “caring and and naive”.

* * *

In August 1996, Mackinnon was invited to attend an eight-day employee “Steel Leadership Course” in Kilmore, Victoria.

All course participants were given a “care protocol document”, which explained the action that would be taken if their health or welfare appeared to be at risk.

Part of the blurb said:

“The program has outcomes at a number of levels: intrapersonal, interpersonal, team and organisation. It is an arduous and very satisfying program. During the course participants can expect to be given the opportunity to explore and confront unresolved issues in all of these levels. In doing so they are likely to feel uncomfortable at times as they face up to questions, issues, feelings, beliefs and attitudes they may have which they discover are either inappropriate or ineffective.”

The protocol warned of the possibility of “unusual or bizarre behaviour (e.g. hallucinations, verbal confusion, leaving venue at unscheduled times, sleep deprivation, dramatic eating pattern changes, etc)” as a result of participating in the leadership course.

Two days before the it started, Tim Dalmau, the psychologist who had designed the program, called Dr Mackinnon and suggested he re-think taking part in the events at Kilmore.

He raised the illness of Mackinnon’s wife and the issues with Dr Darling.

Dalmau sent an email to Colleen Durant, senior course director, suggesting she follow up these concerns.

There seemed to be no evidence that either Durant or anyone else from BlueScope Steel did anything in response to this email.

The relationship problems between Doctors Mackinnon and Darling emerged in a number of incidents during the course.

When Darling was asked to “sculpt” his work team he placed Mackinnon furthest away from him.

This caused the appellant to “burst into tears” [and] express dismay” at being left out.

On another occasion Darling pointed at Mackinnon in the presence of other course members saying something like, “You’re the cause of all my problems”.

An attempt to reconcile their disagreements was made during a meeting with two managers, but nothing was resolved.

As the course unfolded Mackinnon’s emotional condition deteriorated.

On the final day he was unresponsive, lying on the floor, feeling “disorganised, confused, anxious [and] exhausted”.

An incident report filed soon after the course said the appellant was “vague and unsure” and looked “pale and shaky”.

When he returned to Sydney, Mackinnon’s speech and behaviour were irrational, and he was admitted to Eversham Clinic in October and again in December.

He continues to receive psychiatric care and periods of hospitalisation. He takes anti-psychotic and anti-depressive medication.

He has been unemployed and unemployable since August 2007 and is unlikely to ever work again.

* * *

The issues to be decided on appeal were two-fold:

1. Whether there was evidence presented at trial to indicate that psychiatric injury was a foreseeable consequence of Dr Mackinnon attending the leadership course. This involved determining whether the trial judge (Patten) applied the wrong test of reasonable foreseeability, and whether this evidence was properly considered by the judge; and

2. Whether the trial judge failed to deal with the issue of causation.

The appeal was heard in just two days of the nine that were allocated.

* * *

On the breach of duty issue the Court of Appeal held that Acting Justice Patten “was clearly wrong” in his application of the reasonable foreseeability test.

The High Court outlined the test in Koehler v Cerebos ...

“whether, in all the circumstances, the risk of … sustaining a recognisable psychiatric illness was reasonably foreseeable … [i.e.] not far-fetched or fanciful.”

The Court of Appeal thought that Patten’s findings on breach of duty were “fundamentally flawed”.

The trial judge “ignored without explanation the terms of the care protocol” that, together with the need for a “walk-talk partner” and constant staff monitoring, “made it clear that psychiatric illness was recognised as a foreseeable consequence for persons attending the course”.

Hoeben, Ipp and Macfarlan further found that Patten “failed to appreciate” the significance of Dalmau’s email and the part it played in implementing the care protocol:

”[It] indicated that … a severe question had been thrown up about the appellant’s suitability for the course.”

The judges were therefore convinced “there was a substantial body of evidence” indicating psychiatric injury was a foreseeable result of Dr Mackinnon’s participation in the course and that the trial judge had failed to properly consider the evidence.

* * *

In relation to causation it was found that Patten did not decide the nature of Mackinnon’s mental illness, despite the extensive medical evidence presented.

This was the most significant issue for the trial judge to decide, because while a mood disorder can be caused and aggravated by external events and pressures, according to BlueScope Steel’s medical experts, schizophrenia is not affected by outside factors.

On this issue, Patten stated it was “inappropriate” for him to decide which diagnosis was preferable and as such the Court of Appeal said he had failed to “engage in the intellectual analysis required of him”. Further:

“His Honour’s treatment of the causation issue is so inadequate that even if this court were prepared to make its own findings on breach of duty, the matter would have to go back for a retrial in any event.”

This is “most regrettable”.

Court of Appeal judgment

Patten’s judgment

Nicole Eastaway reporting

Barry Toomey QC and Eugene Romaniuk for Mackinnon, instructed by Keddies. Michael Joseph SC and Valerie Heath for BlueScope, instructed by Sparke Helmore.