Cooper v Neubert
[2017] TASSC 33
•26 May 2017
[2017] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Cooper v Neubert [2017] TASSC 33
PARTIES: COOPER, Josephine Ramos
v
NEUBERT, Klaus-Dieter
FILE NO: 544/2015
DELIVERED ON: 26 May 2017
DELIVERED AT: Hobart
HEARING DATES: 15, 16, 17 and 18 May 2017
JUDGMENT OF: Estcourt J
CATCHWORDS:
Torts – Battery – Action for damages – Particular cases – Significant impairment of limb – Accompanying psychological injury – Shot through hand in attempt to stop murder – Successful action for damages.
Aust Dig Torts [213]
Torts – Battery – Whether intent or negligence necessary – Onus of proof.
Croucher v Cachia [2016] NSWCA 132, considered.
Stingel v Clark [2006] HCA 37, 226 CLR 442, followed.
Aust Dig Torts [211]
Damages – Measure and remoteness of damages in actions for tort – Common law - Mental and nervous shock – Plaintiff with severe psychological injury – Post-traumatic stress disorder.
Aust Dig Damages [26]
Damages – Particular awards of general damages – Common law – Tasmania – 53 year old female – non-economic loss – General damages of $175,000 – Aggravated damages of $75,000 – Total award of $2,312,284.20.
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, considered.
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, followed.
Aust Dig Damages [34]
REPRESENTATION:
Counsel:
Plaintiff: R Phillips, A Kendall
Defendant: Unrepresented
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Unrepresented
Judgment Number: [2017] TASSC 33
Number of paragraphs: 85
Serial No 33/2017
File No 544/2015
JOSEPHINE RAMOS COOPER v KLAUS-DIETER NEUBERT
REASONS FOR JUDGMENT ESTCOURT J
26 May 2017
The incident
On 14 May 2015 the plaintiff, who was 53 years old, was a passenger in a silver Peugeot hatchback being driven by her friend Olga Neubert. At approximately 3.30pm they were driving in a north easterly direction along Risdon Road in New Town. As they approached the intersection of Risdon Road and the Brooker Highway the traffic lights at that intersection were red and Ms Neubert's vehicle was stopped on Risdon Road approximately 10m before the intersection of that road with Albert Road.
While they were waiting for the traffic to start moving again a black vehicle being driven in the south west bound lane of Risdon Road cut across in front of the vehicle in which the plaintiff and Ms Neubert were seated. The defendant, who the plaintiff did not know at that time, got out of the driver's side door of the black vehicle and walked around the back of Ms Neubert's vehicle towards the driver's side door. The plaintiff noticed that the defendant had a gun and she began screaming and shouting.
The defendant then pointed the gun at Ms Neubert through the closed window of her vehicle and shot her, causing the window to smash and showering the plaintiff with glass. The plaintiff then saw blood coming from the right side of Ms Neubert's head. She reached over and with the back of her right hand tried to stop Ms Neubert's bleeding and to attempt to protect her from being attacked further. The defendant then pushed the barrel of his gun against the palm of the plaintiff's right hand. She looked the defendant in the eye and he returned her gaze. She said to him, "stop" but he said nothing in response and fired the gun.
The plaintiff saw flame coming out of the barrel of the gun, heard a very loud bang and felt instant pain in her right hand. She looked at her right hand and saw that it was, in her words, "now mush". When this happened, with Ms Neubert being shot a second time through the plaintiff's hand, the vehicle lurched forward and onto the footpath, colliding with the safety barrier over a creek below. As the plaintiff opened the passenger door and escaped from the vehicle she fell down into the creek.
Because the bank of the creek was very steep the plaintiff could not get out. She was in cold water for some time before enough people came over from the incident scene to assist her. She was suffering agonising pain in her right hand, was bleeding and had fingers missing or hanging off her right hand and an injury to her left hand. She had to wait some minutes for an ambulance to arrive and take her to hospital.
