Azar v Kathirgamalingan

McCOLL JA: I agree with Campbell JA's reasons and the orders his Honour proposes.

BASTEN JA: I agree with Campbell JA that the present appeal must be dismissed; the appellant must pay the respondent's costs. Subject to the following observations, I also agree with the reasons given by Campbell JA for reaching that conclusion.

The primary issue on appeal was whether the appellant had demonstrated a causal link between a motor accident for which the respondent was responsible and the appellant's psychological condition. An overview of the evidence and findings of the trial judge (Williams DCJ) reveals the following factual premises: (1) the appellant suffered from a pre-existing psychological condition, which was susceptible to deterioration; (2) on 20 August 2003 the appellant was involved in the minor motor vehicle accident with limited physical injuries, which persisted for a period of months; (3) at about the time of the accident and for a period of weeks if not months thereafter, the appellant suffered emotional trauma as a result of the breakdown of a personal relationship, and (4) during the second half of 2003, the appellant developed a significant psychological condition.

The trial judge found that the evidence given by the appellant was unreliable. That finding covered both the evidence given in Court and the histories given on numerous occasions to medical professionals. That finding was challenged, but as Campbell JA demonstrates, there was ample material to support it and it was not shown to be erroneous.

The fact that the appellant suffered, at the time of her trial, a psychological condition which rendered her evidence unreliable need not have been fatal to her claim for damages. It was, in one sense, a facet of the psychological condition upon which she relied as a substantial part of her injury. There are numerous conditions (including amnesia) which prevent a plaintiff giving evidence of a critical aspect of his or her case. Nor is a finding that a plaintiff's account is unreliable a kind of moral judgment. In such a case, the determination of the claim will depend on what was known as to her mental state before and after the accident and the availability of evidence (almost certainly expert evidence) identifying a causal link.

The dismissal of the appellant as an unreliable witness extended to her account of symptoms at various times and the element of self-diagnosis as to the cause of her present condition. However, statements made by a person in her situation are not only to be assessed as true or false, plausible or implausible, but constitute facts to be assessed. For example, to the extent that they reveal her perceptions, they may be accepted as a true account of a false perception, which is in turn relevant to her mental condition.

The difficulty for the appellant was that the medical evidence, critical parts of which are set out by Campbell JA, did not identify with any degree of clarity that which caused the appellant, in the words of the trial judge, to decompensate in late 2003. (Given his finding that she suffered from a pre-existing condition, that language should be understood as referring to an exacerbation of her existing mental illness.)

Section 5D(1)(a) of the Civil Liability Act 2002 (NSW) requires, in the usual case, that the tortious event be "a necessary condition" of the harm for which damages are claimed. Cases of multiple contemporaneous (rather than sequential) causes are difficult to assess in terms of 'but for' causation. That is especially so where the events may be interlinked in the sense that one may provide a catalyst for the other (referred to in some contexts as a synergistic effect).

The evidence in this case demonstrated no clear theoretical or experiential basis for saying whether the physical injuries caused in the motor accident, or the accident itself, were implicated in the exacerbation of the appellant's mental illness. For that reason, s 5D(1)(a) was not satisfied and the trial judge was correct so to hold.

Two further observations are apposite. First, asking whether the accident "contributed" to the exacerbation of her condition is not to be treated as reducing the burden of proof in a case of uncertainty. That is, the "contribution" must be established on the balance of probabilities, before deciding whether it was a necessary condition of the harm suffered.

Secondly, there is a remark in the reasoning of the trial judge at [154] (set out more fully by Campbell JA at [132] below), which reads in part as follows: "That the plaintiff de-compensated further after the motor vehicle accident and the alleged sexual assault may indicate that the two are inextricably linked but I do not think that they are. If they were, I would find that the necessary condition of the occurrence of the harm was not the motor vehicle accident but rather the relationship the plaintiff was in with Dr [E]."

It is the contingent remark which is open to criticism. If the two events were inextricably linked, it would appear that each has contributed to the harm. It may be that the trial judge was indicating that the contribution of the motor vehicle accident was, in his view, not material and that the harm would have occurred in any event, as a result of the breakdown in the relationship. However, as the medical evidence did not support a finding of concurrent linked causation, it did not provide a basis for assessing the distributive effect of the two causes, if it were possible to separate them. It is also possible that the contingent remarks were designed to invoke s 5D(1)(b), by holding it inappropriate for the scope of the driver's liability to extend to the psychological harm. If such a finding were intended (and the language used does not indicate that it was) further reasoning would be required to justify the result.

If "factual causation", as defined in s 5D(1)(a), is not satisfied, the next available step in the appellant's case may be to determine whether s 5D(2) would allow this to be treated as an exceptional case in which liability should be imposed. Such a conclusion may be accepted in a case where medical or other expert evidence is unable to establish a causal link between sequential events, but there is some theoretical basis for supposing that such a link exists. The application of that provision need not be pursued because, as explained by Campbell JA at [126], no such issue was raised at trial.

With respect to the costs order, I agree with Campbell JA that the rules with respect to offers of compromise (Uniform Civil Procedure Rules 2005 (NSW), Pt 20, Div 4) operate where a party to the litigation is under a legal incapacity, subject to the constraint imposed by s 76 of the Civil Procedure Act 2005 (NSW). It follows that, in the event of an offer by a defendant which is not accepted, r 42.15, prescribing the ordinary costs order to be made in such circumstances, is engaged: see at [198]-[200] below. The offer in the present case allowed appropriately for the operation of s 76.

I agree with Campbell JA that the offer was open for a reasonable time: [206]-[207]. This was the only point raised before the trial judge that he did not expressly address: [179]. The trial judge refused to make a different order from that provided in the rule, because no justification had been made to satisfy him that he should order otherwise: see [220] below. That conclusion not having been shown to be erroneous, the challenge to the costs order should be rejected.

Accordingly, I agree that the appeal should be dismissed with costs.

CAMPBELL JA:

The Appellant was injured on 20 August 2003 when a car driven by the Respondent collided with the rear of her motor vehicle. The Appellant brought an action, by her tutor, against the Respondent in the District Court.

The Respondent admitted that he had breached his duty of care. He made no allegation of contributory negligence. Thus, the trial proceeded as an assessment of damages.

The Appellant's total physical and mental disabilities were assessed by the MAS assessors as less than ten percent whole person impairment, insofar as they were causally related to the accident. Thus the plaintiff had no entitlement to damages for non-economic loss. Apart from out of pocket expenses, and some physical injuries that prevented her from working for a limited period of time, her claim was based on a contention that her psychiatric condition made her totally incapable of performing any work, and was such that she needed a full time carer/companion. Her claim was that her psychiatric condition arose from the accident.

After a ten-day trial, a judgment was entered for the Appellant for $250,832.83.

The Respondent had made an offer of compromise on 11 February 2011 in an amount greater than the amount of the judgment that the Appellant ultimately recovered. The primary judge ordered the Respondent to pay the Appellant's costs up to 11 February 2011, and that thereafter the Appellant pay the Respondent's costs on an indemnity basis.

The grounds upon which the Appellant contends that she was entitled to a larger award of damages depend in large measure upon a close examination of the evidence. A significant issue is whether a psychiatric condition from which the Appellant now suffers was caused by the accident. There is a question of principle about whether the provisions of the Uniform Civil Procedure Rules 2005 relating to offers of compromise apply to a situation where a plaintiff is an incapable person who sues through a tutor, and a question about whether the trial judge's discretion concerning costs miscarried.

The accident occurred at approximately 8.00am, when the Appellant was driving to work. The primary judge accepted the Respondent's account: ""Well, I could remember the car in front of me suddenly applied a sudden brake, then my car went, and I would say, nudged - so that was the description of the impact I could give. Then I got down, and the other person also got down from the car, and we both looked at what the damage was, and at that time I could remember the other person was jumping 'Why should this happen to me? Why should this happen to me?' So I was all - looking at all the cars piling, so we exchanged details after that, and I went to work, and she went her way."

The judge also accepted, at [56], the Respondent's evidence, that the judge summarised at [50] as: "He said it was peak hour traffic, that he was travelling below the speed limit and the impact was not severe .... The plaintiff got out of her vehicle when he got out of his. There was minor damage to both vehicles. There were no difficulties exchanging details. They spoke for about 5 minutes ... No emergency services attended or were called ..."

The judge rejected accounts that the Appellant later gave to medical practitioners. One such account was given to Dr Clark in March 2008: "At the time of the car crash, she was terrified for her life and shocked, terrified of being left as an invalid. ... In the accident, she was thrown forward from her seatbelt, which was not working. She thinks she lost consciousness for a while, since she woke up 'in the street'. She regained consciousness, trying to find out what had happened, then collapsed again. The police and ambulance attended and she was picked up and taken to hospital."

He rejected that she had collapsed to the roadway when she got out of her vehicle.

The primary judge found that in the accident the Appellant had suffered a whiplash injury that made painful a pre-existing degenerative change in her cervical spine at C5/6 and C6/7. He found that the effects of that should have substantially settled in four to eight months. He also accepted the opinion of MAS Assessors that she had suffered a soft tissue injury to the forehead, a haematoma to the head, strain to the right shoulder, and contusion to the chest. The Appellant does not challenge the judge's findings about the extent of the physical injuries, or the quantum of damages attributable to them.

Some basic facts about the Appellant's history before the accident are uncontroversial, or were found by the Judge and are not challenged. She was born in Nigeria in December 1960 to Lebanese parents. She left school aged fifteen, and was married at sixteen. In 1978, she migrated to Australia. Her elder son, Pascal, who is also her tutor in the litigation, was born in 1980. Her younger son, Carlos, was born in 1982. Her first marriage failed in 1984. The divorce was acrimonious.

In the course of her evidence Appellant made allegations, of varying degrees of seriousness, against six medical practitioners. Only one of those medical practitioners has given evidence, and the focus of his evidence was not on the correctness of the allegations that the Appellant had made concerning him. In those circumstances, in fairness to the medical practitioners concerned, I will anonymise their names.

Around 1990, the Appellant commenced to work as a receptionist or practice manager with a Dr A. She married him in 1992. That marriage lasted until 1997. Dr A gave evidence of some behaviour of the Appellant during the marriage that might be seen as unusual, but the judge said that that evidence "was far short of establishing any psychiatrically relevant condition" ([20]).

After the Appellant separated from Dr A, she lodged complaints concerning him with the Medical Board, Medicare, and the Taxation Office, based upon documents that she had copied and retained from his practice.

The Appellant obtained employment with a city medical practice in Sydney in May 1997. The judge found that that employment ended apparently without incident.

The Appellant worked for another medical centre in the CBD, run by Dr B, from 20 July 1998 to 21 June 1999. That employment came to an end after she had complained that Dr B had abused her on many occasions.

On 9 June 1999, Dr Sochan, a consultant psychiatrist, saw her at the request of her GP. He reported: "I basically listened to her account of what has happened and her response has been appropriate considering the alleged abuse, humiliation and failure to recognise her loyalty, dedication and selflessness. ... My P.D. [ie, provisional diagnosis] is Adjustment Disorder. This is based on presentation and what I have been told. I did not do a formal symptom review nor have I obtained a background history.

On 15 June 1999, the Appellant made a workers' compensation claim in which she claimed that she had suffered, "very bad distress and acute depression" by reason of her treatment at Dr B's practice. She made a further workers compensation claim on 29 June 1999, claiming to be suffering from "severe depression disorder".

Dr Robert Gertler, consultant psychiatrist, saw the Appellant on 21 July 1999, at the request of the workers compensation insurer of the practice at which Dr B worked. Dr Gertler gave three reports in all concerning the appellant.

The judge set out extensive passages from Dr Gertler's first report: "Ms A informed me that in July of 1998 she commenced working for a medical centre in the city. The work was long and stressful. She found that the practice had been poorly run prior to her arrival and that she had not experienced this in previous practices where she had been a manager. She found herself working longer than the usual eight hours per day, generally 12 hours. In the course of her work Ms A was frequently subjected to rudeness and aggressive behaviour by her employers. She was increasingly criticised 'for everything' including not only her work performance but also her manner of dress, her jewellery etc. Despite this Ms A continued the job because she was reluctant to leave after only a short time. She committed herself to her work but continued to be criticised and called 'a liar'. She was also told she was a 'bloody hard worker'. At time she would be criticised and humiliated in front of patients at the centre. The criticism was also dealt out by the wife of the doctor whose centre it was. Ms A stated that in the course of her work at the centre there was a very high staff turnover but despite this she was able to improve the business of the centre and its financial situation. At times Ms A said that she was brought to tears by the behaviour of her employers. After several months she was run down and stressed. She had difficulty in sleeping and was started on an anti-depressant in small dosage at night. Ms A found herself under unremitting and increasing stress and finally on 1.6.98 witnessed her employer drinking a large glass of whisky in front of her and then looking at her 'with really cruel eyes'. He then abused her, called her a liar, told her she had 'no idea' of what she was doing and in any case she 'can't speak English'. She was told to leave the practice. Ms A fled extremely humiliated and was very distressed. She had difficulty breathing, was distraught and in tears. She travelled to her home and saw a doctor at a nearby medical centre. After being found to have a high blood pressure she apparently fainted in the practice. She was treated conservatively and told not to return to work. She was given a medical certificate and went home. She has not worked since that time and has been referred for psychiatric treatment. She has seen her treating psychiatrist on two occasions and has been maintained on the anti-depressant medication. PAST HISTORY Prior to the event described above Ms A had enjoyed good physical and emotional health. ... PERSONAL AND SOCIAL HISTORY Ms A was born in Nigeria where she grew up and then migrated with her family to Australia at the age of 15. She completed her Higher School Certificate in Sydney and went on to study at the University of Technology where she obtained a degree in business management and another related degree. ... MENTAL STATE EXAMINATION Ms A presented as an alert co-operative woman appearing her stated age. She was agitated and displayed pressure of speech. She appeared depressed. There was no evidence of psychotic thought disorder, no delusions or hallucinations being present. She was fully oriented for time place and person and her memory for recent and past events was intact. Her capacity for insight and judgment seemed appropriate. Her general intellectual level was within normal limits. IMPRESSIONS Her condition is consistent with the stated cause. Other information relevant to her complaints are the ending of her marriage, as well as the death of both parents within the past three years. PREVIOUS HISTORY OF THE CONDITON' There is no evidence that Ms A suffered from a similar condition to that which she presently experiences. DIAGNOSIS In my opinion Ms A is suffering from a depressive reaction which is part of an Adjustment Disorder. The signs and symptoms described above are consistent with that diagnosis. Her recent employment in the medical practice has been a substantial contributing factor to her depressive reaction. THE WORKER'S PRESENT CAPACITY FOR EMPLOYMENT ... She is not fit for her pre-injury work and the responsibilities which that entails. It is not possible at the present time to determine when Ms A will be able to resume her pre-injury work because of her lack of self-confidence. Although Ms A's employment has been a major contributing factor to her depressive reaction she appears also to have been determined to stay at the job because of underlying insecurity. That insecurity would in my opinion have been reinforced by the ending of her marriage and her level of depression would also have been aggravated by the pre-existing feelings about the death of both her parents in a relatively short period of time. ... PROGNOSIS Ms A is currently receiving treatment from a psychiatrist. She has counselling every several weeks and also takes a small dose of anti-depressant medication. Her prognosis ultimately is good. SECTION 66 ASSESSMENT Ms A has not suffered a permanent loss of function. She still needs ongoing treatment so that her condition is resolved, but she is not permanently affected. Her current disorder will lessen with the passage of time. Ms A does not in my opinion have a pre-existing underlying constitution condition. (emphasis added)

On 8 July 1999, the Appellant made a thirteen page typewritten statement, that the judge found was "apparently in support of some action by the Medical Board or HCCC against Dr [B]". In the statement she made complaints about Dr B always speaking to her abusively, including in front of patients, calling her a liar, accusing her of giving his patients to another doctor at the medical practice, and drinking whisky at the surgery. She also complained about Dr B's wife, who worked as a nurse at the surgery, harassing her, humiliating her, but being "jealous and obsessed with me". She says that she will report him to the Health Care Complaints Commission because of the way he abuses her, and also the way he abuses patients.

