Collins v Stratford (No 2) - [2008] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLLINS v STRATFORD (No 2)
[2008] SADC 67
Judgment of His Honour Judge Herriman
3 June 2008
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Motor vehicle accident victim - female aged 36. Upper spinal injuries, post-traumatic stress disorder, adjustment disorder, major depression, psychotic episodes - leading to schizoaffective disorder. Social withdrawal. Significantly reduced participation in family life and household tasks. Obsession with intrusive thoughts. No prospects of future employment and continuing decline in level of functioning. How assessed. Awards: non-ecomonic loss (48) $82,080; past economic loss $68,378; interest on past economic loss $7,057; future economic loss $304,850; superannuation benefits $39,137; gratuitous services - past $127,000; interest on past gratuitous services $13,960; future care $1,291,290; past medical expenses $81,710.74; future medical expenses $666,085.
Wrongs Act 1936 s 24B(2)(a), s 24H, referred to.
Van Gervan v Fenton (1992) 175 CLR 327; Bresatz v Przibilla (1962) 108 CLR 541; Campbell v Nangle (1985) 40 SASR 161; Beare v Slattery (2002) 218 LSJS 338; Griffiths v Kerkemeyer (1976-1977) 139 CLR 161; Beasley v Marshall (1986) 40 SASR 544; Calvaresi v Lawson (1995) 184 LSJS 147; Wheeler v Page (1982) 31 SASR 1; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; The National Insurance Co. of NZ Ltd v Espagne (1960-1961) 105 CLR 569; Blundell v Musgrave (1956) 96 CLR 73; Edwards v Butler [2004] SADC 190, applied.
Wilson v McLeay (1961) 106 CLR 523, considered.

COLLINS v STRATFORD (No 2)
[2008] SADC 67
1. Introduction

On 6 December 2002, the plaintiff was the driver of a motor car involved in a collision with a semi-trailer at Coomandook, south-east of Adelaide.
At that time, the plaintiff was executing a right‑hand turn off the main highway to access a toilet block in the township. For reasons which I have already found, the defendant’s semitrailer collided with the rear offside of her vehicle and shunted it a considerable distance across the oncoming laneway and to the right-hand side of the highway.
In consequence of the accident, the plaintiff suffered personal injuries from which she has not yet recovered. Her mother, Anne Vause, and her daughter, Kirsty Vause, were in the car with her at the time.
I have already found that the defendant was wholly responsible for the accident. It now remains to assess the plaintiff’s damages.
2. Plaintiff’s Evidence – June 2007
The plaintiff was born on 4 June 1966 in Mount Gambier. She attended primary and high school there, to Year 10 level, and afterwards was employed in clerical work for about 12 months.
She then left the town at about the age of 17 and went to live with her boyfriend in Victoria. On 28 March 1986 they returned to Mount Gambier, where their child, Kirsty, was born.
In late 1987, the plaintiff and her partner separated and she moved with Kirsty to live in Adelaide. They remained there for three or four years and the plaintiff obtained work in curtain‑making and in a child care centre. During this time the plaintiff formed a de facto relationship with her present husband, Craig.
In 1988 she endured the trauma of her older sister’s illness and premature death and it was soon after that, that she and Craig returned to live in Mount Gambier. He had obtained a contract teaching position there and the plaintiff stayed at home to care for Kirsty. He subsequently secured full‑time work in the timber industry and has remained in it since.
At about this time, the plaintiff began attending a Christian church in Mount Gambier where her sister had worshipped, and she and Craig soon afterwards took up that faith.
At some time in the mid to late‑1990s, the plaintiff began part‑time work at Coles Supermarket in Mount Gambier and stayed in that employment for about 18 months. She moved from there to a full‑time clerical position at Malseed Real Estate in the town, her principal task being to manage the firm’s rent roll. She left that position when she realised a younger woman needed it and moved to the primary industry bank, Rabobank, where she worked in the front office performing reception and minor banking tasks. She had previously undertaken and gained certificates in administrative courses conducted by TAFE.
She left Rabobank after nine months because of a personality clash. She then obtained a position as a part-time shop assistant with Cheap as Chips in Mount Gambier. At times her duties, aside from attending to customers, involved relatively heavy work. She had to unpack stock pallets and dress displays, and on occasions was required to lift weights of up to 25 kilograms. She worked about 30 hours per week and enjoyed the job. She was working there at the time of the accident.
The plaintiff then spoke of her activities outside work. What she said about them was corroborated in varying degrees by the evidence of her husband, daughter and mother.
Before the accident, she was quite fit and physically active. She had been a very successful hockey player and was in the habit of walking an hour every day or every second day of the week. She would visit her parents frequently and help them out around their farm, their house and their garden.
She and her husband had also done a lot of work renovating their own property and establishing its garden, and she had been physically involved in much of it. The garden had at one time contained a poorly‑built swimming pool and it had been removed. They had then re-levelled the land and planted lawns and a garden. After that time, she was the one who had mostly maintained it.
She was interested in music, she played the guitar and led the music worship at her church. She was also learning the keyboard and at times sang. She had been doing this for about two years before the accident.
Their church was a branch of the Bethesda Christian Church and they had joined it when it was established in Mount Gambier. She described it as a charismatic church and they had moved there from the Eastside Christian Centre.
In addition to her involvement in its music worship, she also undertook a role of drug and alcohol counselling within the church and in the local community. In the course of that work, she formed links with a group in Adelaide known as “Teen Challenge” and which carried out similar work. She was frequently in touch with the co-ordinator of that group in Adelaide and it was one of her ambitions to one day work there.
As a teenager she had used drugs and prior to becoming involved in the church had smoked cigarettes and consumed alcohol, but she had long since abandoned those habits.
She described herself at the time immediately prior to the accident as bubbly and full of energy. Her husband described her as (T/S 131):
… very energetic, effervescent if I can use that, very organised and very sharp thinker. She was very multitasking. What I mean by that is she could have three things going on at once and handle them quite well. She attracted people because of her personality, chatty, welcoming, warm, loving and confident, ambitious … never overwhelmed.
She and her husband described how they planned to complete the renovation of their house over time and then sell it and move to live in Adelaide.
She was healthy then, she weighed about nine and a half stone and slept well. She had no physical or mental illnesses.
Her mother and daughter painted similar pictures of her.
The accident occurred on 6 December 2002 and I have already described its dynamics in Collins v Stratford [2007] SADC 80.
The plaintiff remembered hitting the right side of her head really hard on the driver’s side window as the collision occurred and also being thrown about inside the car. She recalled a period of intense fear as their car was being shunted across the road by the semitrailer and she believed Kirsty was preparing to jump out of it.
She was very shaken afterwards and did not feel herself. She was taken to Tailem Bend Hospital in an ambulance, but only spent an hour there. She immediately experienced tinnitus and later that night, when she, her mother and daughter were staying in the town, she began to notice headaches. She also felt dizzy, upset and was vomiting. She was crying a lot and “freaked out” once. Her neck, back and shoulders did not trouble her until later, when she returned to Mount Gambier.
She then described her headaches. They were present all the time after the accident and remained severe for about 18 months. They then eased off somewhat. They stressed her, she reacted to noise and she felt out of sorts, but she tried to adjust to living with these symptoms. When they were intense, analgesics provided limited relief. They were aggravated by heavy physical activity and she recalled an incident when they were so bad at work that she had to take a week and a half of sick leave.
She had not at first bothered to see her general practitioner about these problems, nor about the neck, back and shoulder pain which soon developed, because she had thought they would all go away, but she did consult him after about eight weeks because the pain was constant and severe, and was aggravated if she attempted to lift anything at work. She was treated conservatively with physiotherapy and chiropractic but when symptoms persisted, she was referred to a neurosurgeon at Warrnambool. He advised her to continue with non‑invasive treatment and she did so, but it was not until late 2006 that physiotherapy was finally effective in alleviating these symptoms. Her tinnitus has, however, continued.
Her symptoms first began to ease when she was having physiotherapy some 12 to 18 months after the accident, but they nonetheless persisted at a low‑grade level until late 2006 when, following a further period of physiotherapy, they largely abated.
Otherwise, she said that following the accident, she felt on edge all the time and would cry at least weekly. Before then she might have cried once every six months. She felt stressed and did not know what was happening to her. She would cry for no reason and would also “freak out”, as she described it, and do unpredictable and frightening things. Her sleep patterns were disturbed from that time onwards and they have never returned to a satisfactory state.
Returning to about the time of the accident, she described how she returned to her duties at Cheap as Chips relatively soon afterwards, but was able to arrange with the manager that she did less lifting. Even so, she lost a lot of work time there and used up all her holiday and sick leave at times when she was not feeling well. On occasions, she was also given time off without pay.
Whilst she was continuing in that employment, she was approached by her former employer, Malseed Real Estate, and invited to return to work there for 15 to 20 hours a week. That seemed sensible to her and she accepted it, but soon afterwards those duties became full-time. They were general clerical duties, but with a reasonable measure of responsibility.
She was unable to cope with them. She felt out of control and, along with her poor sleeping, found herself working odd hours and going back there in the middle of the night to attend to things she had not managed.
She had noticed, soon after the accident, that her memory had deteriorated and by this time found herself doing silly things. Those symptoms have never left her, albeit that they have varied in intensity.
She had, in her earlier employment, been able to cope with the sort of work expected of her at Malseed, but this time she could not manage it and was obliged to cease that employment. She left it, and indeed the family home, in somewhat unusual circumstances. I will return to that.
For some months after the accident, the plaintiff described being haunted by dreams. She began to shut down. She lost contact with her friends and even with her family. Her personality seemed to change and she was afraid of not being able to cope. She no longer had any energy and slept a lot. She pushed herself to continue working, thinking that these symptoms would abate, but they did not. She then realised that she felt depressed and she lost contact with her parents.
