CAE v Oel - [2014] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CAE -v- OEL [2014] WADC 137

CORAM: DAVIS DCJ

HEARD: 12-23 MAY 2014

DELIVERED : 10 OCTOBER 2014

FILE NO/S: CIV 2144 of 2010

BETWEEN: CAE
Plaintiff
AND
OEL
Defendant

Catchwords:

Negligence - Fatal Accidents Act claim - Motor vehicle accident - Death following surgery two years after accident - Foreseeability - Remoteness - Assessment of damages - Turns on own facts

Legislation:

Fatal Accidents Act 1959
Workers' Compensation and Injury Management Act 1981

Result:

Defendant liable to the plaintiff
Findings made relevant to damages assessment

Representation:

Counsel:

Plaintiff:     Mr T H Offer
Defendant:     Mr C C Rimmer
Amicus Curiae                   :    Ms B A Mangan for the Department of Child Protection and Family Support

Solicitors:

Plaintiff:     Vertannes Georgiou
Defendant:     Jarman McKenna
Amicus Curiae                   :    Department of Child Protection and Family Support

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Biddulph v Lenegan (Unreported, WASCA, Library No 990076, 19 February 1999)
Bowen v Tutte (1990) Aust Torts Reports 81–043
Brocx v Mounsey [2010] WASCA 196
Brown v Dato Pty Ltd [2006] WASCA 170
Campbell v Li‑Pina [2007] WASCA 64; (2007) 47 MVR 279
Chance v Alcoa of Australia Ltd (1990) Aust Torts Rep 81-017
Chappel v Hart (1998) 195 CLR 232
Davies v Taylor [1974] AC 207
De Sales v Ingrilli (2002) 212 CLR 338
Dorsett v Janeska [2005] WASCA 215
EMS Holdings Pty Ltd v International Shipyards Pty Ltd (Unreported, WASCA, Library No 980655, 12 November 1998)
Government Insurance Office of New South Wales v Cox (1976) 9 ALR 194
Grainger v Williams [2009] WASCA 60
Hi‑Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Lisle v Brice [2001] QCA 271; [2002] Qd R 168
Lyle v Soc[2009] WASCA 3; (2009) 38 WAR 418
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McIntosh v Williams [1979] 2 NSWLR 543
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177; (2011) 58 MVR 497
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Watts v Rake (1960) 108 CLR 158

DAVIS DCJ: The plaintiff claims damages pursuant to the Fatal Accidents Act 1959 (WA) for herself and her four daughters consequent upon the death of her husband (the deceased).
The deceased was involved in a work-related motor vehicle accident on 24 July 2005 (the accident). He was working on an underground mine site as a mechanical fitter. On the day of the accident he was a passenger in a vehicle driven by a co-worker when the vehicle collided against the mine wall. The deceased suffered a whiplash injury to his cervical spine.
Almost two years later, on 11 July 2007 the deceased underwent surgery on his neck. He was discharged from hospital following this surgery on 14 July 2007. He died three days later, on 17 July 2007. He was only 33 years old at the time of his death.
At issue in this trial is both the defendant's liability for the death of the deceased and damages.
After a coronial inquiry it was found that the cause of death was 'aspiration of vomit associated with focal coronary arteriosclerosis with thrombosis and combined drug effect'.
The plaintiff submitted that the combined drug effect included in the cause of death as found by the coroner, arose from medication taken by the deceased following his surgery. It was submitted that the surgery, and thus the medication, was necessitated by the symptoms suffered by the deceased consequent upon the injuries he suffered in the accident. The plaintiff submitted that it was not necessary for the plaintiff to prove that the defendant's negligence was the sole cause of the deceased's death.
The defendant admitted that his negligence caused the accident and that the deceased was injured in the accident. The defendant denied, however, that there is any causal connection between any injuries suffered by the deceased in the accident and his death. It was submitted that on the balance of probabilities, as a matter of common sense and experience, the requisite causal connection between the defendant's negligence and the deceased's death did not exist. Further or alternatively, it was submitted that the deceased's death was not a reasonably foreseeable consequence of the defendant's negligence.
The issue of the assessment of damages is complicated by a number of matters. The plaintiff and the deceased were separated at the time of his death. The children supported by the deceased during the marriage included the plaintiff's eldest daughter from a previous relationship. The first born of the plaintiff's and the deceased's three daughters died on 20 May 2013. The other two daughters were, at the time of the trial, in the care of the Department for Child Protection (DCP) pursuant to a care and custody order made in August 2013. (Since the trial, and before this judgment, those two children have been returned to the care of the plaintiff.)
Leave was granted to the DCP to appear at the trial of this matter and to make submissions in relation to the interests of the children then in its care.
Because of the involvement of the DCP and some of the issues raised in this case, I made a suppression order. I will not include any details in this judgment which might lead to the identification of the children.