On 27 August 1999, Dr Gertler issued a supplementary report. He had perused the statement made by the Appellant, a statement made by Dr B, and some comments made by Brosnan's Insurance and Litigation Support Services. Dr Gertler's report was admitted into evidence without objection notwithstanding the absence of the statement made by Dr B, and the comments made by Brosnan's. Dr Gertler said: "I perused the statements of Ms A and Dr [B] her former employer, as well as the comments made by Brosnan's. As expected the two statements contradict one another in many respects. Ms Azar does appear to have a histrionic personality on the one hand and Dr [B] acknowledges that at times he lost his temper with her and that he also at times drank small amounts of alcohol in the surgery after hours. Unfortunately, statements have not been obtained from the other doctors employed by Dr [B] at the practice; statements by these doctors could help clarify the voracity [sic] of either or both of the statements of Ms Azar and Dr [B]. ... I should perhaps modify my opinion concerning a pre-existing underlying constitutional condition. Ms Azar may well have a pre-existing personality disorder which leads to difficulties in the inter-personal area, however, before the extent of those difficulties can be determined and the nature of the personality disorder fully understood, information must be obtained from other sources ie the doctors at the surgery, and previous employers if possible. (emphasis added)

On 5 October 1999, Dr Gertler prepared a further report, after receiving some unspecified "further information and statements from Ms Azar's work colleagues". He said: "As a result of my perusal of those statements, it is my opinion that the history which I obtained from Ms Azar at the time of my psychiatric assessment on 21.7.99 was affected by what appears to be a long-standing personality disorder. As a result of that personality disorder which has supposed narcissistic and histrionic components, Ms Azar has tended to exaggerate and embellish her history. It does appear that after my last report of 27.8.99 when I read the attached copy of the report of Rosalinds [sic] Insurance and Litigation Support Services, that the doubts which I had concerning Ms Azar's pre-existing underlying constitutional condition have been clarified. She does have a pre-existing personality disorder which could easily relate to difficulties in the interpersonal area. As a result of your last report from Ms Azar's former work colleagues it does appear that her description of Dr [B]s' alcohol consumption is unreliable. He appears not to have abused alcohol in the fashion she implied. As a result it would appear to me that the requests that Dr [B] made of Ms Azar during the time of her employment were reasonable and that as a result, Ms Azar's condition was not work-related. Dr [B's] management of Ms Azar in the workplace was reasonable in the circumstances owing to the fact that there were interpersonal difficulties related to Ms Azar's underlying personality type. Dr [B's] management of Ms Azar related to the issues of her work performance and conduct." (emphasis added)

Later in 1999 the Appellant obtained work at a medical practice at Crows Nest, run by Dr C.

The judge appears to have accepted evidence from Dr C that: "...the plaintiff acted inappropriately on a number of occasions, assuming work she was not supposed to do, becoming over-personal with clients and not being accurate. A number of counselling sessions had no effect, so he decided to let her go." ([31]).

After the termination of that employment, the Appellant made a complaint to the Health Care Complaints Commission about Dr C. The judge found that that complaint was made only after the accident ([36]).

On 14 February 2000, the Appellant began working for another group of medical practices, with which Dr D had a connection. On 5 October 2001, the Appellant's GP, Dr Jiminez, issued a medical certificate certifying that she was unfit to work until 12 October 2001 by reason of "stress/anxiety disorder/depression". Dr Jiminez referred the Appellant to Dr Girgis, psychiatrist.

A Medicare patient history shows that the Appellant had eight consultations with Dr Girgis before the accident, in October 2001, in January to March 2002, and in June and July 2002. There is no report from Dr Girgis in the evidence. He has retired and was overseas and unavailable at the time of the trial.

In connection with a workers compensation claim against the practice at which Dr D worked, the Appellant was assessed by a consultant psychologist, Ms Carmelita Simonato. Ms Simonato gave a report dated 14 November 2001, on the basis of a consultation on 1 November 2001. In her report Ms Simonato said: "She was born in Europe but refused to be more specific as to which country she was born. She came to Australia at the age of fourteen and a half years with her family. Ms Azar stated that she is the youngest in the family of three siblings. She has an older brother and sister, both her parents are deceased. Her father died seven years ago and her mother died three years ago. Ms Azar married a general practitioner eleven years ago and obtained a divorce three years ago. She has no children and was single at the time of this assessment. She has been working as Area Manager and Receptionist for [a medical practice] in Leichhardt for just under two years. As far as her educational background is concerned, Ms Azar stated that she completed her HSC but was not specific as to which school she attended. She implied that she had completed University Education as a teacher ... Ms Azar stated that she had been working in the fashion industry since the age of fifteen when she was chosen for modelling as a result of, in her words 'her incredible beauty'. She stated that at the age of twenty-one she became a 'mature age student' and studied psychology and counselling as well as business development and computer based accounting. She also stated that she worked and studied, working as a medical secretary when she was married to her husband. She stated that she has been working in the medical industry for ten years and has managed many medical centres. In addition, Ms Azar stated that she spoke five languages including French, Arabic and other languages about which she was non-specific. In addition to the above mentioned qualifications Ms Azar also implied that she was, amongst other things, a beautician and a hairdresser. Ms Azar's description of her educational and employment background was grandiose and chronologically the qualifications she alluded to would have required much more full-time study and would be unlikely to be achievable in the space of time to which Ms Azar was referring ... She stated that she worked at Crows Nest ... under Dr [C], however she left that employer because he was 'a bastard and an asshole' and treated her very badly. She has been working at [her current employer] for almost two years. Ms Azar stated that during this time she was working up to seventy hours per week or more for a salary of fifty thousand dollars. When I asked her what her view of her difficulties in the workplace [was?] Ms Azar stated 'people get very attracted to my beauty and then I get sexually harassed by men and victimised by jealous women'. ... She stated that she felt very betrayed by her current workplace stating that she was not sure whether she was still employed or whether she had been dismissed. She stated that part of her difficulties stemmed from the fact that she was 'in love with' and 'loved by' [Dr D]. Ms Azar stated that in her opinion she got on very well with other people, however they didn't like her because of her 'extreme beauty and high level capacity in the workplace'. Relevant Medical and Psychiatric History Ms Azar denied any pre-existing psychiatric or psychological problems. She stated that she has always been an 'amazing' person and that she has never ever experienced problems such as those she is currently experiencing as a result of being dismissed from her job. ... She denied any prior history of anxiety, depression or insomnia and stated that she had never been medicated for any of the above issues. She also denied ever having sought psychological or psychiatric assistance as a child or as an adult prior to the recent incident. Claimant's Account of Precipitating Factors ... She stated that her problems began almost immediately after beginning work because other work colleagues were extremely jealous of her beauty and her ability. She stated that she was constantly being sexually harassed at work when I asked her to be more specific she stated that the doctors at the practice were constantly trying to touch her body. Ms Azar also stated that many doctors in the practice were very rude to her with Dr [D] in particular telling her that she should 'put her shoes in her mouth' on a number of occasions in front of staff and patients. In addition Ms Azar stated that one of the doctors at the practice had rung her at 6.00am at her home and told her that she was a 'fucking bitch and that he was going to cut her throat'. Ms Azar became extremely emotionally excited when speaking about these incidents, talking in a very loud voice. She evidenced a pressure of speech and began shaking and crying, stating that she thought she would vomit at any minute. However she soon settled and continued to give her account of precipitating factors. Ms Azar stated that the major trauma of being sacked or dismissed was because she was told by Dr [D] that 'he didn't want to see her anymore'. Ms Azar stated 'we loved each other' and she felt that this was a betrayal. She stated that she was extremely shocked to be told that there was no job available for her. ... I asked Ms Azar if she had made any other complaints during the course of her two years at the centre and she stated that she had made a number of complaints to the medical tribunal about her treatment. These allegations were not substantiated when I contacted her employer. Ms Azar's interpretations of the incidents in the workplace were that she was exploited because of her ability and her beauty. ... Current Symptoms Ms Azar stated that she became suicidal after her dismissal from [the employer]. She stated that these suicidal thoughts arose out of the fact that she was in love with Dr [D]. She attended Dr Gurgis [sic], a psychiatrist, who prescribed Zoloft for her depressive symptoms. ... Clinical Features and Diagnosis A Mental State Examination revealed no evidence of hallucinations, however, throughout the interview there was evidence of delusional thinking, ideas of reference and a high level of bizarre thought indicating the possibility of severe underlying psychological/psychiatric disturbance in Ms Azar. Ms Azar presents with some reactive symptoms of stress, however I consider these symptoms to be superficial to an underlying personality disorder. review of Contributing Factors - recent or Concurrent Life Stressors Ms Azar did not admit to any recent or concurrent issues that could be identified as impacting on her mood or coping levels. Pre-existing Psychological Factors Ms Azar's self-description and the description of her personal history and educational/employment background suggest that she is inclined towards grandiosity and to inflated judgements of her own accomplishments. Ms Azar denied the existence of any psychological or social factors which may have contributed to her current difficulties. She outlined prior difficulties in other workplaces, given similar reasons as those she gave for her difficulties in her current position. That is, being persecuted and harassed as a result of her beauty and brilliance. I consider that Ms Azar's personality disorder is a primary contributing factor in the current instance. It would seem that Ms Azar's current condition is an aggravation of pre-existing, psychological morbidity. I consider that the workplace events, whilst they may have been a minor contributing factor to the exacerbation of Ms Azar's current difficulties, I do not consider that they were causal to her psychological difficulties. Review of the Relevant Information The nature of the claimant's self reports suggest some significant psychological disturbance in this individual. It would appear that given Ms Azar's personality, she would be unlikely to cope well with any workplace stressors, including any workplace requirements that may contradict her own self concepts. I consider that Ms Azar is suffering from a Narcissistic Personality Disorder (301.8) (DSMIV) which is characterised by a pervasive pattern of grandiosity in fantasy or behaviour, the need for admiration and lack of empathy beginning in early adulthood and present in a variety of contexts ... In individuals with a Narcissistic Personality Disorder the self-esteem is almost invariably very fragile and they are unlikely to cope well with any incidents, for example redundancy, which would contradict their self-perception. Summary and Opinion ... ... Ms Azar demonstrated a number of psychological indicators that suggest that her reaction to redundancy was as a result of a pre-existing personality disorder, namely Narcissistic Personality Disorder. It is my opinion that whilst Ms Azar may have experienced some distress in reaction to the notification of redundancy her extreme reaction suggests that she has poor coping skills as a result of a pre-existing long standing psychological disorder. Ms Azar's prognosis is poor in terms of what I consider to be a pre-existing psychological difficulty and I consider that she is likely to experience similar difficulties wherever she obtains employment. I consider that in regard to her rehabilitation I consider that ongoing psychiatric intervention will assist this woman in making some progress in workplace and personal relationships. ..." (emphasis added)

After setting out large parts of Ms Simonato's report, the judge noted that: "... her ultimate diagnosis is the same as that of Dr Gertler made some two years earlier in remarkably similar circumstances, namely a perception on the part of the plaintiff, based on some fact or not, that she had been taken advantage of by her employer to her significant detriment." ([35])

Ms Norton SC, who appeared for the appellant, remarks that what the judge is here commenting on is not a diagnosis. I think, with respect, that is misconstruing what the judge is saying. The judge is remarking that the diagnosis of Ms Simonato, of a narcissistic personality disorder, is the same as Dr Gertler's ultimate diagnosis in his third report. What the judge identifies in the words following "namely" is the circumstances in which the two diagnoses were made, not the diagnoses themselves. The judge also observed that the Appellant "vocalised a resentment" of the behaviour of Dr C to Ms Simonato.

On 6 September 2002, the Appellant obtained employment with Dr E. He was her employer at the time of the motor vehicle accident that is the subject of this litigation, and continued to be her employer until the employment was terminated in December 2003.

The judge found, and it is not contested on the appeal, that the relationship between the Appellant and Dr E became one involving intense emotions on both sides, and ultimately an intimate relationship. However, in about May 2003, despite urgings from the Appellant to do otherwise, Dr E indicated that he was not going to leave his wife to be with the Appellant.