Her involvement in housework and in the garden soon declined markedly. She had previously done most of that work, but by the time of trial, she thought she was doing only about 20% of it. In November 2004 she was referred to Dr Lim, orthopaedic surgeon. He diagnosed a whiplash injury and hypertension and flexion damage to her cervical spine. This had, in turn, led to her headaches. He thought she then had limited work and social capabilities but deferred to other opinion as to her remaining complaints.
I return then to her cessation of work and her separation from her husband. At the beginning of 2005 she and her husband had planned to go on a trip to Adelaide to stay with friends, but at the last minute she felt sick and unable to go. They argued about it, but ultimately he left for Adelaide and she stayed at home. She then packed a bag and went off to a nearby retreat centre known as “Living Waters”. It was run by a friend of theirs. She did not tell her husband she was doing that and he only found out about it afterwards. She had somebody ring Malseed to tell them that she would not be returning to work.
By the time of trial she conceded that that conduct had been bizarre, but it had seemed right to her at the time because she had thought her health would improve by relaxing there. There was not much to do there, apart from rostered kitchen and cleaning hours and Bible studies, and she slept a lot. She would return home at least once a week to visit her husband and at some stage Kirsty came there and stayed with her.
She remained there for about six months, but when she realised it was not helping her, she rang Craig and asked if he would collect her and bring her home, which he did. At home, however, she felt “spun out” and could not cope. She accessed social security.
Her mother then suggested she ought to see somebody about a possible brain injury and ultimately she was referred to a neuropsychologist, Andrew Rothwell. He was aware of her medical history and the events which had occurred since the time of the accident. She saw him on four occasions and she thought he helped, but she still continued to suffer from anxiety. He then referred her to Dr Asokan, psychiatrist, in early 2006.
She went on to describe the events which preceded her first admission to Glenside Hospital (“Glenside”). At one point whilst she was seeing Mr Rothwell, she attempted suicide. She took 19 Valium tablets because she felt she did not want to live. Even before that incident she had experienced suicidal thoughts, but consideration of her family had stopped her.
Shortly before her first admission to Glenside on 2 May 2006, she began to experience bizarre visual and auditory sensations, including voices in her head and other odd phenomena such as seeing lions in trees. She then described an incident when she was sitting on a step outside her house when a voice came to her from the clouds and told her that she had “trampled the blood of Jesus underfoot and assaulted the spirit of grace” (T/S 404) (“the doorstep incident”). After that incident, she said, she lost the plot (T/S 404):
… it was like something sort of clicked inside of me and I was sort of holding on before, like to reality, but it was like reality just went out the window and I couldn’t tell what was going on.
She was hearing horrible voices on a 24-hour basis and she thought they were all evil. They stopped her sleeping and they were present all the time. She became totally disconnected and could not relate to anybody.
Within two weeks of the doorstep incident, she drove to Adelaide to visit Teen Challenge. She was staying with her brother, but for a reason she was unable to clearly explain, she presented herself at the rooms of Dr Asokan in her pyjamas. Dr Asokan immediately referred her to Glenside, where she was compulsorily detained. She remained there from 2 May 2006 to 24 July 2006.
At that time she had been taking Panadeine Forte and temazepam and she thought she might have been overusing them. At all events, she was first put on various antidepressants and later had electroconvulsive therapy (“ECT”). She was managed there by Dr Chaudhary, in particular. She described the process of ECT and said that after each session her mood would improve, but she would still feel the same inside and hear the voices. Her mood improvement did not, however, persist.
Following that discharge from Glenside, she was expected to go back to see Dr Chaudhary in a few weeks time, but she did not. She was struggling within herself and felt unreal and isolated. She returned home and did no more about the house than she had previously done. She could not organise herself in the home. She would not go shopping and did not feel well enough to resume work.
Over time her life became more disordered. She went off her medication, but remained in some telephone contact with Glenside. Eventually, she went back to see Dr Chaudhary on 27 February 2007. She was then compulsorily detained at the Royal Adelaide Hospital. She remained there until 13 March 2007. She did not feel that the treatment she received there assisted her particularly and after discharge she returned to Mount Gambier.
For reasons which she was unable to explain, she then became obsessed with fishing. She had hardly ever done it before, but got into a routine of going fishing every day or every second day (and, on her husband’s account, for most of the day), even in extreme weather. She was continuing to perform only a limited amount of housework at this time.
Kirsty was to have a 21^st birthday party then and the plaintiff had undertaken to organise it, but she then did not do anything about it. She described it as a disaster. She was still hearing voices.
Ultimately, the anxiety and stress of unreality became too much and after ringing Dr Chaudhary, she was asked to return to Glenside and did that on 22 April 2007. She was then put on mood‑stabilising and antidepressant medications and underwent further ECT. She was still there at the time she gave her first evidence in this matter on 12 June and was not discharged until 25 June 2007.
She related an incident there where she and a group of other patients left the hospital without permission. They went to a hotel in Port Adelaide and drank to excess, returning at about 3 a.m. She used her credit card for that.
She was unable to explain why she had previously gone fishing, other than to say that she had thought it might help her anxiety and her struggle with the voices.
As of the time she gave evidence in June 2007, she was feeling the best she had felt since her first admission there, but she was still planning her life on a day-by-day basis only. She still felt isolated and anxious. She could not shop on her own, unless she had to, nor was she able to go to social events.
She said that, but for the events which had followed the motor vehicle accident, her plan had been to continue to work at Malseed as a personal assistant until they had renovated their house, then to sell it and move to Adelaide. She then planned to seek counselling work with Teen Challenge, first as a volunteer and then in a paid position. She thought she would likely have continued to work until she was 65.

She spoke of how, after the accident, Kirsty and Craig had taken on most of the duties around the house that she had previously carried out. With shopping, she was helped out by her mother and daughter. Craig had taken over all financial management, the garden had been abandoned, and Craig and Kirsty had increased their levels of contribution to the tasks of laundry, cleaning, cooking and washing dishes.
As to emotional support, she said she had been anxious to avoid involving her daughter too much in her problems, because she had wanted her to get on with her own life. She had received help from her parents, in particular her mother, but she felt that their relationship had changed and there was a distance between them. Her relationship with Craig had changed quite a lot, although he had tried to be understanding without judging her.
She had resumed a habit from her early years of smoking, some 18 months previously, and she had also taken to drinking at different times in order to “chill out” (T/S 451). On five or six occasions, whilst at Glenside, she had smoked marijuana.
She said that her relationship with God had changed since the accident. When she had heard the voice from the clouds she had felt like her spirit had been taken away and that she was falling into hell. Her faith had changed after then. The voice had seemed real to her, but she had been told that it was a psychotic episode. The biggest changes in her life had been in her relationships with people, her personality and in her faith. There was nothing in her life that had not changed.
In cross-examination she agreed that since being in hospital she had begun to discern what was reality and what was not. She was then asked whether she was now able to say that the doorstep incident was in fact a psychotic episode. Her response was that it was very real to her, but the psychiatrist had told her it was not real and was a stress reaction, so she was prepared to accept that. She was pressed as to whether it was real to her (T/S 489):
Q.     Are you able to explain what you mean when you say it was very real to you.
A.     Well, it’s a little bit hard to explain. Have you ever heard voices, audible voices? It’s something you’re not expecting. It happened out of the blue. It would be like you walking down the street today and then the clouds parted and a voice came out. That’s how real it was to me and that was part of the psychosis.
Q.     Through the course of your experience you’ve come to look back on that and understand that to be psychosis.
A.    Yes.
Q.     That was explained to you in terms of psychosis can have auditory hallucinations associated with it.
A.    Yes, that’s correct.
She contrasted that experience with the spiritual experience she had when she had first joined her church. The latter was a “very gentle, loving” experience (T/S 490) whereas the doorstep incident was very different. She agreed that at that time, she had been stressed. She was then seeing Mr Rothwell and he was recommending she see a psychiatrist. She had lost a lot of weight and was suffering nightmares and disturbed sleep.
She was tested in cross-examination about other significant events in her life, including Kirsty’s birth, her separation from Kirsty’s father, her acceptance as a Christian and an incident in a stranger’s car involving a gun, and she described them all as situations in which she had experienced stress, but which she had been able to manage. They had had no later bearing on her management of her life, they had just been part of it.
Finally, she was asked in cross-examination whether it was fair to say she had a full insight into what she was suffering from (T/S 500/501):
Q.     It’s fair to say that you have a full insight into what exactly it is that you’re suffering from, is that right.
A.     Yes. Well I guess it’s accepting that insight that really makes a difference instead of fighting against it because it’s pretty devastating, it affects your whole life not just one area.
3.     Plaintiff’s Evidence – January 2008
When the hearing resumed in January 2008 and because of the circumstances which had prompted its earlier adjournment, the plaintiff was recalled to speak of her life in the meantime.
She could not recall much of her earlier experience in court, save for one question she had been asked, nor could she remember counsel or me. Her memory in the past six months had been poor. She would often start something and then forget to complete it. She would lose things. She recalled an instance where she left her credit card in the freezer. She also spoke of an incident where she had been burning some rubbish and had decided to encourage it by throwing petrol on the flames. The can had caught fire in her hands and then she had set the garden alight. On another occasion she had driven into the back of another car due to poor concentration and had later forgotten to tell Craig about it, despite the fact the car was damaged.
Since June she had been seeing Dr Chaudhary in Adelaide every fortnight. As well, she had fortnightly visits from a mental health worker, Alison Smythe, in Mount Gambier, who was helping monitor her medication and who talked with her. She was also seeing a psychologist, Ben Ramsay, weekly, although she sometimes forgot appointments. He was trying to help her to establish routines in her life. They usually had sessions of one to one and a half hours.
