Anita Maree O'Donnell v Ainslie Football and Social Club Ltd
[2013] ACTSC 18
ANITA MAREE O’DONNELL v AINSLIE FOOTBALL AND SOCIAL CLUB LTD and ANOR [2013] ACTSC 18 (14 February 2013)
PERSONAL INJURY – claim against occupier and its electrical contractor for psychological injury alleged to be the consequence of electric shock to plaintiff and her child – defective installation of neon tubing – extent of occupier’s liability in circumstances where qualified contractor engaged and responsible for defects – prior knowledge of occupier of defective condition of neon lighting – whether plaintiff suffered psychological injury and, if so, its extent – competing opinions of psychiatrists – assessment
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 225 CLR 161
No. SC 749 of 2009
Judge: Acting Justice Sidis
Supreme Court of the ACT
Date: 14 February 2013
IN THE SUPREME COURT OF THE )
) No. SC 749 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: ANITA MAREE O’DONNELL
Plaintiff
AND: AINSLIE FOOTBALL AND SOCIAL CLUB LTD
First Defendant
FOCUS SIGNAGE PTY LTD
Second Defendant
ORDER
Judge: Acting Justice Sidis
Date: 14 February 2013
Place: Canberra
THE COURT ORDERS THAT:
Verdict and judgment for the plaintiff in the sum of $512,781.09.
The defendants are to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for seven days to allow any party, within that period, to list the proceedings for further argument on the issue of costs.
The exhibits will be retained for 28 days.
My reasons are published.
On 20 March 2008 Mrs Anita O’Donnell went to the premises of the Ainslie Football and Social Club Limited, also known as the Gungahlin Golf Club, intending to have dinner with her husband and two children, her daughter, then aged six, and her son, then aged one.
The plaintiff stood at the reception counter in the process of renewing her membership of the Club while her husband and children remained seated on a lounge in the reception area. When she was required to provide proof of her identity, the plaintiff called to her husband to bring her driver’s licence to her. This prompted her daughter to walk from where she was seated and stand to the plaintiff’s right at the reception counter. At that time the child’s height was such that her head was below the level of the counter.
The plaintiff described the incident in the following terms. Her child raised her arm and placed it under the counter. She screamed. The plaintiff heard a: very loud electrical noise that ran through the counter (Transcript 20.5) and she smelled burning flesh and hair.
The plaintiff turned and either touched her daughter or the counter. She felt a blow to her hip. She realised what happened to her daughter who was by then stiff and unmoving. The plaintiff turned and pushed so that she and her daughter disconnected from the source of the electrical current. They fell to the ground.
The plaintiff remained on the ground, holding and rocking her crying daughter. The child suffered a burn to her wrist that was surrounded by black soot and a second burn to the top of her arm. The plaintiff was not burned.
After a period of time the family was taken to the Club’s boardroom to await the arrival of an ambulance. After treatment by ambulance officers, the family was invited to dine at the Club’s expense before going home.
It was not in dispute that the plaintiff and her daughter suffered electric shocks because the wiring of the neon lighting installed beneath the front of the reception counter was defective.
The plaintiff claimed that she suffered psychological injury as a result of the incident and sought compensation from the first defendant, the Club, as the occupier of the premises on which this incident took place, and from the second defendant, as the electrical contractor engaged by the first defendant from time to time to attend to repairs to the neon lighting installed beneath the front of the reception counter.
The issues for determination were:
1 The extent, if any, to which either of the defendants was responsible for any injury suffered by the plaintiff as a result of the incident.
2 The nature of any injury suffered by the plaintiff, in particular, whether she suffered as a result of the incident a significant psychological injury.
3 The extent to which the plaintiff was to be compensated by way of general damages, income loss, out of pocket expenses and the provision of domestic care.
LIABILITY
The only material before the court concerning the circumstances in which the plaintiff’s daughter was able to reach into the area beneath the front of the reception counter was contained in Exhibit C, a bundle of materials sourced from the first defendant and ACT WorkCover.
Exhibit C contained a report of an ACT WorkCover electrical inspector in which (Exhibit C.30) he concluded that the neon lighting installed beneath the counter failed to meeting the requirements of Australian and New Zealand Standard AS/NZ 3832: 1998 Electrical Installations – Cold – cathode illumination systems in the following respects:
1 There was no evidence of earthing of the metallic parts of the reception counter to the earth connection at the transformer. See clause 4.8.1(a) of Standard 3832.
2 The neon tubing behind the pelmet was not protected from access to hazardous parts. See Clause 3.5.3 of Standard 3832.
3 The high voltage temporary bridge wiring under the pelmet in the second compartment was exposed to inadvertent contact. See Clause 3.2.8 of Standard 3832.