The judge then found: "From this point things began to go seriously wrong for the plaintiff. Instead of ending the relationship Dr E kept it going. On 18/7/03 the plaintiff wrote a lengthy letter to Dr E's wife ... This letter floridly set out the plaintiff's view of her relationship with Dr E and in my view was intemperate and reflective of a person whose judgment was severely affected by what was going on in her life. Drs Clark and Smith were asked by me to look at the letter and comment on it at TP533. Dr Clark said the letter was 'extreme' and Dr Smith said it was 'destructive'. It is not appropriate to go into the details of that letter for the purposes of a public judgment but in my view it indicated a very disturbed personality in the writer."

As mentioned earlier, the accident occurred on 20 August 2003. Dr S Rao is a general practitioner. The Appellant consulted him on the day after the accident. On 16 September 2003, Dr Rao provided a WorkCover medical certificate stating that the Appellant was unfit to work, in respect of her employment with Dr E, from 17 September to 26 September 2003. His diagnosis was "cervical brachialgia/lumbosacral sprain/contusion chest". His management plan was "rest/oral therapy/physiotherapy". He gave other certificates, in identical terms, (though adding contusion of the right shoulder girdle to the diagnosis) to cover the period to 30 March 2004. His certificate covering the period from 30 June 2004 to 30 July 2004 was the first to include post traumatic stress disorder in the diagnosis. In addition to the Appellant's physical disabilities, Dr Rao reported, on 21 October 2003: "She has also shown signs of extreme anxiety and is visibly emotional, tearful and distressed. These are symptoms consistent with post traumatic stress disorder and therefore she has been referred to Dr Moorthy (psychiatrist) for assessment and treatment."

The judge records, at [52]: "In Dr Rao's report of 21/10/03 ... he states that the plaintiff had been attending his surgery on numerous occasions since the accident and in addition to physical complaints, was showing signs of extreme anxiety and was visibly emotional, tearful and distressed. There is nothing in Dr Rao's report to indicate that he was aware at any stage of the plaintiff's troubles with Dr [E], her employer, although I understand that Dr Rao occupied rooms close to Dr [E]."

On 7 October 2003, the Appellant wrote a 13-page letter, of single-spaced typing, to Dr E, that recounted in detail her version of the events of their affair. It told of his offering to buy a house for them to move in together, and of their planning to have a baby. It recounted how, at the time it became clear that Dr E was not going to leave his wife: "You were not loyal and not faithful. Every one in the centre watched my distress and agony you have caused me. I developed sleepless nights. All my friends knew and warned me from you saying that you are using me. Everyone watched my intimidation and humiliation. It had lots of affect on me and reflected on my reputation also. I have asked you to stop calling me and realized that you are using me. You refused to stop and continued your harassment non stop. You have brought me in a humiliation state. I felt the most helpless woman ever. I felt intimidated. I become very ill and sick. I have never taken sick in my entire life.

It recounted how, at a time in September 2003 when he reiterated that he would not leave his wife: "I felt totally ill. I was suffering the accident injuries and on top I suffered severe anxiety, distress, depression, I have gone on sleeping pills trying to gain my health back I couldn't. I desperately needed comfort and had no one to comfort me. You left me alone shattered without support."

It refers to an occasion, on 26 September, when "you knew so well about my health that has tolerated so badly you offered to come and give me some comfort."

It also says: "Since you have caused me lots of cost especially my health, I am going to teach you the good way of punishing a bastard and show you the lesson of your life. ... Since you have caused me to lose my health in a distressful way and left me suffering with such agony and left me struggling with my health condition with [out?] help. Since you have destroyed me like that also destroyed my career to the fact this will be the last time I would work ever again in the medical industry. I am going to give you only 28 days to compensate me for all this. The cost and the penalty for all this I am demanding that you pay me $50,000 dollars compensation to my agony, stress, sleepless nights, migraine, depression, anxiety, overall grieving for six months as a result to your humiliation and intimidation that you have caused me. ... What happened to my accident was certainly a punishment of god for you and not for me. Look what happened to your business. It is closed." It threatened to send the documents she had to the medical board, and to have interviews with "the antidiscrimination board of NSW, the media and newspapers around Australia".

While the accident receives passing mention in this letter, the Appellant does not relate her psychological distress to it causally or even temporally.

The Appellant's letter of 7 October 2003 prompted a reply, dated 17 October 2003, from Dr E's solicitors. It denied the Appellant's entitlement to receive compensation, warned that blackmailing by threats to publish was a criminal offence, required her not to attend the surgery under any circumstances, and stated that Dr E had grounds to terminate her employment, which he might exercise.

On 20 October 2003, the Appellant wrote to a complaints officer at the Medical Board of NSW concerning how Dr E had treated her. Her letter said, in part: "Please find step by step my 13 months of distress and agony, also reasons and facts for my complaints. I have been working in the medical industry for many years but this has been one of the most distressing stories of my life. I am prepared to go as far as I can till I receive justice over this matter, even if I have to contact 'A Current Affair.' ... I certainly want justice regarding this matter. It has pushed me far enough that I have taken legal action and seeking, compensation, following this. I am attending psychiatry treatments following the distress that I have developed as a result of this matter. From the moment I started to settle in my job I started to cope with continuous harassments. Physically I am totally destroyed, I have become a prisoner in my home refusing to go out and meet people. I am totally depressed and on sleeping pills because I can not sleep at night. I am suffering severe distress following 13 months of constant harassment and abuse. In relation to my employment. This ordeal I feel will be ending 16 years of hard work that I have put in into this industry. I also feel that my whole medical career has ended. Being continuously harassed for 8 months, sexually abused for six months, betrayed and dumped, stabbed and totally destroyed has put me in a position where I am today."

It went on to give detail of Dr E encouraging her, then vacillating about ending the affair. The letter is written in a tone of high emotion, referring to Dr E as a "cunning man" "coward", and "rat", and making derogatory allegations about his wife. It gives the precise date of various events in the relationship between the Appellant and Dr E. It annexes copies of numerous documents, including affectionate e-mails that Dr E sent to the Appellant, and letters that the Appellant sent to Dr E's wife. It makes reference to Dr A, "with whom I had to undergo a nasty divorce because of a similar condition had given me enough shock that I still have not recovered from it till today". It makes reference to Dr D, "who sexually abused me for two years following my employment with him was also another shock that I had to suffer".

Ms Norton correctly points out that the judge was wrong in saying that the car accident was not referred to in that letter. The reference occurs on the fifth page, where the Appellant says: "Following my car accident on the way to work on the 20th of August 2003. It was the only way that kept me away from the most distressing situation of my life, seeking help from doctors for my agony, anguish, distress over all the most intimidation and humiliation situation of my life. Not knowing what my future employment which is totally destroyed is going to lead me. Knowing well, that I have lost it all."

I do not read that as the Appellant attributing any of her current distress to the car accident. The judge's error is inconsequential.

Dr Rondas Moorthy first saw the Appellant on 31 October 2003. It was never Dr Moorthy's opinion that the Appellant suffered post traumatic stress disorder. While there was still some dispute in the court below about whether the Appellant suffered from post-traumatic stress disorder, and some medical opinion that she suffered from schizophrenia, the judge held that she had neither condition. His findings in those respects are not disputed in this Court.

Dr Moorthy's preliminary diagnosis was (a) chronic pain and (b) major depressive disorder with anxiety features with a psychotic component.

Dr Moorthy came to know of the letter to the Medical Board for the first time when he was in the witness box. He accepted that that letter, written ten days before he first saw the Appellant, indicated that the Appellant's affair with Dr E was far more significant emotionally and psychologically to her than he had been led to believe.

On 28 October 2003, Dr E's solicitors wrote again to the Appellant, concerning an incident when she allegedly had attended at Dr E's house on a Sunday morning seeking to speak to Dr E and his wife. In relation to a remark that the Appellant allegedly had made to some of Dr E's colleagues that they should "look at the front page of the Telegraph tomorrow", the solicitors required details of all organisations to whom allegations similar to those in the Appellant's letter had been sent, and threatened proceedings for preliminary discovery if those details were not provided.

On 10 December 2003, the Appellant was given notice of the termination of her employment with Dr E. On 31 December 2003, she began an unfair dismissal action in the Industrial Relations Commission concerning that loss of employment. Dr Moorthy gave evidence that the first complaint the Appellant made to him about her relationship with Dr E was on 21 January 2004.

Dr Moorthy, in a report dated 22 November 2004, expressed the view: "The most appropriate diagnosis from a psychiatric point of view would be a major depressive disorder with anxiety features. She also shows some psychotic features of auditory hallucinations. She also complained of paranoia particularly relating to her previous employment. She also suffers from chronic pain secondary to the injuries sustained. The diagnosis is major depressive disorder with anxiety features. The differential diagnosis would be a severe adjustment disorder with depressive and anxiety features associated with regression to brief reactive psychosis under stress. The diagnosis is applicable for post accident history. I did not find any pre accident history that is relevant to the diagnosis or treatment."

Even though Dr Moorthy was the Appellant's treating psychiatrist, he was not primarily concerned with diagnosis. The judge accepted the following evidence from Dr Moorthy: "I often wondered as to what my role was in this because there wasn't anything psychiatrically manageable, other than being a source of comfort, the traditional role the psychiatrist plays, supporting the patient in their distress without making any judgments, accepting her complaints. Just being there whenever things get too much for her. Prevent her from taking some overdose of tablets or doing anything bizarre. So in that sense, my presence was constant. I was available, as much as I can. Except not knowing there was anything particularly clearly I was managing there, other than her distress and whichever way the roller coaster went. I was just there as a clinician helping her to sustain her life and then continue with whatever battle she was carrying on. So I wasn't managing her mental illness, psychosis or anything. Kind of an overall management of the individual as a person. Basically, I mean traditionally people would say the strengthening of the ego, supporting the ego, to make sure it's there."

The judge also noted Dr Moorthy's evidence that: "... there wasn't much I was able to offer her and basically there are psychiatrists who are forensically trained and who deal with these complex matter of, you know, workplace difficulties, accidents, like emerging illnesses in terms of anxiety, depression and psychosis. So my impression was that someone else may be more qualified to manage these complex features other than myself and I did find it extremely difficult, going - going all the way, managing it."

Dr Moorthy was not aware, until it was put to him in the witness box, that the Appellant had alleged that she had previously been sexually harassed by Dr D, that she had reported Dr C to the Medical Board or the Health Care Complaints Commission for alleged medical malpractice, and that she had reported Dr A to the Medical Board, the Health Care Complaints Commission and the Taxation Office. He accepted that they were a significant part of her psychiatric history. He accepted that for Dr E to lead the Appellant to believe that they would have a permanent relationship, but then to abandon her abruptly, would be a significant stressor.

In cross-examination, Dr Moorthy was taken through, one by one, the criteria identified in DSM-IV text revision 2000 for borderline personality disorder, and accepted that they applied to the Appellant. He agreed that that diagnosis "may have to be applied", and that if that was the correct diagnosis it would have nothing to do with a motor accident. However, in re-examination, he said "strictly speaking she must have it according to the books, yeah, but I don't see her as a borderline personality". His reason for that was that "... they are far more difficult to handle, in general ... they are extremely difficult, unpredictable, dangerous to themselves and others and in my dealings with her ... since 2003 I've never felt afraid or frightened or that she'll do something drastic ...that I did not encounter as a clinician personally in dealing with her. In the end it's entirely a clinical approach."

The judge did not regard the fact that Dr Moorthy agreed that the Appellant exhibited the diagnostic criteria for borderline personality disorder identified in DSM-IV was the end of any argument about whether indeed she suffered borderline personality disorder. The judge accepted that DSM-IV diagnostic criteria were just a guide to the ultimate clinical judgment that is involved in a diagnosis.

On 4 January 2004, the Appellant wrote an eight-page letter to the New South Wales Police (with a copy to the Human Rights and Equal Opportunity Commission), complaining that Dr E had come to her home and raped her on 27 September 2003, about his conduct during the affair, and about the circumstances in which he terminated it. The alleged rape had not been mentioned in the Appellant's letter to Dr E of 7 October 2003, nor in her letter to the complaints officer of the Medical Board on 20 October 2003. In the letter she sent to the police on 4 January 2004 she concluded by saying: "In my previous employment with [Dr D's practice] I had to suffer two years of trauma following the severe sexual harassment by [Dr D] I have a full dairy [sic] about the incidents. Previous to that I had to go through a very nasty divorce with my ex-husband Dr [A] for his indecent misconduct with his patients. I am suffering today severe psychology problem which may and have already affected my well being and damaged my life totally. I wake at night and cry and get very distraught. I become scared and feel very insecure, I feel hopeless, I fell [sic] weak, I have lost confidence of myself. I feel vulnerable, I feel victimized and traumatized by these incident[s]. I am providing every document I could to prove my case thus any further documents are required I will dedicate myself to provide it. Dr [E] even degraded my employment refusing to pay the requested monetary payment. He denied my overtime, did not pay the promised bonus. I have filed my application for unfair dismissal."

On 7 January 2004, the Appellant was assessed by Ms Diane Whiting, a clinical psychologist. Ms Whiting's report says: "Ms A reported that she suffered an injury to her neck in a car accident on 20 August 2003 when travelling to work. She has been diagnosed with cervical brachialgia (right side of her neck and right shoulder). Ms A reported that she feels extremely distressed and took an overdose of medication three times over the Christmas break. She stated that she often feels suicidal and violent toward her ex-employer. Ms A reported that she commenced working with Dr [E] in September 2002 as his secretary/office administrator. She stated that she managed the [location] office and Dr [E] attended there one day per week. Ms A alleged that from her first day she experienced sexual harassment from Dr [E]. She stated that he constantly complimented her, stood very close and stared at her and then would ask her to go out with him. According to Ms A this behaviour persisted until May 2003 when they commenced an affair. She stated that by July she ceased the relationship but Dr [E] would not leave her alone. She stated that things became quite difficult at work with him leaving her letters and sending her emails. According to Ms A when she had the car accident on 20 August 2003, she did not take time off work even though her neck and shoulders were very painful. She stated that she continued working until she ceased work on 3 October 2003 due to increased pain and stress. Ms A reported that Dr [E] contacted her the following day and they spoke for about 45 minutes. She stated that they eventually argued and she hung up on him. Ms A reported that on 8 October 2003, she took the medical certificate into work and she was subsequently sent a letter from Dr [E's] solicitor advising her that she should not come in to the office when she was on workers compensation. Ms A reported that she eventually returned to work on 21 November 2003, but was terminated on 10 December 2003. Comments Ms A presented as extremely emotional. She sat physically very close to me during the assessment and disclosed personal information rapidly. The assessment involved discussions mostly about the affair between her and Dr [E] rather than her physical injuries as Ms A appears to be overwhelmed by this issue. Ms A reported that she has placed a complaint about Dr [E] to the medical board (which has been rejected as it is not the appropriate forum), has lodged a complaint with the anti discrimination board and has instituted legal action all against Dr [E]. Ms A also reported that she is filing a complaint with the police. Her psychological distress appears to be a result mainly regarding the relationship with Dr [E] and his behaviour, rather than her physical injury. She also presents as extremely histrionic and emotional. Ms A's personality style and the litigation involving Dr [E] are major impediments to her recovering from her physical injuries. Until this issue is resolved for Ms A, it is anticipated that the ongoing stress of the whole situation will continue to exacerbate her pain and discomfort. Ms A reported that she wants compensation for the way she has been treated by Dr [E]. ... Ms A will not stabilise until her issues with Dr [E] are resolved, some cognitive work is recommended to assist Ms A with the adjustment to her situation. Her suicidal behaviour also needs monitoring." (emphasis added)

The judge said, at [74], concerning that report: "This report confirms my preliminary view that it was the problems with Dr [E], and not any injury sustained in the motor vehicle accident, that was the cause of the plaintiff's mental problems at the time."