She sees her general practitioner, but mainly for prescriptions. She added that Craig also asks her about her medication, although he does not monitor her use of it. She was asked whether she needed monitoring and she said her compliance went up and down a bit. She was originally put on anti-psychotic medication, an antidepressant and a mood stabiliser. As a result, she thought, she became overweight and began going to the gym in an attempt to control that. She had put on 20 kilograms since her first admission to Glenside. She thought the medication also affected her concentration and her motivation, and on occasions she felt like vomiting. At one stage Dr Chaudhary increased the level of her sleep medication, but then reduced it.
She said that about two months ago, she had gone off all medication for a week in order to see if she could function without it and because she did not like the side effects. She had not told anybody she was doing that. She then felt fuzzy during the day, her thoughts were racing all over the place and she did not know whether she actually slept at night or not. Her mood also fluctuated. It was during that time that she had the car accident.
She had previously ceased taking her medication two or three times, but had not told Dr Chaudhary about those breaks until later, because she had not wanted to be returned to hospital. After her last cessation she had spoken on a health line to Glenside (Dr Chaudhary had been away) and had resumed taking the mood stabilisers, but not antidepressants, although she had been given a fresh prescription for them. That had not been a successful stratagem, however, and some two weeks before the resumed hearing she had spoken to Dr Chaudhary and had gone back onto antidepressants.
Over that seven-month period she thought she had forgotten to take her medication eight or nine times.
Her depression had fluctuated. She had been very flat in the past three weeks and on other days or parts of days before then. Even so, she thought that her depression had been mostly manageable, although her motivation had gone up and down. She thought it had been at its worst in recent times and she had found the last few weeks very difficult. In that period she had lacked motivation, could not get things done and had been quite emotional.
As to her sleep, when first she had left hospital she had been waking up very early in the morning, so she would get up, have coffee and go for long walks of up to an hour and a half. She had done that every day for a time, but then that frequency had fallen away. She had also experienced nightmares, especially when off her medication, although she could not remember the content of them. They probably occurred less than weekly. She had also had lower back and headache problems and her neck had been uncomfortable, but over time her sleeping routine had improved and she was now getting up between 7 a.m. and 9 a.m.
She was also in the habit of sleeping during the day because she felt tired and it helped her forget what was happening. She had once stayed in bed all day.
When she wakes in the morning, she is slow to get up. She does not eat breakfast, but has coffee and cigarettes. It takes her a long time to get into gear and she feels awful at first, but she tries to put her thoughts into order.
She began going to the gym about five months ago. At first she was going twice a day but after a month of that it became too much and she developed back soreness. She now goes less often and rests if her back troubles her. Each gym session lasts 50 minutes. She had not needed to go to the gym before the accident because she had kept herself fit.
Otherwise, she said she was trying to get a routine going but she was not able to say what that routine was. She did “general sort of stuff” (T/S 690).
On occasions, she visits her mother and feels better there, but she has generally found it hard to stick to any routines. There is no structure in her life and she is preoccupied most of the time by her thoughts.
She was referred to her evidence in June about the voices or the thoughts she was hearing. She said she preferred to refer to them as thoughts rather than voices (T/S 691). She was asked how often she had had thoughts in the last six months and she said they were there most of the time, but on some occasions were more intense than on others. The medication helps, but if she is not busy they are more intense. At one stage she got into the habit of watching video movies or going to the gym to distract herself and she went to a Christian retreat early in the year and found it helped with that. She also made up scrapbooks for a while.
She was asked who she considered to be the source of her thoughts. She said it did not seem like her, but rather like the devil. She was asked (T/S 694):
Q.     Is there any source outside of you, other than the devil, that is the source of your thoughts.
A.     Well, I try and sort of weigh things up against, like, the word of God, so I guess God and the devil it sort of seems.
Q.     Are you able to distinguish whether a thought is from God or the devil just by the sound of it.
A.     No.
Q.     How then do you distinguish between whether it is God or the devil.
A.     Well, it is like – the only way that I distinguish it I suppose is on content, like because I have read a lot of the bible, so I try and weigh things up according to that but it is sort of like something foreign going on inside of you.
Q.     Is it easy to distinguish the source of the thought.
A.     No – well, not really because a lot of the time you might be an hour or so into thinking whatever you are thinking and then all of a sudden it is like ‘What am I thinking’ so I have to sort of pull myself up and then just reassure myself that God wouldn’t be saying that and try and, yes, move – yes, just sort of move on from there, so it is a daily struggle.
Generally, the thoughts do not engage her in conversations, but sometimes she will think or say aloud “I don’t believe that” or “I am not going to think that”. It is a “big jumble” (T/S 694).
She was asked whether she could engage in conversation with others when the thoughts are intense (T/S 695):
A.     Yes, I can, like, engage in conversation but it is sort of like looking at someone but something else is going on inside of you.
Q.     Does it have any affect (sic) on the conversation that you have.
A.     Yes, I guess so.
Q.     What affect (sic).
A.     I don’t really know.
She said the thoughts affect her concentration. She was asked whether she believed they were real. She said “Yes, well they seem ‘that’s real’ to me, yes” (T/S 695). She did not think they were due to any mental illness and she did not think she had a mental illness (T/S 695).
She was asked about a reference in Dr Begg’s report to a “spiritual attack” and she said they were the words that she used in describing to him what had happened in the doorstep incident.
She was asked whether she had had any thoughts like this before the accident (T/S 696):
Q.     … prior to the accident, did you receive any thoughts from what you attribute to the devil before.
A.     Not – no, not like this at all.
Q.     Can you explain why this is any different.
A.     Because it is intense, like all the time and I find it difficult like I said to – because on the one hand if what happened was real, which it seems real to me, then it seems like God is talking to me and then I think well, if it wasn’t real then it is the devil talking to me so I find it very difficult – so it depends what I believe as to how it affects me.
These were not similar to the religious spiritual experiences she had had before, which were joyful. She said (T/S 696/7):
… it is fairly horrifying sometimes, like just some of the stuff that goes on inside of me, and I know how I should be so I know what I should be like, so you sort of try to project that even though there is other stuff going on inside of you …
The thoughts were there all the time, but they varied in intensity (T/S 698):
Q.     … You said at one end of the scale you can be sitting and thinking of the thoughts most or all of the day.
A.     Yes.
Q.     What is at the other end of the scale, is it none of the day or is it a couple of hours or anything else. What is the least you might sit and think about it.
A.     Maybe a couple of hours of the day, I suppose, without being sort of – it is a feeling too, it is not just like it is this intense feeling all the time.
Q.     Is there any time when the thoughts have told you to do things.
A.     At first, yes, and yes, like just every now and then something will pop up out of the blue, but it is, yes, not like – commanding thoughts and stuff like that I don’t get frequently.
Q.     When was the last time you had commanding thoughts.
A.     In the last couple of weeks.
Q.     Can you tell his Honour what the contents of the commanding thoughts is, when you have it.
A.     Well, it felt like that I had been taken over, like when it first happened, and that’s what the voice like kept on saying to me and stuff. And it was like whenever I would see knives and stuff whatever, it was just like telling me to stab myself or, yes, someone else. But that isn’t happening.
She said, however, that she would not act on such a thought.
During the day it takes her a lot of effort to get her head around the idea that when these thoughts come it is not God speaking to her, but she agreed that since she had last left Glenside, the length of these experiences had reduced. Originally, they had been there all the time, but now they were there for a few hours at a time, although that could occur a few times a day, and then it might not happen again for a couple of days: “it is all spasmodic” (T/S 699/700).
A Christian retreat she had gone to in Portland had helped her control her thoughts for a few weeks, but the benefit had then waned. Her experiences fluctuated too much for her to give an accurate picture.
She used to pray with people and lay hands on people during prayer before the motor vehicle accident, but she had not done that since except for two or three times, and she does not do it because she feels like she is passing on evil to those people. She still prays, but she feels totally disconnected from God. She had been to church six times in the last six months, to her mother’s church, but she felt too depressed to continue going.
Before the accident, she had gone to church twice on Sundays and three times during the week and had been involved in music and counselling, but she no longer has a “reservoir” from which to help people (T/S 703).
She described her religious experience in terms that her walk with God before the accident was comforting and clear, as opposed to (T/S 705):
… not really being able to tell at times, like, whose saying what sort of thing. Like I knew – well, I just felt like I had a really good walk with the lord, it was pretty spontaneous and I didn’t have to really think about things because my everyday life just sort of flowed really, whereas now it is very disconnected and doesn’t sort of seem to flow at all.
She had not sought work in the last six months because of her mood and not knowing how she would cope with the pressure. She does not know why she is anxious or lacks concentration or feels tired, and her moods fluctuate daily. On the day after she saw counsel to instruct for the resumed hearing, she slept until 2 p.m.
She has a very limited social life. She sees Kirsty, she goes to places with Craig and she walks with a friend. She does not normally go out alone, but she has shopped for what is needed. She does not usually do a full shop, but has done a few on her own and found it difficult. There was an occasion when she was buying more clothes than she could afford. She gets anxious and is unmotivated.
She thought that in the last six months the housework had been divided 50/50 with Craig. She had really done it all before the accident. Her contribution was less than before because she lacked organisation or motivation and would put things off. She cooks meals but spends less time on them. The garden is now in a mess and it is too big a job to effect a recovery. She tried a few months ago to re-establish a vegetable plot and her father helped her with that, but she did not maintain it and it died.
Craig otherwise helps her by being there, by helping to motivate her and by checking on her medication. She rarely discusses her thoughts with him, however. She does not think she would cope very well without him and would feel very isolated. It would “probably be a disaster” if he were not there: “I wouldn’t be able to cope without having him around” (T/S 715).
Her mother calls on her, but there is no longer the normal mother-daughter contact. She feels her mother acts as a nurse for her, which she does not want.
She drives to Adelaide every fortnight to see Dr Chaudhary, and her parents and Kirsty have also helped her at times by accompanying her. Usually, she is away for two or three days and it takes her some time to get over each trip. That interruption also makes the establishment of routines difficult for her.