4 There was no warning sign to alert persons about the high voltage neon system integral to the reception structure. See Clause 1.5.4 of Standard 3832.
The second defendant did not dispute that it was the electrical contractor that installed and from time to time undertook repairs of the neon lighting installed beneath the front of the reception counter. In such circumstances it did not resist a finding of liability for the defects identified by the ACT WorkCover inspector.
The first defendant resisted any finding of liability against it on the basis that it retained an appropriately qualified contractor to attend to the neon lighting and, in accordance with the principals confirmed in the decision in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 225 CLR 161, it was not vicariously liable for the contractor’s negligence.
The first defendant’s manager, Mr Bruzga provided a statement to the ACT WorkCover inspector in which he said:
After National Neon conducted their repairs I checked that the neon light was working. I don’t know what exactly they did but saw that the light was working. But I am not aware that they removed one section of the neon tube and connected the ends with a jumper wire.
After the repairs were done they, meaning National Neon did not give me any advice or instruction that we were required to do something further. (Exhibit C.24)
This statement satisfied me that the first defendant should not be held responsible for the defective workmanship of the second defendant.
There was, however, other material that indicated that the first defendant had notice of the hazard presented, particularly to children, by the unguarded electrical installation of the neon lighting.
Mr Egan, of the second defendant, informed the WorkCover inspector, in relation to repairs undertaken in December 2006 :
A piece of glass had been broken because one of the child (sic) had put their hand in earlier. Then they connected the jumper wire. (Exhibit C.47)
The first defendant called no evidence to suggest that this statement was incorrect and I therefore accepted that it was true. The statement established that, at the time of the incident that occurred on 20 March 2008, the first defendant was aware that the area in which the neon light was installed was accessible generally and that, in particular, it presented a hazard to children.
As a consequence, even if the first defendant was not qualified to appreciate the potential for electric shock arising from the defects in the workmanship of the second defendant, it ought to have recognised the foreseeable risk of injury to persons, including children, from the heat generated by the unguarded electrically charged neon lights or from broken glass. In such circumstances, I considered that a reasonable person in the position of the first defendant should have taken steps to guard against these foreseeable risks of injury by enclosing the area in which the neon lights were installed and thereby preventing inadvertent access to that area. Had those steps been taken, the incident involving the plaintiff’s daughter would have been avoided.
For these reasons I find both the first defendant and the second defendant negligent in respect of the defective condition of the installation of the neon lighting beneath the reception counter on the defendant’s premises on 20 March 2008.
The second defendant, as the party responsible for the defects in the installation of the neon lighting must bear the greater proportion of liability. I apportioned liability at 70% to the second defendant and 30% to the first defendant.
THE CLAIMED INJURY
The plaintiff described feelings of terror for the safety of her daughter at the time of the incident. In the days following the incident she was anxious and upset, crying and unable to sleep. She watched her daughter continuously.
On 25 March 2008 she consulted her general practitioner, Dr Hannaford, because she could not stop crying, she had constantly recurring memories of the incident, was unable to sleep and was upset at the effects of the incident upon her daughter. She said the child was upset, fearful and unable to sleep, refusing to go anywhere alone, including the bathroom at school. The plaintiff was treated with medication.
The plaintiff’s employer, the Australian Bureau of Statistics, through its Emergency Assistance Program, provided her with access to a counsellor. After one session, the counsellor advised that she required more structured assistance.
The plaintiff’s general practitioner provided her with the names of a number of psychologists. She consulted Ms Brown and her condition improved after treatment. The plaintiff’s general practitioner continued to prescribe various anti-depressant and sedating medications.
Ms Brown reported on 7 May 2008, the day after of the first consultation:
Considering the severity of her symptoms and the fact it has been more than 6 weeks after the accident, she would meet the diagnostic criteria for Post Traumatic Stress Disorder. (Exhibit B.112)
Her condition did not resolve. The plaintiff’s sleeping difficulties and intrusive memories of the incident continued at fluctuating levels. She found the smell of smoke to be intrusive and distressing. She suffered from anxiety and panic attacks. She developed anxiety when using ATM’s because they were operated by electricity. The family’s Chrysler station wagon was sold because it discharged electricity when exiting the vehicle. She suffered from a loss of self esteem because she was unable to prevent the incident. She became hypervigilant of her children and avoided social activity that did not include the children because she did not wish to leave them. She was easily startled to the point of pain, particularly by the sound of the screams of a child. The plaintiff said that she experienced none of these problems prior to the incident and there was no evidence to suggest that the plaintiff suffered from any pre-existing psychological condition.