The claim
On the basis of the unchallenged evidence of the facts as set out above, the plaintiff claims damages and aggravated damages against the defendant for trespass, negligent trespass and negligence.
In my view it is beyond question that the plaintiff must succeed in her claim in trespass in the form of an intentional battery, notwithstanding that the defendant gave evidence that he did not intend to hurt her. Given that the plaintiff engaged the defendant's eyes with her own and asked him not to shoot, and given that the defendant caused direct physical contact with the plaintiff's right hand with the gun and by the bullet discharged from it, I do not need to consider whether the facts of the case might also fulfil the requirements of a cause of action in negligence, cf Wilson v Horne [1999] TASSC 33, 8 Tas R 363. I reject the defendant's evidence that he had no intention to hurt the plaintiff. The objective features of the shooting are to the contrary, and on his own admission he has no memory of the event. Moreover, his evidence, were I to accept it at face value, would not provide a defence to the tort of battery, even though battery is said to be an intentional tort. As Gummow J said in Stingel v Clark [2006] HCA 37, 226 CLR 442 at [47]:
"Further, in McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently. It would not be accurate to describe negligence as the essence of the plaintiff's cause of action in trespass to the person, or to treat this cause of action, at least as regards 'unintentional' infliction of injury, as supplanted by the tort of negligence. Moreover, in the present case, the plaintiff alleged personal violence by the defendant, not his failure to exercise reasonable care. The result was that on no footing was her cause of action in the tort of negligence." [Emphasis added.] [Footnotes omitted.]
In Croucher v Cachia [2016] NSWCA 132, Leeming JA, with whom Beazley P and Ward JA agreed, put it this way at [20]-[22]:
"20 Battery is one of three forms of trespass to the person, the others being assault and false imprisonment. While it is conveniently and conventionally labelled as an 'intentional tort', in contrast with negligence, such labels can obscure the necessary analysis of (a) the elements of the tort and (b) how the tort is affected by statute. As it is put in Clerk & Lindsell on Torts (20th ed, 2010, Sweet & Maxwell) at 986, 'in this context "intention" has a very particular meaning'.
21 A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73].
22 Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that '[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action' (ie battery and negligence)."
The evidence
As a result of pre-trial orders made in the proceedings, the plaintiff was permitted to give her evidence-in-chief by affidavit sworn on 16 March 2017, and as she was not required by the defendant to be cross-examined, the matters deposed to in her affidavit are established to my satisfaction on the balance of probabilities.
Evidence corroborating the matters established by the affidavit material was nonetheless led by the plaintiff's counsel from her husband Roger Cooper and her daughter Jacqueline Cooper.
The only issue remaining in the action is the quantum of the plaintiff's damages.
The plaintiff's injuries and their sequelae
In her affidavit the plaintiff outlines her admission to the Royal Hobart Hospital after being taken there by ambulance, and details her stay in hospital for some six weeks as follows:
"HOSPITAL
80 When I arrived at the emergency department at the Royal Hobart Hospital I was in a terrible condition.
81 I was:
a) In terrible pain from my injured right and left hands;
b) Crying and screaming;
c) Scared;
d) Looking for Olga;
e) Shouting incoherently;
f) Covered in blood, both mine and Olga's;
g) Soaking wet from being in the creek;
h) Cold;
i) Covered in dirt and mud;
j) My hair was matted;
k) My glasses were missing; and,
l) My shoes were missing.
82 I was told by the staff in the emergency department that I would need emergency surgery on my right hand. My left hand was also treated for a fractured ring finger. I believe that my left ring finger was fractured in the process of escaping the vehicle after I was shot or when I fell down in the creek below.
83 My husband Tom arrived just as I was being taken into surgery.
84 I don't recall much more about my time in the emergency department, everything is all a bit of a blur.
85 I recall a few days after the incident two detectives coming to visit me in hospital and they recorded an interview that I have referred to above. At around the same time a police photographer took some photographs of my injured hands.