As to the future, she says she will need to keep seeing Dr Chaudhary, as she trusts her and Dr Chaudhary knows it all. She does not want to start with somebody else and that might mean that, ultimately, she will have to move nearer to Adelaide.
She would like to have the garden returned to the standard it was in before the accident and that might mean they will need some outside help.
As to housework, she thinks she could coordinate what was required to be done if she could have somebody come in to help three to five hours a week.
As to routine, she needs somebody, like her girlfriend, to call in to check she is adhering to one. If Craig or her friend is not around, she will need help with outings.
She continues to take mild analgesia for back and neck ache and she takes her psychiatric medicine, not because she believes she has a mental illness, but because she has been asked to take it. She would like to think she has all the supports she needs to avoid going back to hospital. She thought about returning there during the bad periods of the last three weeks, but she was able to bring herself out of that state.
In cross-examination she said her neck and back had troubled her at times after she had attempted gardening and after gym work. That pain had been present on and off since the accident, but she thought she had aggravated it in a more recent incident in the gym. Apart from chiropractic, she had not had any treatment for her neck since 2004.

She had bought painkillers the day before the hearing because of headaches and shoulder, neck and lower back pain or discomfort. She uses them a lot.
Her mother visited her frequently in the first two or three months after Glenside and was obviously checking up on her medication and trying to help her to organise her day. She then saw her about three times a week, but that regularity has fallen away since.
She was asked whether she had ceased taking Efexor on doctor’s advice, but she denied that and said it was because she had thought she could manage without it.
She was asked if she felt better now than she had just prior to the time of her last admission to Glenside and she responded: “At – at times I feel different, yes” (T/S 732). She could not remember whether she had been on medication at that earlier time. She had used quite a lot of medication and could not remember time frames. She did not know whether she had given her solicitor all the invoices she had received for it.
It was put to her that she had ceased taking medication about three months before her last Glenside admission, but she could not remember that. She was then asked whether she now realised that the thoughts she had had prior to her first Glenside admission were psychotic. She said “I don’t really believe it was a psychosis, no” (T/S 734).
She was asked about her consultation with Dr Begg on 31 October 2007, it being suggested to her that she then told him that she realised her thoughts were psychotic. Her response was that things change all the time. She does not know whether particular thoughts are psychotic or a spiritual attack (T/S 735):
Like I said, it changes all the time. Sometimes I don’t know whether it’s mental illness or whether it’s a spiritual attack because, to me, it is more like a spiritual attack because when it happened everything inside me changed.
She was asked whether she believed, as of the time of her discharge in June 2007, that her episodes were psychotic. She said (T/S 736):
Like I said before, that is the problem that I have, is fluctuating between whether this is actual God and the devil speaking to me or whether – and like, psychiatrists classify it as a mental illness but I see that sort of stuff to me is more like a spiritual attack but it depends what label you want to put on it, so –
She agreed that at times she is able to discern different types of thoughts (T/S 736):
Q.     When you have these thoughts, what do you (sic) is try and sort them out into categories, whether it’s God’s voice or the devil; is that what goes on.
A.     At times.
Q.     That’s what you told Dr Chaudhary, is it not.
A.     Well, I don’t really know because, like I said, things change over time. Like, sometimes I’m thinking ‘Yes that’s God’ or ‘the devil’. And then you were saying about psychosis so there was a stage where I probably thought ‘Maybe it is’ but to me inside it’s not. It’s not like just something that’s mental, it’s a soul thing, like inside of you.
Q.     Do you not go through the process in your own thoughts of sorting out categories of thoughts and working out what’s not from God.
A.     Yes, I do go through that process but it is difficult for me to tell because of – because of what happened it’s like everything’s in reverse. So I can’t really – like, I know what God – what I feel like God would be saying to me but it sounds like the devil.
She was asked whether her ‘devil’ thoughts were now accepted by her as an illness and she said she still finds it hard to accept that they are such. It can be one thing and then another (T/S 737):
… I still find it hard to accept that I have that, an illness of any sort, because how can you be one thing one minute and then something the next? It doesn’t sound like an illness to me …
It was suggested to her that on occasions in the last six months she had appreciated she had an illness. She responded (T/S 737):
Yes, I guess sometimes – I suppose it depends who – like, when I’m talking to my mum and stuff like that, she can see what I’m talking about. But she believes a lot of the thoughts that I think are from God aren’t really what God would be saying to me. So then if I’m talking to Alison Smythe, like she thinks ‘Okay, you’ve had a psychosis, you’ve got a mental illness, I don’t really agree with that’, we agree to differ on that at times. But I probably have gone through times where I’ve thought ‘Well, have I?’ but, to me, it’s not a mental illness because it doesn’t feel like – I feel completely different to what I used to feel like. And it happened in an instant, so that, to me, is something outside of a mental illness, it’s not – and it was evil.
She said she was not laying hands on people prior to her second admission to Glenside because she felt she would transmit evil to them.
It was then put to her that she told Dr Begg that she had lain hands in the last six months. Her response was (T/S 738):
… if I did say that it’s not really what I’m thinking now; and, like I said, things fluctuate, I can change from day-to-day (sic). One day I night (sic) think ‘Okay, I know I have to get myself together in my mind’ and I’m thinking ‘Okay, this is God, maybe I am okay to do that’. And then it will be, could be two hours later like ‘No, it’s not God’. It’s like – so the things I say – if you are trying to say that I’m lying about anything, I’m not lying about things, it’s just that things change from day-to-day and even how I view things or think about things or feel about things.
She was asked about her recent experience when her condition fell away. She said she knew she was then going backwards. She had then spoken to her mental health worker, who had helped with the teleconference. That conference had helped her, although she had still wanted to speak to Dr Chaudhary personally before resuming all medication. She had felt better in the past week.
She was asked about her husband’s working regime during that bad period and she said it had been his normal four-day week plus one extra day.
She agreed that she was keeping her appointments with her counsellor and attending to the filling of her prescriptions.
She was asked whether she recalled her first consultation with Dr Chaudhary after Glenside, but she could not.
She recalled going to Bible study for a couple of weeks at an old friend’s house after her discharge from Glenside.
She could not remember telling Dr Chaudhary that her sleep patterns had improved since Glenside, but that was a fact. She did tell Dr Chaudhary that she was enjoying some artwork but that involved making up scrapbooks and she had done it for only one or one and a half weeks. She may well have told Dr Chaudhary then that her mood was getting better, because at times it had been better.
She had undertaken a prayer ministry at a retreat in Portland. She had found it stressful and had slept a lot of the time. She had been trying to keep on top of her thoughts. She had then spoken of her thoughts and had felt better for a short time afterwards, but had then reverted to her previous state.
Since the last Glenside visit she had done most of the cooking at home, but that was only one meal a day and a simple one.
Two months after Glenside she had practised in a band with her husband. She had gone there for a few weeks and she had sung. She still sang on and off, with a lot of breaks. It was not part of any Christian worship arrangement, but a get-together in a private home, and she was doing backup singing. The only praying she could remember was asking God to help her.
She was asked again about the doorstep incident and she said she felt possessed by the devil after it. She was asked whether she felt possessed now and she said (T/S 758):
That feeling has never really gone away because the thoughts I have have been against God and they are not my thoughts.
She had attempted more prayer sessions in the last six months than she had before and she had been to her mother’s church several times.
She was asked when she felt the devil was speaking to her, whether she was aware that it was the devil (T/S 759):
A.     Well, that’s what I’m constantly battling with, is sorting through thoughts and stuff and what the origin is.
Q.     But you can now differentiate, at least on some occasions, between your own thoughts and devil thoughts.
A.     Yes, sometimes, yes.
She had had the same trouble before her last visit to Glenside, but she thought she was currently better able to differentiate the voices.
She was asked about what she did in the gym and she spoke about the cycling machine, the walking machine and weights, but lately it was more walking and the bike. She had also done some pump classes and part of an aerobics class.
She was asked about a typical day in the past week. She could not remember what time she got up, whether it was in the morning or afternoon. She did not think she had had breakfast because she normally does not. She could not remember what she had had for lunch but normally it was a tub of yoghurt. She could not remember what she had had for dinner or what housework or gym she had undertaken, nor what she had done that evening. It was the same with respect to each day.
She did recall that at one stage she had helped her daughter move house. She tries to see her daughter every two or three days.
She had done big shops on only a few occasions over the last few months, it is easier to do day-to-day shopping. She had gone shopping with Kirsty in the previous week. She believed she had bought takeaway and she usually did that.
She no longer took any part in the family finances, but she had once gone to the credit union to activate a new credit card. She remembered helping Craig peel wallpaper off his parents’ house some months before and she had taken a steamer there for that purpose.
She described generally the housework she and Craig did. He helped with the dishes and mainly did his own laundry. The house remained in a mess and is in need of repairs, particularly the back section.
She has not seen Kirsty as much as she would have wanted in the last few months, but she had driven her around.
At this stage in her cross-examination, the plaintiff was shown video clip Exhibit D15, depicting her taking part in various activities in Mount Gambier in the previous week, namely, on 7, 14 and 15 January 2008.
She readily agreed she was in the video and was pictured going to the fitness centre and to the hospital. She agreed she was often about early in the morning, particularly if she was going to get some cigarettes or go to the gym. She conceded she no longer had an afternoon sleep, having stopped that a few months previously, but she did not agree with the proposition that she was generally out and about in the afternoons. She spent a reasonable amount of time at home, but she would go out if she had to do something or help her daughter Kirsty. She agreed she was also shown visiting doctors’ rooms and visiting her daughter, who was at that time moving flats. She had also gone with her daughter to Woolworths to go shopping with her and whilst there she had got some of her own things. At that time her daughter’s partner’s car had crashed so Kirsty had had no access to the shops.
She agreed they could shop together on occasions, as the film showed, but she did not always feel like doing it. She had helped Kirsty move to the new flat, mainly by helping her transport food which had been packed.