Ms Norton points out that Ms Whiting's conclusion that the Appellant's psychological distress "appears to be a result mainly" of the relationship with Dr E does not lead to the judge's conclusion that it was the problems with Dr E that were "the cause" of the Appellant's mental problems.

The Appellant obtained employment working in the practice of Dr F, a female GP in the Western Suburbs, commencing on 16 September 2004. She was dismissed from that employment in late August 2005. She began proceedings against Dr F before the Industrial Relations Commission of NSW on 29 August 2005, alleging unfair dismissal. The Appellant's principal complaint related to failure to pay her amounts that the Appellant claimed to be entitled to receive, but as well there were some allegations of arrogance on the part of Dr F, and of Dr F harassing and humiliating her in front of patients and staff. There was some correspondence between the Appellant and Dr F from as early as 10 June 2005, which the judge, in my view fairly, described as being "couched in a similar emotional tone to much of the plaintiff's correspondence when she has been affected by some sort of personal crisis" ([114]).

The Appellant's leaving Dr F's employment coincided with a change in her psychiatric condition. On 13 August 2005, Dr Rao reported that her current conditions included recurrent nightmares, major depression with suicidal thoughts, delusional thoughts, and adjustment disorder. He reported that: "During the past 2 weeks her condition has worsened, necessitating immediate referral for review to her psychiatrist Dr Moorthy. As a result of her review she may require hospitalisation for her major depression/adjustment disorder in Wesley Private Hospital during the coming weeks, ..."

Dr Moorthy reported that she developed symptoms of psychosis from 2005, hearing voices, including of her parents and people who died years ago, hearing knocks on the door and finding no one there, and hearing telephones ring and finding no one on the phone.

The judge concluded that the employment with Dr F assisted neither party. He said: "... if the plaintiff is suffering from [borderline personality disorder] then her behaviour whilst working for Dr [F] provides evidence of some of the manifestations of that illness. The pattern of work and behaviour issues confronting Dr [F] were not dissimilar to those confronting Dr [C] 10 years earlier."

The Appellant's proceedings in the Industrial Commission against Dr E ended unfavourably to the Appellant on 4 October 2005.

Another distressing period for the Appellant followed her being diagnosed as suffering from breast cancer. She had a mastectomy in 2006, following which she spent a number of weeks in a psychiatric clinic.

Of the twenty five grounds of appeal identified in the Amended Notice of Appeal, some were either not pressed at all, or pressed only if certain other of the grounds of appeal succeeded. Those grounds of appeal are numbered 6, 8, 9, 10, 16, 17, 18, 19 and 20.

The judge took the view that to a major extent the case depended upon whether the Appellant was accepted as a credible, reliable and consistent witness. The judge at [5]-[6] did not so regard her: "... the plaintiff's evidence is such that it is completely unreliable and in the absence of some objective support for her various physical and psychological conditions, it cannot be relied on to the extent that I would be able to be satisfied on the balance of probabilities as to any of her assertions as to fact or as to her complaints of physical and psychological disability. At best the plaintiff suffers from such a psychological impairment such as to render her unable to determine fact from imagination. At worst she is prepared to manufacture circumstances to suit her view of what has happened to her as a result of the accident and indeed in regard to the many other traumatic events in her life."

The first ground of appeal is that the judge's finding concerning the credibility of the Appellant was erroneous. It was common ground that the Appellant has come to suffer from a serious mental illness. The Appellant's written submissions state that "in those circumstances [the judge] should not have made credit findings based on her evidence or on things she had said or done after developing that condition."

I do not see what alternative the judge had. Inevitably, a judge must make factual conclusions, including assessments of witnesses, on the basis of material before him or her. There was a period, beginning in 2005, when the Appellant's condition was more disabling than it was at the time of the trial, and caution would be needed before basing a conclusion concerning her credibility or reliability on inconsistencies between statements that the Appellant made when her illness was in a fairly florid state, and known facts. However, the inconsistencies in evidence to which the judge specifically pointed, in annexures to the judgment, were in evidence that the Appellant gave at the trial, that could justifiably cause a judge concern about whether a statement made by a witness should be accepted. At [104], the judge gave other examples of inconsistencies in evidence that the plaintiff gave, at times when her condition did not have the degree of seriousness it had in the period commencing in 2005: "... there are small things about the past that she has divulged over the years that give cause for some concern and are difficult to explain rationally. For example the plaintiff says she was born in Nigeria and yet she told Canterbury Hospital on the night of the motor vehicle accident that she was born in Azerbaijan and had never married. In evidence it came out that apart from being born in Nigeria, she had also spent a number of years living in ... Lebanon. She told Ms Simonato in November 2001 that she was born in Europe and described educational qualifications that she could not have completed in the time frame specified. In that regard she told Dr Gertler in 1999 that she had done the HSC in Sydney and has two degrees from the University of Technology Sydney, one in business management. I note that in regard to all the courses she has done, some of the certificates are simply ones of attendance rather than evidence of passing examinations or the level of the pass."

The conclusion that the judge came to concerning the Appellant's credibility was not far removed from a written submission of the Appellant's counsel at the trial: "11. It is submitted that little can be placed upon the plaintiff's oral evidence and the behaviours upon which she was cross-examined by reason of her psychiatric condition. 12. The plaintiff was more of an exhibit than a witness in this case. It is submitted that it would be apparent from her evidence, her manner in the witness box, her answers and general demeanour that: a. The plaintiff remains significantly disordered despite apparent improvement and better control due to her medications over the last couple of years. b. Much of the plaintiff's evidence was irrational and unable to be controlled by the questioners. c. The plaintiff's condition is genuine ..."

Even though the Appellant's submissions refer to Fox v Percy (2003) 214 CLR 118, they do not point to any "incontrovertible facts or uncontested testimony" that shows that any of the judge's conclusion concerning the Appellant's credibility is wrong, nor do they identify why any of the judge's conclusions are "glaringly improbable" or "contrary to compelling inferences in the case": (See generally Nominal Defendant v Rooskov [2012] NSWCA 43 at [91]-[92].) I would not uphold this ground of appeal,

The nub of these grounds is that the judge was mistaken in concluding that the Appellant suffered from a pre-existing condition of borderline personality disorder.

An important element in the judge's conclusion that the Appellant had been suffering from a borderline personality disorder was that the judge accepted the opinion of Dr Patricia Jungfer, an MAS assessor who interviewed the Appellant, and gave a certificate and accompanying reasons on 30 July 2010. Dr Jungfer reported: "On specific questioning as to whether or not she had previously seen a psychiatrist, counsellor or psychologist, she answered to the negative. She was asked to consider her answer and again answered to the negative. She reported being a healthy, happy woman, who despite working many years managing medical centres, had never needed to see a medical practitioner.

Dr Jungfer's diagnosis included that the Appellant: "... presents as a woman with a complex psychiatric diagnosis. There is substantial evidence of pre-existing psychiatric illness and dysfunction predating the time of the subject accident. ... There are substantive concerns regarding the credibility and consistency of her history. Ms Azar contradicted herself on multiple occasions in the time of the MAS assessment. She provided history that was contradictory from the start to the finish. She provided information that was contradictory to the documents provided, and when provided with opportunities to clarify that history, provided unsatisfactory explanations, including impairment of memory or explanations that appeared to justify those statements. The explanations she gave were not reasonable and were not satisfactory. She appeared to be finding answers on the run. It also raises the question of her presentation within the clinical context. She did not have the demeanour, behaviour, nor characteristics of a person with a serious anxiety or depressive disorder. ... She made multiple allegations regarding various members of medical practice and defamatory statements, and did not appear to recognise the inappropriateness of her conduct. She has multiple paranoid belief systems and hallucinatory and delusional ideas. She is on psychotropic medication but very unfamiliar with the dosages which has to question whether or not she is taking such medication. There is also a history of multiple somatic concerns, multiple presentations to doctors. Of course, she attributes all these to the subject accident. In clinical practice, it is not surprising to see individuals who attribute their impairments, their problems and daily struggles to a motor vehicular accident. But is this a reasonable link and is it a causal link? She describes an anxiety when driving and fear for being in another accident. This would be a reasonable causal link. She attributes the breast cancer as being related to the accident, and I understand from the documentation that there is no causal link. She relates the rape as being related to the accident, although there is no evidence that such an event occurred; that it in fact was a consensual sexual relationship, and many other facts that she relates to the conduct of Dr [E] has not been supported. ... ... almost certainly her clinical presentation is not consistent with the symptom complaints that she reports. Therefore, on the basis of the fact that she sustained an accident that caused her to feel anxiety and that she continues to restrict her driving, I continue to accept that she has an adjustment disorder with anxious mood related to the subject accident. While she may report severe depression and Post Traumatic Stress symptoms, I can find no evidence that the subject accident was of the nature, type and severity that would cause a Post Traumatic Stress Disorder. The Diagnostic Statistical Manual is clear that the nature of an accident to cause a Post Traumatic Stress Disorder must be a severe one that is life-threatening, where people sustain life-threatening injuries, there is death or actual or real harm to an individual. The accident that she sustained did not meet these criteria. ... In terms of other diagnostic possibilities, she presents with paranoia and delusional thinking consistent with that of a psychotic process. My underlying hypothesis is that she has borderline personality disorder with episodes of brief psychoses. There is ample evidence that she had a pre-existing personality disorder at times of psychosocial stress and almost certainly the litigation and the lack of success in the litigation would be viewed as psychosocial stressors that may be associated with psychotic symptomatology. She also has a somatisation disorder. This is unrelated to the accident and is not a rateable impairment.

The only psychological injury that Dr Jungfer found had been caused by the accident was an adjustment disorder with anxious mood. One of the comments she made concerning the Appellant's degree of whole person impairment was: "She currently does not work. She however does collect large numbers of documents, has legally represented herself in a number of matters although not successfully because of her style of interaction which is based on underlying personality rather than psychiatric symptomatology. Her psychiatric symptoms, her adjustment disorder with anxious mood related to the accident would however restrict the types of work opportunity she would have."

Overall, Dr Jungfer found a four percent whole person impairment due to the motor vehicle accident.

As well, Dr Smith (about whose evidence the judge had some reservations) had diagnosed that she suffered from a borderline personality disorder.

One of the diagnostic criteria for there to be a borderline personality disorder, in accordance with DSM-IV, is that the illness presents in early adulthood. The Appellant submitted below, and submits in this Court, that there was no evidence of a borderline personality disorder having manifested itself by that time. However, the judge accepted that there was sufficient basis for holding that she had had long-standing psychiatric difficulties.

The judge set out at length, at [106]-[110], passages from the joint evidence of two psychiatrists, Dr Clark and Dr Smith, that I infer he accepted, notwithstanding that he was critical of some other aspects of their evidence: "Perhaps I'll address this to you, Dr Smith, and then ask Dr Clark for his comment. Would it be fair to say that one of the purposes, in attempting to arrive at a psychiatric diagnosis, is to formulate an appropriate cause of treatment? WITNESS SMITH: Yes. REWELL: You agree, no doubt, Dr Clark? WITNESS CLARK: Yes, yes, indeed. REWELL: In particular, in a forensic psychiatric exercise such as this, is another important purpose of arriving at a diagnosis that a diagnosis may assist at looking at what caused the particular psychiatric condition? Dr Smith. WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: Yes. REWELL: In fact, trying to unravel causation is all but impossible without first arriving at a diagnosis, is it not, Dr Smith? WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: Yes. REWELL: Now, when a psychiatrist interviews a disturbed patient, is it a common experience that history, particularly history of events many years ago, is either impossible to obtain or apt to be very unreliable? Dr Smith? WITNESS SMITH: Not infrequently the case. REWELL: Dr Clark? WITNESS CLARK: Yes, it could, sure. REWELL: When a psychiatrist suspects on current clinical presentation that a certain diagnosis is satisfied, is it a legitimate clinical process then to look back at what is known of past behaviour in order to see whether that that diagnosis is likely to have been longstanding. Dr Smith? WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: Yes. REWELL: If one gets to the stage that one has found evidence of a particular disorder extending over a number of years is it then a legitimate forensic and clinical technique to assume, depending on the nature of the disorder, that the disorder has probably existed since early-adulthood, if that's a relevant matter? WITNESS SMITH: Yes. WITNESS CLARK: Yes. REWELL: I mean, that's the retrospectivity, I think, you talked of, Dr Clark. WITNESS CLARK: Yes, yes. REWELL: And that's a legitimate psychiatric process for a psychiatrist who would commonly be faced with gaps in a person's life history or be unable to rely on the person themselves to give an accurate account. Do you agree, Dr Clark? WITNESS CLARK: I agree. REWELL: And Dr Smith? All right. A borderline personality disorder is very unlikely indeed to suddenly afflict a middle-aged person involved in a minor car accident. Would you agree, Dr Smith? WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: Yes. REWELL: However, a person who has long suffered a borderline personality disorder may show more florid signs of - signs and symptoms when affected by a major stressful event. Would that also be correct? WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: It depends on the age of the person. REWELL: Well, let's assume the person is in their 40's. WITNESS CLARK: Personality disorders tend to mature out and stabilise when you get older. REWELL: Now, does that mean, Dr Clark, that the stressfulness of an event that is likely to make the symptoms more florid would be greater for a person, say, in their 40s, than a person in their 20's. WITNESS CLARK: That's - you mean, if they suffer from a borderline personality disorder first of all? REWELL: Yes. WITNESS CLARK: It certainly would - could reawaken borderline personality disorder. REWELL: But for a person in their 40s it would take a - it would be likely to take a much more stressful event than for a person in their 20s. WITNESS CLARK: Well, yeah, it would have to be almost life threatening, I would have thought. REWELL: Or, in their perception, at least, life destroying? WITNESS CLARK: Life destroying, yeah.

