Chapman v Wide Bay Hospital and Health Service
[2022] QDC 271
•2 December 2022
DISTRICT COURT OF QUEENSLAND
CITATION:
Chapman v Wide Bay Hospital and Health Service [2022] QDC 271
PARTIES:
CARA ELISSA CHAPMAN
(plaintiff)v
WIDE BAY HOSPITAL AND HEALTH SERVICE
(defendant)FILE NO.:
3965 of 2018
DIVISION:
Trial Division
PROCEEDING:
Civil
DELIVERED ON:
2 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
1, 2 and 3 August and 29 November 2022; written submissions dated 10, 17 and 19 August 2022
JUDGE:
Rosengren DCJ
ORDER:
Judgment for the plaintiff against the defendant in the sum of $201,770
CATCHWORDS:
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – where a claim is made assuming full time employment in an administrative role until the age of 67 - where the plaintiff has been working longer hours than prior to the incident – the plaintiff’s likely employment had she not been injured – whether the plaintiff has suffered a loss of earning capacity.
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GRATUITOUS CARE – whether the plaintiff satisfies the pre-conditions for awards for the provision of gratuitous care.
Civil Liability Act 2003 (Qld) ss 55, 59, 60
Civil Liability Regulation 2014 (Qld) Schedules 4, 7
Uniform Civil Procedure Rules 1999 (Qld) r 380Allianz Australia Insurance Limited v McCarthy [2021] QCA 312
Graham v Baker (1961) 106 CLR 340
Kars v Kars (1996) 187 CLR 354
Kriz v King & Anor [2006] QCA 351
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Little v McCarthy & Anor [2014] QSC 274
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264
Minchin v Public Curator of Queensland [1965] ALR 91
National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569
Nucifora v AAI Limited [2013] QSC 338
Nunan v Gerblich (1974) 10 SASR 39
Paul & Anor v Rendell (1981) 34 ALR 569
Phillips v MCG Group Pty Ltd [2013] QCA 83
Purkess v Crittenden (1965) 114 CLR 164
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
Schneider v Smith & Anor [2016] QSC 47
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Shaw v Menzies & Anor [2011] QCA 197
Sibley v Milutinovic (1990) Aust. Torts Reports 81-013
Sutton v Hunter & Anor [2022] QCA 208
Qantas Airways Limited v Fisher [2014] QCA 329COUNSEL: J M Sorbello and C Campbell for the plaintiff
C C Heyworth-Smith KC and M A Eade for the defendantSOLICITORS: Morton & Morton for the plaintiff
Corrs Chambers Westgarth for the defendant
Introduction
[1] This is a claim in medical negligence. The plaintiff inadvertently suffered a bowel injury during a laparoscopic hysterectomy in a hospital at Hervey Bay in mid-December 2015. It was surgically repaired the following day and she was required to wear a colostomy bag until late February 2016. In November 2018 the plaintiff commenced this proceeding against the defendant for damages and other orders. Liability has been admitted but quantum remains in dispute.
[2] The amended statement of claim filed in January 2022, the amended defence filed in June 2021 and the reply filed in January 2022 were the pleadings relied on at the commencement of the trial. Eight witnesses gave evidence, of which six were health professionals. There were 27 exhibits tendered.
[3] On the second day of the trial, an application was made on behalf of the defendant to file a further amended defence. The proposed pleading contained three amendments, namely the addition of paragraphs 2(e)(ii)(D), 2(f)(iv) and 2(h)(vii). The effect of these amendments is to allege that the plaintiff has been suffering from moderate to severe obstructive sleep apnoea since mid to late 2016, and to the extent that she has suffered any economic loss or has a requirement for gratuitous care, they have been solely or materially contributed to by this unrelated medical condition. The plaintiff opposed the amendments. I delivered ex tempore reasons allowing the amendments pursuant to r 380 of the Uniform Civil Procedure Rules 1999 (Qld) and giving the defendant leave to file the further amended defence (‘the defence’). Subsequently, the plaintiff filed an amended reply. I also gave leave for the plaintiff to be recalled and for a further report to be provided by Dr Mathew relevant to the issue of the obstructive sleep apnoea.
[4] It is not in issue that as a consequence of the bowel injury the plaintiff has suffered an injury to her bowel, scarring to her abdomen and a psychological injury. The parties differ widely in their submissions as to whether the plaintiff continues to have symptoms causally related to the subject events. The defendant contends for an award of $45,000 and the plaintiff for an award of approximately $620,000. The principal focuses of the dispute centre on economic loss and care. The parties have provided detailed written submissions which were supplemented with oral submissions.
Relevant background
[5] The plaintiff was born on 15 April 1975. She was 40 years of age at the time of the subject events. She is now 47 years of age. She is married with three adult children. She has a long-standing condition of fibromyalgia, for which she has been prescribed Endep. She and her family relocated from Perth to Hervey Bay in 2011. She lives with her husband on a half-acre block of land located approximately 22 kilometres from Hervey Bay. Her youngest child was aged 15 years at the time of the subject events and at least one of the children lived with them until approximately April 2022. The plaintiff’s work history has consisted largely of administrative roles.
[6] In April 2014 the plaintiff was referred to Fraser Coast Psychology by Dr Rohit Singh in relation to family conflict and was seen on multiple occasions by Sonia Muller, psychologist. Ms Muller first saw the plaintiff on 19 May 2014. The relevant notes record that she had experienced depression in her early thirties in the context of a “bad marriage” and that she was agitated by conflict with her adoptive mother. The provisional diagnosis was deferred grief and loss issues. The treatment goal was to explore possible ways for the plaintiff to have a relationship with her adoptive mother. The plaintiff further attended upon Ms Muller on 23 June, 21 July, 18 August and 15 September 2014. In a treatment letter to Dr Singh dated 27 November 2014, Ms Muller said that the plaintiff’s sessions had focussed on her depression, anxiety and family conflict. However, a review of the notes in relation to each of the sessions suggests that the principal focus was on the plaintiff’s relationship with her mother. The plaintiff declined to participate in further sessions.
[7] It appears that the plaintiff commenced attending the Family First Medical Centre (‘the GP Practice’) in December 2014. She had a complex gynaecological history. She had undergone surgeries on several occasions for ovarian cysts, some involving laparotomies. She had dyspareunia and ongoing pain in the left pelvic region.
[8] On 3 December 2015, the plaintiff attended the GP Practice complaining of ongoing pain in the left pelvic region and deep and superficial dyspareunia. She was provided a specialist referral to the Hervey Bay Hospital and a referral for a pelvic ultrasound. The plaintiff informed the GP Practice on 7 December 2015 that she was attending an appointment with Dr Dirk Ludwig on the following Thursday. He recommended that she undergo a hysterectomy. He told her that she would require six weeks off work following this surgery.