As to what the film depicted, she could not recall how she had previously been assessed by the occupational therapist, nor could she remember the result of it.
She agreed, as best she could remember, that she had had only one command thought since last being at Glenside and that was two weeks before the hearing.
She agreed that she had been able to drive herself to Adelaide for medical appointments on two to four occasions in the past six months and had then let herself into a house in Adelaide, prepared herself a meal and got herself to the appointment. Generally, she stayed a second night before returning home.
She was then shown another set of video films (Exhibit D16), in which she acknowledged she was the subject and which were taken between 13 and 15 September 2007. Whilst she could not recall the instances depicted in those videos, she was able to say that one of them related to a visit to her daughter’s flat when Kirsty came shopping with her at Target. She had gone into the supermarket by herself, browsing. She could not remember whether on that occasion she bought clothing for her daughter’s child, but she had done so on one occasion.
She identified herself visiting the post office, but could not identify the papers she was carrying, although she did say that she had a post box there which she cleared on occasions.
She agreed she visited a friend and took his wife to the bank when asked. That friend had helped her spiritually, although she had seen him only about three times since she was in Glenside.
All those events were on 13 September. She agreed that on the following day she was shown going to a music store. She had previously said she had only been there with her husband, but now accepted that she had also been there by herself, although she had no recollection of the event. She had gone there to buy a tin whistle but had never got around to practising it. She also believed she had gone to Target to return some goods. She had done that on three occasions in the last six months. That evidence potentially corroborated her earlier observation, in examination-in-chief, that she had at one stage gone out and purchased more clothes than she could afford. As well, she had gone to the chemist to get her prescriptions and to her solicitor’s office.
She was challenged over a visit she made to the Australian Central Credit Union and she agreed she had gone there by herself. She recalled that she had gone to the front desk to ask for some more credit on the house. She had later changed her mind and told them she did not wish to pursue the application. She had done it because they were running out of money due to the cost of her frequent trips to Adelaide.
On 15 September she had gone to the gym and then to a paint shop to check some colours for her in-laws before going to a hire shop to hire a paint stripper for them.
The cross-examination then moved to the retreat in the latter half of 2007. She had thought it was a positive experience and she had felt more hopeful after it, but the benefits had not lasted. She had gone off her medication then, but had later realised that she needed it, along with medical treatment.
She said she enjoyed her attendances at the gym, but found shopping stressful, although she would do it for Kirsty so she could be a mother to her. She agreed she enjoyed occasions when the music group got together. After the camp she had felt quite alert, but the voices had remained, albeit that they were not as intense as before.
She was then shown a further set of videos, taken on 25 and 26 September and 23 and 24 November 2007 (Exhibits D18). She acknowledged they showed her going to Kirsty’s, at the gym, going to a garage, again at the gym, at the shops, and at a polling booth and garage.
She agreed she had also gone to a discount store to buy some foil and to a restaurant to get some takeaway food.
In re-examination she was asked about the Bible studies she had undertaken in the past six months. She said it was weekly or fortnightly and she had gone twice. It was meant to last some time, but she had stopped because she could not concentrate.
At about that time she had been listening to a tape prepared by a Canadian woman. She thought it was designed to encourage people with illnesses and she had listened to it a number of times and then given it to another person. If she had it back she would listen to it. She had told Dr Chaudhary that listening to it had helped her mood, but that benefit lasted only for a short time.
She agreed that in the last six months she had prayed, but not in the same way as she had previously done. She found it very difficult to pray at all. The most she could say was to the effect of “God, help me”. Her religious experiences had not changed in the last 12 months and she does not feel any closer to God.
As to the gardening, she said that had been a phase she had become involved in for a few weeks, but she had then lost interest in it and most of the plants had died.
She said that in the episode shown in the video of 15 January, they were essentially shopping for Kirsty’s things, except for some pies that she had bought. She had spent a long time looking at the display before deciding what to buy.
4. Evidence of Kirsty Vause – as of June 2007
Kirsty described the circumstances immediately following the accident and how her mother was upset, crying and stressed through that night. She remained like it for the rest of the trip.
In subsequent months she heard her mother complain of a sore neck and headaches, and that was a more or less continuous complaint until about six months ago.
Her mother was often teary and she saw her vomiting. She seemed unable to move her head very much, was tired and upset a lot of the time and found it hard to cope. She would go to bed soon after coming home from work. She visited her at work and saw she was stressed out there as well.
Otherwise, she said her mother’s personality changed. She no longer had energy and was sad and vague a lot of the time.
Over time her neck and headaches appeared to improve but her mood and vagueness got worse. She did not eat, she was skinny and she slept a lot. She barely left the house or saw anybody. Then, when she went to Glenside, she put on a lot of weight and looked older. She became very forgetful and did unusual things.
Before the accident her mother had done all the cooking, laundry, cleaning, ironing, other housework and shopping. She would wash the dishes and she shared financial management tasks with Craig. She had done about 95% of all that work before, whilst Craig did the rest, but since then she had not done much at all.
Kirsty had continued to live at home until about August 2004, when she moved away because she did not like seeing her mother sick and depressed, and by then they were arguing a lot.
About 18 months after she left home, her mother went to Living Waters so she decided to join her there and spent three months with her.
She described how her mother’s involvement in the church, prior to the accident, had been a major part of her life and how she looked after other people there. There were church activities at Living Waters, too, and her mother took part in them, but not very regularly. Her mother did, however, carry out the rostered tasks that were assigned to her.
When her mother returned home her mood deteriorated and it was after that that she went to Glenside for the first time. Kirsty visited her there, but did not think she was getting any better. She remembered her mother’s later stay in the Royal Adelaide Hospital, but she did not visit her there. Her mother then returned to Glenside a few months before the trial.
It did not seem to Kirsty that her mother was any better. She thought her attitude to socialising had changed almost immediately after the accident. Before, she had socialised a lot, visiting and helping people, seeing friends, doing a lot of walking and taking part in the church band, but afterwards she seemed to have no energy and did not undertake those activities.
Her mother had once accepted the Bible as literal truth, but since the accident seemed to see hidden meanings in it. She was no longer involved in the church and had no other interests.
She had taken up smoking after the accident and was drinking as well, although she had been totally against those things before.
Kirsty then described the additional work she had undertaken around the house because of her mother’s lack of involvement, in particular her work in laundry, cleaning, cooking, ironing, shopping and doing the dishes.

She also described the additional work that Craig had since undertaken around the house and garden and said that neither of them any longer did much by way of house renovation.
She estimated that the time she now spent helping her mother with household activities was approximately five hours a week, and otherwise she spent about six hours per week talking to her. When her mother was in hospital, she would telephone her a couple of times a day. She also attempted to take her out a couple of times a week, perhaps for two hours in all. When her mother had been at Living Waters she had spent close to four hours a week helping her emotionally and with some of her rostered tasks.
Before the accident her mother had been her best friend and they were not often apart. Now she felt more like she was the mother and there was a distance between them.
She did not think that her mother would be able to continue to live by herself as she could not do the housework and needed a lot of emotional support. She did not think it was safe for her mother to be left alone because she did silly things. She did not believe her mother could handle money and she could not be trusted to take her medication.
In cross-examination she agreed that her mother had wanted her to continue going to church with them but she had made it clear that it was her (Kirsty’s) decision. She had decided, at 16, that she did not want to go. She still went occasionally, to accompany her mother. Her mother had suspected at one point that she had become involved in the occult because of her association with a particular friend who wore black a lot. Kirsty did not think that friend had in fact been so involved nor had the friend ever said anything to her to suggest it, but the matter certainly led to arguments with her mother and it was one of the reasons she left home.
5. Evidence of Craig Collins – as of June 2007
Craig Collins described the plaintiff’s pre-accident health: she had been reasonably fit, had hardly had any illnesses and no mental health problems. She was effervescent, energetic and organised. She was a multi-tasker and a sharp thinker who attracted people. She was chatty, welcoming, warm and loving. She was never overwhelmed by anything. Her religious faith was part of her personality and she believed in and lived the Gospels. She was involved in the worship team at church and, as well, in organising the music. She was a natural counsellor and would help people. He described her as a crusader.
Their plans before the accident were to pay off the house, extend it, then probably sell it and move to Adelaide.
He first spoke to her by telephone after the accident when she was in Tailem Bend. She seemed overwhelmed and was tearful. He saw her three days later and she was quiet and upset. She complained of a sore neck and headache and she continued to do so for a long time.
Her sleeping patterns changed and she looked drawn and tired of a morning. She frequently vomited. He thought her neck symptoms had continued until about six months before trial and she appeared to him to be guarded in her head movements. She complained almost daily of headaches and he thought she still had them as of the time of trial. Her sleeping patterns had remained disrupted.
She had complained of dizziness until about six months ago and the ringing in her ears seemed to continue until she recently went to Glenside.
He said that soon after the accident she began withdrawing into herself. She was often crying and emotional for no apparent reason and she seemed to lack any confidence. She appeared to him as a person with no hope, no self-worth and low self-esteem, and he would have described that as depression.
Up until the time of her first trip to Glenside he had thought that all her problems were the result of her physical injuries, but he had thought differently since.
He had often called in on her at work, both before and since the accident. Before, she had been very energetic, but afterwards she had seemed lethargic and stressed. She complained to him about being unable to cope, but he had thought she would overcome that because she was a fighter. She had changed jobs, but still seemed to be overwhelmed. When she was at Malseed she would bring work home or work late. Eventually, she gave it up. Towards the end of that period she had been coming home exhausted and going to bed at 6.00 or 6.30 p.m. two or three days a week. On weekends she would crash and on other nights she would simply watch television and do nothing else.
She had done 90% of the domestic work before the accident, but afterwards that changed. He not only had to increase his own working hours when she stopped working, but her contribution to domestic duties dropped to about 30% and he had to do much more at home as well.
