Cleary v Congregation of the Sisters of the Holy Family of Nazareth [1996] QSC 259

; , \ -, -,<' (') C) o IN THE SUPREME COURT OF QUEENSLAND Writ No. 1066 of 1995 Brisbane Before the Honourable Mr Justice Lee [Cleary v The Congregation of the Sisters of the Holy Family of Nazareth] BETWEEN: AND: CATCHWORDS: COUNSEL: MAUREEN ANNE CLEARY THE CONGREGATION OF THE SISTERS OF THE HOLY FAMILY OF NAZARETH REASONS FOR JUDGMENT - W C LEE J Judgment delivered 23 December 1996 Plaintiff Defendants NEGLIGENCE - NERVOUS SHOCK - existence of post traumatic stress disorder relevance of diagnostic criteria NEGLIGENCE - CAUSATION - whether post traumatic stress disorder requires actual or objective trauma Mr Keim for the plaintiff Mr King-Scott for the defendant SOLICITORS: Roberts and Kane for the plaintiff Quinlan Miller and Treston for the defendant HEARING DATE: 22, 23, 24, 26, 29 April 1996 and 20 December 1996 ThIs Judgment Is to be copied for the purpose of research and private study onlYj It Is not to be resold or used for republication in any other way without permission. -- 1 of 48 -- ()"--- ./ o ... , .' . ' l' IN THE SUPREME COURT~ OF QUEENSLAND Writ No. 1066 of 1995 Brisbane Before the Honourable Mr Justice Lee [Cleary v The Congregation of the Sisters of the Holy Family of Nazareth] BETWEEN: AND: MAUREEN ANNE CLEARY THE CONGREGATION OF THE SISTERS OF THE HOLY FAMILY OF NAZARETH REASONS FOR JUDGMENT - W C LEE J Judgment delivered 23 December 1996 Plaintiff Defendants The plaintiff, who was born on 11 April 1953, claims damages for physical and psychiatric injuries alleged to have arisen out of an incident at Nazareth House, a nursing home and hostel o operated by the defendants, on 5 June 1990 when she was 37 years of age. The claim originally was brought in the District Court C) but was transferred to this Court. In addition to oral submissions by Mr King-Scott, counsel for the defendant and by Mr Keim, counsel for the plaintiff, there were written submissions of the defendants marked "A" with two accompanying schedules of damages marked "B" and "C", submissions of the plaintiff marked "D", and the supplementary submissions on special damages of the plaintiff are marked "E". Supplementary submissions on special damages of the defendants are marked "F"·. Further submissions of the plaintiff on damages are marked "G", and the defendant's further submissions on -- 2 of 48 -- , '" 2 damages are marked "H". These are placed with the pap~rs. A useful chronology of events is contained in Exhibit 26. Special damages claimed are set out in Exhibit 17 and were not seriously in dispute, except as to specific items therein referred to, depending upon the ultimate findings, and subj ect to discounting. The plaintiff claims that as a result of an incident on 5 June 1990 she has suffered and continues to suffer from severe c=) neck and back pain, with pins and needles in her legs, pain in her left arm, swelling in her hands, a large increase in weight, oand psychiatric complications such that she is able to perform very little physical activity. The defendants admit that they breached their duty of care to the plaintiff resulting in some personal injury. Mr King-Scott referred to the recent House of Lords' 0 decision of Page v Smith [1996] 1 A.C. 155, in which it was held by a three to two majority, that if physical injury is foreseeable as a result of the defendant's breach, then so must any psychiatric injury to the plaintiff as the primary victim if in fact the plaintiff suffered a recognisable psychiatric illness as the result of that breach. The plaintiff in this case was not a secondary victim as in most claims for damages for nervous shock. Mr King-Scott conceded that as the defendants have admitted liability for. some of her physical injuries, it must follow that they admit liability for physical and psychiatric injury if it exists, providing those injuries were caused by the admitted negligence, and cannot limit themselves to an admission o -- 3 of 48 -- ", o , ' 3 of the former only. This is based on the notion that once "personal" injury of some kind is foreseeable, i. e physical injury, it matters not that the extent of the injury suffered by the plaintiff includes injury of a different kind, i. e. a psychiatric injury. The admission of liability for personal injury has therefore rendered it unnecessary to consider the difficult question of whether, in the circumstances under which the plaintiff claims she suffered some physical injury, the risk of that type of injury as well as any alleged psychiatric consequences were reasonably foreseeable. A duty of care and c=) breach thereof has accordingly been admitted. o The substantive issues in this trial therefore related to the nature of any injuries, physical and/or psychiatric, which the plaintiff suffered, causation and extent of damage. The defendants admitted that the incident caused some minor musculo-ligamentous injury, but deny that any further physical injury was caused by this negligence. They also deny that the C) incident caused any psychiatric injury to the plaintiff and further deny that the plaintiff suffered post-traumatic stress disorder ("PTSD") as a result of the incident which caused her some minor physical injury. That alleged disorder, PTSD, occupied a great deal of time and atteniion at the trial. Alternatively, the defendants contend that if the plaintiff suffered and suffers any depressive type illness following the incident in question, and if the incident caused or contributed to its occurrence, any damages for this injury should be -- 4 of 48 -- . , 4 substantially discounted by virtue of the plaintiff's predisposition to such an occurrence which was somewhat similar to a significant condition from which she had already suffered over a period of about 18 months prior to the relevant incident. Indeed she was still being treated for it even after she commenced working for the defendants. The incident the subj ect of the claim occurred at about \ , II (\ o5.00a.m. on 5 June 1990 when the plaintiff, who worked as an assistant nurse at the home, was the only person on duty. The plaintiff had worked at the home for some 18 months prior to the c=) incident on a permanent part-time basis, averaging some 32 hours a week, i ..e. she commenced working for the defendants on 28 November 1988. At the relevant time she was on a shift commencing at 11.00p.m. the night before and was due to finish at 7.00a.m. on 5 June 1990. c=) She was doing her rounds when she heard a cry for help coming from the room of a frail, 81 year old patient named C) Mr Warren who has since passed away. Upon entering the room, the plaintiff said that she saw Mr Warren crouched on the floor with his back to the wall and a chair leaning back against his chest, effectively hemming him in. He was in his pyj amas and had obviously fallen when he got out of bed. She said that she reached out with her right arm to remove the chair and that as she did so, Mr Warren grabbed her left arm and began pulling her towards him. The plaintiff said that because of the force exerted on her arm by Mr Warren, she began to do the "splits". -- 5 of 48 -- C) o o o --- ~-------------- ',. ,. f 5 During this time, the plaintiff said that Mr Warren made a number of hard pulling movements on her arm. She said that she was unable to recollect any more of the incident and that the next thing she remembered was standing up opposite Mr Warren, released from his grip. She said she then helped him back to bed, went to get a dressing for a small wound on his arm, returned and attended to that task, and then proceeded about her duties in a normal way until her shift ended at about 7.00a.m. She said at that stage she had pain in her neck and left shoulder and reported that inj ury to Sister Lawrence, evidence for the defence. the hospi tal supervisor, who gave She told her that Mr Warren had grabbed her by the arm and pulled it, that he was in his bedroom near his bunk and had a chair tipped on top of him. All she reported was that she -had had her arm pulled and had been hurt. She simply reported that she had an injury. Later in the same day that the incident occurred, the plaintiff attended a general practitioner, Dr Cassimatis, who gave her a certifica~e so that she did not have to go to work for a time. The following week she again attended Dr Cassimatis's rooms and was given another certificate. The plaintiff never in fact returned to work, although she regularly visited her workplace to deliver the certificates so that they could be forwarded to the Workers Compensation Board of Queensland. -- 6 of 48 -- \ f/ Y' 6 After approximately six weeks, she returned to Nazareth House to speak to her employers. She alleged that she was told by Sister Lawrence that it did not look likely that she would be able to nurse again, and that there were no light duties