After Dr Hannaford retired from the medical practice, the plaintiff consulted Dr Lees. The notes of both general practitioners were in evidence (Exhibit B). They recorded continuing regular consultations with symptoms of anxiety and distress, of attempts to wean the plaintiff from her medication and of the prescription of further medication when these attempts were apparently unsuccessful.
The plaintiff’s daughter suffered from an obsessive compulsive disorder. No medical evidence concerning this condition was in evidence. It was therefore not apparent whether this condition preceded the incident or whether it was in any way related to the incident. The relevance of her daughter’s condition was that the ritualistic behaviour in which she engaged as a result of the disorder placed further pressure on the plaintiff.
In November 2010 Dr Lees prepared a mental health care plan that was necessary to secure funding for referral for treatment by a psychologist. The plaintiff said that at this stage she was feeling overwhelmed by the pressures of maintaining her position with the ABS and of supporting her daughter. She felt very depressed and fragile and worse than at the time she consulted Ms Brown. The plaintiff was referred to Ms Dal Molin, psychologist, whom she consulted 16 times between December 2010 and October 2011.
The plaintiff claimed that she continued to suffer from her symptoms to a significant degree and continued to rely heavily on medication.
The plaintiff’s evidence was supported by that of her husband. At the time of the incident they had been in a relationship for 18 years and they married eight years prior to the incident. He said that up to the time of the incident the plaintiff was happy and resilient and enjoyed an active social life. She was not over protective of her children and she appeared to have no behavioural or psychological issues.
During the weekend immediately following the incident he observed that the plaintiff was not sleeping well. She constantly went to check the children during the night. She cried and was downcast. He described her as zombie-like (Transcript 157.36).
Mr O’Donnell said that during the remainder of 2008 the plaintiff’s mood remained very flat. She had little motivation and was no longer outgoing. She did not sleep well. He said her condition deteriorated over time. It took little to push the plaintiff over the edge. She needed time to get up and get going in the mornings but she coped better in the mornings than in the afternoons and evenings when she appeared:
Just generally buggered, if I could say that. (Transcript 160.25)
The plaintiff’s friend of 25 years, Ms Kirby, described her as happy and confident prior to the incident, having a good marriage and enjoying her children. After the incident her outlook on life changed, she worried and was no longer positive, she was more cautious and worried about her children. Ms Kirby was also employed by the ABS and said she saw the plaintiff regularly at work. She said she had seen the plaintiff upset and crying both socially and at work.
Ms Kirby agreed that prior to the incident the plaintiff was an exemplary mother, displaying normal caution in the care of her children. She said the plaintiff’s level of concern for the children increased after the incident. She became more protective and more absorbed with their wellbeing and whereabouts.
Expert medical evidence
The defendants arranged for the plaintiff to be examined by Dr Akkerman in October 2008 and by Dr Samuell in July 2012. She was examined by Dr Knox in October 2009 and June 2012.
Dr Akkerman was unavailable for cross examination and I was therefore not in a position to admit his report of 23 October 2008 (Exhibit 9) as evidence of his opinion. I admitted the report only for the purposes of assisting in the assessment of the evidence of Dr Samuell and Dr Knox, both of whom made reference to it.
Dr Samuell and Dr Knox were diametrically opposed in their opinions.
Dr Samuell’s opinion was that the plaintiff did not suffer from any mental illness at the time of his examination of her. He said she was psychiatrically well and that she behaved in a somewhat regressed manner in relation to her daughter’s unrelated illness. (Exhibit 1) In October 2009 Dr Knox diagnosed chronic, severe, Posttraumatic Stress Disorder and associated Panic Disorder with Agoraphobia that he attributed to the incident of March 2008. In June 2012 he diagnosed chronic, severe Posttraumatic Stress Disorder and severe, chronic Major Depressive Disorder with, at times, high levels of anxiety manifesting as Panic Attacks.
Dr Samuell emphasised that he knew nothing of the plaintiff’s condition prior to his examination of her. In his report (Exhibit 1) he encouraged reliance on contemporaneous documentation and he noted that Dr Akkerman made a diagnosis of an adjustment disorder and that he was adamant that she did not suffer from a post traumatic stress disorder. Dr Samuell continued:
The natural trajectory following an incident such as that described by Ms O’Donnell is for resilience to become manifest. Instead, the trajectory of having been diagnosed as an adjustment disorder by Dr Akkerman to being diagnosed as a “chronic severe post traumatic stress disorder” by Dr Knox is highly unusual and suggestive of an artefact of the litigation process.