He described the series of events which led to her going to Living Waters. They had not had a fight and, indeed, they had planned a trip to Adelaide with friends, but on that morning she said she was unfit to go. When he returned home after the weekend, she was not there. He subsequently spoke to her on the phone and she said she was not coming home, but he did not realise what that meant until she continued to stay away, and then for six months. He thought it was bizarre. He did not visit her there much; she came home more often. She then seemed to be exhausted and aimless and he thought she actually became worse over the time she was there.
Before the accident they had been virtually inseparable. They had done everything together, inside and outside of the home, and enjoyed a good physical relationship.
By the time she went to Living Waters they had no sexual relationship at all and were living separate lives. It was not that they argued all the time. She was never nasty or provocative, she simply withdrew. She would not eat and became thin. She would not see anybody. She would sit by herself for long periods, smoking, and she seemed withdrawn. Her thinking was unreasonable and she had scattered ideas, in particular about Christianity. He recalled her telling him of the vision she had had some two or three months before she first went to Glenside. He had tried to reason with her about that, but she told him it was real and had happened. She became a shell of a person. She was disorganised, she took no pride in her appearance and seemed to live an internal life. She said she no longer had any faith because she felt she did not belong any more.
She was in Glenside for three months the first time, but when she came home he realised, after a week, that she had not improved. He then learned of the events leading to her admission to the Royal Adelaide Hospital and was told he could not visit her. She was there for three or four weeks and soon after discharge went to Glenside. He had not been to see her there, but spoke to her every day. She sounded the same, but he thought she was not well.
He was taken back to her behaviour between the two visits to Glenside and he spoke of how at one point she became obsessive about fishing and would go out for eight to 10 hours a day every day, sometimes in extreme heat. She was then in much the same state as before her first trip to Glenside.
Since the accident he had undertaken a lot of the work around the house that she had previously done. He estimated that he spent approximately nine and a half to 10 and a half hours per week doing this. In addition, he spent five to six hours per week talking to her and providing her with emotional support. She was not then socialising and rarely left the house.
Prior to the accident they had planned to do a lot of renovation work themselves, but because of her condition that was no longer feasible.
He had concerns about her safety in the home and whether she would faithfully adhere to medication regimes.
From his own observation, he thought she did not consider she was ill and seemed not to believe she required medication. She could not cope with money and often lost her card or forgot her PIN. Her memory was very poor and she forgot such things as her own birthday.
He was concerned that she was susceptible to the influence of others and spoke of her drug and alcohol consumption when she was at Glenside and about unsavoury people visiting her at home. He had looked at her searches on the Internet and they were to do with things like hell, unforgivable sin, head trauma, brain injury and suchlike.
She had been brighter and more normal when she first came out of Glenside, but had soon stopped her medication and quickly reverted to a shell of a person with no purpose in living.
He agreed that she was still driving the car when she felt well. He had not really discussed her medication with her, but he would remind her about the need to take it.
She now drinks alcohol, something she had not done before the accident and, indeed, since the time they had lived in Adelaide.
6. Evidence of Craig Collins - as of January 2008
Craig was recalled on the resumed hearing in Adelaide in January 2008. He then spoke about events since the plaintiff had been discharged from Glenside in June 2007.
Generally, he said, she had been up and down with no routine and he thought she had actually been getting worse. When she had first come home she was excited and happy, but that soon changed and she became groggy. She appeared to be medicated. She slept weird hours and would sometimes get up at 2 a.m.
He was asked to compare her level of depression prior to June 2007 with how she had been since. He said he thought she had reverted to that earlier level in the last three or four weeks. She was crying, saying that God did not accept her any more and was sleeping a lot. Her memory on those occasions was terrible and she would stop talking in mid-sentence. He remained concerned for her safety because she would leave doors unlocked and would invite undesirables home, and he spoke of the incident when she threw petrol on a fire. She had crashed his work car and not mentioned it to him and she boiled things dry when she was cooking.
He was not completely familiar with her medication regime and had tried to keep a distance from her care, as he wanted to be her husband and not her counsellor. He had gradually learned about it, however, and was aware that counsellors called on her. He was also aware that she had stopped her medication some three or four weeks before the resumed hearing and he had noticed it in her behaviour. Her mood was too high at first and she was laughing inappropriately. She was elated for about a week, but then her conversation seemed to become scattered and speedy. She would sleep for very long periods and at odd times and she seemed flat and disconnected. She was smoking and drinking coffee a lot and talking negatively about God. She seemed unmotivated, could not apply herself to anything, was impulsive and seemed to sweat excessively, even when the weather was mild.
He was aware she had also forgotten her medication a few times previously and she seemed to have an attitude that she would take it when it suited her.
She had not often socialised in that period, but had gone to church with him on occasions. He agreed that there were some people at church who were against the use of medication, saying that one should rely upon God for healing, and he agreed that she had been exposed to that sort of thinking.
She had gone through phases of watching videos, making a scrapbook, doing some gardening and seeing Kirsty, but none had lasted very long. At one point she was watching five or six movies in a day, then she was spending two or three hours a day on a scrapbook. It was the same with the garden. Her sleeping was all over the place and she seemed to be restless when in bed.
He worked four days a week, but his shifts were lengthy and he had taken on overtime to assist with their finances. He had then had to stop it because it was too tiring, and their finances were strained.
When Jennifer gets up of a morning, she smokes cigarettes and drinks coffee for an hour and a half. She seems quite groggy. She will then have a shower and may sometimes do some cleaning. There is no pattern to what she does in the afternoons. She will go and see Kirsty, she will sometimes sleep for a few hours. He thought she spent as much as 50% of the day smoking and drinking coffee. She often sits in a chair in the back area of the house and will be there on her own for periods of one to one and a half hours. She has no self-organisation and takes every day as it comes. He had seen some of the routines laid down for her by counsellors, but she does not seem to have ever kept to any of them.
He has spent time talking to her, but tries not to overdo it. He has tried to tell her that God will not throw her into hell or punish her. He has discussed parts of the Bible with her, but she has lost her whole identification with Christianity. He does not believe she could undertake work because of her memory, her lack of self-confidence, her sleeping habits and her inability to follow any routine.
He has not been formally advised of the nature of her condition.
He was asked what would happen if he did not carry out the housework that he now performs. He said it simply would not be done. In the last six months he would have spent about five and a half hours a week performing tasks that she had previously performed around the house, including laundry, vacuuming, shopping, dishes and management of the finances. He leaves most of the shopping to her, but he does odd trips to buy things she has forgotten. He has not seen her do a full shop by herself, although she has done so with her parents. As to finances, unless he attends to them, she simply puts the bills away and leaves them.
He tries to get her out of the house as often as he can and has been able to get her to come to fortnightly music sessions. Sometimes he takes her for a counter meal. On average, he tries to get her out of the house for three to three and a half hours a week, but he has to work within her activities and her sleeping habits. He has taken her fishing, shopping and on walks. She still does most of the cooking, but it is spur-of-the-moment food.
He finds it very tiring to deal with her because of the mental grind of constantly thinking what she will be like, constantly looking after her and attempting to cope with things she has forgotten. It is not an enjoyable experience and he feels she is like a teenage daughter. He worries about her medication and about the people who visit her. He tries not to speak to her about religious beliefs. He has seen her laying hands on people in the last six months. Before Glenside, she had hardly done it at all because she had felt she was putting evil into people.
She tells him that she believes that she is being attacked by a demonic force: it is not a mental thing.
As to whether she could live on her own, he said it would be a gamble, it would be a knife-edge situation and he did not think she could manage it. It is the spirituality in her head that is the main problem. She would need somebody to check on her day and night to keep the doors locked, to foster a routine, to keep the house clean, to carry out some of the household tasks and to take her out. He tries to help with these, but he is not an expert and he thinks that if alone, she would also need help with such things as excursions, shopping and budgeting.
If they had the means to do it, he would relocate to Adelaide, where she could see Dr Chaudhary more easily and where he would hope to get off shiftwork. He has been with her on Adelaide trips and she seems to become very tired and unmotivated. On her return she is worn out. She has no quality of life and her level of involvement in work around the house is declining.
He recalled once seeing on the table an application form to extend their house loan. They had never discussed it before and she said they should do it to help pay solicitors’ fees. In the event, they did not proceed with the loan.
He thought that, overall, there was no trend in her condition over the last six months: she had been the same all the way through.
He would employ a carer if he could, so that he could spend more time with her and on their relationship, because he was otherwise concerned about their falling apart as a couple.
In cross-examination, he said he did not think it was realistic to speak about having somebody in, for the short periods, to carry out household tasks and he could not afford it, anyway.
He was tested on what was done with an interim payment of damages that the plaintiff had received. So far as he knew, it had gone towards legal bills.
He said that the plaintiff goes out in the car, whether he is there or not.
As to the band practice, she mostly seemed to enjoy it and had gone with him on their first resumption after Christmas.
The last time she had come with him to church was three or four months ago and he could not recall that she had been with him since. She had gone on two, three or four occasions overall. She had not been going before then. In the period after the accident they had gone almost every week until they left that church. That was before her first trip to Glenside.
He was tested on her housework. He said that on some days she did it, but there was no routine at all. She had let the garden die. Her sleeping habits had not become regular and he could not describe them. He recalled occasions when she sat up until 2.30 a.m. and she was napping during the day as recently as a week ago. Last week she had gone to bed at 9 p.m. one day and got up at 2 p.m. on the following day.
He was then tested as to her activities on particular days in the previous week, but could not remember specifically what the plaintiff’s waking times were. He did not dispute that she might have gone out of the house on 14 and 15 January. He agreed that sometimes she washed his work clothes, but he could never rely on it. She did most of the shopping at the supermarket.
He recalled her going to a retreat in about October and thought she had gone with her mother.