PART A – LIABILITY

Legal principles relating to causation and foreseeability

Causation involves two distinct inquiries. The first concerns the question of causation in fact. The second involves the legal question of whether, and, if so, to what extent, the defendant should in law be responsible for the consequences of his breach, encompassing matters of policy such as the doctrine of novus actus interveniens and remoteness of damage: Bennett v Minister of Community Welfare (1992) 176 CLR 408, 412 ‑ 413; Grainger v Williams [2009] WASCA 60 [179] ‑ [182].
These principles apply to a claim under the Fatal Accidents Act: Lisle v Brice [2001] QCA 271; [2002] Qd R 168 [24] and [39]; Lyle v Soc [2009] WASCA 3; (2009) 38 WAR 418 [27] ‑ [34] and [40] ‑ [42].
Causation in fact is established if the plaintiff can prove that the harm the subject of the claim would not have occurred without the defendant's negligent act or omission. Causation in fact is to be determined not according to scientific or philosophical theories of causation but by common sense principles: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Dorsett v Janeska [2005] WASCA 215 [44], citing Chappel v Hart (1998) 195 CLR 232, 244 (McHugh J); Bennett v Minister of Community Welfare (420–421).
A defendant's act or omission need not be the sole cause of the loss or damage. Causation will be established if the defendant's negligence caused or 'materially contributed to' the damage: Bennett v Minister of Community Welfare; Medlin v The State Government Insurance Commission (1995) 182 CLR 1, 6 ‑ 7; Lyle v Soc [40].
If an injury occurs within an area of foreseeable risk, then a prima facie causal connection will be established. The defendant has an evidential burden to show that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence: Bennett v Minister of Community Welfare; Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109; [395], [396].
A negligent defendant must take his victim as he finds him: Watts v Rake (1960) 108 CLR 158, 159; Purkess v Crittenden (1965) 114 CLR 164, 168. So the fact that a plaintiff may have a particular predisposition to respond to injury in a certain way does not assist a defendant, unless the defendant can disentangle the causes of the plaintiff's condition, and show that, to some particular extent, the accident was not a contributory cause.
Where a defendant seeks to assert other causes of the plaintiff's damage, such as other or pre-existing medical conditions, the burden is on the defendant to disentangle and quantify the extent of the plaintiff's disability caused by such conditions: Purkess v Crittenden (168); Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410 [44] ‑ [49].
The burden that a defendant bears is, however, merely an evidentiary one. That burden being discharged, the ultimate onus is on the plaintiff to show, on all of the evidence, the extent of the injury caused by the defendant's negligence: Watts v Rake (168); Purkess v Crittenden.
On the second inquiry required for causation, namely the legal question of whether, and, if so, to what extent, the defendant should in law be responsible for the consequences of his breach, it is the issue of foreseeability and remoteness of damage with which I am concerned in this case.
The plaintiff must prove that the deceased's death was foreseeable as a result of the accident and not too remote a consequence: Lisle v Brice [39]; Lyle v Soc [30] ‑ [32].
The notion 'reasonable foreseeability' marks the limit beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act: Lyle v Soc [33].
Reasonable foreseeability must be determined at the time of the alleged breach and without hindsight: Amaca Pty Ltd v Hannell [301]; Lyle v Soc [33].
This issue has arisen in cases where the plaintiff suffers complications or an exacerbation of an injury as a result of medical treatment. In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 528 ‑ 529, a case which concerned the exacerbation of a work‑related injury after treatment by an allegedly negligent doctor, the court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) said:
A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens (M'Kew v Holland & Hannen & Cubitts (1970) SC(HL)20, at p 25). But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 at pp 124–125. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid., p 122) …
In particular circumstances, minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable. When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given: [authorities cited]. It may be the very kind of thing which is likely to happen as a result of the first tortfeasor's negligence (cf. per Lord Reid inDorset Yacht Co v Home Office [1970] AC 1004, at p 1030). That approach is consistent with the view taken in workers' compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident: [authorities cited], although medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: Rothwell v Caverswall Stone Co (1944) 2 All ER 350, at p 365; Hogan v Bentinck Collieries (1949) 1 All ER 588, at p 592. …

The deceased's medical history prior to the accident

Before the accident the deceased had a range of health problems. The evidence from his treating general practitioner, Dr Lingham Sam, who saw him from and after 19 July 1997, Dr Peter Silbert, a neurologist, Dr Amit Banerjee, a psychiatrist, and the other medical reports tendered at trial, was as follows.
At the age of 21 the deceased was diagnosed with epilepsy. He suffered seizures from time to time although this was generally controlled by medication, usually Tegretol (a brand of carbamazepine). The deceased regularly saw his general practitioner, Dr Sam, about his epilepsy.
In 1998 Dr Peter Panegyres, a consultant neurologist at Sir Charles Gairdner Hospital, saw the deceased about his epilepsy. Dr Panegyres wrote a report to Dr Sam dated 10 March 1998 (exhibit 9) advising that the deceased had two probable generalised tonic clonic seizures (otherwise known as grand mal seizures) in September 1997 and 5 January 1998, the latter for which he was admitted to Royal Perth Hospital (RPH).
The RPH records from the deceased's attendance on 5 January 1998 were produced in evidence (exhibit 80). The emergency department notes record that the deceased had suffered a grand mal seizure lasting 5 minutes and had suffered six seizures in three years. The notes also record as follows:
? patient appears to raise MS Contin dose at will and has been told this may induce seizure.
The deceased reported a further seizure to Dr Sam in October 1998. Dr Sam referred the deceased to another neurologist, Dr Rick Stell. In a report of 7 November 1998 (exhibit 12), Dr Stell recorded that the deceased presented with a three year history of generalised tonic clonic seizures, six seizures in total, with the last approximately two weeks ago, and:
All of the seizures have occurred without warning and appeared to have been provoked by stress in the context of chronic sleep deprivation and the consumption of analgesics in the form of Panadeine Forte and MS Contin for chronic low back pain. Following the seizure he usually complains of a headache and is confused for 15 minutes.
Dr Stell also recorded in his report that there had been 'poor compliance' by the deceased in the past and so he was changing the deceased's epilepsy medication.
Dr Stell's reference to 'chronic low back pain' relates to the deceased's lower back problem following an injury to his lumbar spine at work in 1994. According to the report from Dr Panegyres dated 10 March 1998 the deceased was on multiple medications for pain from this injury including MS Contin (morphine), Venlafaxine (an anti-depressant) and diazepam (a relaxant and anti-anxiety drug) and the deceased was requested to reduce that drug usage. When the deceased saw Dr Stell in November 1998, he recorded that the deceased was taking two to four Panadeine Forte per day or 10 mg of MS Contin. Dr Stell also recorded that the deceased had been advised by various orthopaedic surgeons and neurosurgeons to have a spinal fusion, but he had declined.
The deceased saw Dr Sam regularly complaining of lower back pain. When the pain did not respond to other medications, Dr Sam prescribed MS Contin, or morphine. Because this is an addictive drug, to prescribe morphine to the deceased for any period Dr Sam had to obtain authorisation from the Health Department of WA. Tendered at the trial were authorisations dated October 1998 (exhibits 10 and 11) and July 1999 (exhibit 13) permitting Dr Sam to prescribe MS Contin.
The occasions when the deceased consulted Dr Sam concerning back pain, and what was set out in Dr Sam's medical records, are as follows:
(a)15 December 1999 - Fits and back pain;
(b)10 January 2000 - Dr Sam recorded that the deceased had 20% limited movement in his back;
(c)6 May 2000 - Headaches and back pain and left thigh pain;
(d)3 July 2000 - Insomnia and back pain;
(f)8 July 2000 - Insomnia and back pain;
(g)18 July 2000 – Back pain and Dr Sam prescribed MS Contin (30 mg slow release, twice a day);
(h)29 January 2001 - Fits, depression and back pain. Dr Sam prescribed MS Contin 10 mg, twice a day;
(i)17 November 2001 - Back pain and stiffness, continuing medications. Dr Sam's evidence was that the medications was possibly MS Contin;
(j)27 July 2002 - Back pain. Dr Sam prescribed Naprosyn slow release, 750 mg daily anti-inflammatory;
(k)26 September 2002 - Back pain, headache and hair loss;
(l)1 February 2003 - Palpitations, back pain and epilepsy;
(m)21 July 2003 - High blood pressure (elevated to 150/80), headache, back pain, insomnia and depression. Valium was prescribed; and
(n)16 September 2004 - Fits, epilepsy, back pain. Naprosyn and Valium were prescribed.
By September 2004 Dr Sam had concerns about the deceased's use of addictive medications, the benzodiazepine Valium and MS Contin. He made a note in his medical records of 'drug abuse' when he saw the deceased on 23 September 2004. Dr Sam's evidence was that 'I must have felt that he was taking too much and I must have advised him and maybe he must have been asking more of the addictive medications and I refused it and must - made a comment on that'.
Dr Sam's medical notes recorded not only complaints about back pain, but also complaints of headaches, neck pain, insomnia and what Dr Sam recorded as depression, as well as entries about fits (relating to the deceased's epilepsy). Dr Sam explained during his evidence at trial that while his notes may record 'fit' or 'fits', it was not necessarily the case that the deceased was complaining of fits, but it may be recording why it was Dr Sam was prescribing medication (ts 123).
The deceased suffered regularly from headaches, sometimes related to his back pain, sometimes recorded by Dr Sam in conjunction with 'fits', and other times the deceased made complaints about headaches unconnected with any other symptoms.
The deceased saw Dr Sam about neck pain, although not as regularly as he saw Dr Sam for back pain. The occasions recorded in Dr Sam's medical records when he saw the deceased for neck pain were 22 April 1999, 23 August 2003, 21 January 2005 and 7 February 2005.
The deceased also suffered from insomnia and depression. Dr Sam prescribed sleeping tablets, Temazepam, for insomnia on 21 January 1999. The first recorded note by Dr Sam about depression was when the deceased consulted Dr Sam with a complaint of neck pain on 22 April 1999. Dr Sam saw him regularly thereafter, prescribing the anti‑depressant Avanza (the brand name for mirtazapine).
On 4 October 2001, Dr Sam referred the deceased to a psychiatrist, Dr S P Derham. This referral was made following Dr Sam's consultation with the deceased on 25 September 2001, at which the deceased complained that his wife had assaulted him, with Dr Sam recording a bruise to the deceased's left eye and an abrasion.
In a report to Dr Sam dated 3 October 2001 (exhibit 14) Dr Derham recorded the deceased's history of epilepsy and back injury, his marriage to the plaintiff and the children of the family, and then the following:
[The deceased] is a light sleeper and wears ear plugs as his wife snores loudly. When he nudges her in the night she becomes bad tempered; her temper is easily roused, and her parents have argued and fought for decades.
[The deceased] had not presented himself as a victim, but he does seem to have a case, he had already approached Marriage Guidance.
…
He seems to function adequately as a project manager responsible for cleaning and various functions at a large centre.
As often happens, some new aspect of his case may emerge at a subsequent visit; I have not included a serum cholesterol in the screen, as this will require a fasting specimen, but, in view of the family history, may be important.
…
PS Cancelled his appointment today at short notice.