In a letter dated 19 September 2012 Dr Samuell informed the defendants’ solicitor that:
Adjustment disorders as defined by DSM-IV “do not persist more than six months after cessation of the stressor”.
Dr Samuell made no reference in his report to other contemporaneous materials provided to him such as the clinical notes of the plaintiff’s general practitioners and those of Ms Brown, psychologist, or to the diagnoses of post traumatic stress disorder appearing in those notes.
Dr Samuell was called for cross examination. He confirmed that he did not believe the plaintiff’s answers to his questions but denied that he considered that she was untruthful. He said she misrepresented her circumstances and whether the abnormal illness behaviour to which he referred suggested that the plaintiff was malingering was a matter for the court. He said the plaintiff had become entrenched in a sick role.
The reason for these conclusions was that the clinical trajectory that he elicited was inconsistent with the natural trajectory of post traumatic stress disorder, being that described in the paragraph of his report extracted above.
I found it difficult to follow Dr Samuell’s reasoning from that point. He denied that he rejected the plaintiff because of the unusual circumstance that an adjustment disorder, as diagnosed by Dr Akkerman, became more severe to the point where Dr Knox diagnosed post traumatic stress disorder, although this was what he appeared to state in the paragraph that I extracted from his report. He said that the usual course after a distressing incident, such as that experienced by the plaintiff, was for improvement rather than deterioration in a person’s condition. He then appeared to accept that his opinion relied on an assumption that the plaintiff in fact suffered from an adjustment disorder and that she later suffered from post traumatic stress disorder.
In respect of other contemporaneous materials, Dr Samuell said he read the clinical notes of the general practitioners who treated the plaintiff immediately after the incident. He disagreed with the diagnosis of post traumatic stress disorder appearing in those notes. He said the notes provided little or no documentation of the plaintiff’s symptoms or the connection between the diagnosis and the medications prescribed. I disagreed with Dr Samuell on this point. Although the plaintiff’s general practitioners did not record symptoms on every occasion when she consulted them, they recorded symptoms of tearfulness, panic attacks, sleeping difficulties, exhaustion from work, difficulties of concentration and anxiety immediately after the incident. They continued to record at regular intervals similar symptoms of fluctuating intensity.
Dr Samuell did not accept Ms Brown’s diagnosis because her report set out no evidence to support her diagnosis. I noted that this report was a short report to the plaintiff’s general practitioner concerning treatment proposed and did not purport to set out the basis for a medico-legal opinion. It did, however, report that the plaintiff was suffering from significant symptoms. Dr Samuell agreed that he read Ms Brown’s clinical notes. He appeared to place no weight on them. They were not in evidence and I was therefore unable to determine if they provided a basis for Ms Brown’s opinion.
Questioned as to why he accepted Dr Akkerman’s diagnosis and rejected those of her treating practitioners, Dr Samuell denied that he accepted any prior diagnosis as a basis upon which to form a reliable view about the plaintiff’s condition at any time before his examination of her. He ultimately said that his rejection of the plaintiff was:
…on a clinical basis at the time that I assessed her based upon the clinical information I elicited (Transcript 131.27).
He said the plaintiff did not present in a manner that indicated that she was pervasively anxious and many of her claimed symptoms, although they could be indicative of post traumatic stress disorder, were equally explicable by reference to her personality type or other stressors she faced, in particular the stress of managing a child who suffered from an obsessive compulsive disorder. Dr Samuell did agree that the stress of dealing with a child with a mental illness could be a factor that aggravated and continued the adjustment disorder diagnosed by Dr Akkerman. He also agreed that there were circumstances in which an adjustment disorder did not follow the normal course but became chronic.
In contrast, Dr Knox accepted the plaintiff’s complaints of symptoms and the diagnoses of her treating practitioners without question. He considered that the plaintiff was genuine and that her presentation was consistent with her diagnosis.
Dr Knox said that, having continued for longer than six to eight months, it was likely that the plaintiff’s post traumatic disorder would continue indefinitely. He said her condition was stable at the time of his examination in June 2012 and that the plaintiff was likely to continue at her current level of distress and disability.
In the course of his evidence to the court, Dr Knox confirmed that he read the materials with which he was provided for the purpose of forming his opinion. He said Ms Brown’s opinion was peripheral to his diagnosis and rejected the proposition that she provided no justification for that opinion. He said he made reference to the notes of the general practitioners for the purposes of corroboration.
