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Court in the Act
13 July, 2009  
The human cost of litigation

BlueScope Steel is defending a damages claim as though its life depended on it … After a 94-day trial the NSW Court of Appeal has ordered a fresh start … Now it’s off to the High Court … And the meter is ticking madly … Nicole Eastaway reports

The emotional and financial costs of Dr Angus Mackinnon’s action against BlueScope Steel have been devastating.

In May we reported on the NSW Court of Appeal decision to order a new trial of Mackinnon’s damages claim for psychiatric injury, arising out of a special leadership course run by psychologists on behalf of BlueScope.

The Court of Appeal found that David Patten AJ’s judgment was “fundamentally flawed”.

This is turning into one of the longest and hardest fought cases in NSW’s personal injury history.

The trial before Patten ran for 94-days. BlueScope is seeking special leave to appeal the Court of Appeal findings to the High Court.

One of its grounds is that the case has “already involved considerable judicial time” and the costs incurred are over $15 million.

“Intervention by [the High Court] at this stage could have the effect of avoiding a retrial.”

During the trial Mackinnon was cross-examined for 13-days.

After three days of cross-examination by Michael Joseph, for BlueScope, he was hospitalised with acute symptoms of mental illness.

imageMackinnon told Justinian:

“I said to the doctor, if I go back in I’m going to commit suicide because I just can’t do it.”

But three weeks later he returned to court and his cross-examination continued.

“I had started and I had to finish, I’d gone so far. If nothing I’m determined.”

His wife Nandy (seen here at a happier moment), who also spent 10 days in the witness box, says the Court of Appeal’s ruling was “music to my ears”, despite the daunting prospect of returning to court for a retrial. She told us:

“Initially I was traumatised by that idea, but on reflection that’s the only way forward… We need to be resilient.”

Five formal settlement offers were made in the case between 2002 and 2006 (three from Mackinnon’s legal team and two from BlueScope).

Fiona Ley, a solicitor at Keddies, who is acting for Mackinnon, said:

“The best resolution is to try to see eye to eye with the other parties. But we’ve come this far and if need be we will take it that next step.”

* * *

Mackinnon has paid Keddies $330,000 to date in barristers’ fees, witness expenses, medical treatment fees and other disbursements.

imageKeddies’ partners have paid in excess of $1 million for the case. They borrowed $300,000 from a litigation funder for the trial. That was paid back after the trial was lost and another $700,000 was put in to continue running the trial and the CA appeal.

The firm says it will continue to fund the High Court appeal and any retrial.

Eighteen barristers have been involved in the case at various times and Keddies says two have been paid in full – Barry Toomey QC (pic) and Eugene Romaniuk who appeared for Mackinnon in the Court of Appeal.

Another $2.3 million in barristers fees remains outstanding and among those waiting is Glen Miller QC who ran part of Mackinnon’s trial before Patten.

The Mackinnons have sold their family home and another property to fund their case.

They now live at Nandy’s parents house in Clovelly with their two young children, Michael, six, and Francesca, three.

Mackinnon’s parents have also provided financial support without which, he says, “we wouldn’t have survived”.

The family lives off Nandy’s part-time work and an income protection policy.

* * *

Thirteen years ago, Angus Mackinnon was “on top and going places” in the medical profession, working as an occupational health and safety doctor at BlueScope Steel (formerly BHP).

But everything changed in October 1996 after he attended an eight-day leadership course arranged by the company.

During the course he clashed with his boss, Dr Chris Darling, with whom he had a dysfunctional working relationship.

These conflicts traumatised Mackinnon and as the course unfolded his emotional condition deteriorated.

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

The psychologist who designed the course suggested to Mackinnon that he rethink his participation. The course director was asked to follow-up these concerns, but nothing happened.

On the final day of the program Mackinnon was unresponsive, lying on the floor, feeling anxious and exhausted.

He has suffered severe depression ever since.

Now unlikely to ever work again, Mackinnon remains “haunted” by the experience that suddenly changed his life.

“For the first five years it was mental agony,” Mackinnon, 47, told Justinian.

“Every day, every moment was ‘can I get through this moment without committing suicide’?

At some stages I would be screaming, roaring to block out the thoughts. And eventually I’d go to sleep because I was exhausted.

I had a fear of almost everything… It was an effort, it took guts to just put my foot outside the door.”

Mackinnon has been hospitalised a number of times with severe depression and has undergone electroconvulsive therapy.

His hands shake uncontrollably, despite the anti-depressive and anti-psychotic medication he takes to calm himself.

“The physical and mental agitation [means] I’m shaking all day long,” he said.

He attends weekly appointments with a forensic psychiatrist, meditates to relax and keeps his mind occupied through reading.

“Right from the very start I was pushing myself to get better a little bit everyday. I’ve just kept pushing and pushing and trying to improve. I’m extremely fortunate that I’ve had an excellent doctor and excellent support.”

Nandy, who is also his tutor in the case, said:

“Angus was a well person and then he was a very unwell person – he was incapacitated. It was so unexpected, so shocking that my brain couldn’t get around it, we couldn’t believe it.”

And Angus Mackinnon. What does he say after one of the most gruelling personal and expensive injury cases in the state’s history?

“Basically, I would like an apology. That’s what I would like.”

Read Justinian’s back story: A most regrettable trial