On 1 November 2004 the deceased was admitted to the Swan Adult Mental Health Service, via an emergency department admission at Swan Districts Hospital the previous evening following an attempted hanging. As recorded by Dr Amit Banerjee in his report dated 7 April 2008 (exhibit 24), and confirmed in Dr Banerjee's evidence at trial, the relevant issues were the following, in the following order:
(a)'family and work stress, a strong history of alcohol dependence, a history of suffering from epilepsy for the last 10 years and being on medication for that';
(b)the recent death of the deceased's father two months earlier from complications of alcoholism, and the early death by suicide (hanging), two years before of the deceased's uncle, who had a history of depression;
(c)that the deceased was prone to use pain medication on and off for his back injury.
In Dr Banerjee's report he identified the deceased as being at high risk of suicide in the short term. The deceased's management on the ward consisted of containment (in hospital), building a therapeutic alliance and 'identifying interpersonal problems within the family that were contributing to [the deceased]'s deteriorated mental state'.
When the deceased was discharged, on 12 November 2004, his discharge diagnosis was Adjustment Disorder with depressed mood. Dr Banerjee explained at trial that this diagnosis was made rather than one of Major Depression, because of the importance of the environmental factors that were quite relevant in the deceased's case. Those environmental factors were the family history and the way he attempted suicide, his marital relationship, and the use of alcohol. As Dr Banerjee explained, the depressive syndrome had been brought on by environmental factors and the expectation was that it would be relieved to a significant degree if the environmental factors could be taken care of.
In relation to the family stresses contributing to the deceased's mental state, Dr Banerjee stated in cross-examination that 'I would think mostly it would be' that he was referring to the deceased's relationship with his wife. Some attempts were made at relationship counselling because of the conflictual nature of that relationship. Dr Banerjee recalled a family meeting with the deceased and the plaintiff present at which there were some problems identified, although Dr Banerjee could not recall the details. It was hoped that starting the process of counselling would be beneficial. In fact, according to contemporaneous notes made by Dr Banerjee at the time (exhibit 93 page 1190) the plaintiff did not participate in any meeting because she had a disagreement with the deceased before it started. Dr Banerjee also gave evidence that he could, however, recall the plaintiff being in the foyer area of the inpatient unit saying that she was not ready for counselling. In a phone call which he had with the plaintiff on 12 November 2004 she told Dr Banerjee that she had lost her feelings for the deceased. The plaintiff also told Dr Banerjee about instances of violence over the last few years when she had called the police.
There is evidence about the deceased's views of the relationship during his time at the Swan Adult Mental Health Service. Records from that Service admitted into evidence pursuant to s 79C of the Evidence Act1906 (exhibit 93) include a number of entries where the deceased discussed his marriage. For example, on 8 November 2004 the following entry was made:
…Ventilated his concerns re: marital crisis and grief at his father's death 2 months ago. Also worried that his wife may try to take his house as she was angry with him and is currently not supportive. He says he wants to continue the relationship (favours counselling). Discussed the issues and [the deceased] understands it will take time to resolve his problems before discharge. He also needs accommodation as his wife does not want him home until he has had counselling.
A separate entry on the same day noted that the deceased 'had a bad day. Fighting with his wife'. Another entry on 9 November 2004 recorded that the deceased stated that his wife wants a separation. On 10 November 2004 there is the following entry:
…[The deceased] informed me that his relationship with his wife has been both psychologically and physically abusive (from both parties). He is quite ambivalent about whether he should get separated/divorced, but believes he will be financially disadvantaged whatever happens.
After the deceased's discharge, Dr Banerjee saw the deceased again on 24 December 2004. Dr Banerjee's evidence, based on what he had recorded, was that at that time the plaintiff and the deceased were living together. The issue of counselling came up again but the deceased advised that the plaintiff was not interested in counselling.
In relation to the issue of alcohol dependency, Dr Banerjee gave evidence that in 2004 there was a co-dependent alcohol use where both the deceased and his wife were using alcohol to excess and that is why he made mention of that in his report. The reason he used the word 'dependency' was because it was taking primacy over other aspects of the deceased's life which he possibly should have been attending to. As recorded in Dr Banerjee's report dated 7 April 2008, at the post‑discharge appointment of 24 December 2004 the deceased reported having cut down on his alcohol use.
While being treated at the Swan Adult Mental Health Service, the deceased was prescribed the antidepressant Avanza (mirtazapine), a benzodiazepine, Lorazepam, which Dr Banerjee described as an anti‑anxiety agent, and nitrazepam, which is another benzodiazepine, to help the deceased to sleep. He was also prescribed Tegretol (carbamezapine) which Dr Banerjee noted he was already on for epilepsy. Dr Banerjee in his report dated 7 April 2008 recorded that at the post‑discharge appointment of 24 December 2004 the deceased reported having been compliant with his medication. A follow up appointment was planned in two months and a script for Avanza was provided. However the deceased did not keep his follow-up appointment and subsequently did not have any contact with Swan Adult Mental Health Service until 2006.
In relation to his epilepsy, on 16 May 2003 the deceased suffered a seizure for which he attended the Swan Health Service Emergency Department. In Emergency Department notes produced at trial (exhibit 87) the presenting complaint was 'fit', with a history taken of previous seizures '8- 10 last one 4 years ago'. The notes also recorded that the deceased stated he was currently stressed 'as home has sprung leak' and he was 'currently unemployed'.
The deceased was then referred to the neurologist, Dr Peter Silbert. Dr Silbert gave evidence at trial that he first saw the deceased in February 2004. In his report of 11 February 2004 to Dr Sam (exhibit 32) Dr Silbert reviewed the history of the deceased's epilepsy, recording that the deceased had recognised that his seizures were related to sleep deprivation. He had modified his lifestyle and tapered his use of Tegretol but had a recurrent seizure in mid‑2003 when he was sleep deprived. The deceased remained off therapy (meaning medication, as Dr Silbert explained in his evidence at trial) and was concerned that his memory had declined and he was tending to stutter. Dr Silbert recommended further investigation with a cranial MRI scan and EEG to classify his epilepsy to determine whether the epilepsy could be causing some of his subjective cognitive change. That MRI scan and EEG were both normal, with Dr Silbert reporting on 31 March 2004 (exhibit 33) that the main issue was cognitive change rather than the deceased's epilepsy and it would be helpful if he could undergo neuro-psychometric testing, which Dr Silbert arranged (exhibit 34).
On 9 October 2004 the deceased presented to the emergency department of RPH following a generalised tonic clonic (grand mal) seizure. The report produced from RPH (exhibit 78) records that the deceased report having been sleeping poorly and 'significant psycho‑social issues'. He had also not been taking his carbamezapine (Tegretol). It was noted that the deceased had a neurology clinic appointment (presumably with Dr Silbert) on 22 November 2004.
Dr Silbert in fact saw the deceased again on 30 November 2004 and provided a further report to Dr Sam on the same day (exhibit 35) setting out the results of the neuro‑psychometric testing. In Dr Silbert's opinion, the results suggested that the deceased's symptoms were mainly due to anxiety and depression, or the effects of alcohol. At that time, Dr Silbert was aware of the deceased's admission to the Swan Adult Mental Health Service.
As to the cause of the deceased's epilepsy, in this report of 30 November 2004 Dr Silbert noted that 'we have made the assumption that he has a focal seizure disorder in view of the previous significant head injury'. The significant head injury was a closed head injury the deceased had suffered when, at the age of 10, he was hit by a car, necessitating ten days in hospital. Dr Silbert agreed that the focal seizure disorder was the localised brain trauma and explained that this was a classification of his epilepsy. Dr Silbert went on to say that the deceased also described occasional brief myoclonic (jerking) type movements, which are not typical of generalised epilepsy. Dr Silbert explained at trial that he was documenting this 'to show my line of thinking that I'm comfortable we've got him on the correct medication at that stage and that he has focal epilepsy' (ts 187).