He also read Dr Akkerman’s report and, although it was not his practice to rely on the reports of other practitioners, he took into account the significant symptoms recorded in that report. He said his approach differed from that of Dr Akkerman because he did not prompt the plaintiff with leading questions. Nevertheless he thought that Dr Akkerman described a fairly severe clinical condition and said there was no radical difference in the phenomena they observed or that were reported by the plaintiff. The difference between them, he said, related to diagnosis and interpretation. Their diagnoses overlapped and the symptoms recorded were compatible with both opinions. Ultimately it was a matter of assessment of the severity of the plaintiff’s symptoms and a question of judgment on the part of the doctor.
Dr Knox was asked whether the reduction in the plaintiff’s medication to the point where it ceased six weeks before he examined her in October 2009 indicated that she was recovered or that her condition had plateaued. His response was that the plaintiff’s condition, having continued for twelve months, by that stage was chronic. Having examined her, he thought she should resume her medication, which she did.
Dr Knox did not agree that the plaintiff’s attendance at a gym was inconsistent with his diagnosis of agoraphobia. He said the overwhelming thrust (Transcript 188.36) of what the plaintiff told him was that she was very troubled and that she had little social life. He said persons with agoraphobia went to doctors and places, such as gyms, in their attempts to get better. This was not inconsistent with the plaintiff’s loss of interest in social activity. She was very fearful of further injury to her children and the world had become a dangerous place for her. She avoided social activity so as to prevent episodes of panic and avoid exposing the children to risk.
Dr Knox said that the plaintiff referred to indecisiveness in the domestic context and not in relation to her work. He thought she survived at work as best she could and he expressed surprise that she was promoted. He thought it was consistent with her presentation that she was unable to cope with positions at APS6 and EL1 levels that involved greater responsibility and staff supervision. Further consistency was provided by evidence that, notwithstanding the continued medication and treatment by Ms Dal Molin, she was unable to cope with these positions and that she found it necessary to reduce her weekly working hours.
Ms Dal Molin reported on 21 September 2012 (Exhibit A.20). She was a psychologist with qualifications in psychotherapy. She treated the plaintiff on 16 occasions between December 2010 and October 2011 for the symptoms of anxiety, stress and depression identified in the Mental Health Care Plan. Ms Dal Molin considered that the plaintiff’s symptoms at the time of her treatment were consistent with the diagnosis of post traumatic stress disorder and that they emerged as a direct result of the incident of 20 March 2008.
She recorded symptoms complained of by the plaintiff that were consistent with those noted by all other treating practitioners and gave details of the treatment she provided. She noted that the plaintiff told her that her symptoms subsided for a period after prior psychological treatment. Ms Dal Molin said that, by the time of the last session on 21 October 2011, the plaintiff reported changes and improvements directed at managing or controlling her anxiety.
Ms Dal Molin reported that the plaintiff’s symptoms during the period of treatment adversely affected her capacity to undertake her full range of duties at work and noted that her working hours were reduced on the recommendation of her general practitioner. Her symptoms also adversely impacted to a substantial degree upon the plaintiff’s capacity to undertake day to day functions and to relax and enjoy social activities.
Ms Dal Molin made it clear that treatment ceased because of the exhaustion of the financial assistance provided by Medicare. She said the plaintiff clearly required further treatment to address her stress and consolidate the progress made. She thought the plaintiff would remain vulnerable to further escalations in anxiety and to deterioration in her condition, particularly if her daughter’s symptoms failed to improve or became worse.
The defendants’ response
The defendants relied on the expert evidence of Dr Samuell, psychiatrist, and on aspects of the general practitioners’ medical records that were said to be inconsistent with the plaintiff’s presentation to the court.
The defendants’ position in respect of the plaintiff’s claim of psychological injury was not entirely clear. Having relied on the opinion of Dr Samuell that the plaintiff was not suffering from any psychiatric disorder, the defendants appeared to accept that she did have some form of unspecified mental illness that was less severe than claimed and that, therefore, any award of compensation should be moderate.
They acknowledged that the incident was one that was likely to cause distress to the parent of a young child. They accepted the plaintiff’s complaint of ongoing symptoms of tearfulness, over protection of her children and the consequences to her personality but they challenged the claimed severity of the plaintiff’s symptoms, the extent to which they affected her employment and other day to day activities and the extent to which they were the result of the incident.
In support of this position the defendants pointed to the following aspects of the evidence.
Withdrawal from medication in 2009
The defendants suggested that the reduction and subsequent withdrawal from all medication in 2009 indicated that the plaintiff recovered from any injury that she suffered as a result of the incident. They argued that other stresses then affecting the plaintiff, such as her daughter’s psychiatric condition and the everyday stresses imposed on a working mother with a young family, were the cause of her ongoing symptoms.