[9] Dr Ludwig performed the elective hysterectomy at St Stephen’s Hospital in Hervey Bay on 14 December 2015. The plaintiff gave evidence that she initially felt good post-operatively but had increasing pain in her shoulders and subsequently developed severe abdominal pain. A CT scan was performed, the results of which revealed a pneumoperitoneum. The plaintiff recalled Dr Ludwig telling her that she had too much gas in her abdomen and she needed to undergo further surgery to determine the cause of it. Dr Ludwig sought the input of Dr Neil Harding-Roberts, surgeon at the Hervey Bay Hospital (‘the hospital’). Dr Harding-Roberts recommended that the plaintiff be transferred from St Stephen’s Hospital to the surgical ward of the hospital. When Dr Harding-Roberts examined the plaintiff, she was tachycardic and had diffuse peritonism with guarding. She was taken to theatre for an exploratory laparotomy. There was a 8mm perforation at the recto-sigmoid junction. It seems that the perforation occurred in circumstances where Dr Ludwig mistakenly resected a portion of the rectosigmoid colon, having thought it was a small residual portion of the left fallopian tube. This had left an opening in the bowel wall which was not recognised. This was closed by Dr Harding-Roberts with dissolving sutures and a defunction loop colostomy was performed. This involved bringing part of the colon to the surface of the body to form a stoma (‘the stoma surgery’). The plaintiff remained an inpatient at the hospital until 23 December 2015.
[10] The plaintiff gave evidence that she was not aware that she had the stoma until post-operatively when her abdomen was checked by a nurse. Dr Harding-Roberts later spoke to her, and he explained what had occurred. She said that she was bed-ridden over the following days and felt “horrendous”. She further said that she was weak and did not feel like doing much initially. She struggled to acknowledge that she had the stoma.
[11] Approximately one week later, on 31 December 2015 the plaintiff presented to the hospital emergency department complaining of nausea and a stabbing pain in the right lower quadrant of her abdomen. It was thought that she might have had a post-operative infection. She was treated and discharged later that day. She re-presented at the hospital emergency department on 4 January 2016. She was complaining of numbness to the right side of her face and hands. She also reported difficulties enunciating words. Further, she described feeling panicked and felt that she was having difficulties breathing. It was considered that while an ischaemic event could not be ruled out, that her symptoms may have been anxiety related. The plaintiff self-discharged against medical advice.
[12] Five days later, the plaintiff attended at the emergency department of the hospital. She had a green discharge around the stoma site and was feeling nauseous and lethargic. She was reassured that the discharge was normal and that there were no signs of an infection.
[13] On 16 January 2016, the plaintiff again presented to the hospital emergency department. She reported having experienced multiple episodes of chest pain during the day. She re-presented two days later with atypical chest pain and leg swelling. She was discharged the following day. Part of the treatment plan was for assessment by a psychologist.
[14] The plaintiff represented to the GP Practice on 27 January 2016 with anxiety and depressive symptoms, which were thought to be secondary to recent stressors and surgical menopause. On 2 February 2016, she was referred to Rodney Nembach, psychologist under a mental health care plan.
[15] At a consultation at the GP Practice on 10 February 2016, the plaintiff was noted to have neurological symptoms, including numbness to the left side of her face, temporal ear region and left hand.
[16] On 21 February 2016, the plaintiff again presented to the hospital emergency department. She had a diffuse constellation of neurological symptoms. She was referred for neurological review. She was subsequently examined by Dr Johan Kuyler. He was unable to make any neurological diagnosis and recommended that she be treated for anxiety.[1]
[1] Dr Mathew considered the plaintiff was suffering a significant emotional disturbance at this time.
[17] Dr Kyaw Min, general practitioner referred the plaintiff to Wenda Psychology and Counselling Services under a mental health care plan on 22 February 2016. She attended upon Annette Wenn, psychologist for five sessions up to July 2016 before advising that she was not requiring any further treatment. Ms Wenn considered the plaintiff had ceased her treatment prematurely.
[18] The stoma was reversed by Dr Polbert Diaz, general surgeon on 29 February 2016 (‘the stoma reversal surgery’). Dr Diaz thought the plaintiff had exhibited marked anxiety and depression pre-operatively. However, by 9 March 2016, Dr Diaz thought that these symptoms had abated and he discharged the plaintiff from his care.
[19] It was the plaintiff’s evidence that she felt relieved after the stoma was reversed. However, she said that she continued to have pain in her abdomen and that some movements have continued to cause a pulling sensation. She is very fearful of reinjuring herself and ending up with another colostomy bag. Such is her apprehension about this, that she said that she would end her life if this was to happen.
[20] The plaintiff attended a consultation at the GP Practice on 11 May 2016. The records indicate that she complained of recurrent headaches and feeling anxious, depressed and extremely fatigued. She re-presented five days later for a follow up in relation to migraine like headaches and ongoing anxiety. She was trialled on an antidepressant, Lexapro. When the plaintiff returned to the GP Practice on 23 May 2016, she reported that she was not feeling much different on the Lexapro and the dose was increased. A week later she reported that she had taken the increased dose of Lexapro and that her anxiety was resolving and that she was feeling much better. At a consultation at the GP Practice on 20 June 2016, the plaintiff said that she felt very happy with the Lexapro and that the control of her anxiety had been excellent. It is further recorded that the plaintiff reported that she was feeling that she “finally can leave everything behind and look forward to the future”.
[21] In August 2016, the plaintiff re-attended upon the GP Practice. There is a note referring to a complaint of abdominal pain. The plaintiff asked for a referral for psychological review. This was provided but she did not act on the referral. The plaintiff said in evidence that this was because she found it too confronting and she did not want to focus on the subject events.
[22] The GP Practice records confirm that the plaintiff has been taking a 20 milligram daily dose of Lexapro since October 2016. There have been intermittent discussions about weaning her off this medication but the plaintiff has been reluctant to do this. There is an entry in the records for 23 April 2020, where it is recorded that the plaintiff told the general practitioner that her mood symptoms were well controlled on the Lexapro.
[23] The plaintiff attended upon the hospital emergency department on 27 December 2018 complaining of abdominal pain. A CT scan revealed nothing of concern and she was discharged the same day.
[24] The GP Practice records show that the plaintiff attended upon a general practitioner on 28 September 2020 complaining of fatigue. She said that she had been excessively tired and drowsy for the previous four years, that she had gained 15 kilograms in weight and that she was snoring frequently. A diagnosis of obstructive sleep apnoea (‘OSA’) was queried, and the plaintiff was provided with a referral to a sleep clinic for an assessment. She did not act on this referral at that time.