Dr Silbert also noted in this report that the deceased had suffered a further seizure two months before 'but that occurred at a time when he was noncompliant'. Dr Silbert could not say (nor does any other evidence establish), at what stage the deceased had started taking Tegretol again. Certainly by the time that Dr Silbert saw him on 30 November 2004, he was on Tegretol, and he was also taking the antidepressant, mirtazapine, as prescribed by the Swan Adult Mental Health Service. Dr Silbert noted some difficulties with the taking of mirtazapine, because antidepressants tend to be pro‑convulsant, but depression itself tends to lower the seizure threshold and therefore it is important to treat depression. In terms of further management of his epilepsy, provided the deceased remained compliant on his Tegretol Dr Silbert was hopeful the deceased would remain seizure free.
The deceased's general practitioner, Dr Sam, saw the deceased for depression in November and December 2004, prescribing him Avanza. On 3 December 2004 Dr Sam recorded seeing the deceased with complaints of headache and erection problem, along with depression.
Dr Sam referred him to a neurologist, Dr Justin Vivian. Dr Vivian reported following his investigations in a letter of 9 December 2004 (exhibit 15). Essentially there was no abnormality found, and Dr Vivian stated 'I am pretty certain he does not have an organic cause for his global sexual dysfunction'. However, Dr Vivian was of the view that the deceased should see a psychiatrist, based on the following symptoms recorded in the report which Dr Vivian stated were typical of a depressive illness:
Thanks for asking me to see this 31 year old man who for the past 3 years has complained of a general disinterest in sex…
Over the same period he has lost interest in renovating his house, has lost 3 jobs, finds he is no longer motivated to play sport and generally lacks motivation in any aspect of his life. He says this is completely different to how he was 5 years ago.
On 6 December 2004 the deceased saw Dr Sam again with a headache and his blood sugar level was found to be slightly high. On 8 December 2004 Dr Sam recorded that from a blood test he had ordered the deceased's cholesterol and triglyceride levels were also high. Dr Sam gave the deceased advice about his diet.
The deceased was scheduled to see Dr Silbert again on 29 March 2005 but did not attend that appointment.
On 16 April 2005 the deceased saw Dr Sam reporting that he was having 'exacerbated fits'. The deceased requested that Dr Sam prescribe dexamphetamine, which Dr Sam refused to do.
On 5 May 2005 Dr Sam saw the deceased again, recording 'fits' and prescribing Tegretol 200 milligrams twice a day. Dr Sam wanted to check the deceased's cholesterol and triglyceride levels and the deceased undertook further tests. The tests performed on the deceased included some liver tests. The pathology results were received on 9 May 2005, and Dr Sam saw the deceased on 10 May 2005. The results for the deceased's liver gamma-glutaminase (GT) was elevated, at 201. Another test for alanine transaminase (ALT) was elevated also at 86. Dr Sam's evidence was that both of those readings should have been less than 40 and the elevated readings could possibly be related to alcohol.
The deceased had another appointment with Dr Silbert scheduled for 24 May 2005, which he did not attend. When Dr Silbert wrote to Dr Sam after the second missed appointment on 24 May 2005 (exhibit 37) he advised 'I would have concerns about renewing his driver's licence from when it is due as he is taking mirtazapine, and from my point of view he has not been compliant with follow up'.
On 13 June 2005 Dr Sam saw the deceased again, recording 'stress. Lost job, unfair dismissal'.
On 23 June 2005 Dr Sam requested further liver function tests.
Dr Sam saw the deceased on 28 June 2005 for headaches and fits, and he continued the deceased's Tegretol medication.
The picture painted by the plaintiff in her evidence-in-chief was that before the accident on 24 July 2005 the deceased had recovered from his 1994 back injury, his epilepsy was under control and, apart from a brief period following the death of his father in late 2004 when the deceased's drinking increased, he was in generally good health.
I had a number of concerns with the plaintiff's evidence. There were a number of internal inconsistencies in her evidence as well as inconsistencies between the evidence she gave during the trial and evidence she had previously given on affidavit in proceedings with the Department of Child Protection (the DCP proceedings). There are many aspects of her evidence which I find neither accurate nor reliable because the objective evidence (in particular the medical evidence) tells a very different story.
The following are specific examples of just some of the difficulties I had with the plaintiff's evidence. (I address some further inconsistencies below, when I discuss the state of the plaintiff's and the deceased's marriage.)
While the plaintiff acknowledged that the deceased had an existing back injury at the time she met him, she claimed he had recovered from that after four years or so. This is contrary to the medical evidence. It is apparent that the deceased was still suffering from back pain in late 2004 – it was one of the issues mentioned by Dr Banerjee relevant to the deceased's mental state when the deceased was admitted to the Swan Adult Mental Health Service.
In her evidence the plaintiff did not mention any occasion when the deceased suffered from depression. While she mentioned his treatment at Swan Adult Mental Health Service in 2004 in her evidence, she suggested that this was related more to the deceased's consumption of alcohol at the time, particularly after the death of his father. That evidence conflicts with the independent evidence from Dr Banerjee and the contemporaneous records as I have set out above in [40] ‑ [47].
In relation to the deceased's epilepsy, the plaintiff in her evidence suggested that the deceased's seizures were isolated and she could remember them all, with the last seizure before the accident in around 2003 (ts 256). The medical evidence does not support the plaintiff's evidence about the deceased's epilepsy before the accident. After his seizure on 16 May 2003 (which I assume is the seizure around 2003 referred to by the plaintiff), the deceased suffered a further grand mal seizure on 9 October 2004 (which I find is the seizure Dr Silbert referred to in his report of 30 November 2004 as having occurred 'two months ago'). Dr Sam described the deceased having had 'exacerbated fits' on 16 April 2005.
In the circumstances I am not able to rely upon the plaintiff's evidence about the deceased's pre-accident health.
I find that the deceased was not in good general health before the accident. In summary, the deceased had:
(a)A long standing problem with epilepsy;
(b)A history of light sleeping and, at times, insomnia. Difficulties in sleep was noted by Dr Stell in 1998 to be a major contributing cause of the deceased's epileptic fits and in 2004 Dr Silbert recorded a correlation, recognised by the deceased, between sleep deprivation and his epileptic fits;
(c)Back pain from his earlier back injury, which was still symptomatic in 2004 and for which the deceased was still using pain medication, as recorded by Dr Banerjee;
(d)A history of depression, diagnosed in late 2004 as Adjustment Disorder with depressed mood, the main contributing factors to which were those matters I have set out in [40] above;
(e)Problems with the relationship with his wife, the plaintiff. The problems in the marriage were observed in 2001 by Dr Derham as an issue relating to the deceased's mental state and in late 2004 by Dr Banerjee as the primary factor in the deceased's Adjustment Disorder with depressed mood;
(f)A dependency on alcohol, although after his admission to Swan Adult Mental Health Service and by the time of his appointment with Dr Banerjee on 24 December 2004 he reported having reduced his alcohol consumption;
(g)Raised liver function test readings.
Notwithstanding all of these medical problems, however, in the month before the accident, on 29 June 2005 the deceased underwent an occupational medical assessment. The report generated after that assessment (exhibit 69) recorded that the deceased 'has grand mal epilepsy', noting:
Epilepsy is well controlled on tegretol for moen [sic - more] than 2 years. previous seizures occurred when he was not on medication, gets very tired from sleep deprivation or very stressed.
I note that the deceased's blood pressure was recorded as 165/110 with a second reading of 155/100 - both levels considerably higher than that recorded by Dr Sam record on 21 July 2003 which he indicated was elevated (see [32](m) above).
The examining doctor who undertook the occupational medical assessment stated that he or she was of the opinion that the deceased was 'fit for proposed employment', with the rider that he should 'take medication regularly and to look after himself well'.