Doctors Clark and Smith also said: "REWELL: Dr Smith, is the basis of a borderline personality disorder an innate fear of abandonment? Is that an accurate statement? WITNESS SMITH: Yes. REWELL: Dr Clark? WITNESS CLARK: Yes. She's been abandoned before ..."

That immediately preceded other evidence that the judge quoted: "REWELL: Would it be fair to say that, for a person who suffers a borderline personality disorder, the termination of an employment relationship would probably be seen as an abandonment? WITNESS CLARK: Yes, indeed, yes. REWELL: Dr Smith? WITNESS SMITH: I agree. REWELL: Is it a characteristic of persons who suffer from borderline personality disorder that, if an abandonment occurs, whether it be the end of a marriage or the end of a period of employment, a rather extreme response may be expected? WITNESS CLARK: Yes, yes. REWELL: Dr Smith? WITNESS SMITH: Yes. ... REWELL: There's no doubt that one has to put these diagnostic criteria into a clinical contest, and one would expect someone suffering from borderline personality disorder, who had been subject to the kind of stress that the relationship of Dr [E] imposed, you would expect abnormal behaviour thereafter, would you not? WITNESS CLARK: Yes. REWELL: Dr Smith? WITNESS SMITH: Yes. REWELL: Gentlemen, have we not seen and read about such abnormal behaviour ever since the cataclysm that was the relationship with Dr [E]? Dr Clark? WITNESS CLARK: There is the possibility that it was occurring beforehand. REWELL: And may even- WITNESS CLARK: And that the disastrous - disaster with Dr [E] was, what he sensed was, he didn't want to stay with this relationship, because she was already disturbed, and there's not much evidence for that other than her say so. REWELL: Perhaps the important point, though, is that on her account of events, and on Dr [E's] correspondence, it was May or June 2003, that is, before the motor accident, that Dr [E] decided not to leave his wife, and abandoned what may have been his promises of a permanent relationship with the plaintiff. Now, that's significant, isn't it, Dr Clark? WITNESS CLARK: That is a bit significant, yes. REWELL: All of that makes it overwhelmingly likely, does it not, that what triggered the symptoms from which the plaintiff has suffered from August 2003 or September 2003 - it doesn't matter which - those symptoms are primarily to be attributed to the disastrous relationship with Dr [E]. Would you agree? WITNESS SMITH: I believe so. REWELL: Dr Clark? WITNESS CLARK: It is possible that the accident, as it were, was the straw that broke the camel's back. It is possible, therefore, then this fluctuating relationship with Dr [E] was - I mean, in his mind, he realised - she says she was going around with a neck brace, and even in bed with a neck brace, so it must have been a great change in the relationship physically as well, which we haven't actually gone into in quite the same detail as the emotional change in their relationship, but I suppose he's obviously - somebody with a bad neck isn't going to be the same person who you're having a passionate affair with, as the person before, for that matter. I mean, this is perhaps something nobody has talked about before but it's very relevant. REWELL: Let me try to clear that up. All right, we won't ignore it. Firstly, Dr Clark, if it be the case that, completely contrary to what you were told about the severity of the accident, the accident was in fact a minor rear end collision, not involving unconsciousness, severe shock, collapses, waking up in the street, or any of those events, then it is very unlikely indeed, is it not, that the accident played any role in the deterioration of the plaintiff's psychological condition in late 2003, particularly in the face of the Dr [E] disaster during the same period? WITNESS CLARK: Well again you're ignoring the fact that a person who complains of a bad neck isn't going to be the most passionate of bed partners." (Italics in original judgment)

The judge continued, at [11]: "In regard to the italicised statement above, I note that there is no evidence that I am aware of that the plaintiff has suggested that her relationship with Dr [E] was affected by any neck problems or the necessity to wear a neck brace." No evidence on that topic, that the judge missed, has been identified in this appeal.

There was evidence from Dr Smith that people can function quite well with a borderline personality disorder, especially if they are intelligent. Therefore, the fact that the Appellant had previously been running the administrative side of three medical practices was not inconsistent with her having had a borderline personality disorder at that time.

As well as the comments on the Appellant's letter of 18 July 2003 to Dr E's wife that the judge recorded in the passage I have set out at [52] above, both Dr Smith and Dr Clark expressed the view that the letter was consistent with the conduct of a person suffering from a borderline personality disorder.

The Appellant is right in submitting that the judge did not discuss or refer to the evidence of the Appellant's sons in the context of determining the question of whether the Appellant had a borderline personality disorder. Ms Norton submitted that we should read the whole of the evidence of the sons. I have done so.

The elder son, Pascal, gave evidence that he and his brother lived with their father after the divorce, and saw very little of the Appellant at first. From the time he was about eight (which would be about 1988), he and Carlos saw the Appellant on most weekends. They did not notice anything wrong with her, though she worked very long hours. She would be doing work even during the time that they were visiting, so the boys would watch TV. They noticed that from around the time of the accident she became unhappy, withdrawn, and irritable. There came a time after that when they stopped seeing her, because, as Pascal put it, "I couldn't handle it", but he said that she had improved considerably since 2007.

Pascal's evidence contains some parts that the judge did not mention, that before she married Dr A she was seeing "an Egyptian guy" against whom she took out proceedings. Pascal said he did not become aware that the Appellant had had a relationship with Dr E until 2007. As well, Pascal said: "... my mum was not - she doesn't tell us anything. Like, any problem she's have, it's like she didn't want us to know. It's like she's trying to hide it.

Carlos' evidence about his relationship with his mother was: "Mate, my mum left me when I was young, and that's something that it's hard for a person to grow up with, right? And end of the day, the family background I come from, she's your mother, and that's - to me, if I have to help her, then I have to help her. ... Mate, like I said, I see my mum, but I'm not that close. Like, she does say, 'I'm going overseas,' and I just, leave it at that, mate."

Carlos was twenty one at the time of the accident. He gave evidence that he had noticed a change in his mother, so that she had become very hard to deal with, but he put that change as occurring during "the last couple of years".

When that was the nature of the evidence the sons could give, there was no deficiency in the judge's reasons in failing to refer to it, and the evidence that they gave does not vitiate his conclusion about the Appellant having suffered from a borderline personality disorder.

There was also evidence from a brother and sister of the Appellant, who spoke of noticing a change in her, but that evidence is imprecise as to time and the dimensions and nature of the change. It is no surprise that the judge did not mention it.

The Appellant tendered various references that she had received from employers that spoke of her favourably. However, it is not as though the judge disregarded those references. He said concerning them: "One however needs to exercise caution in regard to work references as being a true reflection of a persons capability and more importantly of their personality. I dare say a bad reference from an employer never sees the light of day and there is a natural tendency to give a person the best reference possible without resorting to outright lies or deception. Evidence from one relatively independent employer Dr [C], who employed the plaintiff in 1999, was of behaviour by her that went beyond her statement of duties and, in his opinion, her expertise and was also of an un-professional personal nature that went beyond a clinician/patient relationship. Apart from the evidence of Dr [A] who, despite later reservations, speaks well of her abilities, the only evidence of the plaintiff's abilities come from her and the references in question and as I have already indicated, the plaintiff is a far from reliable witness."

Illustrative of that, when Dr A was questioned about a reference he had given to the Appellant he said, "Well, she was my wife, I think, and I did give her what she wanted." When asked whether the statements in the reference were true he replied "To some extent. Not everything really". As well, the references in evidence included one from Dr F, who said that the Appellant had managed her workload "at all times without any difficulties", and "I appreciate Nayla's hard work and commitment and hold her in the highest esteem". That reference was given on 22 March 2005. It does not sit happily with the letter that Dr F wrote to the Appellant on 31 August 2005, notifying her that she had been summarily dismissed for "breach of duty or breach of trust" in several respects, one of which was stated to be "the manner in which you have communicated with myself both verbally and in writing which I found to be disrespectful and abusive". The judge is not shown to have been in error in being cautious about placing weight on the work references that were in evidence.

As well, the judge had the evidence of Dr Gertler in 1999 expressing the view that she had "a long-standing personality disorder" ([41] above), and Ms Simonato's view expressed in 2001 that she had an "underlying personality disorder".

The judge specifically considered whether there was evidence of psychological reactions to stress before the accident. He said, at [128]: "... the evidence is that the plaintiff was disabled psychologically at different times before the accident, even if the cause was not a Borderline Personality Disorder. The reliance I can place on how well she did in Dr [E]'s practice must be suspect, given the nature of their relationship and even accepting she may have run three medical practices until late 2001, the fact remains that when that employment ended, the plaintiff again had to seek psychiatric treatment because of the effect on her of that job loss. Such decompensations are not a normal incidence of the working environment."

The Appellant is demonstrably unreliable as a recounter of her own medical history. By the time of the accident she had had periods on workers compensation because she was unfit for work by reason of her mental condition. She had received psychiatric assistance from Dr Sochan, and Dr Girgis. As well, her mental state had been evaluated by Dr Gertler, and Ms Simonato. Notwithstanding that, Dr Moorthy could report on 6 March 2006 that "she reported good physical and psychological health before the accident". Dr Jungfer similarly found her to be an unreliable historian. That makes the absence of specific evidence of her having had earlier incidents of less significance than it otherwise might be.

The Appellant submits that the judge should not have preferred the evidence of Dr Jungfer, who was not cross-examined, over the evidence of witnesses who were cross-examined. I do not accept that submission. It is an everyday occurrence in the District Court for a judge to receive in evidence a bundle of medical reports, and for only some, or none, of the medical practitioners to be cross-examined. It is not submitted that the judge was unaware, or had forgotten, that Dr Jungfer had not been cross-examined. Indeed, the judge specifically considered the relative weight he should place upon the different doctors. He concluded, at [130]: "I do not accept that Dr Jungfer was at any relative disadvantage compared to Drs Moorthy, Clark and Smith. Indeed she had far more information as to the plaintiff's background than either Dr Moorthy or Dr Clark had prior to the trial. The only disadvantage is that she has not read the plaintiff's and other evidence as did Drs Clark and Smith."

In all these circumstances, I am not persuaded that the judge was in error in finding that the Appellant suffered from a pre-existing condition of a borderline personality disorder.

The Appellant's own view of the effect that Dr E's conduct towards her had had, was that it had "totally destroyed" her ([61] above).

I have already referred, at [78], to the judge's remark at [74] of the judgment that it was the problems with Dr E that were the cause of the Appellant's mental problems in January 2004.

The judge observed, at [95], that: "... the overwhelming evidence is that the business with Dr [E] occupied her mind to the exclusion of almost everything else between May 2003 and early 2004 and beyond. The motor vehicle accident was no doubt not helpful to her, occurring as it did in that period, but it can hardly be blamed for everything of a psychological nature that has followed."

The judge observed, at [116] that: "... virtually every pre-accident employment since 1998 has resulted in a severe emotional reaction when it has come to an end. At least one of those employments, the plaintiff has said, involved an intimate relationship with her employer. However, that particular relationship pales in comparison with the relationship we know in fact occurred between the plaintiff and Dr [E] and Dr [E] and the plaintiff."

The judge continued, at [117]-[118]: "The consequences of the failure to establish the permanency of the relationship and the eventual ending of it, I am satisfied had a disastrous effect on the plaintiff. The motor vehicle accident perhaps provided a focus for her problems such that as the Dr [E] affair dwindled away over 2004 and subsequent years when Dr [E] went out of reach, as it were, the accident took over as the target for her emotions. That could not have been helped by the various failures to persuade the police, the Industrial Relations Commission, the Medical Board and the HCCC of the veracity of her complaints. Indeed on two occasions when a decision went against her she attempted suicide. Another disaster in her life, particularly as I am satisfied she was a person who prided herself on her looks and the way she dressed, was the mastectomy carried out in 2006 after which she spent a number of weeks in a psychiatric clinic."

The Appellant submits, correctly, that these findings, and some other observations that the judge made, did not apply the relevant test for causation: that arising under ss 5D and 5E of the Civil Liability Act 2002. However, when the judge went on to consider whether the requirements of the Civil Liability Act for proof of causation were met, and concluded that those requirements were not met, any error his Honour made by expressing views about causation of damage without regard to ss 5D and 5E is not shown to have had any consequence on the decision.

The Civil Liability Act 2002 provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. ... (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

The "particular harm" in the present case is the psychiatric condition that the Appellant came to be in. The combined effect of ss 5D and 5E is that the Appellant bore the onus of proving that it was more likely than not that she would not have been in that psychiatric condition if the accident had not occurred, or alternatively, that she comes within s 5D(2). There is no trace in the written submissions of the Appellant in the court below of a submission that the case fell within s 5D(2).

The Appellant submits, in reliance upon Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2011] HCA 53; (2011) 86 ALJR 172 that "subject to section 5D of the Civil Liability Act the primary judge ought to have asked and answered the common law test of causation namely whether the defendant's negligence 'caused or materially contributed to the injury'." I do not accept that submission. As Gummow, Hayne and Crennan JJ noted in Amaca v Booth at [58], the provisions of ss 5D and 5E Civil Liability Act did not apply to the proceedings that they were considering.

In Strong v Woolworths Limited [2012] HCA 5; (2012) 86 ALJR 267, French CJ, Gummow Crennan and Bell JJ saw no error in the statement that I had made in the decision appealed from, that: "'Material contribution', and notions of increase in risk, have no role to play in s 5D(1). It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that the plaintiff suffered will fall within s 5D(1), but that does not alter the fact that the concept of material contribution and increase in risk have no role to play in deciding whether s 5D(1) is satisfied in any particular case."