I rejected this submission. There was no material that challenged or put in doubt the plaintiff’s evidence that at the time of withdrawal from medication she was feeling generally unwell and, on medical advice, medication was reduced and ceased for the purpose of checking whether this would improve her wellbeing.
Further, the clinical records of the plaintiff’s general practitioner and the report of Dr Knox indicated that, having withdrawn from medication, the plaintiff’s condition deteriorated. Dr Knox’s recommendation that she resume medication was acted upon.
Inconsistent features
The defendants questioned the plaintiff about clinical notes that recorded activities that appeared to be inconsistent with her claimed level of psychological illness.
The plaintiff was asked about the following arising from the medical records.
Delay in obtaining treatment: The plaintiff was asked about the apparent delay between 20 and 25 March 2008 in consulting her general practitioner. She explained that the incident occurred on the Thursday before Easter 2008 and that she consulted Dr Hannaford on the following Tuesday, the first day upon which she was available for consultation. The plaintiff said she took her daughter to Calvary Hospital at the weekend and told doctors there of her distress but was not treated. I did not accept that this demonstrated undue delay on the part of the plaintiff in obtaining treatment from her general practitioner.
The plaintiff was asked about the apparent delay between 1 April 2008, when her General Practitioner gave her a list of psychologists, and 6 May 2008, when she commenced treatment with Ms Brown. This inquiry overlooked the plaintiff’s evidence that she initially sought and obtained counselling with the assistance of her employer. In accordance with the advice of that counsellor she then arranged for more structured treatment. I did not accept that this demonstrated undue delay on the part of the plaintiff in obtaining psychological treatment.
Hong Kong: The plaintiff conceded that in August or September 2008 she accompanied her mother on a five day trip to Hong Kong. She said this was at the suggestion of her mother who thought it might be of benefit to her. She denied that she felt better after this trip. There was no medical record to support the suggestion that the visit to Hong Kong improved the plaintiff’s condition. The records indicated that her general practitioner continued to prescribe anti-depressant medication at this time.
Attendance at a gym: Although the plaintiff did not remember telling her general practitioner that she enjoyed going to the gym, she agreed that she did attend and the clinical notes indicated that this activity was spasmodic and short term. I did not consider that, in isolation, it was inconsistent with the plaintiff’s complaint of ongoing symptoms.
Pregnancy: The plaintiff specifically denied that she planned any pregnancy or that she became pregnant and suffered a miscarriage. The clinical note of 18 September 2008 provided support for the plaintiff’s evidence that she discussed with her general practitioner only the possibility of a further pregnancy because at the same time the note recorded that the plaintiff was prescribed contraceptive medication. Her subsequent withdrawal from contraceptives was consistent with her evidence that she ceased all medication because she was feeling generally unwell. Clinical records indicated that a period a menstrual dysfunction followed but contained no further reference to planned pregnancy.
Dr Knox did not question the plaintiff about the circumstances in which she ceased medication. He accepted that the clinical note of 19 November 2009 could indicate that she was planning a pregnancy and that this would have been inconsistent with the plaintiff’s claimed symptoms. He said the plaintiff’s denial that she was pregnant or that she did not plan a pregnancy added consistency to her evidence that the medication ceased because of the side effects that it caused.
I noted also that this clinical note followed that of 14 October 2009 that recorded that the plaintiff felt as if run over by a truck (Exhibit B.15) and that she was considering returning to complete a Mental Health Care Plan so as to secure funding for treatment by another psychologist.
It was never directly put to the plaintiff that she lied to the court on this topic or that she was malingering or overstating the nature and extent of her symptoms. Further, Mr O’Donnell, who might be expected to know if a further pregnancy was planned, was not asked one question on the topic.
Having reviewed all of the evidence concerning this topic, I concluded that the clinical notes did not establish, as contended by the defendants, that the plaintiff was pregnant, planned a pregnancy or ceased anti-depressant and other medication for that reason. I accepted that the plaintiff’s explanation of the circumstances in which she ceased medication was consistent with the medical records. It was also consistent with Dr Lee’s record that the suspension caused deterioration in the plaintiff’s condition and with the observation of Dr Knox that the plaintiff’s health deteriorated in the six week period between her ceasing medication and his examination of her in October 2009.
The clinical notes: The defendants raised only in the course of submissions the question of whether the clinical notes contained in Exhibit B were incomplete because those that were typewritten contained the heading Selective History Report. I disregarded this part of the submissions because the notes were admitted without objection from the defendants, no issue was taken in the course of evidence to their content, no effort was made to call the plaintiff’s general practitioners to explain any alleged inadequacy in the notes and no question was put to the plaintiff about this aspect of the notes.