available for her to do. The plaintiff alleged that she inferred from this conversation that she had effectively been dismissed, although she admitted in cross-examination that she had received no formal notice of dismissal until a letter was received in July 1991, more than a year after the incident. Sister Lawrence said c=) that the plaintiff's job was left open for her until July 1991, when, because it was necessary to replace her, the above notice c=) of dismissal was sent. It is clear that her job was available to her until July 1991 had she recovered sUfficiently from her physical injuries. Since the incident, the plaintiff has attended numerous doctors, physiotherapists and psychiatrists. In particular, she c=) has since August 1991 been a regular in-patient of the Belmont Psychiatric Hospital for periods both short and long, the most c=) recent period of admission before trial being from 5-8 April 1996. The plaintiff was also a patient at the Wesley Hospital Pain Clinic, run by Dr Graham Rice for a period from 4 February 1991 until she was discharged from the program by Dr Rice on 15 February 1991 because, according to Dr Rice, she did not properly engage in that program but preferred to remain inactive in her room. -- 7 of 48 -- · . , I 7 It is convenient to deal first with the psychiatric injuries the plaintiff is alleged to have suffered as a result of the incident. In essence, the plaintiff claims to have suffered from two identifiable psychiatric illnesses, namely PTSD and a dysthymic depressive illness. The evidence clearly shows that many symptoms of each condition are similar as is treatment and medication for each. Dr Mark Spelman, who has been the plaintiff's primary treating psychiatrist, identified these two C) illnesses (95,222). It was not suggested, nor was any evidence C) o o given, that the plaintiff suffers from any other identifiable psychiatric injury the result of the incident on 5 June 1990. It should be noted that the plaintiff appeared to be confident and was quite knowledgable about her alleged medical conditions, including PTSD, and her medications. She had read all the medical reports (84), including the report of Dr Spelman of 20 April 1995 (E.xhibi t 8) in which he sets out the diagnostic criteria for PTSD. Her response to the question of whether she had talked to her doctor about PTSD was not convincing (85). I find that she well knew the nature of such a condition and symptoms of it, from an early stage, and had spoken to her doctor and others about it. Dr Spelman said that she was a very suggestible person. He \ further said that when he first began treating her from 21 August 1991, she was "severely depressed, very agitated and psychotic and, with treatment, she partially remitted to the point where she remained continued to be depressed and not - had not fully -- 8 of 48 -- , , 8 recovered from that depression but it didn't ever settle down completely." (96,101). It appears from Dr Spelman's evidence that the plaintiff had "decompensated" about four weeks before 21 August 1991, which apparently was a reaction to the stress of treatment for her physical injuries, i.e. her psychiatric symptoms only became evident four weeks before 21 August 1991. I find that this was the earliest occasion when any symptoms of a psychiatric nature emerged after 5 June 1990. As already indicated, the plaintiff in 1986 suffered what .. o was described as a nervous breakdown, after she had become 0 heavily involved with a charismatic church. She had also been under stress due to her husband's health condition. He had been on kidney dialysis at certain stages. She described feeling paranoid and very frightened. She stated that she had become disillusioned with the church (24). She was hospitalised a onumber of times for a total of almost two months and treated by Dr Michael Spelman, also a psychiatrist, Dr Mark Spelman's father, for almost three years. He continued to treat her until 0 1 March 1989, that is well after she had commenced work with the defendant on 28 November 1988. During that period the plaintiff suffered from depression, suicidal ideation and paranoia, and particularly in the early part, suffered also from auditory and visual hallucinations (105). In cross-exa~ination, Dr Mark Spelman, who had seen the plaintiff's. meaical records of that time, agreed that the plaintiff had been suffering a severe psychiatric illness at the -- 9 of 48 -- / " • I 9 time, and had been heavily medicated (105). A good deal of her symptoms and treatment for that condition were similar to symptoms and treatment for her later alleged psyc~iatric condition. During the time she had been admitted to hospital in 1986, she also suffered what Dr Mark Spelman referred to as "a florid psychotic episode" (107). It was not disputed by the plaintiff that this previous illness showed a substantial predisposition to mental illness (Exhibit "D"). This is clear ~ on all of the evidence. I so find. There were also many other stressful events in her past life which had nothing to do with o the defendants. The plaintiff admitted that she had left blank a space on her employment application form dealing with her past medical history, when applying for the position at the hostel. I am unconvinced by the plaintiff's explanation that she did this o because she had been assured by Dr Michael Spelman that her o previous history of mental illness was irrelevant "because it had happened with the church" (72). was completed before he had After all, her employment form finished treating her. Th~ defendants therefore had no way of knowing, at the time she was employed, of her past serious psychiatric breakdown, or of her particular susceptibility to any such injury. By virtue of the duties she was required to perform, it would have been difficult for an employer in the position of the defendants to have reasonably foreseen that psychiatric injury might be caused to the plaintiff. However, as indicated, the concession already made above indicates the existence and breach of the relevant -- 10 of 48 -- " 10 duty of care. Contributory negligence is not pleaded. Her past history" may therefore be a discounting factor , that is, her susceptibili ty to a psychiatric illness and, as both counsel agreed, a substantial one if she in fact suffered and suffers a recognisable psychiatric illness as a result of the incident on 5 June 1990. The first question to be resolved is whether the plaintiff in fact suffers from PTSD, and if so, whether it was caused by the defendants' negligence and not from any of the several other stressors in her life which were identified in the evidence. The plaintiff alleges that since the incident on 5 June 1990 she has suffered f~om severe "flashbacks", fearful memories associated with the incident, paranoia, and suicidal fantasies. She claims that at the time of the incident she was in fear for her life, because she thought her head was going to strike the wash basin (29, 33). She is also alleged to have suffered flashbacks in which she feared that a sexual assault by Mr Warren was about to occur. During her periods of admission to Belmont Private Hospital the plaintiff's treating psychiatrist has been Dr Mark Spelman. She has also, since September 1993 (i. e more than three years after the incident on 5 June 1990) ,. undergone Eye Movement Desensitisation an? Reprocessing (EMDR) at the hands of Dr James Dodds f' also at the Belmont Private Hospital. According to Dr Dodds' evidence, EMDR involves asking the patient to examine the thoughts and physical reactions she has when she considers , ' 'J o o o o -- 11 of 48 -- \,' " o , , 11 a particular traumatic incident (138). The patient is then asked to move her eyes from side to side 20-40 times and describe her experience during this process (141). Counsel for the defendants initially reserved his right to object to the admissibility of evidence of the plaintiff's alleged experiences during this process, but the obj ection was subsequently abandoned, the attack being confined to the credibility and weight of that evidence. According to Dr Dodds, the plaintiff during her EMDR therapy described feelings of "helplessness" when asked to remember the (\ incident on 5 June 1990. "She came up with things as I described '---~ () on the report, like, 'I am going to die' and 'I am helpless, I am powerless'''(141). It was during this therapy that the plaintiff told Dr Dodds that "she thought she might have been raped or that she was going to be raped" (151). She also recalled looking down and s~eing Mr Warren's fly open. "I got a sort of like a flash of his fly being down" (151-2). She said in evidence that he was still in his pyjamas. The plaintiff also stated in her evidence-in-chief that she had first met Mr Warren some two weeks prior to the incident on 5 June 1990, and he had asked her if someone had been in