[25] As to the management of the plaintiff’s OSA, she initially tried an over-the-counter snoring mouth guard but this was not successful. She subsequently consulted a dentist specialising in snoring and he recommended that she undertake a home sleep study test. She did this on 31 August 2021. She completed some paperwork for the purposes of this assessment in which she indicated that she would feel tired in the morning, she would wake with headaches, and she experienced daytime fatigue. The results of the home study sleep test indicated moderate to severe OSA. The plaintiff was somewhat surprised with these results and at her request, she was referred for specialist review.
[26] Prior to seeing Dr Henry Lau, thoracic and sleep physician, the plaintiff trialled a CPAP machine for four weeks. Despite it being adjusted, she was unable to tolerate it and she did not notice any change in her levels of tiredness. She underwent a laboratory sleep study test overseen by Dr Lau on 14 March 2022, and this confirmed the results of the home sleep study test. Dr Lau recommended the plaintiff attend upon an orthodontist to have an oral device custom made. She now wears this device. While the plaintiff and her husband have tended to sleep in separate rooms in more recent times on account of her snoring, this did not happen for example, when they were staying in a hotel for the trial. The plaintiff’s husband said that he had noticed that her snoring has ceased. A further sleep study is planned to monitor the effectiveness of the oral device. The plaintiff has not noticed a change in her energy levels or her ability to perform household chores since using the oral device.
Credibility
[27] The two lay witnesses who gave evidence were the plaintiff and her husband. It is unsurprising that they did not have perfect recollections of each of the matters about which they testified. In some instances, they were attempting to recall details of events that occurred more than six years earlier.
[28] While I am conscious that not too much weight can be given to demeanour, the plaintiff and her husband both seemed to me to be sincere and honest. The experts, each in their own separate ways suggested that psychological issues are playing a significant part in the maintenance of the plaintiff’s symptoms. To the extent that she may be overstating any of her symptoms, I am inclined to think that this reflects her concerns about the litigation and her future, rather than any deliberate intention to mislead. No submission of dishonesty or deliberate reconstruction on the part of the plaintiff is made by the defendant.
[29] The plaintiff’s husband gave evidence of the considerable support he has provided his wife. While he seemed to be endeavouring to be as accurate as he could be, some allowance should be made for his views being potentially clouded by natural affection for the plaintiff as his wife. Some examples of this are his evidence that he would perform certain tasks to take pressure off her, or so that she could sit down and relax, or because he may be quicker at performing them.
[30] The defendant points to some parts of the plaintiff’s evidence which are internally inconsistent, or contrary to, or disproved by objectively proved facts. It also points to some inconsistencies between the plaintiff and her husband relevant to her claim for past domestic assistance and care.[2] These inconsistencies are said to go to their credibility and reliability as witnesses. Although I have rejected parts of their evidence, there is much of it that I accept. Wherever possible, I have sought to resolve conflicts by reference to the exhibits and other uncontroverted facts, the expert evidence, or to the inherent probabilities of the case. Where this has not been possible, it has been necessary to resort to concepts of onus of proof. Where necessary, I have indicated below the extent to which I have accepted or rejected their evidence.
[2] For example, para 246 of the defendant’s written submissions.
Obstructive sleep apnoea
[31] The plaintiff bears the overall burden of proof that her loss and damage result from the defendant’s negligence. [3] It is said by the defendant that the plaintiff has not discharged this onus. It is contended that the plaintiff’s ongoing fatigue is explicable by her unrelated diagnosis of OSA, which has at least materially contributed to her loss of earning capacity and need for care.
[3] Purkess v Crittenden (1965) 114 CLR 164; Schneider v Smith & Anor [2016] QSC 47 at [124] per McMeekin J.
[32] It was the plaintiff’s evidence that she first noticed symptoms in relation to her OSA within the last 18 months to two years after her husband started to complain about the increase in her snoring. There had been a few occasions when the snoring had woken her up. She then decided that she needed to seek some medical advice in relation to it. The treatment she has received for her OSA to date and the history provided by her to her treating doctors as to the onset of her symptoms is detailed in paragraphs 24 to 26 above.
[33] In his most recent report dated 2 August 2022, Dr Mathew explained that fatigue is a very common symptom of depression. This was confirmed by Professor Harvey Whiteford in cross-examination. It is not in dispute that depression is a feature of the plaintiff’s adjustment disorder which is causally linked to the negligence of the defendant. I am satisfied on all the evidence that the plaintiff has discharged the persuasive burden of demonstrating that the subject events are causative of the plaintiff’s ongoing mental health issues, including her fatigue. This is addressed in further detail below.
[34] Having made that finding, it is now necessary to turn to consider whether the defendant has discharged the evidential burden which rests on it in respect of its contention that the plaintiff’s OSA impacts on the assessment of damages. A determination of this issue involves an assessment of hypothetical situations of the past and future effects of injuries arising from the subject events or OSA, and the chance of future or hypothetical events occurring. The court is required to evaluate possibilities in these situations, rather than proof on the balance of probabilities.[4]
[4] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
[35] It is necessary to attempt to make a judgment as to the economic and other consequences which might have been caused by the OSA, had the plaintiff not been injured by the defendant’s negligence. In my view, the evidence on this issue is not such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant exist.[5] No evidence from an appropriately qualified or experienced medical practitioner was led about OSA, including its symptoms and the treatment required. At its highest, the evidence of Dr Mathew is that from his perspective as a psychiatrist, it is his understanding that daytime fatigue can be a symptom of OSA. No question was directed to the issue of whether the plaintiff’s fatigue would have been the same had the defendant’s negligence not occurred. It is worth observing that the plaintiff has not noticed any changes in her energy levels with her OSA having been treated with a CPAP machine and the oral device she is currently using. It seems that the oral device may well be successfully addressing her OSA. Some support for this can be found in Mr Chapman’s evidence that he did not hear the plaintiff snoring when they slept in the same room while staying in Brisbane for the trial.
[5] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Phillips v MCG Group Pty Ltd [2013] QCA 83.
[36] While the OSA can be brought into account when considering the vicissitudes of life, the discount it would attract would not be significant. This is because it appears to be being successfully treated, with ongoing input from a thoracic and sleep physician.
Quantum
General damages
[37] The plaintiff claims $21,780 for general damages. This equates to an ISV of 13. This is comprised of a combination of Items 12, 73 and 155.3 of the Civil Liability Regulation 2014 (Qld) (‘the Regulation’). Item 155.3 is for moderate scarring to a part of the body other than the face. The ISV range is 4 to 8. Item 73 is for a moderate bowel injury. The ISV range is 7 to 18. Item 12 is for a moderate mental disorder. The ISV range is 2 to 10. It is claimed by the plaintiff that the bowel injury is the dominant injury. It is said that an ISV of 10 is appropriate for this injury and that an uplift of 25 percent to an ISV of 13 is warranted to reflect the totality of the extent of her injuries. The defendant accepts that an ISV of 13 is warranted for general damages. While the damages under this head are agreed, it will assist in understanding the arguments about economic loss and care to detail the relevant evidence.