As their Honours went on to point out, "material contribution" has come to be used in different ways when considering causation in tort. Their Honours reiterated, in Strong at [29], that causation is to be determined by reference to the statutory test. It is possible for s 5D(1)(a) to be satisfied by "a defendant's negligent act or omission which is necessary to complete the set of conditions that are jointly sufficient to account for the occurrence of the harm" (ibid at [20]). But it is still the statutory test that must be applied.

The judge found, at [148], that: "... the motor vehicle accident was likely to cause the not uncommon physical injury of a flexion/extension of the cervical spine. However it is difficult to see how the psychiatric harm said to be suffered by the plaintiff now, was a necessary condition of the occurrence of the harm but more particularly, that it is appropriate that the defendant's liability be extended to such harm."

The Appellant submits that the judge has here applied the wrong test, and that he should have considered whether the motor accident was a necessary condition of the psychiatric harm. Reading the paragraph as a whole, I would not regard the statement "it is difficult to see how the psychiatric harm said to be suffered by the plaintiff now was a necessary condition of the occurrence of the harm" was anything more than a verbal slip on the judge's part - he had specifically referred, in the previous sentence, to the type of harm that the motor vehicle accident was likely to cause.

He also found, at [154], that: "... the plaintiff was in an extremely fragile psychological state as at the date of the accident but that situation cannot be laid at the door of the defendant. That the plaintiff de-compensated further after the motor vehicle accident and the alleged sexual assault may indicate that the two are inextricably linked but I do not think that they are. If they were, I would find that the necessary condition of the occurrence of the harm was not the motor vehicle accident but rather the relationship the plaintiff was in with Dr [E]. That position is supported by the findings of Ms Whiting the psychologist, who in January 2004 saw the plaintiff's condition then as being overwhelmed by her relationship with Dr [E] rather than by her physical injuries."

In the penultimate sentence, the judge addressed the correct question under s 5D. Insofar as he expressed the view that the relationship with Dr E was a necessary condition of the occurrence of the harm he went further than he needed to - the relevant question was whether the motor vehicle accident was a necessary condition of the particular harm. The evidence that the judge had earlier quoted from Dr Clark and Dr Smith, to the effect that a borderline personality disorder is very unlikely to suddenly afflict a middle-aged person involved in a minor car accident, but that an event that was perceived as almost life-threatening or life-destroying could reawaken a borderline personality disorder in a person in their 40s, provided a basis for his conclusion of lack of a necessary connection. Dr E's behaviour was a significant abandonment of the Appellant, the type of behaviour that, in accordance with the evidence of Dr Clark and Dr Smith, could trigger the sort of symptoms that the Appellant exhibited.

The Appellant submits, correctly, that there is nothing in s 5D that stops a tortfeasor being liable for the damage his or her negligence has caused, even if the damage that the particular plaintiff has suffered is considerably greater than would have been suffered by a plaintiff of ordinary susceptibility. In an appropriate case, the same conclusion concerning causation of damage can be reached under s 5D as the common law would reach using the "egg shell skull rule". However, it is still necessary for the plaintiff to show that it is more likely than not that, had the accident not occurred, she would not have suffered the psychiatric problems that have beset her. I see no error in the judge's conclusion that she has not established that. Thus, I would reject these grounds of appeal. When causation of damage by the motor vehicle accident has not been made out, no question arises of discounting damages to take account of the possibility that some other event might have precipitated a similar psychological state in the Appellant. Nor does any question arise of disentangling the extent to which the Appellant's condition is partly a product of the motor vehicle accident and partly a product of other matters, like her treatment by Dr E.

This ground contends that the judge erred in relying upon matters which were not the subject of cross-examination or flagged to the Appellant prior to judgment. Some of the matters relied upon are in the nature of particulars of why the judge did not regard the Appellant as a credible witness. A judge is not obliged to flag to a litigant matters upon which the judge ultimately reaches a conclusion concerning that party's credibility: Adamson v Ede [2009] NSWCA 379 at [113]-[118]. Others are minor comments concerning the facts, that were not central to the judge's principal findings, and were consistent with the evidence. The written submissions of the Respondent at [95]-[103] provide detail as to how that is so. The triviality of the matters relied upon, so far as the judgment as a whole is concerned, does not warrant setting out those paragraphs of the submission here. This ground of appeal is rejected.

This ground submits that the opinions of Dr Gertler and Ms Simonato should not have been relied upon when the histories relied upon by those practitioners were not proved and were denied by the Appellant.

The reference to history not being proved is, in substance, a reference to the material on the basis of which Dr Gertler changed his opinion not being identified or proved in evidence. However, when the reports were admitted into evidence without objection, it is not possible to rely upon them being inadmissible. The conclusion reached by these reports, that the Appellant had had psychiatric symptoms before the motor accident in August 2003, was a topic on which the Appellant was cross-examined.

In any event, the judge declined to act on the basis of the reports of Dr Gertler and Ms Simonato alone. He said, at [137]: "... the evidence is overwhelming that the plaintiff has and is suffering from a personality disorder that pre-existed the accident. That diagnosis was first made by Dr Gertler in 1999 then by Ms Simonato in 2001. Had those two reports stood alone there might have been cause for some doubt but in 2006 Dr Jungfer made the same diagnosis, followed by Dr Smith in 2009. Although he felt the plaintiff had schizophrenia with an underlying personality disorder, his diagnosis is not so dissimilar to the others as to warrant being disregarded. Dr Jungfer again in 2010 diagnosed the plaintiff as suffering a Borderline Personality Disorder and whilst that was not a diagnosis that Dr Moorthy came to, he at least conceded that the plaintiff had some of the hallmarks of that illness."

I would not uphold this ground of appeal.

Dr E attended the court in answer to a subpoena issued by the Respondent. At the same time as he was determining the proceedings from which the present appeal is brought, the primary judge was also determining an application brought by the company that operated the business side of Dr E's practice to recover the amount of workers compensation that had been paid to the Appellant. The judge gave a judgment in that matter on the same day as he gave the judgment appealed from. On the advice of the workers compensation insurer, Dr E declined to answer any questions in conference before giving evidence. Counsel for the Respondent declined to call him as a witness.

Counsel for the plaintiff in the court below likewise declined to call Dr E in the plaintiff's case. He made a submission that the Respondent's failure to call Dr E led to a "Jones v Dunkel inference" (referring to (1959) 101 CLR 289). The Appellant's counsel in the court below submitted that Dr E was in a position to give evidence concerning what work the Appellant was able to perform following her return to work, what her likely wages would have been but for her accident, and whether her work performance was satisfactory. As well, it was submitted that without evidence from Dr E there was no evidence from the defendant to say whether the Appellant's relationship with Dr E, but for the motor vehicle accident, would have resumed. There was no evidence that Dr E was still married to his wife. The Appellant submitted below that given Dr E's professed desires for the plaintiff, clearly expressed in writing, it was possible that, but for the motor vehicle accident, Dr E may ultimately have left his wife. It was submitted that a Jones v Dunkel inference should be drawn against the Respondent.

The judge declined to draw any such inference. One reason was because Dr E was suing the Respondent, at the behest of his workers compensation insurer. Another was that Dr E was in a position to assist or hinder either party. A third reason was that "his evidence was likely to have been extremely subjective and its value at this distance from the events in question would be extremely doubtful".

On the appeal, the Appellant submits that Dr E was not a crucial witness in the Appellant's case. I would accept that, but it provides no reason why a "Jones v Dunkel inference" should be drawn against the Respondent.

The Appellant also submits that there was considerable material produced in evidence emanating from Dr E and which required answer by him if the Respondent wished to escape adverse inferences "that would otherwise necessarily flow from that material". The Appellant gives several examples of such material.

One is a letter that Dr E wrote to the Appellant on 30 June 2003. It said that he was increasing her wages by fifty dollars per week, was commendatory of the work she had performed up to that time, and expressed the hope that they would continue working together for a long period of time. Another is an email from Dr E to the Appellant, apparently dated 15 May 2003, that expresses how torn he is between his love for the Appellant and his loyalty to his wife, and asks the Appellant to be patient. Another is an email that Dr E wrote to the Appellant on 10 June 2003 expressing his enjoyment at her presence, and asking her to "stay and work with me as I am a friend as well as a discarded lover". Another is a handwritten note that Dr E wrote to the Appellant on 6 July 2003, saying he was "missing you like crazy and feeling so lonely", and urging her to contact him. Another is an email of 19 July 2003 from Dr E to the Appellant that expresses in graphic terms how he misses her. Another is a letter of 2 August 2003, which expresses the deep connection that they have with each other, and concludes by saying "we need each other". Another is a letter that Dr E wrote to the Appellant on 1 January 2004 enclosing a cheque, and saying "it's not much as I had to split your hours with Jill". It expresses hope that she will have a better New Year, and offers to help in finding her work.

The Appellant's submissions do not identify the adverse inferences that would be drawn from the material. The only inference that I can see is that Dr E had an affair with the Appellant, vacillated about breaking it off, and kept on holding out to the Appellant the prospect of a relationship with him for months after he had initially told her that he would not leave his wife. In substance, that is the inference that the primary judge drew. The material upon which the Appellant relies in this respect makes no mention at all of the motor vehicle accident. It provides no basis for an inference that, but for the motor vehicle accident, her relationship between Dr E and the Appellant might have resumed.

Another basis upon which the Appellant submits that the judge should have drawn "a Jones v Dunkel inference" was that there were two documents that the judge admitted on a limited basis unless Dr E was called to give evidence to otherwise prove the contents of the exhibit. The judge did not mention either of those documents in his judgment. There is no basis for believing that the judge ignored or overlooked the limitation on the purpose for which that evidence could be used. One of the documents is the letter from Dr E's solicitors dated 28 October 2003. Though I have mentioned that letter in recounting the chronology ([68] above) the only significance I place on it is that the fact that it was sent at all marks a step in the deterioration of relations between the Appellant and Dr E.

The Appellant's ground of appeal relating to Jones v Dunkel provides an example of a tendency that is far too frequent in this Court to contend that a trial judge was in error by failing to draw a "Jones v Dunkel inference". At the risk of repeating what should be very well known, Jones v Dunkel authorises, but does not require, a tribunal of fact to engage in two different types of reasoning. One is to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness. The other is that the tribunal of fact can draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v Byrne [2004] NSWCA 123 at [51].

Glass JA identified a number of propositions for drawing such an inference in Payne v Parker [1976] 1 NSWLR 191 at 201-202. Among these were the following conditions: "(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. (7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard [1975] VR 916, at 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at 728. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O'Donnell v Reichard [1975] BR 916, at 921."

In the present case, there is no reason to believe that Dr E would be expected to be called by the Respondent. There was no prior connection at all between the Respondent and Dr E: the Respondent was a motorist who, on a public road, had run into the back of the car of someone who worked for Dr E. Nor was there any subsequent connection between the Respondent and Dr E, apart from Dr E's company, no doubt at the behest of its workers compensation insurer, having sued the Respondent to recover the workers compensation payments made to the Appellant.

For a judge to draw an inference, of the type and in the circumstances identified in Jones v Dunkel, is just one of the numerous steps that are open to a judge in the process of fact-finding. Whether a judge has come to an incorrect factual conclusion depends upon an assessment of the whole of the evidence, not just on whether the judge has, or has not, drawn a Jones v Dunkel inference in the course of reasoning to a factual conclusion. Even if a judge did not draw a Jones v Dunkel inference, and the appellate court comes to the view that it would be preferable to draw such an inference, that in itself does not mean that any factual conclusion of the judge is wrong. For that reason, it is not a self-contained ground of appeal to argue that a judge should have drawn a Jones v Dunkel inference.

As well, in applying the second type of inference that Jones v Dunkel authorises, particularity is needed about what is the inference unfavourable to the party who failed to call the witness that should be drawn, and why that inference is open on the material before the court. The submissions of the Appellant in the present case fail to meet those requirements.

This ground of appeal does not succeed.

This ground asserts that the judge erred in finding that the MAS certificates were binding on the Court on the questions of disability, injury and causation of injury. The judge expressed that view in [159] of his judgment.

Even though the judge went on to give reasons why he took that view of the law, he recognised that his view on that question was not essential to his reasoning (or, as he expressed it at [164], "somewhat redundant"). That was because he had, on his own examination of the facts, come to a view that accorded with that of Dr Jungfer.

Whether the primary judge's decision was correct cannot be affected by whether his obiter dicta about MAS certificates being binding on the issues he identified is correct. Thus, it is unnecessary to decide, on this appeal, whether those dicta were correct. This ground of appeal fails.

As mentioned at [86] above, certain of the other grounds of appeal were pressed only if some of the grounds that I have already considered succeeded. As the grounds already considered have all failed, those other grounds of appeal do not arise. I have considered whether to deal with them in any event, and come to the view that the scarce judicial resources of this Court can more effectively be used in deciding questions that will actually affect the outcome of litigation.

This ground of appeal is that "the trial judge erred in ordering the plaintiff to pay the defendant's costs on an indemnity basis from February 2011". The ground is inadequately drafted, because it does not identify the respects in which it is alleged the trial judge erred in making that order. However, those grounds emerged adequately in the course of the Appellant's written submissions. The Offer of Compromise

The Offer of Compromise was made on Friday, 11 February 2011. The case was set down to commence on Monday, 21 March 2011, ie five weeks and two days later. Ten days had been set aside for the hearing.

The offer stated that it was open to be accepted until 5.00pm on 4 March 2011 (which was a Friday). Thus, it allowed twenty-one days for acceptance. It annexed a copy of a proposed consent judgment or order. The first term of that proposed judgment or order was: "The plaintiff shall cause this action to be mentioned in court and apply for approval of these consent orders and such other order as may be deemed expedient in accordance with the provisions of the Uniform Civil Procedure Rules 2005. Subject to such approval as aforesaid:"

It then went on to identify a judgment sum, and made provision for making repayment of amounts due under the Health and Other Services (Compensation) Act 1995 and for other payments in respect of workers compensation or other social security benefits that were deductible from a verdict amount. Relevant Statutory Provisions

UCPR 20.26 provides: "(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. ... (6) An offer may be expressed to be limited as to the time it is open for acceptance. (7) The following provisions apply if an offer is limited as to the time it is open for acceptance: (a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial, (b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial.