In re-examination he was asked about her last attendance at the band practice. He said she had then taken her medication earlier than usual and had gone into a zombie-like state.
7. Evidence of Anne Vause – as of June 2007
The plaintiff’s mother, Anne Vause, was a passenger in the car at the time of the subject accident.
She described her daughter before the accident as always healthy, a person with many friends; she was not aware of her having any physical or mental problems. She would light up a room with her presence. Nothing was too much trouble for her and she was a caring person. People sought out her company and she was strong and hard working.
While she did not share her daughter’s church, she was aware of the extent of her daughter’s involvement in it.
She described her presentation after the accident and how she was upset and complaining of headaches. That continued for some time afterwards. Her daughter “wasn’t herself” (T/S 309). It was as though a light had turned off and the joy had gone out of her life. She did not want to mix with other people and kept to herself. She saw her daughter vomiting on one occasion when she was with her. She thought she had changed gradually.
It was she who had heard on the radio about the possibility of a brain injury and had urged her daughter to go and see somebody about it.
She did not think Jennifer was coping very well. She needed help. She appeared to be unable to do any work in the house and just sat around and moped. She was easily upset and did not appear to be mixing with people.
She had once persuaded her to come and participate in gym activity with her and then to help clean her church, but after a while she had made excuses and stopped that. She had taken her shopping in the last few months before Glenside and she and her husband had taken her out on other occasions. She needed comfort, reassurance and emotional support. Her personality had totally changed.

As a general observation, he said the plaintiff’s contribution to domestic work fell from 90% to 30% after the accident. That was his evidence in June 2007, but the effect of his evidence in January 2008 was that the level of his own contribution had decreased since that time; inferentially, that the plaintiff was doing more over that time or that some things were simply not being attended to. That evidence loosely corresponded with the plaintiff’s own account. She said, as of June 2007, that her contribution had fallen from doing most of that work to doing 20% of it. By January 2008, however, she thought their respective contributions were 50/50. (I do not infer that that evidence implies that she has a more favourable prognosis. Even in the area of meal preparation, where there was some measure of consensus, it became quite obvious that the meals she had, in recent times, prepared were spasmodic and somewhat rudimentary.)
As I have previously found, the plaintiff’s condition has been poor, indeed, from the time of her first Glenside admission and whilst it is unquestionably the case that treatment and medication have eased her symptoms, her prognosis is a negative one.
Her husband spoke of the lengthy periods of dedicated time he spent with her providing emotional support and taking her out of the home. Prior to June 2007, it was five to six hours per week and since then it has been 3½ to four hours per week, in addition to the times he remains at home, in effect watching over her.
Kirsty’s contribution to that need was initially significant, but fell away after she left home. Whilst at home prior to June 2007, she spent about five hours per week doing housework and eight hours providing emotional and other support. She left home at one point, then stayed for about three months with the plaintiff at Living Waters, helping her there. Afterwards she contributed approximately one hour per week to housework and about 3½ hours of social and emotional support.
Whilst her mother was at Glenside, she visited and remained with her for seven full days. No claim was advanced in the nature of Wilson v McLeay[6] damages, but the plaintiff sought damages for the emotional support Kirsty thus provided. I will make some allowance for that but a ‘need’ for all‑day care then was not demonstrated.
[6] (1961) 106 CLR 523
As to the plaintiff’s mother, her evidence was non‑specific as to the times and tasks she undertook when visiting the plaintiff, but they did include shopping assistance, accompanying her on medical visits to Adelaide and taking her, at least for a time, to the gym and to her church for cleaning work.
I accept all of that evidence as to the voluntary assistance provided by those persons. It was generally consistent and it was not seriously challenged.
Plaintiff’s counsel performed a series of calculations based upon hours spent on voluntary assistance by Craig and Kirsty at various times, multiplied by the uncontested commercial rate for such services of $29.20 per hour. He conceded it was only put forward as a guide and acknowledged the remarks of Olsson J in Beasley v Marshall[7] as to the artificiality of such a process.
[7] (1986) 40 SASR 544
Even so, he contended his approach was a conservative one as it took no account of price increases or penalty rates and only limited account of family assistance with the plaintiff’s many trips to Adelaide for treatment and of the time spent watching over the plaintiff.
The plaintiff’s mathematical approach to that assessment yielded a figure of $145, 069.
The defendant generally opposed that approach. Whilst not contesting the plaintiff’s need for some level of emotional support, his counsel argued that it had not been shown that such could be provided commercially, hence that the voluntary provision of it had avoided a cost to the plaintiff. As to that contention, I was not persuaded. Support for the plaintiff’s contention came from the defendant’s own expert, Dr Begg, who proffered the opinion that such services were commercially available and that they could be accessed (if necessary) by the provision of a skilled health worker who would establish a relationship with the plaintiff (T/S 939). Dr Chaudhary had a similar view.
Although there was no specific evidence as to the cost of that type of service, I am not prepared to find it would be any less than the commercial rate for ordinary domestic services, i.e. $29.20.
Further, said the defendant, it was not appropriate to approach this form of assessment in the mathematical way advanced by the plaintiff. With that I agree, but even so, such a calculation provides a measure of assistance.
I propose to assess damages under this heading upon the basis that, whether or not the relevant levels of assistance were provided (and it seems to me they mostly were), the evidence demonstrates that for 241 weeks from the time of the accident to the present time, the provision of gratuitous assistance to the plaintiff, in the form of emotional support and assistance with transport, shopping, domestic and cultural activities, was needed.
I am satisfied, having particular regard to the medical evidence and her employment history, that the level of domestic assistance needed likely increased slowly from the time immediately after the accident, then fell away during her time at Living Waters or when in hospital (although I will allow for the fact that she then remained in need of and, indeed, received support from those three persons), then increased significantly after that time and until her last Glenside admission and then abated somewhat after that time.
Graphically, the extent of that need cannot be illustrated by either a straight line or an even curve: it has been a fluctuating need, albeit a constant one, so the assessment cannot be strictly mathematical. The best I can do is to attempt to strike a weekly average for the extent of that need at various times since the accident and based on the evidence I have heard.
I conclude that up to the time of her last discharge from Glenside, the plaintiff needed, on average, about 20 hours per week of assistance and that it was for the most part provided by her husband, her daughter and her mother.
I am further satisfied that in the period from June 2007 to judgment, the extent of that need reduced to about 10 hours per week, and I will take account of that. I am not persuaded, however, that that reduction thereby supports the likelihood of a reduced need in the future for such assistance. Indeed, I am satisfied on the evidence that the need for assistance in the future will increase as the plaintiff’s condition deteriorates.
I will otherwise allow an average of four hours per week for the 53 weeks during which the plaintiff needed personal and emotional assistance at Living Waters and in hospital.
Applying those calculations to the uncontested domestic rate and taking some account of the times spent by the plaintiff at Living Waters and in hospital, and rounding off, I assess the plaintiff’s claim under this head at $127,000.
Interest on Past Gratuitous Services
The interest rate I will apply reflects the facts that the loss is for past services but calculated at current cost and that the services have been rendered over a period of time extending to today. As such, I will follow the approach outlined in Calvaresi v Lawson[8] (see also Wheeler v Page[9]).
Hence I calculate interest at $127,000 x 2006 days x 4% ÷ 2 = $13,960
365
[8] (1995) 184 LSJS 147
[9] (1982) 31 SASR 1
Future Care
I have already dealt with a number of the issues touching upon this aspect of her assessment.
Whilst the plaintiff’s symptoms had less impact on her life in the seven-month period to January 2008 than they did in the period between her two Glenside admissions, I am nonetheless satisfied that her condition will never improve and will deteriorate over time.
The likely rate of decline in her condition from June 2007 was predicted by Dr Gauvin to be a rapid one. Dr Chaudhary was less forthright about that then and events bore out her reservations.
The defendant’s submission on this issue was founded on the more favourable prognosis of Dr Begg, which I have rejected. Even so, he contended that the plaintiff’s management of her life since Glenside, her general level of compliance and responsibility with respect to medication and therapy, her capacity to carry out more household tasks and to undertake the tasks shown on the video, and her level of insight into her illness, were all indicative of a level of improvement in her condition and the likelihood that she would regain a better level of functioning in the future and even a limited work capacity. Accordingly, it was submitted that the need for future care (which was not disputed at some level) would abate and possibly dissolve. I reject that position as, indeed, do I reject the conclusion of Dr Gauvin.
I have previously said why I prefer Dr Chaudhary’s prognosis. It predicts continued deterioration in her health with an increasing need for greater care, but does not attempt to predict when and how that regression will occur. It recognises that the plaintiff’s condition since Glenside has been more stable, hence that she has managed her life better than before the admission, but that, I am satisfied, is ephemeral. She has limited and fluctuating insight and, as I have already noted, claimed in her evidence in January 2008 that she was not suffering from any mental illness. She remains beset with intrusive thoughts and spends many hours by herself considering and trying to determine whether they emanate from God or the devil. She has had one significant and recent episode of command hallucinations and, whilst generally compliant with medication, she placed herself at considerable risk in late 2007 by ceasing medication altogether for a time. She otherwise has an idiosyncratic approach as to what she will take and when. Dr Gauvin suggested that her compliance with medication and therapy in the face of denial is a stratagem to satisfy others and afford her the time and space to carry on with what she sees as her spiritual battle. I gained that same impression from her evidence and presentation.
It follows that the plaintiff’s need for care will increase over time and that ultimately she will likely require full‑time care, whether that is provided by family or professionally. I am further satisfied that without the support of her family, the plaintiff would even now be unable to care for herself and would need full-time care. That is a contingency which I will account for.
I will not presume that any of that care will be provided gratuitously (Van Gervan v Fenton, supra) and the cost of it must be assessed at strictly commercial rates.
It is the rate of descent of the plaintiff’s condition, the risk of the loss of some or all of her family support and corresponding increases in the level of care she will need, that present particular difficulty in that assessment.