[38] The plaintiff has been examined by four medical experts with respect to her injuries, namely a colo-rectal surgeon, a plastic and reconstructive surgeon, and two psychiatrists. The experts have each provided assessments of whole person impairments relevant to their respective expertise. While these assessments are important, they are only one consideration affecting the assessment of an ISV. The plaintiff has also been assessed by two occupational therapists.
[39] As to the scarring, its existence in the location of the laparotomy and stoma site is admitted. It is further pleaded that the scarring has healed well and that the plaintiff has no physical or functional limitation consequential upon it.
[40] It was the plaintiff’s evidence that the scarring is a “permanent representation of what happened” and that she keeps them hidden.[6] The plaintiff has consistently reported feeling this way about her scars. In May 2019 she also told Emily Howard, occupational therapist that there was numbness at the sites of the scars. In February 2021 she said to Professor Whiteford, psychiatrist that she was embarrassed and sensitive about the scarring and that they had adversely impacted on her relationship with her husband as she did not want him to touch her. This was confirmed by Mr Chapman. A photograph depicting the scarring is exhibit 21. There is a vertical one of some 17 centimetres, extending from the base of her belly button to the top of her pant line. There is also a horizontal one of a similar length along a skin fold just above her pant line. The stoma surgery resulted in the vertical scar. The horizontal scar was already there but was extended on account of the surgery. There are also more minor scars, some in relation to the stoma site and port holes and others relating to previous operations.
[6] T1-30, ln 15.
[41] In May 2019, the plaintiff was examined by Dr William Cockburn, plastic surgeon at the request of her solicitors and he has provided a report dated 22 May 2019. The plaintiff told him that the scars are a continual reminder of the subject events and that they felt tight from time to time. Dr Cockburn considered the scars had healed well and were of excellent quality with little evidence of hypertrophism. He assessed a 10 percent whole person impairment.
[42] On 12 February 2021, the plaintiff was examined by Dr Andrew Renaut, colorectal and general surgeon and he has provided a report dated 12 February 2021. On examination, the plaintiff’s abdomen was unremarkable. Dr Renaut assessed a four percent whole person impairment for the scarring. Some questions were asked of Dr Renaut in cross-examination directed at whether he has the qualifications and expertise to be assessing the scars. I am satisfied that he does. This is because of his extensive experience in making surgical incisions in abdomens and managing post-operative cares in such patients, including scar revisions.
[43] Table 8.2 in the American Medical Association Guide to the Evaluation of Permanent Impairment 5th Edition (the AMA Guide’) details the impairment criteria for all dermatological disorders, including scarring. In the reports of both experts, reference is made to their whole person impairments having been calculated by reference to this table. It is comprised of Classes 1 to 5. Dr Cockburn considered that the plaintiff’s whole person impairment falls within Class 2, while Dr Renaut thought that it falls within Class 1.
[44] Class 1 applies to a whole person impairment of between zero and nine percent and Class 2 applies to a whole person impairment of between 10 and 24 percent. Dr Cockburn’s assessment of 10 percent enlivens a consideration of the three criteria to be met to qualify as a Class 2 injury. The first criterion is that there are signs and symptoms of a skin disorder which are permanently and intermittently present. The fact of the permanent scarring in the plaintiff’s abdomen satisfies this requirement. The second criterion requires the limited performance of many activities of daily living. There is no mention in Dr Cockburn’s report of the plaintiff having reported any such limitations and he otherwise did not recall the plaintiff mentioning anything like this to him. I do not accept that the reference in Dr Mathew’s report to the scars being a constant reminder to her and her family of the subject events implies that this requirement is met. The third criterion is that the plaintiff may require intermittent or constant treatment. This criterion is also not met, in circumstances where Dr Cockburn opined that he did not consider any further treatment was likely to benefit the plaintiff. I am not persuaded by Dr Cockburn’s evidence to the effect that this criterion is met because there is always a risk that scars will require treatment for fungal infections or ingrown dirt. He conceded in cross-examination that the plaintiff had not experienced such problems with her scars in the past and was unlikely to experience such problems in the future.
[45] Another caveat relevant to Dr Cockburn’s assessment was his understanding regarding the abdominal scars referable to the subject events, as distinct from those referable to previous surgeries. For example, it was the plaintiff’s evidence that the horizontal scar in her skin crease just above her pant line existed but was extended as a consequence of the surgery to repair her bowel. Further, Dr Cockburn explained in cross-examination that he approached his assessment in accordance with the “best fit principle”. To the extent this is inconsistent with table 8.2 as referred to above, I prefer the approach to the assessment as provided for in the table.
[46] In my view, Item 155.3 is the appropriate item. It is for moderate scarring to a part of the body other than the face. The ISV range is 4 to 8. Examples of the injury are several noticeable scars that are hypertrophic, or a significant lineal scar in an area of cosmetic importance, such as the front of the neck. While there are multiple scars and at least one of them in the order of 17 centimetres, the evidence is that they have healed well and are of excellent quality with little evidence of hypertrophism. While I accept the plaintiff’s evidence as to the triggering effect that the scars cause and her sensitivities around having them, there is no evidence that the plaintiff has sought treatment or other medical input for them in the more than six years since the stoma reversal surgery. In my view, an ISV of 4 properly reflects the likely ongoing permanent impairment consequential upon the scarring.
[47] As to the bowel injury, Dr Renaut described the stoma surgery to repair the bowel perforation as “major surgery”.[7] The defendant contends that the plaintiff has no permanent physical impairment as a consequence of the perforation and its treatment.
[7] T2-35, ln 29.
[48] The evidence establishes that the plaintiff has repeatedly complained of symptoms in her abdomen which she considers have been caused by the bowel perforation and subsequent events. She told Ms Howard in May 2019 that she continues to suffer from a “grabbing” pain in the left side of her abdomen. She also reported having a fear of causing further injury to herself with physical activity.
[49] Ms Howard requested the plaintiff perform a number of different manoeuvres and considered the results showed that the plaintiff’s ongoing symptoms and impairments included:
(i) “pulling” pain in the left-side of her abdomen during trunk extension and right-sided lateral trunk rotation;
(ii) “grabbing” pain in the left-side of her abdomen when engaging her abdominal muscles during lifting activities, which increased when lifting to shoulder level and eased once the weight was released;
(iii) reduced trunk extension, and left and right-sided lateral flexion; and
(iv) restricted trunk and lumbo-pelvic flexibility.
[50] The plaintiff’s solicitors arranged for her to be assessed by Dr Joseph Mathew, psychiatrist. While he examined her on one occasion only, being 17 July 2019, he has provided five reports dated 17 July, 29 September and 5 November 2019 and 29 July and 2 August 2022. At the time of the examination in July 2019, the plaintiff complained of ongoing pain at the stoma site, particularly when contracting her abdominal muscles.