The deceased's medical history after the accident until surgery

The diagnosis following the accident was of a cervical whiplash injury for which the deceased was prescribed analgesia and underwent physiotherapy (report of Dr Kim Fong, rehabilitation specialist dated 21 June 2007, exhibit 23).
However, the deceased's symptoms worsened despite treatment. He had ongoing left neck and shoulder pain, reported to some doctors as a 'constant ache', and he developed paraesthesias, numbness and weakness in his left arm and hand. This was due to impingement on the left C7 and possibly on the C6 nerve root (report of Dr Fong; report of Mr John Liddell dated 24 April 2007, exhibit 25; report of Mr Liddell dated 18 February 2008, exhibit 31).
The deceased was referred for review by a neurosurgeon, Mr Michael Lee. A CT scan was performed on 13 September 2005 and an MRI scan on 19 September 2005.
The deceased began to see a pain specialist, Dr Philip Finch, after his referral by Dr Sam in early 2006. In a report to Dr Sam dated 27 March 2006 (exhibit 51) Dr Finch recorded that at the time that the deceased was taking Avanza, Tramadol and Fentanyl patches 25 mcg, one patch per three days. Previously he was on 'a mix of drugs including MS Contin, ibuprofen, codeine phosphate etc'.

Dr Finch noted that there was some evidence of nerve root compression possibly relating to the C6/7 level and the deceased also possibly had facet pain at the C3/4 and C4/5 levels giving the predominant radiation to the left trapezius. Dr Finch recommended trying medial branch blocks (injections).
According to reports written by Dr Finch (exhibits 52 to 58 and 61), the deceased responded reasonably well to the cervical medial branch blocks, the first of which was performed on 2 May 2006 and reduced his pain. A second block was performed on 23 May 2006. Unfortunately the effects did not last, so on 28 June 2006 Dr Finch recommended trying radiofrequency blocks. After these were performed on 22 August 2006 there was some improvement, but Dr Finch suggested he undergo a further MRI of the cervical spine (exhibit 54). When that MRI showed little change, Dr Finch in his report of 23 October 2006 suggested repeating the radiofrequency blocks but at a higher level (on the spine) as the deceased's symptoms were at the higher C2/3 level. Those blocks were performed and led to an improvement in his upper cervical symptoms, but by 4 December 2006 the deceased was reporting a recurrence of the lower level symptoms which had previously settled. Dr Finch recommended repeating the radiofrequency blocks at both areas in the New Year. It appears that was done in February 2007 with Dr Finch reporting on 4 April 2007 (exhibit 58) that the deceased's symptoms had settled down.
Dr Peter Silbert also saw the deceased in March 2007, at Mr Lee's request, to see whether the deceased had cervical radiculopathy, which is pressure on one of his cervical nerve routes. Dr Silbert performed both nerve conduction studies and a needle examination. In a report (exhibit 44) to Mr Lee, Dr Silbert advised Dr Lee that the EMG findings were those of an electrophysiologically mild-moderate in severity chronic left CT radiculopathy. Dr Silbert explained at trial that the left C7 radiculopathy, is pathology or pressure or involvement of the left C7 nerve root and that would relate to his neck problem. It may cause pain which would radiate from the neck down the left arm to the middle finger and the index and ring finger, perhaps. It may cause numbness in the left hand. It may cause weakness in the left arm in certain muscle groups supplied by the C7 nerve root (ts 194).
Mr Lee also referred the deceased to another neurosurgeon, Mr John Liddell, for review. At that time, as set out in Mr Liddell's report dated 24 April 2007 (exhibit 25), Mr Liddell stated he would be reluctant to rush into surgery but, since the deceased appeared to be 'at the end of his tether', had arranged further investigations.
I pause here to observe that Mr Liddell's report that the deceased appeared to be at the 'end of his tether' in April 2007 conflicts with the report from Dr Finch from the same time (see [81] above) that the deceased's symptoms had settled down.
Mr Liddell reported on the results of the further investigations on 8 May 2007 (exhibit 26). Functional views of the cervical spine revealed evidence of mild to moderate degenerative changes and disc space narrowing at C5/6 and C6/7 and the bone scan revealed evidence of significant degenerative changes at both levels. Mr Liddell arranged an enhanced cervical CT scan.
In the meantime in June 2007 Dr Finch advised that the radiofrequency blocks had become less effective, and so he referred the deceased back to Mr Liddell (exhibits 59 and 61).
Dr Kim Fong, a specialist in rehabilitation medicine, was asked by the lawyers then acting for the deceased to review him, which Dr Fong did on 13 June 2007. In his report of 21 June 2007 (exhibit 23) Dr Fong made a specific diagnosis of cervical spondylosis with radiculopathy. Dr Fong was of the opinion that there was no prospect of the deceased returning to his pre‑accident employment. That work required him to be able to do heavy lifting and precise bimanual handling. In discussing the deceased's work capacity Dr Fong advised that:
Pleasingly the commencement of Fentanyl patches and his positive responses to radiofrequency rhizotomy interventions have made him now more functional in his every day routine. He is now approaching the stage where he can more appropriately begin a process of vocational rehabilitation to try and identify suitable future work options for him which are compatible with his residual disabilities.
However, in a report dated 22 June 2007 from Mr Liddell to Mr Lee (exhibit 28), Mr Liddell advised that the enhanced cervical CT scan he had arranged had revealed evidence of definite 'cut off' of the left C6 nerve root and so Mr Liddell arranged to perform a two level C5/6 and C6/7 anterior cervical fusion procedure (exhibit 29). This was the surgery which was undertaken on 11 July 2007.
Apart from his neck injury, the deceased was still seeing his general practitioner, Dr Sam, and other specialists in relation to his pre-existing medical conditions.
It is clear from Dr Sam's evidence and notes of his consultations with the deceased that not all of the issues he had with pain related to his neck. On 17 October 2006 Dr Sam recorded the deceased's complaints of lower back pain, and he ordered a CT scan. Back pain was also an issue recorded along with abdominal pain on 19 October 2006 for which Dr Sam ordered an ultrasound, thinking that the pain might be related to the liver. As recorded on 20 October 2006 the ultrasound revealed no abnormality.
Dr Sam was taking regular liver function tests of the deceased, which showed raised GT and ALT levels. The deceased was referred to a specialist gastroenterologist about this (which I discuss below), however, on 7 November 2006, after noting raised GT and ALT levels, Dr Sam noted '?medications. Tegratol MS Contin'. Dr Sam's evidence was that he advised the deceased to cut down the MS Contin.