The difficulty confronting this aspect mirrors, in some respects, that which faced the court in Beasley v Marshall (supra). There the court was called upon to assess the cost of future care where the timing and extent of that care was not readily predictable.
Pertinently, Olsson J. then observed at 582/3:
I consider that, on the findings of the learned trial Judge, it is only possible to approach an assessment in this area on a broad axe basis. Quite apart from the considerations outlined above there are a number of imponderables to be taken into account.
…
Moreover it is not feasible to be at all precise as to likely events over the next few years or as to a reasonable balance between institutional residence (and the likely type and cost of it) and the degree, frequency and cost of assistance in relation to home visits and holidays in the longer term. Much time was spent in exploring the likely number of hours and cost of supervision in the home environment whilst the respondent is properly at home. A good deal will obviously depend on potentially varying circumstances from time to time.
In the final analysis it seems to me that the correct answer lies between the two extremes contended for by the parties. On the one hand I consider the appellant's argument that a bare assessment based on continuous institutional care is neither realistic nor reasonable and appropriate. Equally I would reject the respondent's contention based virtually on full home care for the next 25-30 years as neither reasonable nor likely to accord with reality.
I am also mindful of the observations of the High Court in Malec v JC Hutton Pty Ltd[10]. A similar approach is, I am satisfied, necessary here, because I can make no firm findings as to the timing and extent of what I otherwise am satisfied will be a continuous decline in her condition to the point where full-time care is required.
[10] (1990) 169 CLR 638 at 643
The plaintiff presented a scenario whereby she would spend nine months at home and three months in hospital during each year. Assuming her hospital costs are elsewhere compensated, her counsel submitted that the present cost of full‑time care over nine months per year for the remainder of her life could be $3,123,502. Based on care of eight hours per day, that value would be $1,245,882 and at three hours per day it would be $580,087.
In that context I was also invited to have regard to the fact that in the period since her last Glenside discharge, she had demonstrated a lack of proper care for her own safety, a lack of interest in her personal care and social isolation. It was submitted that, even if I am not presently satisfied full-time care is needed, I should regard her present need for care as in excess of that which is already being provided.
As a starting point I accept the evidence that the plaintiff will likely require hospitalisation in each year for the remainder of her life. Dr Gauvin said that period would likely be three months. Dr Chaudhary at first concurred, but ultimately was reluctant to predict the likely period. She suggested the possibility of more or less than that. Even Dr Begg recognised that many periods of hospitalisation would likely be required in the future.
I am satisfied that three months is a fair estimate and proceed to assess the present value of her care at home for nine months of each year and for the rest of her life. I am mindful that the cost of full‑time institutional care will not be brought into account in that process, but I received no evidence as to that. I can make no reliable finding as to whether and when that might occur.
I begin from my earlier premise that the plaintiff has, since last at Glenside, been in need of no less than 10 hours per week care.
I am concerned that in about December 2007, the plaintiff went off her compulsory medication, became more severely depressed and was troubled by intrusive thoughts and command hallucinations, including thoughts of stabbing herself or others. That appears to have occurred whilst she was receiving care from her family and visits from a psychologist and mental health nurse, albeit that the probable cause was her earlier cessation of medication. It suggests to me, as indeed her experts contend, that in the interest of her health and safety, a greater level of care and oversight is even now warranted.
I do not accept that that means a necessity for 24-hour care, but it does mean, as I find, that a greater level of care and support is needed to cover those times when her husband is at work. That care will supplement the extent of assistance he already provides.
Such care could be provided professionally by Homecare Plus and evidence from its manager, Ms Houston, was to the effect that their minimum callout period is one hour. It appears to me that during the four days in each week when her husband is at work on what are lengthy shifts, the plaintiff should be visited twice‑daily for an hour by a support worker.
That additional support, when combined with that already provided by the plaintiff’s family, adds up to a total present need of 18 hours per week.
That is, then, a starting point.
I find that the need for a greater level of assistance will increase over time, but over what period and by what measure is unknown, as is the potential increase in that need should the plaintiff, for any reason, come to be without her husband’s support; or, indeed, mere presence in the home, whether or not he is providing support.
Doing the best I can and starting from the premises that even now she needs 18 hours of care per week, that she will deteriorate, that she may lose the level of family support she has and that ultimately she will need full-time care, I propose to proceed by fixing an average period of weekly care likely to be needed by the plaintiff from this time to the end of her life. That must be a broad-axe calculation, but I assess that period as eight hours per day or 56 hours per week. In reaching that figure, I have taken account of positive and negative contingencies. Assuming a seven-day week and weekend rates, with some allowance for public holidays, that would calculate out, on the basis of Exhibit P27, at approximately $32.50 per hour and $1,820 per week.
The present cost of purchasing such a payment for nine months of each year for the remainder of the plaintiff’s life involves a multiplier of 946 and a total of $1,820 x 39 ÷ 52 x 946 = $1,291,290.
I assess the cost of future care in that amount.
Past Medical Expenses
These have been agreed and are assessed at $81,710.74.
Future Medical Expenses
There is no doubt that, on any view of the plaintiff’s future, she will face considerable expense by way of doctors’ and specialists’ consultations, mental health worker visits, medication and hospital attendances.
At trial there was, of course, a dispute as to her prognosis and thus the projected costs of these services, but I have ruled on that.
Further, the plaintiff argued that there was a future prospect that certain services currently being provided free of charge (in particular, here, mental health nursing services and non-assisted forms of medication) might attract a full cost in the future and that I should allow for that.
I am not disposed to do that, and for two reasons: first, because the evidence suggesting such a change might occur was contentious or of insufficient weight and, secondly, because the nature and timing of such a change and any countervailing benefits, can only ever be a matter of speculation (see The National Insurance Co. of NZ Ltd v Espagne[11], Blundell v Musgrave[12] and Beasley v Marshall (supra)).
[11] (1960-1961) 105 CLR 569
[12] (1956) 96 CLR 73
Next, the plaintiff included in her claim provision for future occupational therapy, but that was not well supported. It had previously been recommended by Dr Chaudhary to establish some routine in the home, but the plaintiff had not pursued it and Dr Chaudhary did not persist with that recommendation. Otherwise, as I have found, there is no prospect of it assisting her in resuming any form of employment.
Separately, a claim was advanced for the funding of family education to support the plaintiff’s future management. I am not disposed to allow that. It does not appear to be a claim maintainable by the plaintiff herself. In any case, given that the provision of future care is calculated at commercial rates, there would appear to be an aspect of double counting in that.
There was some contention as to her claim for continuing cognitive behaviour therapy. It was a treatment she had been receiving in late 2007 and the evidence supported the need for a further 18 to 20 sessions at a cost of $2,565. I will allow that claim.
There was then the question of whether any allowance for future medical costs should include the standard Medicare rebate or deduct it. I have been assisted in considering this by the remarks of Robertson DCJ in Edwards v Butler[13], where His Honour observed that the allowance of a claim for Medicare benefits is always a matter for the discretion of the Minister under the Health Insurance Act 1973 (Cth) and it is not for the plaintiff to prove that, with respect to any future claim she may make for benefits, the Minister will necessarily approve it. Accordingly, I am persuaded that claims for such expenses shall be allowed at their full value, not accounting for any Medicare rebate.
[13] [2004] SADC 190

Fundamentally, the defence objected to the plaintiff’s approach to calculating this award. Her figures were based on the projected weekly cost of hospital and psychiatric services, medications and associated travel at current rates and projected frequencies for the rest of the plaintiff’s life multiplied by the demonstrated dollar multiplier of 946.
I accept the thrust of that objection with respect to some, but not all, calculations. The correct approach seems to me to be one that recognises a difference between regular or recurrent expenditure as opposed to irregular and spasmodic expenditure. Expenditure that is incurred weekly or fortnightly, such as doctors’ attendances and medication, should, it seems to me, be calculated in the proposed actuarial manner, but a provision for future hospitalisation that is uncertain as to timing and frequency requires (if it is possible to accurately predict its timing and extent) a calculation that allows for the early and assured receipt of an amount that will enable a plaintiff, with appropriate care of that sum, to meet such future costs as and when they fall (see Luntz, supra, at para. 6.1.1 & following).
So, here, I accept the plaintiff’s evidence that she will incur a regular weekly cost of $120 for psychiatric services, medications and travelling. (I make no allowance for psychiatric nursing or occupational therapy, which are provided free of charge.) Using the multiplier of 946, this calculates out at $113,520.
The calculation of a capital sum that will ensure the plaintiff can meet her future costs of hospitalisation is considerably more difficult.
I have already found she will likely require 90 days per year by way of hospitalisation and I am satisfied that the applicable daily cost is $426 per day. That calculates out at $38,340 per annum, but to aggregate the annual costs of such a provision over the balance of the plaintiff’s life without allowance for contingencies is somewhat artificial so I have had some regard to the Appendix 2 in Luntz (supra). I must otherwise wield a broad axe. I will allow a sum for future hospitalisation of $550,000.
The total award for future medical expenses is thus $666, 085.
Summary
In summary then, the various heads of damage are assessed as follows:
Non-Economic Loss  $82,080.00
Past Economic Loss  $68,378.00
Interest on Past Economic Loss  $7,057.00
Future Economic Loss  $304,850.00
Superannuation Benefits  $39,137.00
Gratuitous Services – Past  $127,000.00
Interest on Past Gratuitous Services  $13,960.00
Future Care  $1,291,290.00
Past Medical Expenses  $81,710.74
Future Medical Expenses  $666,085.00
  ____________
Total:  $2,681,547.74

There will be judgment for the plaintiff in the sum of $2,681,547.74, inclusive of interest. I am mindful of the fact that an amount of damages has been paid to the plaintiff on an interim basis and in whatever amount that is, the judgment will have been partially satisfied.
I will hear the parties as to costs.