his room and sexually interfered with him (29). It should be noted that the initial di~gnosisof PTSD was made by Dr Dodds in September 1993 (Exhibit 9), shortly after the plaintiff had been referred to him by Dr Spelman on 11 September 1993. This diagnosis occurred more than three years after the incident in question on 5 June 1990, and some two years after the I -- 12 of 48 -- 12 incident in question on 5 June 1990, and some two years after the plaintiff first consulted Dr Spelman on 21 August 1991(Exhibit 8). Both doctors gave evidence for the plaintiff. Dr Spelman said that he believed the plaintiff was suffering from post-traumatic stress disorder (PTSD) and a depressive illness, both of which in his opinion were caused by the incident on 5 June 1990 (222), although he had said in Exhibit 20 (20 July 1992) that he was unable to determine the exact nature of the , ', o relationship between her injury and her current condition. c=) Dr Spelman defined PTSD as: "An anxiety-based disorder which results from people being traumatised in which they experience a significant either threatened or real threat, which results in them sustaining a range of symptomatology, predominantly of an anxiety type with high levels of arousal, and re-experiencing phenomenon the terms of nightmares and recurrent images of the actual trauma." (95) He also stated that for PTSD to occur it was necessary merely for the plaintiff to subjectively experience trauma associated with an event (114). Dr Dodds also asserted that a merely subjective reaction to a perceived traumatic event could be enough to trigger PTSD, which ailment he also believed the plaintiff to be suffering from (169). Thus the assertion by both Drs Spelman and Dodds was that the incident on 5 June 1990 had so traumatised the plaintiff that the perceived threat, real or imagined, had been enough to cause her to suffer PTSD as a result. o o -- 13 of 48 -- '1 .- o 13 The plaintiff was asked in cross-examination whether she had told anyone at the time of the incident that she thought she was going to die, and it was suggested to her that she had not told anyone prior to mid-1993, some three years after the incident. The plaintiff responded that she had told her husband previously but could not recall whether she had told her workmates (82). Neither Sister Lawrence (296), nor.two of the plaintiff's other colleagues at Nazareth House, Shannon Marks (306), and Lorraine Bakker (310), could recall that the plaintiff had told them she was in fear for her life. Indeed, as indicated, Sister Lawrence simply said that all the plaintiff reported on the day in question was that Mr Warren had pulled her arm and had hurt her (297) . Nor did she report to her employers or any workmate, that she feared a physical or sexual assaul t was about .. to occur, ~ ~ . . -. o despi te a system in place which required staff to report any o unusual incident, particularly if that incident was an assault of a physical or sexual nature, actual or threatened. Such a system was necessary in order that staff generally should take precautions and also in order that patients were properly classified and, if necessary, removed to other locations. Nor did the plaintiff's alleged suicidal ideation and flashbacks begin to occur until some time after the incident (124). The fact that alleged symptoms relied upon in the diagnosis of PTSD did not appear until quite some time after the incident, i.e. after 5 June 1990, was regarded by Dr Spelman (117), and by Dr Dodds (167-8) as .compatible with the diagnosis. -- 14 of 48 -- 14 Dr Graham Rice gave evidence for the defendants. He stated that a patient's perception of a traumatic event was a necessary second limb to establish PTSD, but contended that the first limb required a real, objective traumatic event, such as experienced by victims of warfare or serious crime. He gave evidence of the diagnostic method, called Criteria A of DSM IV, which is used to diagnose PTSD. All doctors relied upon the diagnostic criteria of PTSD as o contained in Exhibit 25 (115,157,189). There are two basic requirements, both of which must be met before the condition is c=) capable of coming into existence at all, before consideration need be given to what are the essential consequences which a sufferer must express. These are: A. (1 ) the person experienced,. witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the p~rson's response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganised or agitated behaviour. Although he admitted he was not an expert on the Criteria A diagnostic method, Dr Rice stated that he did not believe the c=) c=) -- 15 of 48 -- , , J , " 15 plaintiff was suffering from PTSD because she had not encountered any real trauma (190), (i.e. actual or threatened) . He said that as a clinical psychiatrist he regarded this element as "exceptionally important" (189). It was not enough, in Dr Rice's opinion, that the plaintiff may have suffered what to her mind was a traumatic incident (if that was her true perception), but which to any other person would not cause the slightest alarm. Dr Spelman in answer to questioning by me during further cross-examination, said that it was now impossible to determine o if the incident on 5 June 1990 had in fact been obj ecti vely traumatic, and that it may well have been (229-230). Previously (J o in cross-examination he had said: "I think she was actually trauma tised by being attacked" (123). This seemed to me somewhat of a concession to Dr Rice's opinion that a real traumatic event was in fact required in order for there to have been a valid.. diagnosis of PTSD. Dr Mark Spelman, who first saw her on 21 August 1991 at the Belmont Hospital, stated in his report of 20 April 1995, that "her account of the original incident indicated that she had been psychologically traumatized as well a (sic) physically injured. She reported feeling certain that the patient was intending to sexually assault her. Subsequent to the injury, she reported being troubled intermittently by nightmares in which she recalled the incident". -- 16 of 48 -- " ' 16 However, Dr Spelman's report, not prepared until 20 April 1995, must be read in context. Although he stated in that report that the plaintiff said she felt certain that Mr Warren was intending to sexually assault her, it appears from his earlier report of 20 July 1992 that the alleged sexual assault was not reported to Dr Spelman on the first visit. He said "It was actually an account that evolved over time. It was an account that she told me over a period of time during the time she was in hospital" (107). Exhibit 26 makes it clear that she had 13 stays at Belmont Hospital involving a total of 500 days. It ,J • o was during her stay in hospital, and after September 1993 that () Dr Dodds began his Eye Movement Desensi tisation and Reprocessing. Dr Dodds also suggested that the alleged trauma may have been genuine. 'Dr Dodds said that if the plaintiff was in a dissociative state at the time, she would not then have recalled the trauma and that it was unsurprising that symptoms of it did not emerge until years later. . '.~") .,~. It seems to me indisputable that some sort of objective trauma is required in order for a diagnosis of PTSD-to be made, i. e. -actual trauma or an actual threat of trauma even if the person the subject of the threat reasonably mistakes its nature, e.g. if someone, such as a bank teller, is threatened with ~ replica pistol which looked real. This is clear both from the Diagnostic Criteria set out in Exhibit 25, which are accepted by all three doctors, and by the implied concessions by Dr Spelman () o -- 17 of 48 -- , I ,; 17 and Dr Dodds, of the need for an objective trauma. I prefer Dr Rice's evidence in this regard. I am unable to accept the contention that what happened to the plaintiff was in any way objectively traumatic, but to the contrary. The evidence of each of Sister Lawrence, Shannon Marks and Lorraine Bakker showed that Mr Warren was a small, placid, 81 year old, frail man suffering from dementia, whose most (") ~/ telling characteristic was his frequent singing (294, 307). He o o was 8~ stone in weight, partially blind, and required assistance to walk and used a stick. Shannon Marks (307), and Lorraine Bakker (311) both stated that Mr Warren was smaller than 5'4". Sister Lawrence and Shannon Marks both said Mr Warren was in his 80s (294, 307) and Lorraine Bakker merely said that he was an "old man" (311). The plaintiff's reluctance to admit his size and physical condition was not convincing (77-78). He was taking the drug Melleril at night, an antipsychotic medication designed to relax patients and which can cause high blood pressure and () consequent dizziness (152), even though Sister Lawrence, who is not a medical practitioner, thought that the effect of such a drug during the night would probably have worn off by the next day. Mr Warren had no history of or predisposition to physical or sexual affronts to nursing staff, as occuired.