[51] On 4 February 2020, the plaintiff was assessed by Nichola Martyr, occupational therapist at the request of the defendant’s solicitors, and she has provided a report dated 5 March 2020. The plaintiff reported a “pulling” sensation when she attempted to brace her abdominal muscles. The plaintiff told Ms Martyr that she felt that she had no strength in her abdomen, meaning that she needed to avoid reaching, bending, lifting and any other movements which caused a ‘pulling’ sensation.
[52] In assessing the plaintiff’s physical capacities, the plaintiff was noted by Ms Martyr to be restricted to the extent of 50 percent with lumbar extension. This was reportedly due to a pulling sensation in her abdomen. The plaintiff also told Ms Martyr that spinal rotation felt “a bit tight”. Further, she reported a pulling sensation with extended reach, and when rotating to the left when reaching overhead. She was observed to be very cautious when engaging in lifting activities. She was able to lift weights of up to six kilograms between floor and waist height, provided that she could release them from her hold without having to reach forward. She was observed to lift two and a half kilograms between floor and eye height on three occasions, provided she held the weight close to her body. It was Ms Martyr’s opinion that lifting and carrying weights from floor to waist height of up to 10 kilograms would be a realistic expectation of someone at the same stage of the recovery of the plaintiff from abdominal surgery. She thought that with further guidance from a surgeon and support from an exercise physiologist, the plaintiff could reach this level of physical function.
[53] Ms Martyr considered that the plaintiff’s bending and lifting restrictions are explicable by a fear of re-injury. This was in circumstances where Ms Martyr thought the plaintiff demonstrated a reasonable amount of abdominal strength. She opined that with reassurance and guidance to engage in physical conditioning that it was possible the plaintiff had the ability to improve her physical function, which in turn would be likely to alleviate her psychological symptoms and thereby increase her overall participation in activities of daily living and in employment.
[54] In February 2021, the plaintiff continued to report a pulling sensation in the mid-abdomen on lifting heavy objects, or when exerting herself physically. She told Dr Renaut that there had been four occasions where she had experienced episodes of quite severe abdominal pain lasting a couple of days before resolving spontaneously.
[55] In cross-examination, Dr Renaut explained that the plaintiff will have adhesions in her abdomen from the internal scarring consequential upon the further surgeries to address the bowel perforation. He considered that these adhesions will not cause pain by themselves, although they can cause a bowel obstruction with associated pain. There is no suggestion from the evidence that the plaintiff has experienced such a complication. Absent such an explanation for the plaintiff’s ongoing abdominal symptoms, Dr Renaut could find no other physical explanation for them. He attempted to reassure the plaintiff that her prognosis was good and that there was no physical reason why she could not pursue many of the physical activities that she had been capable of pursuing prior to the subject events.
[56] Dr Renaut assessed a two percent whole person impairment for the loss of the sigmoid colon that occurred consequential upon repairing the perforation to the bowel. He is the only expert to have assessed this particular injury. He was not cross-examined as to how he arrived at such a low whole person impairment. His assessment was in reliance on table 6.4 in the AMA Guide. This table encompasses the criteria for rating impairment due to colonic and rectal disorders. Class 1 in the table applies to a whole person impairment of between zero and nine percent.
[57] In my view the adverse impact of this injury on the plaintiff supports an ISV within Item 73. This item is for a moderate bowel injury and the ISV range is between 7 to 18. It provides that an ISV at or near the bottom of the range will be appropriate if the injury requires an ileostomy or colostomy for less than three months, bowel function returns to normal and there are no ongoing symptoms. On account of the bowel perforation, the plaintiff was required to undergo major abdominal surgery involving repairing the bowel with part of it redirected to a colostomy bag outside the body connected through an opening in the lower left abdomen. She remained in hospital for a further seven days. The stoma reversal surgery was not undertaken until some two months later. This involved a further surgical procedure and inpatient admission. In the intervening period the plaintiff had two attendances upon the emergency department at the hospital on 31 December 2015 and 6 January 2016, with potential complications associated with the stoma surgery. This was a significant injury for the plaintiff, particularly in the weeks and months following the stoma surgery. In my view an ISV of 10 is appropriate to reflect the level of impact of the plaintiff’s bowel injury.
[58] As to the adjustment disorder with depressed mood (‘the adjustment disorder’), there is no dispute on the pleadings that the plaintiff has suffered this psychiatric condition, which has been at least partly contributed to by the bowel perforation and the subsequent recovery. This psychiatric injury is secondary to her physical injuries in the sense it arises in reaction to the impact those injuries have had on her life.
[59] In arriving at his conclusion as to the diagnosis of an adjustment disorder, Dr Mathew relied on information provided by the plaintiff to the effect that she:
(i) was fearful of being harmed and was generally more anxious and had developed panic attacks;
(ii) was avoiding medical care, including from her general practitioner;
(iii) feared it would be very difficult to undergo further operations;
(iv) described a low mood and was ruminating about her losses;
(v) was very distressed about her abdominal scarring and the consequences of it on her relationship with her husband.[8]
[8] Exhibit 1, pg 3.
[60] As to the fear of being harmed, the report indicates that the plaintiff told Dr Mathew that:
“I just get [she paused] I get worried that if something happens to it again and they have to do something in there again, because I know the first surgery has weakened the area. And I know I wouldn’t survive if I had another stoma put in. … I would kill myself.”[9]
[9] Exhibit 1, pg 6.
[61] In re-examination Dr Mathew explained that the plaintiff’s pain when doing activities could be one of the stressors maintaining her adjustment disorder.
[62] Dr Mathew assessed a six percent whole person impairment wholly attributable to the subject events. The plaintiff told Dr Mathew that her state of mind was at its worst until the stoma reversal surgery in February 2016.
[63] Professor Whiteford assessed the plaintiff on 9 February 2021 and he has provided reports dated 23 March and 7 October 2021, and 28 July 2022. The plaintiff told Professor Whiteford that she had found the need for the colostomy and the permanent scarring to be markedly distressing. This was in addition to the emotional impact arising from the limitations caused by her restrictions on heavy lifting. She said that she had withdrawn from social interactions, was much less active around the house, more easily fatigued and relying on the assistance of family with domestic chores.[10]
[10] Exhibit 4, pg 3.
[64] In agreeing with Dr Mathew’s diagnosis of an adjustment disorder, Professor Whiteford was satisfied that the plaintiff had mental health symptoms including complications arising from the hysterectomy. He considered the symptoms referred to in the abovementioned paragraph to be clinically significant, to the extent that they were causing emotional distress and impairment in functioning.[11]
[11] Exhibit 6, pg 2.