In early 2007, Dr Sam was prescribing Fentanyl patches. In his evidence, Dr Sam explained that he thought a specialist must have recommended a switch from morphine to the Fentanyl patches. Like MS Contin, Fentanyl is an addictive painkiller, requiring authorisation from the Health Department of WA. There was an authorisation in January 2007 (exhibits 16 and 17), valid until 16 January 2008, permitting Dr Sam to prescribe Fentanyl patches for the deceased.
I should observe here that Dr Sam gave evidence that he kept a separate 'workers' compensation' file for the deceased's accident related injuries. The evidence from Dr Sam relating to his treatment of the deceased was taken from notes and records from the non-worker's compensation file or what Dr Sam described as the deceased's 'personal file' (ts 125). Other authorisations may have been kept in the other file.
In relation to the deceased's epilepsy, Dr Sam's evidence was that the deceased saw him relating to epilepsy on the following dates after the accident:
(a)12 September 2005 – headaches, anxiety and fits;
(b)3 October 2005 – fits and epilepsy;
(c)28 April 2006 – fits;
(d)19 July 2006 – fits;
(e)27 July 2006 - fits and 'family stress';
(f)17 November 2006 - seizure. Dr Sam prescribed Serapax 30 mg for anti-anxiety and mild sedation;
(g)18 December 2006 – epilepsy and fits;
(h)25 January 2007 - fitting and continue Tegretol;
(i)14 February 2007 - had 5 seizures, 2 per hour, seen Dr Silbert who had prescribed gabapentin and clonazepam;
(j)21 April 2007 – fits and seizures, stress, ongoing, continuing medications.
In relation to the evidence of the visit to Dr Sam by the deceased on 27 July 2006, and the recording of 'family stress', Dr Sam was unable to recall what this was in relation to, although he could recall an occasion when the deceased called police and there was a restraining order. The situation of 'family stress' at this time in July 2006, given the other evidence I heard from the plaintiff and hospital records (exhibit 90), was an allegation of child sexual abuse against the deceased. The police and the DCP became involved but no charges were laid.
In terms of specialist reviews in relation to his epilepsy, after Dr Silbert's review on 30 November 2004, he did not see the deceased again until 5 September 2006. In his report of that date (exhibit 38), Dr Silbert recorded the deceased 'has had some recent stress, as he is going through a divorce, and associated with that, he has had some seizures'. In cross-examination, Dr Silbert agreed that divorce was also a stressor which might cause someone to suffer from sleep deprivation and therefore predispose themselves to a seizure.
Dr Silbert advised that ideally the deceased needed more Tegretol, but the deceased had mentioned he had been seen by a gastroenterologist because of abnormal liver function tests. Dr Silbert advised in this report and a subsequent report of 26 September 2006 (exhibit 39) that he would make a decision on whether it was safe to increase the Tegretol after seeing the gastroenterologist's advice.
The deceased's general practitioner, Dr Sam had taken further liver tests in January and February 2006 which were abnormal. On 16 January 2006 Dr Sam had advised the deceased to give up alcohol. On 20 February 2006 when the deceased presented with right abdominal pain, Dr Sam noted that this was 'possibly due to liver disease'.
Dr Silbert explained in his evidence, however, that Tegretol is well recognised to cause abnormal liver tests. There were other reasons that could also result in the deceased's abnormal liver tests, primarily his alcohol consumption and consumption of paracetamol (painkillers). Paracetemol is a common cause of abnormal liver function tests and if you take Tegretol, you are more sensitive to the effects of paracetamol on your liver.
The gastroenterologist who reviewed the deceased's liver function test results was Dr Brian Bramston. In a report to Dr Sam dated 16 March 2006 (exhibit 21), Dr Bramston recorded the liver function tests performed by Dr Sam, noting that the January results showed the GGT at 263 and the ALT at the upper limit of normal. Sometime after that the deceased ceased taking Tegretol, but on 20 February liver test results were still elevated. Confounding the picture in February was the presence of a sleeping tablet and the taking of relatively high dose ibuprofen for a painful neck.
Dr Bramston recorded that examination revealed a liver of normal size and no obvious cutaneous stigmata of chronic liver disease. Other investigations produced normal or negative findings and an ultrasound showed no abnormalities. Dr Bramston concluded:
My guess at this stage is that the major disturbances in late January related to his medication, initially Tegretol but perhaps compounded by high dose Ibuprofen. Fortunately he is taking neither of these medications at present. I do not plan any further immediate action but he has a laboratory request form for the liver function tests to be repeated in the first week of April. Hopefully the downward trend of the ALT towards normality will continue but I do not expect the gamma GT to normalize while he is taking sleeping tablets. [The deceased] does not seem particularly concerned about his epilepsy flaring and I should also mention that his alcohol intake has been very modest at all times.
Dr Silbert reviewed the deceased on 27 October 2006 and wrote to Dr Bramston by letter dated 27 October 2006 (exhibit 40). At that appointment the deceased had reported some recent low back pain which Dr Silbert recorded related to 'his known right L5/S1 pars defect' (which is a stress fracture). While Dr Silbert noted the L4/5 and L5/S1 disc protrusion, the deceased's pain was low back pain. Dr Silbert had advised the deceased to avoid non-steroidals after a recent admission to the Emergency Department with vomiting and intermittent dark bowel actions. Dr Silbert also referred to the deceased's ongoing abnormal liver function tests, asked Dr Bramston for his views on the cause of these and discussed the medication the deceased should be on.
Dr Bramston reviewed the deceased again in November 2006 and wrote to Dr Silbert on 14 November 2006 (exhibit 22). Dr Bramston had seen the results of the liver function tests from April and early November which showed the ALT variable and suggested to Dr Silbert that:
On basic principles I would be happier to see him on gabapentin, rather than Tegretol. Although cholestasis with gabapentin is recorded rarely, it seems a much safer agent than the other anticonvulsants available. Its track record for chronic pain may also be of some value to [the deceased] with his disabling low back pain.
The morning vomiting which he still suffers from is almost certainly a stress reaction to his pain although he does seem to have underlying symptoms of reflux…
Dr Silbert reviewed the deceased shortly after this on 21 November 2006, writing a report to Dr Bramston on the same day (exhibit 41). The deceased had stopped taking Tegretol himself the previous week because of his liver function tests and 'had a seizure'. This corresponds with Dr Sam's record that he saw the deceased on 17 November 2006 with 'seizure'.