~ith some other patients and which the plaintiff and other staff had experienced. The plaintiff admitted Mr Warren was wearing pyjama pants at the time she allegedly saw his fly down (237). She must be taken to have known of his physique and condition, having met him some two -- 18 of 48 -- 18 weeks earlier. A procedure was in place for nurses to report any such incidents and none had been reported. I find it difficult to imagine that such a frail individual who obviously needed assistance to regain his feet after he had fallen with the chair on top 0 f him, could have obj ecti vely traumatised a 37 year old assistant nurse, who was well versed in dealing with such patients and, indeed, had doubtless treated him over the previous two weeks. There is nothing unusual for o a,frail elderly patient, when on the floor and being helped up by a nurse, to clutch or grab hold of her arm in an attempt to () help himself to his feet. He was in a state of confusion and distress a-s the plaintiff told Dr Yaksich (Exhibit 6, 27 November 1991). Lndeed, Dr Spelman agreed that if the incident occurred in this fashion, it would not satisfy the criteria A for the diagnosis of PTSD (Exhibit 25) . In all her reports to medical practitioners that day and to () the other hostel staff she simply said that she sustained a neck ~ injury while lifting a patient (Dr Cassimatis 5 June 1990 Exhibit 1); that "she hurt her neck and upper thoracic spine whilst attempting to lift a patient. The patient pulled on her left arm" (Dr ,McMeniman 10 August 1990 Exhibit 3); that "she attempted to assist him back to bed when he grabbed her left arm and pulled. She managed to get him back to bed but noticed sharp left anteriqr chest and left side of neck pain" (Dr Devereaux 4 December 1990 Exhibit 4); and that "she apparently injured her, neck in June 1990 when ,a patient pulled repeatedly on her left -- 19 of 48 -- -. • I o , , 19 upper limb whilst in a state of confusion" (Dr Yaksich 27 November 1991 Exhibit 6). She made no mention of any terror, threats or fear of an assault of either a physical or sexual nature. To conclude, as Dr Dodds and Dr Spelman seem to have done, that the plaintiff must have suffered an objectively traumatic experience because in their opinions she subsequently displayed psychiatric symptoms consistent with PTSD is to put the cart before the horse. Dr Dodds and Dr Spelman both admitted that o proper treating procedure requires them to accept uncritically that which a patient tells them (114-5,120), and that the o () plaintiff knows and has confidence in the fact that they accept what she says. For this reason each was effectively 'constrained by what the plaintiff had told him, based principally upon her alleged flash backs and recall long after the incident, to believe that the plaintiff had undergone a harrowing ordeal on 5 June 1990. ~"" That however, is not an approach open to this Court. Indeed, there seem to be any number of other hypotheses open, such as fantasy or fabrication, which more readily conform to the evidence. As indicated, the plaintiff had knowledge of and well knew of the diagnostic criteria of PTSD. One could be excused for suspecting that the alleged condition, PTSD, was advanced in order to deflect consideration from the likelihood that the plaintiff was otherwise very susceptible to a psychiatric breakdown which was likely to re-emerge at any stage in her life. -- 20 of 48 -- I' 20 There is no evidence upon which I can conclude that what occurred at the hostel on 5 June 1990 was in any way traumatic, actual or threatened. The overwhelming inference is that Mr Warren, possibly suffering the effects of Melleril, notwithstanding the evidence of Sister Lawrence, fell and became trapped in the early morning, probably while attempting to go to the ba throom. The plaintiff attempted to extricate him, and Mr Warren quite reasonably grabbed hold of her arm for support. There is no basis for any suggestion that there was any sexual or aggressive tone to the encounter. I find that suggestion fanciful in the extreme. There is also the question of whether the plaintiff's response to the alleged trauma, real or perceived, was in fact as she claimed it to be. Dr Rice gave evidence that he believed the plaintiff was, consciously or not, exaggerating her symptoms because of the hoped for favourable conclusion to this litigation (184) .- He also stated that whilst she was a patient at the ". o o o Wesley Pain Clinic, the plaintiff refused to carry out exercises 0 and other activities in accordance with the clinic's program and which, Dr Rice believed, she was quite capable of performing (191). Dr Rice gave the strong impression that he believed that the plaintiff was, in effect, malingering, and that she had no real wish to recover. During cross-examination Dr Rice agreed with the propositibn that pain was entirely subjective and that therefore he could not determine whether in fact the plaintiff actually experienced the pain she said she did (195). However, he maintained that because the focus for the clinic's program was -- 21 of 48 -- • r o o o --~.---- "----- -- -- ---- ------- 21 to enable sufferers of pain to adapt their behaviour and to continue to function successfully, the plaintiff's refusal to engage sufficiently in the program indicated to him that she was unwilling rather than unable to recover (195). On the other hand, Dr Dodds and Dr Spelman were both of the opinion that.the plaintiff was under a real disability, and that she was actively attempting to get better (103,151). I prefer Dr Rice's evidence both in respect of the diagnosis of PTSD, and whether the plaintiff's symptoms were as severe as she claims. In my opinion Dr Spelman effectively conceded Dr Rice's point that a genuine traumatic (actual or threatened) incident is required to cause PTSD. As to the latter point, whether the plaintiff's symptoms were as severe as she. claims, I more readily accept Dr Rice's evidence in the light of concessions by both Drs Dodds and Spelman during cross-examination that it is incumbent upon a treating psychiatrist, as each was, to uncritically believe a patient. In this regard, I closely observed the plaintiff throughout the trial and am of the view that she exaggerated her physical symptoms. At one point during examination-in-chie.f, when she had been sitting in the witness box without visible signs of discomfort for almost an hour, I asked her if she was able to sit for long periods without pain: -- 22 of 48 -- 22 "Tell me this: I think you said earlier that sitting for long periods causes you pain, is that right?-- That's correct." (56) Immediately after this exchange the plaintiff began grasping her back in apparent pain, and this behaviour continued for the rest of the afternoon. I observed a number of similar episodes during the trial including a request to stand after this aspect was again directed to her attention. Whilst not concluding that she does not suffer some discomfort and may have been on medication c=J at different times which may have affected her ability to sit for lengthy periods without apparent ,discomfort, these observations impact upon her credit generally, especially as many of her physical symptoms were said to be due to her alleged psychiatric injuries. Dr Spelman agreed under cross-examination that the pain was "at least significantly psychogenic" (111) . Dr Devereaux in his report (Exhibit 4) of 12 March 1991 also agreed that that was the case. Dr Rice used the expression "jurisgenic" pain. There are a number of other matters, which I will now. mention, which in my opinion also relate directly to the plaintiff's credibility in this respect. The plaintiff when describing the incident to this Court, described Mr Warren as being only 68 years of age, whereas the evidence of other witnesses shows beyond doubt that he was a small 81 year old man. There seems to me little reason to think that the plaintiff was unaware of these facts, or that she had o o o -- 23 of 48 -- , r ----------- ---- 23 forgotten them in the time between the incident and the trial. As indicated, he had been in the hostel for some time before the incident and the plaintiff had, no doubt, attended to him previously. The conclusion seems inescapable that the plaintiff was consciously embellishing her account, so as to make Mr Warren appear more menacing. In view of a concession made on behalf of the defendants, c=) I do not place much weight on the plaintiff's failure to inform the defendants of her previous illness, and her unconvincing (J o o explanation for this, mentioned above. I am also unable to accept the contention of Dr Dodds (139) and Dr Spelman (100), that the plaintiff "dissociated" herself from the trauma until