[65] Professor Whiteford conducted a mental state examination. The plaintiff told him that she continued to ruminate about the subject events and has considerable unresolved anger and frustration in relation to them. She also continued to experience frustration with respect to physical limitations. He considered her mood was depressed, with a restricted range of emotional reactivity and some transient mood lability. He also thought there was depressive thought content. He was satisfied that the results of the examination revealed evidence of clinically significant depression.
[66] It was considered by Professor Whiteford that the plaintiff’s whole person impairment was in the order of four percent when assessed on the Psychiatric Impairment Rating Scale (PIRS). He thought that the stress of the litigation was contributing to the maintenance of her adjustment disorder and that resolution of the litigation will be a major factor in improving her functioning.
[67] Dr Mathew and Professor Whiteford differed on whether anxiety is a feature of the plaintiff’s adjustment disorder. Professor Whiteford considered that this difference could be attributable to the passage of time between the two assessments. In my view whether it is a feature or not impacts little on the plaintiff’s earning capacity and requirement for care, and also the prospects of her adjustment disorder being successfully treated.
[68] Consistent with Professor Whiteford’s opinion, it is pleaded by the defendant that the plaintiff’s conflict with her mother is another stressor maintaining her adjustment disorder. I do not accept this, because the basis for this opinion was not borne out in the evidence.
[69] Professor Whiteford considered that the plaintiff had probably suffered from previous adjustment disorders which had resolved, and this provided some reassurance that the plaintiff’s current adjustment disorder will resolve. The Fraser Coast Psychology records were relied on by Professor Whiteford in this regard. There is the plaintiff’s mental health history recorded in the entry from 19 May 2014, to the effect of the plaintiff having had depression in her early thirties. There are also the entries referred to in paragraph 6 above. In my view, the relatively limited content of these records is not sufficient to enable psychiatric diagnoses to be made. Further, I am inclined to accept the plaintiff’s evidence as to the circumstances in which she attended upon Ms Muller in 2014. Therefore, I do not accept this history to be of much significance in understanding the plaintiff’s adjustment disorder, nor its likely trajectory in the context of it being appropriately treated.
[70] When Ms Howard assessed the plaintiff in May 2019, the plaintiff was required to complete a DASS-21 questionnaire as a psychological screen. She subjectively rated her level of agreement with each statement on a four-point scale of severity and/or frequency. This valid and reliable screening tool contains three sub-scales related to depression, anxiety and stress. The measure contains seven items per scale. The responses the plaintiff provided suggested that she was experiencing extremely severe depression and anxiety and severe stress. I have no reason to doubt that the plaintiff was being honest when providing the answers. There was some criticism levelled against the results of this test, given that Ms Howard is not a psychologist or psychiatrist. However, Ms Howard was not using this screen to provide a clinical diagnosis. Rather, it was being utilised as a quantitative measure of the plaintiff’s distress.
[71] In February 2020, the plaintiff told Ms Martyr that while her mood improved slightly after the stoma reversal surgery, she remained worried about reinjuring herself and requiring another colostomy bag. She complained of feeling exhausted by the end of the day and that she found it would take a long time to wind down when going to sleep. The plaintiff also said that she had experienced occasional panic attacks. She further said that she would try to put a brave face on for her children and now had minimal contact with friends. She told Ms Martyr that she did not like being at home on her own as she “thinks about things”.
[72] The assessments of Dr Mathew and Professor Whiteford of six percent and four percent respectively leads me to conclude that Item 12 of the Regulation is the appropriate starting point for assessing the plaintiff’s ongoing psychological symptoms. The item is for a moderate mental disorder. The ISV range is 2 to 10. Examples of the injury are for PIRS ratings between four percent and 10 percent. In my view, an ISV of 5 properly reflects the likely ongoing impairment.
[73] In my view, the plaintiff’s ongoing symptoms can largely be explained by the maintenance of her adjustment disorder, and there is a causal relationship between this and the subject events. These ongoing symptoms have continued to impose functional and occupational limitations on her. It is accepted, as the defendant points out, that fear of reinjury is not a recognised mental disorder. Rather, I am satisfied that it, together with her fatigue, is part of the constellation of symptoms maintaining the plaintiff’s adjustment disorder. Further, I accept Dr Renaut’s opinion that the plaintiff’s physical symptoms can probably be explained by her reluctance to perform any movements that use her abdominal muscles around the stoma site. As Dr Renaut opined, this reluctance is likely to be explicable by the plaintiff’s fear of causing internal damage in her abdominal area if she was to overly exert herself. He thought some form of counselling may be of assistance. [12] This opinion is supported by Ms Martyr. She opined that because the plaintiff avoids any task which involves abdominal bracing, specifically reaching forward, bending, heavy lifting and lifting away from her body on account of her fear of re-injury, that she has lost physical conditioning.
[12] Exhibit 8, pgs 4 & 6.
[74] While the plaintiff has received some psychological treatment, she has not been properly treated. She recognises the need for further treatment but has been reluctant to engage in it as she has found it too confronting recounting the subject events. I accept her evidence that she may well be willing to engage in further treatment in the future. Further, I accept that the plaintiff’s symptoms are likely to improve with future treatment and also with the resolution of the litigation. If the treatment is successful, I consider the plaintiff is capable of a life without too much in the way of functional or occupational restrictions.
[75] In assessing an ISV for multiple injuries, the court must consider the range of ISVs for the dominant injury of the multiple injuries. To reflect the level of adverse impact of multiple injuries on the plaintiff, the court is required to assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. If it is considered that the impact of the multiple injures on a plaintiff is so severe that the maximum dominant ISV is inadequate to reflect the level of impact, the court cannot increase it by more than 25 percent without the provision of detailed written reasons.
[76] In my view the dominant injury is the plaintiff’s bowel injury, which I have assessed as having an ISV of 10. It is agreed between the parties that an ISV of 13 is warranted to reflect the adverse impact of the bowel injury, the scarring and the plaintiff’s adjustment disorder. Schedule 7 of the Regulation produces a figure of $21,780.
[77] Pursuant to s 60(1)(a) of the Civil Liability Act 2003 (Qld) (‘the Act’), a court cannot award interest on general damages.
Special damages
[78] The parties are agreed that the plaintiff has incurred out of pocket medical, pharmaceutical and travel expenses in the sum of $3,206. It is also agreed that the plaintiff is obliged to refund Medicare the sum of $3,634.05.
[79] The plaintiff’s private health insurer BUPA has paid the sum of $8,054.35 in relation to her medical expenses, which she also claims. The defendant disputes this part of the plaintiff’s claim on the basis that there is no evidence that this amount is required to be refunded to BUPA. In particular, it is said that there is no such legislative requirement, nor is there evidence that the plaintiff has informed BUPA of the litigation with BUPA having levied a charge or produced documentation requiring it to be refunded once the litigation is finalised. It is said that in the absence of such evidence, the plaintiff will take the benefit of this sum when she has not incurred any such cost and is not required to disgorge it. Sibley v Milutinovic[13] is relied on to support this submission.