As the offer was made less than two months before the date set down for commencement of the trial, UCPR 20.26(7)(b) required that the offer be left open for such time as is reasonable in the circumstances.

UCPR 20.27 provides: "(1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer. ... (3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly."

UCPR 20.28 provides: "(1) A party who accepts an offer may withdraw the acceptance in any of the following circumstances by serving written notice of withdrawal on the offeror: (a) if the offer provides for payment of money, or the doing of any other act, and the sum is not paid to the offeree or into court, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides, or (b) if the court grants the party leave to withdraw the acceptance. (2) If acceptance of an offer is withdrawn: (a) except as provided by paragraph (b), all steps in the proceedings that have been taken as a consequence of the offer having been accepted cease to have effect, and (b) the court may give directions: (i) to restore the parties as nearly as may be to their positions at the time of the acceptance, and (ii) to give effect to any steps in the proceedings that have been taken as a consequence of the offer having been accepted, and (iii) to provide for the further conduct of the proceedings, and may do so either after the offer is withdrawn or when granting leave to withdraw the offer."

UCPR 20.29(2) provides: "If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled: (a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or (b) to an order that the defence be struck out, and to judgment accordingly, as the plaintiff elects, unless the court orders otherwise."

Section 3 Civil Procedure Act 2005 contains the following definition: "person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes: (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs."

Even though the Appellant does not fall within any of paras (a)-(e) of that definition, it is still possible for her to be a "person under legal incapacity", within the meaning of the definition, if she falls within the chapeau, as a "person who is under a legal incapacity in relation to the conduct of legal proceedings". Whether a person is under a legal incapacity is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174]-[175]. Thus, the Appellant may well be able to carry out a multitude of tasks involved in her daily life, but still lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of "person under legal incapacity". The present case has at all times been conducted on the basis that the Appellant is a "person under legal incapacity", within the definition in s 3.

Section 76 Civil Procedure Act states: 76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity (1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons: (a) a person under legal incapacity ... ... (3) Except with the approval of the court, there may not be: (a) any compromise or settlement of any proceedings to which this section applies ... ... as regards a claim made by or on behalf of, or against, a person referred to in subsection (1). (4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement. (5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made. (6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent."

Pursuant to s 11 of the Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, the definition of "person under legal incapacity" in the Civil Procedure Act also applies to the Uniform Civil Procedure Rules.

Part 7, Division 4 of the UCPR is headed "persons under legal incapacity". It contains the following provisions: "7.14 Proceedings to be commenced or carried on by tutor (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor. 7.15 Tutors generally ... (6) Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.

UCPR Part 42, contains the following provisions: "42.13 Application This Division applies to proceedings in respect of which an offer of compromise (the offer concerned) is made under rule 20.26 with respect to a plaintiff's claim (the claim concerned). ... 42.15 Where offer not accepted and judgment as or less favourable to plaintiff (1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer. (2) Unless the court orders otherwise: (a) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, ..." The Reasons for Judgment Concerning Costs

The primary judge delivered additional reasons for judgment on 15 June 2011 relating, inter alia, to an application by the Respondent for an order for indemnity costs from 11 February 2011. He observed that the Offer of Compromise was made after a mediation hearing had occurred, and that no additional evidence was put before him on the issue of costs. In particular, he observed that he was unaware of any discussions that had occurred between the Appellant's representatives and the Tutor or the Appellant concerning the Offer of Compromise.

The judge noted an argument by counsel for the Appellant that offers of compromise cannot apply to a plaintiff under a disability because of the requirement for the Court of approve any settlement offer. He rejected that argument: "If that point had validity it disappears in light of the specific requirement of term one of the proposed terms of settlement which required the plaintiff to bring the matter before the Court for an approval in accordance with the relevant legislation."

The judge reminded himself, in summary form, of principles governing the awarding of indemnity costs by reason of a failure to accept an offer of compromise.

He reminded himself of Morgan v Johnson (1998) 44 NSWLR 578 at 581-2, where Mason P (Sheller JA agreeing) said, concerning the then applicable provisions concerning offers of compromise under Part 19A District Court Rules 1973 and Part 52, rule 17(5) and Part 52A, rule 22(6) Supreme Court Rules 1970: "(1) The purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation: Maitland Hospital (at 725-726); Hillier (at 421, 431). (2) The aim is to oblige the offeree to give serious thought to the risk involved in non-acceptance: Maitland Hospital (at 724). (3) The prima facie consequence of non-acceptance will be that the rule will be enforced against the non-accepting party: NSW Insurance Ministerial Corporation v Reeve (at 102); Hillier (at 422). This is because, from the time of non-acceptance 'notionally the real cause and occasion of the litigation is the attitude adopted by [the party] which has rejected the compromise': Maitland Hospital (at 724); see also Hillier (at 420). (4) Lying behind the rule is the common knowledge that 'litigation is inescapably chancy': Maitland Hospital (at 725). For this reason, the ordinary provision is expected to apply in the ordinary case: ibid NSW Insurance Ministerial Corporation v Reeve (at 102-103). The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule: NSW Insurance Ministerial Corporation v Reeve (at 102). As Clarke JA expressed it in Houatchanthara (at 2-3): 'The rule lays down the general principle that should be applied, and the order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case. It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. The idea behind the rule is to encourage settlement or compromise of proceedings, and more specifically, to encourage litigants to give serious consideration to the settlement of proceedings. Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk.' (5) The discretion to displace the rule is a judicial one, requiring the private and public purposes of the rule to be borne in mind: Maitland Hospital (at 725-726). Reasons must be given for 'otherwise ordering': Hillier (at 419); Quach."

Those principles continue to be applicable concerning the UCPR provisions concerning the cost consequences of offers of compromise.

The judge also reminded himself of Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [35], where McColl JA (Mason P and McClellan CJ at CL agreeing) said: "The onus is on the respondent to demonstrate why the Court should not order the respondent to pay the appellants' costs on an indemnity basis. In particular, the respondent must establish that it had given serious thought to the risks involved in not accepting the offers, had assessed the appellants' case properly and in the context of the relevant rules and the achievement of their purpose as outlined in Morgan. Generally, exceptional circumstances are required to justify such an order denying the appellants' entitlement: South Eastern Sydney Area Health Service v King [2006] NSWCA 2 (at [83]) per Hunt AJA (Mason P and McColl JA agreeing)."

The judge noted an argument that the time required to consider the offer was not reasonable in all the circumstances of the case, given that it had to be discussed with the Tutor and perhaps negotiations undertaken with the workers compensation insurer. The judge did not deal with this particular argument. Not every failure by a judge to deal with an argument that is put vitiates the judge's decision. However, the expedient way of dealing with this ground of appeal is to assume, without deciding, that this failure to deal with the argument vitiates the judge's decision, and to re-exercise the discretion. No Application of Rules about Offers of Compromise to Persons Under Legal Incapacity?

The Appellant repeats on the appeal her submission that the rules concerning offers of compromise do not apply, as a matter of construction, to a situation where the plaintiff is a person under legal incapacity suing through a tutor. The Appellant submits that UCPR 20.27 could not apply to a person under legal incapacity, because it presupposes that a binding agreement will arise upon acceptance of an offer. The Appellant submits that UCPR 20.29 similarly presupposes that an accepted offer gives rise to an agreement that is capable of being implemented by a judgment or order. The Appellant submits that for a binding agreement to arise on acceptance of an offer would be inconsistent with the court's supervisory jurisdiction under s 76.

The correctness of this submission requires an examination of the effect of the statutory requirement that "except with the approval of the court, there may not be any compromise of any proceedings ..." on an agreement made by a tutor to settle litigation.

Section 76 does not create a criminal offence (cf Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410). Section 76(3) does not use the language of prohibiting the making of a contract to settle litigation. Rather, it is the compromise or settlement itself that cannot arise except with the approval of the court.

There is some fuzziness of meaning in the phrase "any compromise or settlement of proceedings". Sometimes it refers to a binding agreement that when implemented will result in the proceedings being finally brought to an end. Sometimes it refers to the activities that, by being done, bring the litigation to an end. In the latter sense, there is a compromise or settlement of proceedings when by agreement court orders are made that result in a res judicata so far as the cause of action asserted in the proceedings is concerned, or when a plaintiff enters a deed that releases all rights concerning the cause of action sued on.

Some of the people who fall within the definition of "person under legal incapacity" will be able to be bound effectively by contracts (in particular, someone who is a protected person, in relation to whom the manager will be able to enter contracts within the scope of the power conferred on the manager, and people who have granted an enduring power of attorney) but others will lack the capacity to enter contracts. Section 76 must be construed so that it operates in both of these possible types of situation. For people who lack capacity to contract, the only way a compromise or settlement of litigation can occur is by the making of court orders. Subsections (4) and (5) of s 76, presuppose that there can be an "agreement for the compromise or settlement of any matter" even before the approval of the court is sought, granted, or refused. That provides some basis for concluding that "compromise or settlement of proceedings" has the latter of the meanings I have just mentioned. Section 76(6) speaks as though, once approved, an agreement to compromise binds the person under legal incapacity. However, that is consistent with the prohibition in s 76(3) being on the legal acts that effect the compromise or settlement.

UCPR 7.14 requires that everything that a person under legal incapacity does in the commencing and carrying on proceedings be done by his or her tutor. UCPR 7.15 confers legal authority on a tutor to bind the person under legal incapacity. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person's estate, or the donee of an enduring power of attorney. However the authority that UCPR 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR "authorise or require a party to do in relation to the conduct of proceedings". One of the things that UCPR authorises a party to do in relation to the conduct of proceedings is to accept an offer of compromise. UCPR 20.27 expressly confers that authority on a party. Thus a literal reading of the rules leads to a conclusion that a tutor can accept an offer of compromise, and thereby give rise to an "agreement for the compromise or settlement of [a] matter", within the meaning of s 76(4) and (5). But what is the effect of such an agreement?

Rules of the Supreme Court Order 80, rule 11, was an English provision that had some similarity to s 76. It provided: "Where in any proceedings ... money is claimed by ... a person under disability no settlement ... shall ... be valid without the approval of the court."

In Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 an agreement had been reached for the settlement of a claim under the Fatal Accidents Act 1846 brought by a widow on behalf of herself and her young child. The settlement agreement was expressed to be "subject to the approval of the court". Before the order granting that approval had been entered, the defendant repented. The House of Lords held that the settlement agreement had no effect at all. The clearest expression of that view was by Lord Pearson, at 190: "In my view, 'not valid' means having no legal effect. The settlement, so far as it related to the £9,250, in which the infant was interested, was only a proposed settlement until the court approved it. Either party could wilfully have repudiated it at any time before the court approved it. It had no validity by virtue of the parties' agreement in the August settlement. That which might have given it validity would have been an order made by the master with the effective consent of the parties ..."

That decision has been applied in England, concerning a later rule in the same terms, in Drinkall v Whitwood [2003] EWCA Civ 1547; [2004] 1 WLR 462 and Brennan v ECO Composting Ltd [2006] EWHC 3153 (QB); [2007] 1 WLR 773. However, that reasoning turned on the English rule being stated in terms of whether the settlement was "valid". Section 7632) Civil Procedure Act is cast in different language.

Smallman v Smallman [1972] Fam 25 concerned an agreement for property settlement in a divorce. The agreement that the parties made stated that it was subject to the approval of the court. Lord Denning MR explained the statutory context in which such agreements were made, at 31: "It is very common for agreements to be made in divorce proceedings 'subject to the approval of the court.' This has been so ever since the enactment of the Matrimonial Causes Act 1963 (now section 5 of the Matrimonial Causes Act 1965) which validates a bargain which represents an honest negotiation between the parties provided it is disclosed to the court. ... Since the Divorce Reform Act 1969 also it is common for agreements to be made 'subject to the approval of the court' and to seek the opinion of the court under section 7 as to the reasonableness of them."

The only part of s 5 Matrimonial Causes Act 1965 that relates in any way to disclosure to the court is subsection (2): "Provision may be made by rules of court for enabling the court, on application made either before or after the presentation of the petition, to take into consideration for the purpose of this section any agreement or arrangement made or proposed to be made between the parties and to give such directions in the matter as the court thinks fit; but nothing in this subsection affects any duty of the parties to disclose to the court any agreement or arrangement made between the parties in contemplation of or in connection with the proceedings." (Latey at 1405)

Section 7(1) Divorce Reform Act 1969 provided: "Provision may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit."

The rule made to give effect to that provision was clause 6 of the Matrimonial Causes Rules 1971. Apart from procedural matters such as parties and service, all that rule said was: "On the hearing of an application under this rule the judge may express an opinion, should he think it desirable to do so, as to the reasonableness of the agreement or arrangement and may give such directions, if any, in the matter as he thinks fit." ((7) on page 1560 of Latey)

Thus, the statutory provisions that were relevant in Smallman said nothing about invalidity of settlements, nor did they impose a statutory requirement for approval of a settlement. The statutory provisions were purely enabling, and it was only the contract between the parties that made their agreement subject to the approval of the Court.

In Smallman, Lord Denning, at 31-2, stated: "In my opinion, if the parties have reached an agreement on all essential matters, then the clause 'subject to the approval of the court' does not mean there is no agreement at all. There is an agreement, but the operation of it is suspended until the court approves it. It is the duty of one party or the other to bring the agreement before the court for approval. If the court approves, it is binding on the parties. If the court does not approve, it is not binding. But, pending the application to the court, it remains a binding agreement which neither party can disavow. Orr LJ has drawn my attention to a useful analogy. Many contracts for the sale of goods are made subject to an export or import licence being obtained. Such a condition does not mean that there is no contract at all. It is the duty of the seller, or the buyer, as the case may be, to take reasonable steps to obtain a licence. If he applies for a licence and gets it, the contract operates. If he takes all reasonable steps to obtain it, and it is refused, he is released from his obligation. If he fails to apply for it or to do what is reasonable to obtain it, he is in breach and liable to damages: see Brauer & Co (Great Britain) Ltd v James Clark (Brush Materials) Ltd. [1952] 2 TLR 349 and A V Pound & Co Ltd v M W Hardy & Co Inc [1956] AC 588. Similarly when a man agrees to buy property 'subject to the title being approved by our solicitor.' there is a binding contract. There is an implied promise by the buyer that he will appoint a solicitor and shall consult him in good faith, and that the solicitor shall give his honest opinion. If the solicitor honestly disapproves, the contract does not bind. But until he does disapprove, the contract binds: see Hussey v Horne-Payne (1879) 4 App Cas. 311, 322 and Marten v Whale [1917] 2 KB 480, 486. Branca v Cobarro [1947] KB 854 is on the same lines."