many years after the event. The reactions of the-plaintiff immediately after the incident, in her treatment of Mr Warren's injured arm, and in her comments to other staff and doctors that day, in no way indicate that she was traumatised or terrorised, or that she was even mildly fearful. If the terror had been as the plaintiff now claims, I find it inconceivable that the plaintiff would, so close in time to the event, not have exhibited any signs whatsoever of emotional distress to her colleagues and doctors, or not have reported them, in accordance with the system in place for that purpose. Nor am I persuaded that the plaintiff's lack of any discernible traumatisation was due to stoicism. Indeed it seems to me both from my observations of her in the witness box and -- 24 of 48 -- 24 from the evidence, that the plaintiff is not a woman who usually accepts life's troubles graciously and without complaint. In his report of 11 March 1991 (Exhibit 13), Dr Rice stated: "She revealed a good deal of anger and frustration towards her previous employer and the way she felt she was treated and dismissed." In examination-in-chief, the plaintiff stated (65): "The one thing that I felt was unfair was that the workers' compensation rehabilitation asked me to get in contact with the nuns so that they could go in and view my workplace. So I phoned Sister Lawrence and she refused for that to happen - to review what my duties were, and I was upset about that because I had been very honest and had told them about my nervous breakdown." Later, iIi-cross-examination, referring to her employers she said (91): "Well, you know, basically, they ignored my existence". Sister Lawrence showed no animosity towards the plaintiff in Court and indeed, displayed affection towards her. She described the pla~ntiffas a very sick lady, some little time after the incident. It is clear also that the plaintiff felt some hostility towards Dr Rice, perhaps because he seemed unconvinced of her sincerity. She stated in examination-in~chief that Dr Rice had threatened her with surveillance: "Then the last time he threatened me with the surveillance and that is when I started to get sick" (67). Dr Rice denied any reason for having made the alleged threat, and did not recall doing so (191), even though he conceded that during discussion with her he may have told her 1 > . <. o o o o -- 25 of 48 -- • f o o o o " 25 that she could be subject to surveillance by other persons in the future. The plaintiff had also related to Dr Dodds a dream she said she had had, where Dr Rice was chasing her (145). It seems to me also that the plaintiff and her husband, who also gave evidence, had not unnaturally discussed the case and the evidence in some detail. This of itself does not mean that their evidence in this respect is not capable of acceptance but warrants care in assessing it. Both gave virtually identical estimates of the amount of time spent daily by Mr Cleary on household chores in consequence of the plaintiff's alleged injuries (four hours). Both also stated that because of the injury they were no longer able to enjoy shared activities such as dancing, tennis and squash. In cross-examination however, the plaintiff admitted she had not played squash for some six or seven years prior to the incident on 5. June 1990 (259). Mr Cleary on the other hand, was adamant during cross-examination that he had played squash with his wife a number of times between 1985 and 1990 (274). It is clear from the above matters that the plaintiff has overstated what has happened to her, and that this was motivated at least in part by feelings of anger and resentment towards her previous employers and also towards Dr Rice. Quite apart from the lack of any real, objective trauma, the plaintiff's account of her symptoms is unconvincing. For all of the reasons mentioned above therefore, and on the whole of the -- 26 of 48 -- 1 • • , " 26 evidence, I am unable to conclude on the balance of probabilities, that the plaintiff is or has been, as a matter of fact, suffering from post-traumatic stress disorder as a result of the incident in question. Not only has the plaintiff not proved any relevant traumatic event (actual or threatened), her evidence generally in what she conveyed to her doctors in relevant respects is not in general accepted. But whether she suffers from PTSD from any other cause or causes is quite another matter. As indicated, much of the plaintiff's case was directed to the alleged existence of PTSD, allegedly caused by the incident on 5 'June 1990 to explain her subsequent psychiatric condition. ·This approach has deflected consideration from her real psychiatric disorder. In my opinion, the evidence that she is in fact suffering from a depressive disorder of some type is more convincing. As already observed, some of the symptoms of PTSD also exist in the case of the depressive order described by doctors, as well as with the condition she suffered from between 1986 and 1989. Also some aspects of treatment and medication are the same for each of those conditions. In my opinion, this has made the task of the doctors as well as of the Court, more difficult than usual in unravelling the evidence in an attempt to determine what is the plaintiff's true psychiatric dis?bili ty and what caused it,. and what is the compensation, if any, to which she is justly entitled. Indeed, if it be the case that her symptoms taken alone justify the o 0 ... o o -- 27 of 48 -- • r ----~~- --- ~~~~- 27 conclusion that she suffers from PTSD, there are many other stressors in her life which were identified principally by way of flash backs, which may have been capable of answering the description of a traumatic event so as to satisfy the first diagnostic criteria of that condition. Those other factors are wholly unrelated to the incident on 5 June 1990. The plaintiff has not worked since the incident and seems c=) to engage in very little other activity. It is undisputed that she spends the vast bulk of her time sitting or lying at home (J watching television or listening to the radio and is generally inactive, as Dr Rice described her in February 1991. The relationship between the plaintiff and her husband has also obviously suffered. The plaintiff claims that whereas she and her husband used to enjoy playing sport together and had an active social life, they·no longer play sport and she rarely ~ wishes to go out. She stated: "If we do go out, if we do want to entextain anybody, we take them down to the RSL club because I just don't know that I am going to be able to do anything such as clean up, cook the meal, or anything. So we do that and the worst part is that I can't sit down there for too long. It is a very short time. You know, we have to explain that to them - that we can't spend that much time with them." (61) The plaintiff also stated that her sexual relationship with her husband has deteriorated, to the extent that they now rarely have intercourse (61-2). Her husband confirmed this (272). Although I consider, as I have already indicated, that the plaintiff and her husband have exaggerated the extent of her -- 28 of 48 -- 28 difficulties and of his accommodation of them, it is also clear that there has been a quite dramatic change in the plaintiff's demeanour and in her relationship with her husband. She has obviously put on a great deal of weight since the incident, as a simple comparison between the plaintiff's physique in the witness box and the photographs Exhibits 28 and 29 shows. The plaintiff indicated that, although she has gained consid~rable weight, she is rarely hungry and eats little (57). She also related a number of instances when she had entertained .. o suicidal fantasies, including one where she would run out into () Gympie Road (46). Dr Mark Spelman indicated that he thought the plaintiff was suffering from a depressive illness, which he characterised as more severe than mere depression, and which included the following symptoms: " ... a pervasive and continuous sense of lowering of mood or absence of feeling associated with a number of other factors including sleep disturbance and appetite disturbance, suicidal ideation." (222,223) Dr Dodds in his report of 19 November /1995 (Exhibit 9) agreed that the plaintiff was suffering from "moderate depression". Dr Rice on the other hand was of the. opinion that the plaintiff's behaviour was consistent with "somebody who was trying to obtain benefits" (Exhibit 13, 185). Whether that be o o -- 29 of 48 -- o o o o , I 29 true or not, I accept the evidence of Drs Spelman and Dodds that the plaintiff is suffering from a depressive illness. This is especially so in light of the fact that there is here no conflict, as was apparently the case with PTSD, about diagnostic method. This conclusion is also consistent with the fact that the' plaintiff, who, apart from her earlier