[13] (1990) Aust. Torts Reports 81-013.
[80] In my view the claim for expenses paid by BUPA should be allowed and is not contingent upon the existence of an obligation on the part of the plaintiff to repay BUPA. The policy behind this is that a tortfeasor should indemnify the injured person for the loss, rather than enjoy a windfall gain by shifting the burden of compensation to BUPA. This is in circumstances where this private medical insurance was effected by the payment of money by the plaintiff for her own benefit in the event of the need for medical treatment.[14]
[14] National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569; Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 at [205]-[214] per Malcolm CJ.
Interest on out of pocket expenses
[81] It is not in dispute that the plaintiff is entitled to interest on $3,206. Interest on this sum at the agreed rate of 1.8 percent for a period of 6.92 years is about $400.
Past economic loss
[82] The plaintiff left school after year 10. She worked as a waitress for approximately 18 months before having children. She returned to the workforce in 2002 after having had her youngest child. Over the next eight or so years, she worked in casual and part-time positions with Peter Spenneit Podiatry and Hydroequip Pumps in administration roles, and with Fitness First as a body combat instructor.
[83] In January 2011, the plaintiff and her family relocated from Perth to Hervey Bay. She commenced casual work for Advanced Foot Care on 29 July 2011. She was working between 15 and 20 hours per week. She said that she was desirous of working more hours but this could not be accommodated by her employer.
[84] It is agreed between the parties that the plaintiff earned an average net weekly income of $464.51 in the 2013 financial year, $535.56 in the 2014 financial year and $514.90 in the 2015 financial year. It is further agreed that she was earning a net weekly income of $497.36 just prior to the subject events.
[85] The reason the plaintiff had scheduled her hysterectomy for mid-December 2015 was because it coincided with the office closure at work. She said that it was her intention to return to work in the first or second week of 2016. However, as explained above, Dr Ludwig had informed the plaintiff in the pre-operative period that she would require six weeks off work following the hysterectomy.
[86] After the subject events, the plaintiff returned to her employment with Advanced Foot Care in April 2016. Her evidence in chief was that she remained working there one to two days per week until she resigned from that role on 21 August 2016. It was the plaintiff’s evidence that she resigned from this employment as she “imploded”. She said that she was struggling with her confidence, handling the pressures of her job and being on light duties. She did not have another job to go to.
[87] The plaintiff’s daughter-in-law was working for Action Auto Group in an administrative role. She was taking time off work for maternity leave and encouraged the plaintiff to apply for her job, which she did. She was the successful applicant and commenced this employment in administration on a casual basis on 19 October 2016, initially working for half days. The name of her employer subsequently changed to Trio Automotive Group Queensland Pty Ltd (‘the current employer’). She is the only employee working in administration. The other employees are the branch manager, two staff in the workshop and two patrol vehicle drivers.
[88] In cross-examination, the plaintiff accepted that her role is encompassed by the performance of the following duties:
(i) answering, directing and making phone calls;
(ii) organising and booking in appointments for the services department;
(iii) ordering parts for vehicles being serviced;
(iv) handling enquiries and incoming work requests;
(v) reviewing files and records to answer requests for information;
(vi) processing and filing invoices;
(vii) daily cash banking and EFTPOS transactions;
(viii) typing;
(ix) distributing and organising jobs to patrol and truck drivers;
(x) co-ordinating work flow;
(xi) managing petty cash; and
(xii) gathering data and correspondence for weekly payroll timesheets.
[89] Ms Howard understood that the plaintiff’s work involved kneeling, bending, crouching and squatting and that it involved prolonged periods of sitting and static posturing. Ms Howard’s report also refers to the plaintiff being required to lift car batteries and spare parts, and push and pull items, such as stalled vehicles and a vacuum cleaner. In cross-examination, the plaintiff confirmed that she was not required to push stalled cars or to lift and carry batteries.[15] She explained that if she needed assistance with lifting a heavier part, that the mechanic in the workshop would help her.
[15] T1-55, ln 43-46 to T1-56, ln 1-4.
[90] The plaintiff told Ms Martyr that she avoided lifting anything as she was worried about reinjuring herself and ending up with another stoma. She said that while her colleagues were happy to help her, she did not like asking for help. She also described difficulties managing conflict which she said was occurring on a weekly basis.
[91] While the plaintiff continued working on a casual basis until January 2018, she worked on average 35 hours per week. She said that she was experiencing ongoing problems related to left sided abdominal pain and that she was being adversely affected by psychological symptoms, such as intrusive recollections of the subject events.
[92] In January 2018, the plaintiff’s employment status changed to full time, working 40 hours per week. She said that she was concerned that she would not cope with the increase in work hours, but she wanted to try and do it. The plaintiff said that she found it exhausting and that it was too much. It would cause an exacerbation of her abdominal pain under the stoma site to the point where it could not be managed with Panadol. Despite these symptoms, there were three weeks in December 2018 and January 2019 where the plaintiff worked overtime. The amount of overtime worked were two, two and a half and four and a half hours respectively.
[93] By letter dated 14 January 2020, the plaintiff purported to resign from her employment effective from 7 February 2020. The plaintiff told Ms Martyr that she found herself crying at her desk and that she had “lost focus, felt frantic and disorganised”. Her employer requested to meet with her prior to her making a final decision. The meeting was fruitful and an agreement was reached for the plaintiff to work 35 hours per week, which equated to working from 8am until 3.30pm Monday to Friday. The finish time meant that she would arrive home from work around the same time as her husband. It was the plaintiff’s evidence that the workload for her position has not reduced, but now her manager is completing those tasks that she had previously completed but could no longer complete in the reduced hours. She said that she does not think she can resume the additional hours as she will end up in the “same self-destructive cycle”.
[94] The plaintiff’s employment records with her current employer are exhibit 18. They show that she continued working forty hours per week until late February 2020 when it was reduced to 35 hours per week. Since then she has on occasions worked overtime of between 0.5 hours and 5.5 hours per week. Evidence of this can be found in the pay dates of 10 and 24 March 2020, 10 November 2020, 22 and 29 December 2020, 12 January, 2 February, 2 March, 23 March, 13 April, 20 April, 14 September and 21 September 2021 and 11 January 2022. Further, she took a day of annual leave in early April 2022 as time in lieu for further overtime that she had worked. Her leave records show that no leave has been taken for injuries referable to this claim.