The expert evidence: The defendants urged me to accept the opinion of Dr Samuell in preference to that of Dr Knox. There were a number of areas in which I considered the evidence of both experts to be unsatisfactory.
Although he denied that this was the case, Dr Samuell, in reaching his conclusion that the plaintiff misrepresented her symptoms, was clearly influenced by Dr Akkerman’s diagnosis of an adjustment disorder. It was very apparent from his report that this diagnosis caused him to reject the proposition that the plaintiff at some later stage developed a post traumatic stress disorder.
Dr Samuell’s disregard of the plaintiff’s medical history was unfortunate because, had he taken it into account, he would have appreciated that the diagnosis of post traumatic stress disorder preceded Dr Akkerman’s examination of her and was consistently made by the plaintiff’s general practitioners, her treating psychologists and Dr Knox.
Dr Knox agreed that some elements of his report were unnecessary to his opinion and that he might have been assisted by more detailed information concerning the mental health of the plaintiff’s daughter. He said, however, that the symptoms reported by the plaintiff strongly suggested that her daughter suffered from obsessive compulsive disorder. I noted that this diagnosis of her daughter’s condition was not in issue and I was thus uncertain of the relevance of this point.
There was valid criticism of Dr Knox for expressing an opinion concerning the plaintiff’s capacity to work when he was unaware of the nature and conditions of her employment or of the limited extent to which she took sick leave after the incident.
I did not consider that these defects provided a basis for disregarding entirely Dr Knox’s opinion, particularly when it was consistent with those of both general practitioners and both treating psychologists. Further, I have already referred to the anomaly between the defendants’ submission that I should accept Dr Samuell’s opinion that the plaintiff, at the time of his examination, was psychiatrically well and their apparent acceptance that her current condition was such that compensation to a moderate degree was warranted.
The consistency in the plaintiff’s complaints of symptoms, in the diagnoses of her treating practitioners and the opinions of Dr Knox, in the absence of any suggestion to the plaintiff that she lied or overstated her condition, persuaded me that I should accept that the plaintiff suffered from psychiatric injury in the nature of post traumatic stress disorder that was caused by the shock suffered in the incident of 20 March 2008 and that she continued to suffer the effects of that injury.
ASSESSMENT
I took account of Dr Samuell’s opinion that the plaintiff’s capacity for continued employment suggested that her symptoms were not severe. The plaintiff did not contend that she was totally debilitated by her condition. Her complaint was that it affected her mood and general enjoyment of life with virtually no prospect of recovery so that, at her current age of 38 years, she faced many years of mental illness the effects of which could be controlled but not entirely alleviated by pharmacology and therapy.
Mr O’Donnell and Ms Kirby, although they might be described as partisan, were not significantly challenged in their descriptions of the changes in the plaintiff’s personality and approach to life after the incident. Those descriptions were consistent with the plaintiff’s evidence and with many of the entries contained in the clinical notes concerning the plaintiff’s mood from time. I therefore accepted their evidence and found that the plaintiff’s condition, although not totally debilitating, was permanent and of significant severity.
I assessed her general damages at $150,000, allocating 40% of this amount to compensation for past pain and suffering and 60% to the future.
Income Loss
The plaintiff commenced full time employment with the Australian Bureau of Statistics in 2003. Her conditions of employment permitted her to return at her option and on request to work full time after the birth of her children. She returned to full time employment 18 months after the birth of her daughter. She returned to part time employment after the birth of her son. Both she and Mr O’Donnell said that they intended that the plaintiff would return once more to full time employment when her son went to school.
Her son is now seven years old. The plaintiff continued to work part time. She claimed that the stress of coping with her work generated by her condition forced her to reduce her working hours from 27 hours per week to 24 hours.
The plaintiff claimed the difference between her income as a part time employee and that which she could earn if working full time. The plaintiff’s claim of loss of the opportunity for promotion was not pressed.
The defendants resisted this part of the claim. They relied on the opinion of Dr Samuell and criticised Dr Knox for venturing an opinion on the plaintiff’s capacity for employment for the reasons I have already noted. They noted that the plaintiff took only two days of sick leave following the incident and referred to employment records that indicated that she took extensive amounts of carer’s leave. These records were relied on as establishing that the plaintiff’s difficulties were generated, not by her psychiatric condition, but by the stress of coping with the needs of her family, in particular those of her mentally ill daughter.
I took into account the clinical notes recording the plaintiff’s difficulty of coping with her employment, the observations of Ms Kirby and Ms Dal Molin on the topic and the evidence of Mr O’Donnell concerning his wife’s condition at the end of her working day. These materials confirmed her evidence. Further, it was apparent that much of the time taken by the plaintiff to attend to caring responsibilities occurred prior to March 2008.