depressive illness, previously had enjoyed a relatively normal, active life, has been in a state of almost constant torpor since 5 June 1990, and with frequent and lengthy admissions to psychiatric institutions. I find that the plaintiff is and has been suffering from a depressive illness. Causation The next question which must be considered is that of causation. If I am wrong on the facts that PTSD did not exist, then in order for the plaintiff to succeed she must also show that PTSD was causally linked to the incident on ~ June 1990. The appropriate test of causation is the commonsense test set down by the High Court in March v E & M H Stramare Pty Ltd (1991) 171 C.L.R. 506. This is especially so in this case where there is obviously a predisposition to mental illness. Counsel for the plaintiff conceded that, because of the previous history of mental illness, there was a clear susceptibility. Dr Spelman also confirmed this. Can the incident be seen as the commonsense cause of PTSD in the plaintiff? Dr Rice I s evidence that objective trauma was necessary is important in this respect, as is the implicit concession to that effect by Dr Spelman and Dr Dodds discussed above, so that if ttie plaintiff is in fact -- 30 of 48 -- I' 30 suffering from PTSD, it is difficult to imagine how the incident in question, which as I have already found was in no way objectively traumatic, can have caused it. Indeed, many of the "flashbacks" and nightmares described by the plaintiff to Dr Dodds concern events wholly unrelated to the incident on 5 June 1990. One related to a schizophrenic man, also a patient at the hostel, whom she feared and the likeness of him in a train she said, caused her to change her seat so as to avoid him (232). Other flashbacks included apparent recall of physical abuse as a child by the plaintiff's father and by nuns, as well as grief over the death of her brother and favouritism ,to her sister in preference to herself. The plaintiff also described to Dr Dodds how she had been grabbed on the breast by another patient at Nazareth House (144). She admitted during, c.ross-examination that such abuse by patients was common "I mean, I was Chinese burned every morning by one particular man trying to get him to have his shower" (214-5). Dr Dodds in evidence-in-chief stated that "she had a high level of anxiety working alone in this nursing home ward and often felt that patients had not been given their medication on the previous nurse's shift and was very concerned about what would happen to her" (144). Such incidents, whether they be real or imagined" obviously caused some distress to the plaintiff, and it seems to me unreal to say that they took on traumatic overtones only after the plaintiff began suffering from PTSD which, it was alleged, was caused by a totally unrelated event, 1 ' o o o o -- 31 of 48 -- , , o () o C) 31 that is, the incident on 5 June 1990. The claim was not based on any circumstances other than the incident on 5 June 1990. If any such flashback was caused by any other actual event, it may be that such event was capable of amounting to an actual objective trauma, which could conceivably have triggered PTSD in the plaintiff, even as all doctors said, after a considerable delay. Of course, if the events were merely imagined, they cannot provide the basis for a diagnosis of PTSD, but demonstrate the plaintiff's fragile mental state. In this regard, the plaintiff's severe mental illness from about 1986 until 1989, as a result of which she suffered auditory and visual hallucinations, became depressed, suicidal and paranoid, must also be noted. Dr Spelman and Dr Dodds agreed (154,221) that this episode rendered the plaintiff more susceptible to mental illness in the future, but did not. accept that it was the other claimed traumatic incidents which were in fact the cause of the plaintiff's present alleged illness of PTSD (167,221) . Dr Spelman and Dr Dodds seem to have accepted (as is required of a treating psychiatrist) the plaintiff's contention that the incident on 5 June 1990 was the true cause of the PTSD (if it does indeed exist); without really considering the effect of the previous illness or of the numerous other stressors, which may or may not have been indicative of actual objective trauma. Dr Rice accepted that symptoms of PTSD may be delayed after the actual traumatic event (189-90). -- 32 of 48 -- 32 Having regard to the multiple other stressors, the plaintiff's clear. susceptibility to mental illness, and in particular the fact that her symptoms as expressed to Dr Dodds included reference to the other stressors, I am unable to conclude on the balance of probabilities that any PTSD symptoms from which the plaintiff may be or might have been suffering, were, applying the commonsense test, caused by the incident on 5 June 1990. I think it likely that the plaintiff has deliberately 1 ' o focussed upon and exaggerated the effect of the incident because 0 of this trial. She is probably also feeling some hostility towards her- former employers and Dr Rice. In my opinion it is likely that the plaintiff would have suffered some form of severe mental illness quite apart from the incident in question. That the plaintiff is attempting to attribute blame for her illness on the incident on 5 June 1990, and not on the myriad other stressors and on her own vulnerability, is perhaps not surprising. Nor is it surprising that her treating psychiatrists accepted somewhat uncritically her explanation. However, it seems to me that causation of PTSD if it exists at all is simply not borne out by the evidence. I so find. The next question to consider is whether the depressive illness is causally related to the incident. Many of the same factors apply here as with PTSD. That is, that the plaintiff obviously had a number -of other stressors operating upon her, and she was clearly vulnerable to mental illness. However, the o o -- 33 of 48 -- , r () o o C) v 33 depressive illness is closely linked to the physical pain the plaintiff claims she suffers as a result of the incident,and is also linked to the frustration the plaintiff felt because of her apparent inability to overcome this pain or of medical practitioners to treat it (100). There was no real dispute that she was unable to work for some period after 5 June 1990 and suffered some pain, as the medical evidences indicates. Indeed, defence counsel conceded an inability to work until January 1992 on the assumption that her only disability was physical in nature. Having admitted liability for these physical inj_uries, the defendants admit that they are bound by Page v Smith also to admi t liability for any psychiatric injury found" to have"' been caused by the negligence (318). The defendants admit some minor ligamentous injury as due to the incident, and this obviously caused some real pain to the plaintiff. Indeed, this feelipg of increasing frustration and helplessness is cited as a major reason by Dr Spelman for the admission of the plaintiff to Belmont Private Hospital in the first place in August 1991 (100). Her continuing medical treatment is also admitted by Dr Sp~lman (121), Dr Dodds (Exhibit 9), and Dr Rice (Exhibit 14) to be a factor in her continuing feelings of helplessness, although of course, Dr Rice expresses reservations about the plaintiff's willingness to overcome such obstacles. I find that the depressive illness arose as a direc.t result of the plaintiff's inability to deal with the initial pain, -- 34 of 48 -- 34 liability for which is admitted by the defendant, arising from the incident on 5 June 1990. I find that a further causative factor was her anger at the perceived treatment of her by her employers. This anger, whether it be justified in fact or not, was, I find, a direct result of her at least temporary inability to work. That the plaintiff may have overreacted either to the pain or to the perceived ill-treatment by her employers is irrelevant, because causation having been established, the defendant must take the plaintiff as she is (Mt. Isa Mines v Pusey (1970) 125 C.L.R. 383 at 390), so that the extent of damage cannot be disputed, subj ectof course to various discounting factors. I find that the depressive illness was caused by the defendant's negligence. Physical Injuries The next question is the extent of the defendant's liability for the plaintiff's alleged physical injuries. As indicated earlier, the defendants have admi tted some minor musculo-ligamentous damage but deny anything further. The plaintiff however claims that she suffers from back, neck, chest, groin and arm pain, that her hands are swollen, and that she gets headaches. She claims that she suffered a left sided wry neck, tendernesS over the occipital nerve~ cervical spine, trapezius muscles,. thoracic spine, medial aspects of scapulae, left lateral epicondyle, lumbar spine, gluteal bursi (buttocks), trochanteric bursi(hip), costochondoral joints (ribs) and medial aspects of both knees (Exhibit D, p.2). The plaintiff also claimed to have developed Ra secondary fibro myalgia syndrome", which was I ' o o o o -- 35 of 48 -- , ! n o o o 35 confirmed in the reports of Dr Devereaux (Exhibit 4) and Dr Cassimatis (Exhibit 2) . There is, however, no evidence of any pathological or organic basis for any of the pain from which the plaintiff is alleged to suffer (Exhibits 1, 13, 14), although this of itself does not mean that she does not subjectively feel pain. Nor has medical science yet been able to discover everything about the nature or cause of pain, particularly in such complex areas as the neck and back. In his report dated 6 January 1991 Dr McMeniman stated that although the plaintiff experienced "minor discomfort", examination of her cervical -spine -showed movement to be normal, and her neurological examination was also normal (Exhibit 3). Dr Yaksich' s report of 27 November 1991 indicates that although the plaintiff appeared to have sustained a soft tissue neck injury, there was no evidence of serious disc injury or focal surgical lesion (Exhibit 6). Dr Rice in his evidence indicated that he believed the plaintiff was in fact fostering many of her own pain symptoms and behaviour by refusing to. properly participate in a pain management program, and by remaining inactive (197). Dr Spelman also acknowledged that a very large proportion of the plaintiff's pain was due to psychological rather than physical factors -( 111) . The term fibro myalgia, from which the plaintiff is also alleged to suffer, was also stated by Dr Rice to be predominantly a psychological condition, indicating generalised pain and tenderness without any apparent pathological basis - (186). -- 36 of 48 -- " 36 Dr Devereaux in his report of 12 March 1991 (Exhibit 4) also stated that the fibro myalgia was "compounded by a variety of stresses including emotional factors". He further stated in his report of 30 January 1995 (Exhibit 5) that "her major problem is psychological". Having carefully considered all of the evidence, I am unable to conclude on the balance of probabilities that the plaintiff suffered any permanent physical injury other than some minor musculo-ligamentous damage, as already conceded by the defendants. It is probable that the organic basis for such injury has diminished since 5 June 1990 but I nevertheless accept that it-·still causes her some pain, made worse by her psychological condition. I am u,nconvinced however that such physical injury will continue to affect the plaintiff indefinitely in the future, apart from the psychiatric complications. The evidence shows that she has on occasions driven herself to lectures. I do not accept that she is or needs to be as immobile as she said in evidence. There is some merit in Dr Rice's opinion that the plaintiff can and. should do much to assist herself, and so modify her behaviour in order to cope with, if not to overcome her major disabili ties. He said she should not be paid not to work. Nevertheless, th~ law as it presently is, entitles the plaintiff to compensation for her.disabilities which were caused by the I ' o o o o -- 37 of 48 -- , , 37 defendants' negligence providing they are not too remote and providing the plaintiff acts reasonably in helping herself. It is noted that a failure to mitigate is not pleaded by the defendants. The consideration therefore is the true extent of her injuries flowing from the defendant's negligence. Damages Further submissions on damages were received on 20 December r, .. ) \ 1996, including documents "G"and "H" as referred to above.· o o o These submissions referred to various scenarios including the situation as I have found it to be. Mr Keim, counsel for the plaintiff, submitted that in this scenario as I have found the situation to be, a total award of some $393,310.00 was appropriate. He also submitted that an overall discounting of 15% was appropriate for the plaintiff's susceptibility to mental illness, quite apart from a general discount for the ordinary contingencies of life. Mr King-Scott, counsel for the defendants, also submitted that damages should be discounted both for the plaintiff's susceptibility and for ordinary contingencies. Past Economic Loss The plaintiff has not worked since the incident on 5 June 1990. This has been due partly to the pain from which,. she is alleged to suffer, and partly to her psychiatric illness. As I have indicated, I have already found that only some of the alleged physical injuries are attributable to the incident, and of the psychiatric injuries only the depressive illness is -- 38 of 48 -- ------------- -- - --- , ' i' 38-- attributable. However, it is clear that these injuries have debili tated the plaintiff, and that she should, subj ect to discounting, be compensated for her entire past loss of income since 5 June 1990. The plaintiff clearly has a susceptibility to mental illness. I am also of the opinion that, for this reason, and because she had, prior to the incident, not made any particular effort to do so, she would have been very unlikely to complete o training as a registered nurse. Using Exhibit 22, I therefore calculate her nett past economic loss at approximately $77,500 0 to date, on the basis that the plaintiff did not complete registered nurse training. I further discount this amount by 40% to take into account the plaintiff's obvious and acknowledged pre-existing susceptibili ty to the depressive illness, which means it was o quite possible that the plaintiff would have developed such an illness in any event, (156, 221). The discount also takes into 0 account such variables as the fact that the plaintiff professed in evidence a desire that she and her husband would have taken a lengthy holiday around Australia, the possibility of some other accident or illness, or of her not finding employment, as well as the many other contingencies of life to which everyone in the community is prone. The plaintiff's counsel, as mentioned above, conceded that a discount of some magnitude was appropriate to .... : . account for the.plaintiff's susceptibility to mental illness, and other contingenGies. Counsel for the defendant also submitted -- 39 of 48 -- o o o o 39 that a large discount even up to 50% was appropriate (340, 404-5). In this case, I consider that 40% is reasonable to take into account all of these factors. Therefore, after discounting, the figure for past economic loss is approximately $46,500.00. I allow interest at 6% per annum since the incident to the date hereof, i.e. six and a half years or approx. $18,100.00. I therefore allow a total figure of $64,600.00 for past economic loss. Future Economic Loss I am of the opinion that the plaintiff's depressive illness is likely to continue for some time, but is likely to improve with appropriate treatment. Dr Rice agreed that the plaintiff was unlikely to recover in the near future, and that it was unlikely she would be able to undertake ·paid employment (187), at least while her condition continued. He said she could help herself a good deal if she wished. Dr Mark Spelman also stated that the plaintiff's depressive illness was likely to continue for some time, and that in her present condition she is unemployable (221). I am satisfied that, because of the depressive illness, the plaintiff is presently unable to work and will. remain unemployable for some time. I am unable however to accept the submissions by plaintiff's counsel that the plaintiff will never be able to resume paid employment. I find that the plaintiff will probably be unable, because of the depressive illness, to -- 40 of 48 -- -------------- 40 resume any paid employment for about five years, and that thereafter, if she is so minded, she will be able to gradually resume full-time employment. I have 'borne in mind that she is now aged 43 years and that her age may diminish her prospects of finding employment in the future. I have already determined that the plaintiff would not have completed training as a registered nurse. Thus, five years at $249.87 per week (Exhibit 22), discounted at 5%, comes to $57,970.00. I must also allow a sum to compensate the plaintiff for the period after five years until she could resume full-time employment, providing of course that , , , » I!. o she wished to do so, discounted to present value. I consider 0 that the sum of approximately $20,000.00 is appropriate for that purpose. The total figure thus arrived at is $77,970.00. In addition to the substantial discount for susceptibility to mental illness, there must also be a further discount to take into account the "vicissitudes of life", such as may occur to any person in the community. I therefore allow a discount of 40% to take all of these factors into account. I award the sum of $46,800.00 for future