[95] In February and May 2022, the plaintiff received bonuses of $500 and $250 respectively. The plaintiff explained that these were not to compensate her for additional hours worked. Rather, they were paid to her as a show of appreciation from her manager, for the assistance that she had provided when he had been absent from the workplace. I accept the plaintiff’s evidence about this.
[96] The parties agree that the plaintiff earned a net weekly income of $377.90 in the 2016 financial year, $566.75 in the 2017 financial year, $719.61 in the 2018 financial year, $754.48 in the 2019 financial year, $802.12 in the 2020 financial year, $771.68 in the 2021 financial year and $795.22 in the 2022 financial year. It is further agreed that the net weekly income for 35 hours per week is $761.70 and for 40 hours per week is $843.80.
[97] In the statement of claim past economic loss was claimed in the sum of $50,000. However, in the plaintiff’s written submissions, the amount claimed has been reduced to approximately $24,000. It is calculated by reference to two distinct periods. The first period is from mid-December 2015 until the plaintiff commenced work with her current employer on 18 October 2016. The claim over this period is the difference between the plaintiff’s pre-injury net weekly income of $497.36 and the income she has earned. It is said that the shortfall is in the order of approximately $15,000. The second period over which past economic loss is claimed is the two and a half years since February 2020, when the plaintiff reduced her work from 40 to 35 hours per week. It is claimed that this has resulted in a net weekly loss of $75.45, which equates to approximately $10,000.
I am satisfied that by the commencement of the third period that the plaintiff had recovered physically from the stoma reversal surgery. I am satisfied that it is the maintenance of the plaintiff’s adjustment disorder that has necessitated a requirement for ongoing care. The features of this condition include her ongoing depression (including fatigue) and her almost debilitating fear that she will re-injure her abdomen. This is causing her to be overly cautious in functional movements involving bracing her abdominal muscles, which in turn has led to physical deconditioning. I am cognisant that the three hours per week that I have allowed is significantly lower than the plaintiff’s estimates of weekly care that are detailed in paragraph 144 above.
In addition to the caveats with respect to the weekly care estimates explained in paragraphs 145 to 147 above, there are a few other points to be made. I am not convinced that absent the subject events, the plaintiff would have continued undertaking all domestic chores. This is because there has been a substantial increase in her working hours when compared to her pre-injury employment. The plaintiff and her husband now work approximately the same number of weekly hours. Further, not only has there been an increase in the plaintiff’s work hours, but her husband is now regularly home from work by 3pm or 4.30pm. This contrasts with the pre-injury period, when he was working full time as a storeman at Bunnings, and a daily shift could start from any time as early as 6am and finish any time up until 10 pm. Mr Chapman conceded that it was his expectation that he would have been contributing more to the household if the plaintiff’s work hours increased. Further, the plaintiff’s desire to perform all domestic chores prior to the subject events seems to have been driven to a large extent by her desire to be the homemaker in the context of her family. Her three children are now adults and have progressively moved out of the family home, with the last of them having moved out in April this year.
In arriving at the allowance of three hours per week, I am mindful that this is an hour less per week than the estimate provided by Ms Howard in August 2019 of the ongoing care required for the plaintiff. Ms Howard’s allowance is comprised of three quarter of an hour for domestic assistance, two and a quarter hour for gardening and mowing, and half an hour each for handyman and car cleaning. She adjusted this to six hours per week to account for minimum call out rates. She also allowed $12 per week for grocery home delivery.
I accept some of Ms Martyr’s reservations in relation to these estimates. She observed that the plaintiff does not access a grocery home delivery service as the supermarket where the plaintiff routinely shops does not offer such a service. She also thought that it is more realistic for the plaintiff’s car to be cleaned fortnightly, rather than weekly and that 26 hours for the plaintiff’s share of home maintenance would be reasonable. Having said this, I do not accept all of Ms Martyr’s reservations. For example, given the plaintiff’s fear of reinjuring herself and associated caution when performing activities requiring her to reach out in front of her, I am satisfied that this is likely to mean that she cannot vacuum or mop. The plaintiff’s reluctance to also perform other movements for fear of reinjury would also impede her ability to, for example, perform even some lighter cleaning tasks and some cooking. Her ongoing symptoms of her adjustment disorder, including depression are also likely to be having some ongoing impact on her ability to undertake some of the house related chores.
Based on the hours of care that I have allowed over the three periods at the agreed rate of $38 per hour, the total is approximately $47,100. Pursuant to s 60(1)(b) of the Act, a court cannot award interest on damages for gratuitous services.
Future care
The plaintiff’s claim for future care is based on five hours per week at $58 per hour for the remainder of the plaintiff’s life expectancy, being a period of 40 years. Applying the five percent discount rate for the present value of this future loss is said to give a figure in the order of $266,000. In my view this approach is plainly unrealistic.
Ms Howard estimated the plaintiff’s ongoing care requirements to be six hours per week when accounting for minimum call-out rates. I do not accept this for the reasons detailed above. Ms Martyr considered that it would be difficult to provide an estimate in the absence of an opinion from a general surgeon. She considered that with treatment and improvement in the plaintiff’s psychological symptoms, there would be an improvement in the plaintiff’s motivation to perform domestic activities unassisted.
The hourly rate claimed by the plaintiff for future care is $58. This is sourced from Ms Howard’s report dated 30 July 2022. It has been provided by Blue Care and is based on a survey of current service providers within the Wide Bay Burnett region. It says nothing about other care providers in the region, let alone non-agency care providers. The defendant contends that the appropriate hourly rate should be no more than $52. This is the current NDIS rate. It is said that this rate properly accounts for the likelihood that some care providers will be less than the NDIS rate and some will be more. In my view it is appropriate to adopt the rate of $55 per hour.
I propose allowing three hours per week for the next two years to enable the plaintiff to receive the treatment detailed above. This results in a figure of about $16,335.
If the treatment that I have allowed for is successful, the plaintiff is not likely to have any need for assistance thereafter. The treatment may not be entirely successful and that chance is not so small that it can be disregarded. The plaintiff’s life expectancy is 40 years. For the remainder of the statistical life expectancy, I will assume a continuing need after two years at about one hour per fortnight. This equates to approximately $22,495.
The total allowance for the future component of care is $38,830. Given the artificial precision of this calculation, I allow $40,000.
Summary of damages award
Head of damage Award General damages $21,780 Past economic loss 18,100 Interest on past economic loss 2,225 Past loss of superannuation 1,820 Future economic loss 43,200 Future loss of superannuation 4,750 Special damages 14,895 Interest on out of pocket expenses 400 Future out of pocket expenses 7,500 Past gratuitous care and assistance 47,100 Future gratuitous care and assistance 40,000 Total $201,770
Orders
There will be judgment for the plaintiff against the defendant for $201,770.
I direct that any submissions in respect of costs (not to be longer than four pages), or alternatively a proposed draft order if the parties are agreed, be filed within seven days.
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