The defendants contended that it was unlikely in any event that the plaintiff would manage full time employment, having regard to her family responsibilities as the mother of two young children, her daughter’s mental health and the advancing ages of her parents. I did not accept this contention. Many parents, male or female, manage responsibilities of this nature while working full time. The practice adopted by the courts to deal with the contingency that extra pressures might be imposed upon them, such as the illness of a child, has been to apply a factor for vicissitudes. In this case, I could see no reason to depart from applying the standard 15% discount to deal with the vicissitudes affecting the plaintiff.
I have taken account of the plaintiff’s promotion to APS-6 level in assessing the severity of the plaintiff’s injury and therefore in assessing her general damages. In assessing the plaintiff’s claim for income loss, I accepted that her psychological condition prevented her from returning to full-time employment. I also accepted that the requirement to reduce the plaintiff’s working hours was generated both by her difficulty in waking and becoming functional after using sleeping medication and the need to ensure that her daughter was able to complete her ritualistic behaviour at the start of the day. To account for this factor, I adjusted her claimed income loss by reducing her claim by an amount approximately equal to one hour at the rate at which the documents in evidence indicated she was paid about $28.00 net per hour, from 1 September 2011.
On this basis I allowed the claim for income loss as follows:
Past income loss
25 and 26 March 2008 $ 124.00
Leave taken to 1 January 2011 $ 3,708.54
Difference between APS6 part-time and full-time
From 1 January 2011 to 1 September 2011 $ 287.05
net per week x 39 weeks. $ 11,194.95
From 1 September 2011 to date of hearing $259.05
net per week x 63 weeks. $ 16,320.15
$ 31,347.64
Interest on past income loss at 9% on half
for 2 years $ 1,410.65
$ 32,758.29
Future Income Loss
Difference between APS6 part-time
and full-time $259.05 net per week for
28 years (993.8) x 85% $218,827.31
Loss of Superannuation – 11% of net
income loss $ 27,519.24
$279,104.84
Medical Expenses
Although Dr Samuell said the plaintiff required no treatment with the exception of some support for the stress of parenting a child suffering from obsessive compulsive disorder, the defendants did not contest the plaintiff’s claim in respect of past or future medical expenses.
The plaintiff’s claim was based on the recommendations of Dr Knox for treatments with a clinical psychologist and a consultant psychiatrist and for the prescription of psychotropic medication. The purpose of the recommended treatment was to maintain the stability of the plaintiff’s condition and to minimise deterioration likely to occur because of the plaintiff’s ongoing problems and the additional stress of her daughter’s psychiatric condition.
The claim was allowed in the sum of $5,385.85 for past medical expenses and $31,544.00 for the future.
Domestic Care
The plaintiff claimed a modest allowance for domestic care past and future.
The plaintiff said that prior to the incident she was responsible for the bulk of the domestic care provided to her family, with some assistance from her husband. After the accident, Mr O’Donnell altered his working hours so that he started work early in the mornings and finished mid-afternoon. This arrangement permitted him to collect the children from school on the three afternoons of each week when the plaintiff was at work, to attend to their after school needs and to prepare the evening meal. He said this relieved pressure on the plaintiff.
Mr O’Donnell also undertook more of the shopping and washing. He estimated that he provided five to six hours per week of additional assistance. Notwithstanding this evidence, plaintiff limited her claim to a requirement for 1½ hours of assistance per week.
I considered her claim to be justified and modest and I allowed it in the sum of $40,946.40.
Summary
The compensation awarded to the plaintiff is $512,781.09 calculated as follows:
General damages $150,000.00
Interest on $60,000 at 2% $ 5,800.00
Income and Superannuation Loss: $279,104.84
Medical Expenses:
Past $ 5,385.85
Future $ 31,544.00
Domestic Care:
Past $ 8,151.00
Future $ 32,795.40
Total $512,781.09
ORDERS
Verdict and judgment for the plaintiff in the sum of $512,781.09.
The defendants are to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for seven days to allow any party, within that period, to list the proceedings for further argument on the issue of costs.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding One hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Chanel Schultz
Date: 14 February 2013
Counsel for the plaintiff: Mr A Black
Solicitor for the plaintiff: Ken Cush & Associates
Counsel for the first & second defendant: Mr J Gracie
Solicitor for the first & second defendant: Rankin Nathan Lawyers
Date of hearing: 11, 12 and 13 December 2012
Date of judgment: 14 February 2013