economic loss. Future Outlays I have already determined that the plaintiff will continue to suffer from the depressive illness for some time, but that it will improve with appropriate treatment. Previous periods of admission to Belmont Private Hospital. cannot however be treated as a reliable guide to future needs, (cf. Exhibit "0" for ID), o o -- 41 of 48 -- , ~ <, o (J o o ------ ------- 41 because much of the past hospitalisation was due to alleged PTSD which if it exists, has not been shown to be causally related to the incident on 5 June 1990. In my opinion an appropriate figure is an average of 30 days per year for five years. I also allow the cost of one visit per month to Dr Spelman for the five year period, with three extra consultations per year, to take account of periods of hospitalisation. Discounted at 5% per annum this comes to a total of $51,898.00. I must also allow a sum to take account of treatment which the plaintiff may require from time to time after the five year period. I consider that $20,000 is appropriate for this purpose. I discount this total sum of $71,898.00 by 20%, both counsel conceding that a substantial discount was appropriate, to take account of the plaintiff's susceptibility to psychiatric illness . .. I allow a. s,um of $57,500.00 for future outlays . • ~ A">". "., • .' .. _. ' •.• Griffiths v Kerkemeyer Past - I am unconvinced that the plaintiff has been so disabled by her depressive illness and minor musculo-ligamentous pain that she required substantial assistance from her husband in carrying out her domestic duties. Of course PTSD, if it exists, may cause the plaintiff to require greater assistance from others, but in such a case, the defendants are not liable, because any such PTSD has not been shown to be causally linked to the incident on 5 June 1990. The evidence of the plaintiff's sister that she is paid to regularly attend the home of the plaintiff to perform various household work (290), obviously -- 42 of 48 -- ,-- --,--- ,-~ " 42 overlaps the amount of work which the plaintiff claims she is now reliant upon her husband (or therefore his agents) for. I am o~ the opinion that the plaintiff and her husband together considered and then 'exaggerated the amount of assistance the plaintiff receives from her husband. I must guard against overlapping between what her husband says he does for her and what her sister says she does, and in any event I have concluded that assistance to the extent advanced is not justified. Nevertheless it is clear that the plaintiff has required some a~sistance, although considerably less than she claims. I allow ",.' ,'" o one hour per day at the agreed rate of $9.50 per hour 0 (Exhibit 27). The total sum arrived at is $20,402.00. However, I discount this sum by 25%. Both counsel conceded it was appropriate to discount for the plaintiff's pre-disposition to mental illness, and this figure takes that into account, as well as the possibility that the plaintiff may have suffered some other illness or accident which would require her to receive assistance, I allow a sum of $15,300.00 for past assistance. o Iriterest at·2% per annum (Brown v Hale [1996] 1 Qd.R. 234) for 0 approximately six and a half years comes to some $1,990.00, I therefore allow a total sum of $17,290.00 for past assistance to the plaintiff by her husband. Future - I consider that the plaintiff will require approximately one hour's assistance from her husband per day over --the next ten years. On the 5% discount tables this comes to a total sum of approximately $27,500.00. -- 43 of 48 -- o o o o 43 I discount this sum also by 25% to take into account the plaintiff's susceptibility to mental illness, and the possibility of accident or illness having struck in any event. I allow a sum of $20,625.00 for future Griffiths v Kerkemeyer damages. Pain and Suffering It is clear that the plaintiff has suffered considerable mental and physical anguish since the incident on 5 June 1990. However much of it was self generated and alleged to be due to PTSD for which she does not in fact suffer. It is also clear that the plaintiff has consciously or otherwise, exaggerated her symptoms, but this does not mean that she is not entitled to appropriate and just compensation. Her lifestyle has been adyersely affected. I allow the sum of $50,000.00 for pain and suffering of which $25,000.00 is allocated as to the past. Interest is allowed on this sum at 2% from 5 June 1990 to the date of this judgment, i.e. approximately six and a half years = $3,250.00. I therefore allow a total of $53,250.00 for pain and suffering, of which $28,250.00 is allocated as to the past. -- 44 of 48 -- 44 Special Damages It was agreed between the plaintiff and the defendant at trial, that should both PTSD and the depressive illness be found to be causally linked to the defendant's negligence, the plaintiff would be entitled to the whole of the special damages shown in Exhibit 17. This includes the Fox v Wood factor. See supplementary submission of the plaintiff marked "E", and that of the defendants marked "F". Both parties also agreed that if no psychiatric illness was found to be causally connected, then the items pertaining to the Belmont Hospital, Dr Dodds and Dr o Spelman would be severed, with the plaintiff entitled to the () remaining special damages. There was however some disagreement in the further written submissions of each party as to the position if the depressive illness only was found to be causally connected to the defendant's negligence. The plainti ff submitted that in such a scenario, the plaintiff would be entitled to all of the special damages shown in Exhibit 17 except for those pertaining to treatment by Dr Dodds. The defendant agreed that Dr Dodds' treatment should be severed but also submitted that a further 10% discount be made to broadly cover contingencies such as Dr Spelman's treatment and hospitalisation which related to PTSD and not the depressive illness. In further submissions on 20 December 1996, both parties ... , also submitted that in such a case it was appropriate to make some discount for the plaintiff's susceptibility to mental illness. () () -- 45 of 48 -- 45 I have found that only the depressive illness is causally related to the defendant's negligence. Dr Dodds' treatment was clearly associated with the PTSD, and accordingly the plaintiff can not recover damages in respect of it. I should also say that I consider that the defendant's concession (Exhibit "F") of a discount of only 10% on the remaining special damages to be on the generous side, but it will be adopted as adequate to take into account the various factors submitted on 20 December 1996. o I also discount by a further 20% in order to take account of the plaintiff's susceptibility which is in accordance with the c=) submissions of both counsel. c=) , " Accordingly, the plaintiff is awarded the whole of the special damages shown in Exhibit 17 (subj ect to discounting) except for the treatment of Dr Dodds. This leaves a total sum of $148,049.49 of which $11,999.04 must be, refunded to the Workers' Compensation Board (see Exhibit 17). Interest must also be taken into account. The plaintiff is entitled to interest at 5% per annum for approximately six and a half years on items 2, 5, 6, 7, 8 and 9 of Exhibit 17. No interest is awarded on her hospital expenses. Accordingly she is entitled to 5% per annum interest on the sum of $8,932.81. I award the sum of $2,900.00 as interest on the plaintiff's special damages. The plaintiff is therefore entitled to $150,949.49 (subject to discounting) of which $11,999.04 must be refunded to the Workers' Compensation Board. The total discount of 30% in accordance with the concessions mentioned above, -- 46 of 48 -- ,~------------------ cl " 46 applies therefore to the sum remaining after the amount due to the Workers' Compensation Board has been deducted, i. e. to $138,950.45. I therefore award the plaintiff $97,265.00 in special damages, having deducted $11,999.04 owing to the Workers' Compensation Board. Total Past Economic Loss Interest (6% p.a.) Future Economic Loss Future Outlays $46,500.00 approx $18,100.00 Past Griffiths v Kerkemeyer $15,300.00 Interest (2% p.a.) approx $ 1,990.00 Future Griffiths v Kerkemeyer Past Pain and Suffering Interest (2% p.a.) Future Pain and Suffering Special Damages Plus Interest (5% p.a. on certain items) $25,000.00 approx $ 3,250.00 $148,049.49 2,900.00 Less deduction to Workers' Comp $150,949.49 $ 11,999.05 $138,950.45 $ 41,685.45 Less discount of 30% approx TOTAL $64,600.00 $46,800.00 $57,500.00 $17,290.00 $20,625.00 $28,250.00 $25,000.00 $97,265.00 $357,330.00 o o o -- 47 of 48 -- o o 47 I conclude that the above total compute award provides for reasonable and just compensation. There will be judgment for the plaintiff in this sum. I will now hear argument as to costs. -- 48 of 48 --