The Guardian 21 February, 2007

A thirty-four year fight for justice:
the legacy of Chelmsford


On February 28, 1973 Barry Hart, a 36-year-old gymnasium proprietor, model and actor walked into the Chelmsford Private Hospital in a Sydney suburb, complaining about anxiety caused as a result of botched plastic eyelid surgery he had undergone and made a request to see a psychiatrist.

Without any further investigation of his complaint and after waiting an hour to see a psychiatrist who never showed up Hart decided to leave. He was given a tablet by a nurse to allegedly settle his anxiety which rendered him unconscious. He was subjected without consent to Chelmsfordís notorious "deep sleep" treatment and woke up 10 days later suffering from life threatening double pneumonia, deep vein thrombosis, a pulmonary embolus and anoxic brain damage.

Thirty-four years after being abused in Chelmsford Barry Hart is still in Australiaís adversary legal system trying to get justice.

He told The Guardian, "I used to believe that the justice system was there to right wrongs and deliver justice. I was wrong. The greatest abuser of human rights in Australia is the adversary justice system.

"The attitude of the many lawyers I consulted about my case was that of apathy and negativism. It took me seven years to get my case to court. In 1980 despite the judge summing up against me for two days, I won a jury verdict against Chelmsford Hospital for false imprisonment and against the treating psychiatrist, Dr Herron for false imprisonment, and assault and battery.

"The verdict was empty. I ended up with only $36,000 in compensatory damages and a huge legal debt and, in order to live, a disability pension. The overall costs of the trial were between $500,000 and $750,000."

Appeals and cross appeals followed the trial. The defendants wanting a new trial on consent and Hart claiming that compensatory damages were inadequate. There were 48 appeal points against the trial judge.

A two-year Royal Commission ending in 1990 found that at least 25 people had died as a consequence of the deep sleep treatment. Ten of whom had died during the seven years Hart was trying to get his case to court. Sixteen false death certificates had been signed to cover up the true cause of death. Treating people without consent was a common practice at the hospital.

The Royal Commission also found that there had been a conspiracy to pervert the course of justice by the defendants in Hartís case. They had removed an unsigned consent form from Hartís ID Sheet to hide the fact that it hadnít been signed.

Dr Herron had also sued Hart and Channel Nine television in 1984 for alleged defamation over a Mike Wilessee telecast about the failure of authorities to act on the Chelmsford scandal!

Following the Royal Com≠missionís revelations, Dr Herron tried to have Hartís appeal struck out for alleged lack of prosecution.

Herron lost with costs against him. The judgement came down in June 1993.

The same year Hartís symptoms that the trial judge had called "bizarre" in 1980 and which could not be diagnosed at the time were medically diagnosed by a specialist Dr Malcolm Dent as those of a "severe, chronic Post Traumatic Stress Disorder" (PTSD) caused as a direct consequence of the abuse Hart had suffered in Chelmsford.

Dr Dent said that because the illness was "so long in Ďentrenched patterní ... I would expect his current presentation of chronic Post Traumatic Stress Disorder to be the way in which he will continue to be present for the rest of his life, that is, he will "be severely disabled by this (PTSD) disability".

The symptoms included a reliving of the convulsions associated with electrical shock treatment, heightening startle response, nightmares and constant psychological arousal.

Despite Mr Hartís repeated written instructions to his solicitors Cashman and Partners to include this fresh medical evidence into his appeal on inadequate compensatory damages his solicitors failed to do so.

Hart lost his appeal (1996) with costs awarded against him. As to conspire and pervert the course of justice which counsel assisting the Royal Commission, Brian Donovan QC called "criminal" and "evidence of the guilty mind", the Appeal Court rejected any sanctions against Dr Herron for such behaviour and claimed that this was merely Dr Herron "acting badly in concert with others."

Mr Hart had to now sue Cashman and Partners for negligence.

On March 13, 2006 the trial commenced in the NSW Supreme Court.

Mr Peter Arden SC for Hart told the court that Hart had instructed Cashman and Partners 20 times to include the evidence and that the firmís actions were "supercilious, contemptuous and disgraceful".

Senior barrister Barry Toomey QC called by Hart as an expert legal witness said, "I think I made it plain that my view was that had the (fresh) evidence been admitted that it was a virtual certainty that a re-hearing would have been made upon it".

Mr Toomey said later, "The thing that strikes me about this case is that a report is received from Dr Dent (a specialist) saying the man has contracted PTSD and that is where the solicitor stops".

According to the evidence of Professor Alexander McPhalane a world expert and adviser to the United Nations on PTSD, Mr Hartís repeated attempts to negotiate the legal system to rectify his injuries, the delays and the perceived problems he encountered have further exacerbated his PTSD illness.

The defendants are claiming that they are immune from a case of negligence because of the 2005 High Court decision in DíOrta ó Ekenaike v Victoria Legal Aid which upheld advocatesí immunity in Australia and extended the immunity to the preparations of a court case by solicitors.

The concept no longer exists in any common law country in the world. It was dumped in England in June 2000 and is unknown in the civil law countries of Europe.

The judge, Peter Hill has reserved his decision. Almost 12 months later Hart is still waiting for his verdict.

Mr Hart told The Guardian, "It has been like a Franz Kafka nightmare. Despite the medically proved injuries I suffered in Chelmsford, the loss of employment, the gross abuse of human rights and after all the costs, both emotionally and financially in pursuing justice are taken into consideration I ended up with nothing in compensation and a disability pension. Words fail me."

In the words of the then Federal Minister of Justice Duncan Kerr, July 3, 1995 (The Times, Channel 7) who could "only offer him (Hart) my genuine sympathy for what he has gone through".

The Hart case is an indictment of Australiaís adversarial justice system in which rich and powerful entities can engage in a legal war of attrition to wear down and destroy victims in their fight for justice. The adversarial legal system is grossly unfair. It is not about truth. It is a system where people can shovel money and resources into lawyers at one end of the system to ensure the outcome they want at the other.

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