Dr Silbert's evidence at trial was that the deceased had stopped taking his Tegretol. He had already reduced it to 200 mg twice a day from 400 mg twice a day, and simply the effect of stopping that low dose of Tegretol had brought on a seizure. The abnormal liver tests 'did force us to taking him off Tegretol and putting him on a medication that does not affect the liver' (ts 189). Dr Silbert remarked that clearly the deceased required anticonvulsant treatment and Dr Silbert therefore introduced Gabapentin in increasing doses to 1,500 mg per day.
On 12 February 2007 the deceased presented to the emergency department at RPH after a seizure. According to a report from RPH to Dr Sam (exhibit 77) the seizure had been witnessed by the plaintiff and it lasted approximately 30 seconds. It was noted that the deceased was incontinent of urine. The report to Dr Sam referred to the fact that the deceased 'had a neuroradiablation for disc herniation on Thursday. He has not been pain controlled and finds that his seizure numbers have increased'. The diagnosis was of a generalised tonic clonic (grand mal) seizure.
Dr Silbert next saw the deceased only three days after this, on 15 February 2007. He recorded that the deceased had suffered a cluster of seizures the preceding weekend and been taken to 'Swan Districts Hospital'. There is no reference by Dr Silbert to the seizure for which the deceased attended RPH on 12 February 2007. The reference to the 'cluster of seizures' corresponds with Dr Sam's record of 14 February 2007- 'Had 5 seizures, 2 per hour, seen Dr Silbert who had prescribed gabapentin and clonazepam'.
In his report of 16 February 2007 to Dr Sam (exhibit 42) Dr Silbert again noted issues with compliance (the deceased was not taking his medication) and excessive alcohol consumption. The deceased himself reported the non-compliance. Dr Silbert increased the dose of Gabapentin.
Dr Silbert also noted that the deceased was taking clonazepam, as prescribed to him by Swan Districts Hospital (in fact it was Swan Adult Mental Health Service, which I discuss in [120] – [129] below). Dr Silbert explained that clonazepam belongs to the benzodiazepine group of drugs, and was used for anxiety and sedation but it also had good anticonvulsant properties. Dr Silbert advised the deceased to take that drug over the next four weeks.
Finally in this report Dr Silbert noted a significant improvement in the deceased's liver function tests and noted 'presumably his abnormal LFTs were significantly contributed to by Tegretol'.
The next occasion when the deceased was reviewed by Dr Silbert was 6 March 2007. In a report of that date to Dr Sam (exhibit 43), Dr Silbert stated that the deceased had had 'a difficult couple of weeks with seizures and I think the problem is the Gabapentin alone is inadequate'. Dr Silbert discussed the negative effects of higher doses of Gabapentin and the options of introducing either Topomax (topiramate) or Lamictal. Dr Silbert introduced Topamax, in addition to Gabapentin and Clonazepam, with a review of the deceased in a month's time.
The last occasion when Dr Silbert saw the deceased was 26 March 2007, but that was not in relation to his epilepsy, but to conduct the tests to determine whether the deceased had CT radiculopathy (see [82] above). Before these tests, while seeing the deceased for his epilepsy, Dr Silbert gave evidence that he had not previously been aware that the deceased had neck problems. Dr Silbert's evidence at trial was that he had not specifically brought it up at the time in his previous hospital consultations so the deceased may not have described it.
On 24 May 2007 the deceased was reviewed by a senior Neurology Registrar, Dr Josephine Chan, whose clinical notes were admitted into evidence (exhibit 46). Those notes recorded the deceased having symptoms of 'poor memory' and 'depressed'.
Dr Chan then reported to Dr Sam (exhibit 45), noting as follows:
… Since his last clinic review a couple of weeks ago [the deceased] reports having had another stressful time at home due to ongoing issues with his wife. This has markedly escalated his degree of anxiety and depression and not surprisingly worsening symptoms of cognitive impairment. In addition, he has also reported at least 2 episodes of generalised tonic clonic seizures within the last week.
As discussed with Dr Peter Silbert we have recommended increasing his Topiramate to 25mg mane and 50 mg nocte for a week. It should then be increased to 50 mg bd until his review in clinic in 3 weeks time. [The deceased] has requested to see a neuropsychiatrist for which a request has been sent. I have re-written all his scripts (Topiramate, Clonazepam and Gabapentin) as he has stated that his wife has kept all his scripts from him and does not have access to them. We will keep you informed of further consultations.
In relation to the deceased's mental state, on 27 March 2006 Dr Finch noted that the deceased 'is quite depressed' and referred him to see a clinical psychologist Mr Lazarus (exhibits 50 and 51). Dr Finch also reported that the deceased had seen a psychiatrist, Professor Burvill, and was currently taking Avanza.
Professor Burvill's reports were tendered into evidence (exhibits 62 ‑ 64) but he was not called as a witness. His first report is dated 20 March 2006. His last report is dated 18 July 2006, a letter written to the deceased's lawyers. Professor Burvill only saw the deceased on two occasions, however, on 7 and 9 March 2006. Professor Burvill diagnosed Major Depressive Disorder of moderate severity related to the deceased's pain, physical disabilities and frustrations following the accident. Professor Burvill prescribed the antidepressant mirtazapine (Avanza), and did not see the deceased again.
After this, there was the sexual abuse allegation in July 2006. On 31 July 2006 Swan Adult Mental Health Service was contacted by the Child Protection Unit of Princess Margaret Hospital. The deceased was then contacted by two people, a Ms Moore and a sister (nurse) from the Swan Adult Mental Health Service. The record of that telephone contact, admitted pursuant to s 79C of the Evidence Act (exhibit 90) stated:
Anxiety in the context of difficult divorce. Is seeing a counsellor and has been on mirtazapine for five weeks from GP. Has an appointment to see a psychiatrist… on 1^st August. Wants to see a psychiatrist at Swan today.
The reference to a 'difficult divorce' is consistent with Dr Silbert's report of 5 September 2006 recording that the deceased had some 'recent stress, as he is going through divorce'. A few days after this, Dr Sam saw the deceased on 11 September 2006 with 'stress, anxiety' and prescribed some anti-anxiety medication, Serapax.

When these matters are resolved and I can finally assess damages and the allocation to the plaintiff and the children, it will be necessary to calculate relevant periods of loss by reference to the birth dates of the two youngest children and the date when they reach the age of 21. In light of the suppression order I have made and which I consider should continue, I will limit the publication of the assessment of damages to the parties and their legal advisers.
Final judgment cannot be pronounced immediately in any event, as it is not possible to assess the fees which will be charged by the Public Trustee in respect of the administration of the sum to be invested and managed by it on behalf of the children until that sum has been determined.
I will also hear the parties further in relation to costs.