Smallman has been applied to agreements to compromise litigation under the Family Provision Act 1982. There is no statutory obligation to seek approval of an agreement to compromise such litigation, but if the settlement is to be implemented by court orders the court must satisfy itself that it has jurisdiction to make the order, and that the particular order is one that ought to be made in terms of s 7 of the Act: Bartlett v Coomber [2008] NSWCA 100 at [37], [72], [84]-[86]. Thus, an agreement to settle such proceedings by the making of orders is binding on the parties, insofar as it obliges them, either expressly or impliedly, to approach the court to seek the making of the orders: Mitchell v Osborne (Supreme Court of NSW, Young J, 20 May 1997, unreported); Groser v Equity Trustees Ltd [2008] VSC 163; (2008) 19 VR 598 at [24]-[26]; Coomber v Stott [2007] NSWSC 513 at [28] and [66] per Macready AsJ.

There is High Court authority concerning what contractual obligations arise when a statute prohibits a particular type of transaction (typically, a dealing in Crown land) from occurring without the consent of a governmental official, and a contract is entered for such a transaction, that makes no mention of obtaining the consent. Such a contract is construed as operating within the confines of this prohibition, insofar as it can. It is construed as containing implied terms binding the appropriate parties to do all things reasonable to seek the consent, binding both parties to do nothing to jeopardise the obtaining of the consent, and that if the consent is not obtained the contract goes off: Egan v Ross (1928) 29 SR (NSW) 382 at 387-8; Butts v O'Dwyer (1952) 87 CLR 267 at 279-280, 282-283, 285; McWilliam v McWilliams Wines Pty Ltd (1964) 114 CLR 656 at 660-661; Brown v Heffer (1967) 116 CLR 344 at 349-50.

In Fisher v Marin [2007] NSWSC 1411 Patten AJ at [83]-[89] followed Smallman concerning an agreement for compromise of litigation, made on behalf of a person under legal incapacity by her tutor. He held that the agreement for compromise was binding on the parties, and there was an implied term to bring the agreement to the court for approval. Consistently with the various authorities that I have discussed, that decision was correct.

It is possible for an offer of compromise to be made so that it is conditional upon some event, other than acceptance of the offer, occurring: Oxlade v Gosbridge Pty Ltd (No 2) [1999] NSWCA 165 at [7]. The effect of s 76 is to impose a condition on any agreement to settle proceedings that arises from acceptance of an offer of compromise. Thus, when a person under legal incapacity, by his or her tutor, accepts an offer of compromise, that acceptance does not itself give rise to a complete binding agreement for the settlement of the proceedings. However, it gives rise to some contractual obligations. In the absence of an express obligation to seek the approval of the court (which there would be if the offer in the present case had been accepted) there would be an implied obligation on the part of the tutor to seek the approval of the court. In the event that the court grants its approval, there is then a binding agreement in the terms of the offer of compromise. If the court were to not approve the compromise it would presumably be prudent to seek leave under UCPR 20.28(1)(b) to withdraw the acceptance of the offer, so that it was not left to implication of law that those contractual obligations that arose from acceptance of the offer had come to an end.

I would accept that UCPR 20.27(3) must be read down so that it operates only subject to s 76, but that does not mean that the entirety of the provisions concerning offers of compromise do not apply to litigation to which a person under legal incapacity is a party. Similarly, in the administration of UCPR 20.29(2), the court would, presumably, "order otherwise" if a plaintiff who had accepted an offer, but not obtained approval, sought to invoke UCPR 20.29(2). In that way, the rule is not inconsistent with the provisions concerning offers of compromise applying to persons under legal incapacity.

For these reasons, I do not accept the Appellant's submission that the rules concerning offers of compromise do not apply when an incapable person is suing through a tutor.

In what I take to be an invocation of the principle that legislation should not be interpreted to produce results that are absurd, extraordinary, capricious or irrational (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321; Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 at [35]-[36]) the Appellant submits that it would be unfair to impose upon a tutor who has no knowledge and can have no knowledge in most instances of all the relevant facts responsibility to form a view as to whether a particular offer is reasonable. The Appellant also submits that for the offer of compromise provisions to apply to a tutor would place the tutor in an intolerable position of conflict of duty and interest.

How this conflict arises requires some explanation. Even though in the present case the order for costs that was made was against the Appellant, such an order is enforceable against a tutor: Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148 esp at [24]. As well, it was held in Yakmor at [45] that there is jurisdiction for the court to make an explicit costs order against a tutor. That decision was reached on the basis that the tutor was a party to the litigation. Yakmor was decided at a time when UCPR 42.3 permitted costs orders against a non-party in only limited circumstances. Since then, the UCPR have been amended so that there is no longer a restriction on making costs orders against non-parties: Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128; (2011) 281 ALR 304 at [24]-[25]. However, in accordance with the reasoning in Yakmor it would still be possible to make a costs order directly against a tutor.

I accept that at the time the offer of compromise in the present case was made, there was a risk that a costs order might be enforced, or sought, against the tutor. The Appellant submits that it would be unreasonable for the tutor to be placed in a position of conflict between his duty to act in the best interests of the plaintiff, and his interest in protecting his own assets as a consequence of an offer of compromise.

It is hard to see how these matters affect the construction of the relevant legislation and the principles of contractual construction that I have referred to. A tutor is always at risk that he or she might be liable to pay a costs order made against the person under legal incapacity, or that a costs order might be made against him or her directly. The tutor's personal liability is likely to arise if the person under legal incapacity loses the litigation, or loses an issue that is clearly dominant or separable: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]-[35]; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]-[11]. The service of the offer of compromise changes the scope of the tutor's risk concerning costs, by bringing about a risk that the tutor might have to bear costs even if the person under legal incapacity succeeds in the litigation. However, it does not bring about such a radically different situation that Parliament could not have intended it. An anomaly arising from what, on all other tests of construction, is the correct construction of legislation must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems correct construction: Ganter at [36]; ACQ Pty Limited v Cook [2008] NSWCA 161; (2008) 72 NSWLR 318 at [127]; Chen v Kevin McNamara & Son Pty Ltd [2012] VSCA 63 at [33]. Offer Open for Only Twenty-One Days Makes it Invalid?

The Appellant points out that the offer was open for only twenty-one days. I take it that that is a submission that it was not a valid offer, because it was not open for "such time as is reasonable in the circumstances", as required by UCPR 20.26(7)(b).

When a litigant seeks an indemnity costs order by reason of failure to accept an offer of compromise, the onus of proving that it was an offer in accordance with the rules lies on that party. However, if all that is shown is that an offer, that is open for twenty-one days, is made after a mediation, and five weeks prior to the hearing being due to start, I would infer that that was a reasonable time. After a mediation, and as close as that to the start of the hearing, parties ordinarily could be expected to be well aware of the strengths and weaknesses of their respective cases.

In assessing what was "such time as is reasonable in the circumstances" for the purposes of UCPR 20.26(7)(b), the fact that the offer is made to a person under legal incapacity might sometimes be, or give rise to, a relevant factor. If there was some matter, relevant to the Appellant being under legal incapacity, that detracted from the inference that twenty-one days was a reasonable time, there would be an onus on the Appellant of adducing evidence to show what that matter was. No such evidence was adduced. Appropriate to "Order Otherwise"?

Alternatively, the Appellant submits that the judge should have "otherwise ordered", in accordance with Part 42.14(2). I accept that, in principle, factual circumstances arising from an offer having been made to the tutor of a person under legal incapacity might sometimes enter into a court's decision whether to "order otherwise" for the purposes of UCPR 42.15.

I will consider seriatim the Appellant's submissions about why the court should "otherwise order".

"(a) The offer was made less than two months before the matter was listed for a 10 day trial, at a point in time when much of the legal expenses and other costs would already have been incurred." I have difficulty in seeing why this is a reason to "otherwise order". The effect of an unaccepted offer of compromise can only be to alter the burden of costs for the future, from the time the offer is made. The burden of costs incurred up to that time is likely to fall on whoever proves to be the losing party in the litigation, as would be the case whether the offer of compromise was made or not.

"(b) It may have been difficult to get appropriate instructions from the tutor [to] marshal evidence for the approval and have the matter listed for approval and determined prior to the trial. In any event during the time that this would necessarily have taken legal expenses and costs in respect of the primary trial would have continued to have been incurred as there would be no guarantee the court would approve the settlement and accordingly trial preparation would need to continue. In fact there is no evidence that was before the Primary judge that would have suggested that the court would have approved any settlement on the information that would have then been available to the Judge hearing the approval." If there were any difficulties in obtaining instructions or marshalling evidence, it was for the Appellant to demonstrate them to the judge, yet no evidence to do so was put on. That trial preparation would need to continue while approval was being sought can be accepted, but I do not see why that is a reason to "otherwise order". The transcript of the argument that preceded the judgment that the primary judge gave on 15 June 2011 is in the appeal books, and it seems that no argument on this point was put to the primary judge. Similarly, if the Appellant wished to contend that it was unlikely that approval would have been granted, if sought, it would be necessary to establish that proposition by evidence and argument, yet that was not done.

"c. The offer was not specified to be open for 28 days as is the prima facie requirement under the Rules (in this case only 23 or 24 days.)" The submission that the offer was open for twenty-three or twenty-four days is wrong as a matter of simple arithmetic. However, for the reasons I have previously given, the time that the offer was open was prima facie reasonable. If there were any particular facts that made it unreasonable, the evidentiary onus was on the Appellant to establish those facts.

"d. The difficult situation that the appellant was in concerning workers compensation repayment and the interplay with the social security system. The appellant would have been precluded for approximately 300 or more weeks from receiving any Centrelink allowance in circumstances where the workers compensation insurer would be insisting on full repayment of its workers compensation payments (the workers compensation insurer not being concerned with any compromise that was necessary to resolve the principle proceedings) thus leaving the appellant at risk concerning her ability to survive. In fact once continued entitlement to weekly benefits and ongoing entitlement to medical expenses is factored in then the appellant is significantly better off than she would have been had she ... accepted the offer of compromise. The Workers Compensation repayment was approximately $309 000: T556.8, T9.5 (15/6/2011). Medical expenses were approximately $130 000. Given the Primary judge's findings medical expenses were subsequently agreed at $17 202.83." The Appellant, correctly, does not submit that the amounts of workers compensation and social security payments that she must repay from the verdict enter into whether she has received "an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer", within the meaning of UCPR 42.15(1). Rather, the submission is that those amounts provide a reason for the court to "otherwise order".

It has been held that if a plaintiff recovers less than the amount of an offer that was made, the fact that being ordered to pay costs would significantly reduce the plaintiff's verdict is not a proper consideration on the basis on which to make the consequences arising under the rules not apply: Hillier v Sheather (1995) 36 NSWLR 414 at 422; Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 at [19]-[22]. The reasons that Kirby P gave in Hillier at 422 for the burden of costs not been taken into account in deciding whether to "otherwise order" included: "They are precisely the considerations which the rule anticipated would arise. Indeed, their occasional occurrence is exactly the sanction which the rule imposes upon people in the position of the cross-respondent. Through the burdens cast upon her in this case, the rule is designed to send a clear signal to litigants, and their legal representatives, which will promote early settlement discussion outside the court and realistic consideration of offers made. A significant new peril has been introduced for litigants and those advising them."

In my view analogous reasoning is equally applicable concerning the workers compensation and social security payments that the plaintiff in a personal injuries action must make from any verdict money. The obligation to make those payments is an ordinary incident of personal injuries litigation. That a plaintiff will have to pay these expenses is no more a reason to "otherwise order" than is the fact that a plaintiff will have a liability to pay his or her own lawyers.

In any event, while the judge had the amount of the workers compensation repayment before him, and the total medical expenses that had been incurred, it would be necessary to demonstrate by argument and calculation that the Appellant was better off than she would have been had she accepted the offer of compromise. No such argument or calculation was provided to the primary judge.

"e. The Primary Judge relied in part for his ultimate assessment of damages on some video footage in respect of which the respondent had made ex parte application and then later application on notice to withhold from the appellant prior to trial. That application was dealt with by Judge Truss who granted the respondent's application shortly before trial and accordingly the appellant's tutor was deprived of any knowledge of surveillance material which could have affected his decision to accept or not accept the offer of compromise: J71.184. This argument in the case of a capable plaintiff is met, quite rightly, by the submission that whilst the plaintiff's legal advisors did not know about the plaintiff's activities the plaintiff herself did. Here the decision to settle however was not that of the plaintiffs. It was the decision of the plaintiff's tutor. He was therefore deprived of important information (so the Primary Judge found) which could have affected his decision to accept or not accept the offer of compromise in circumstances where the material was withheld solely for the respondent's perceived forensic advantage."

"f. Similar considerations apply to the lay evidence from Dr [A], the defendant, an employee of the Westpac Bank at Campsie and several medical practitioner employees all called in the respondent's case and unknown to the tutor."

These grounds are unpersuasive. If the tutor was not aware that his mother was capable of carrying out whatever physical activities were depicted in the video footage, it was for him to put evidence before the court to say so. Likewise, it was for the tutor to establish to the judge that he was unaware of the facts that arose from the evidence of Dr A, the defendant, the Westpac employee and the medical practitioner employees.

An important factor in his Honour declining to "otherwise order" was: "McColl JA [in Caine] makes it clear that for the Court to be able to exercise its undoubted discretion the party resisting such an order needs to explain why the offer of compromise was rejected. That has not happened in this case. In fact I do not even know if the offer was discussed. Whilst I sympathise with the plaintiff's situation and the difficulties involved in dealing with her, the tutor was really the only person who mattered. No reason has been advanced as to why he rejected this offer if indeed he knew of its existence and the ramifications of a refusal."

I agree with that reason.

There is no occasion to alter the judge's costs order.

I propose that the appeal be dismissed with costs.