86 I spent the next four (4) weeks in the 'hand ward' of the Royal Hobart Hospital.
87 Tom used to come and visit me every day. Because both my hands were painful and bandaged I was unable to eat and Tom would feed me.
88 I was still very scared and anxious about what had happened and it was calming having Tom there with me.
89 At the end of the four (4) weeks I spent in the 'hand ward' I tried to leave the hospital to go home. I found that I was unable to leave the hospital; I was too scared, anxious and terrified to go outside the front door.
90 I was then transferred to the psychiatric ward for two (2) weeks to help me recover from my fear and anxiety.
91 The psychiatric ward was a terrible place with other patients who were truly 'crazy' causing all sorts of problems such as shouting, fighting and acting strangely. It was very unpleasant for me.
92 One of the nurses asked me whether I wanted to stay there forever or go home. I said 'go home' but I just couldn't bring myself to do it.
93 When they tried to take me outside in a wheel chair I would become very aggressive, bossy and stubborn.
94 Finally after about two (2) weeks in the psychiatric ward I was able to feel calm enough leave and go home. Tom drove me home but the whole way home I was very scared and anxious especially at red traffic lights. I was so scared that I couldn't sit in the front of the vehicle but instead had to sit in the back of the car."
As I have already noted, the plaintiff's evidence was corroborated by her husband and her daughter Jacqueline, and in relation to the passages of her affidavit I have set out above, Mr Cooper confirmed the plaintiff's evidence in practically every detail from the time he arrived at the hospital as she was going to surgery until he finally took her home six weeks later. Mr Cooper was able to do so because he visited his wife in hospital every day from 7am when he fed her breakfast until about 10am when the doctors did their rounds. He would then return at 4pm each afternoon to feed his wife dinner which was served at 5pm. He would then stay with her until 8pm.
The plaintiff suffered multiple injuries to her right hand as a direct result of the gun shot. She also suffered a fracture to the ring finger of her left hand, most likely as a result of falling into the creek.
In respect of the injuries to her right hand, the middle and ring fingers have been severed at the base of the fingers, the top joint of the little finger has been severed, and her thumb was fractured.
Following her admission to the Royal Hobart Hospital, the plaintiff underwent emergency surgery on her right hand and was initially an inpatient in the Intensive Care Unit. As already noted, she was subsequently transferred to the General Ward and Psychiatric Unit, and was an inpatient for some six weeks.
In her particulars of claim the plaintiff states, and on the basis of her evidence and the hospital and other records tendered on the trial, I find, that since her discharge from hospital, she:
"a) Was required to attend the RHH outpatient clinic once per fortnight for review and bandaging of her right hand.
b) Was required to attend the RHH Physiotherapy Department once per week for treatment of her hand.
c) Has been prescribed medication for pain relief and her psychological symptoms.
d) Has been attending appointments with Dr Walter Slaghuis, psychologist, initially fortnightly but now monthly or as required.
e) Has been attending appointments with her GP on a monthly basis."
The plaintiff claims that as a result of her deformed hand and psychological symptoms she been unable to return to any form of employment and she currently receives a disability support pension.
She asserts that prior to the shooting she was a healthy, happy, capable lady who enjoyed her work as a housekeeping assistant at Calvary Health Care, and enjoyed the social interaction with her colleagues.
The plaintiff claims that despite separating from her husband several years before the shooting, she remains friends with him and he provided virtually "around the clock" assistance following her discharge from hospital. Without that assistance the plaintiff says that she would not have been able to cope with the trauma and anxiety, including meeting the medical treatment requirements and performing activities of daily living.
She also states that she has received assistance from her adult daughter Jacqueline, and that as it is highly likely that within the next two years Jacqueline will leave home, her departure will have a profound effect on the plaintiff, given the psychological and physical trauma she has suffered, and the fact that she has some difficulty speaking English. The plaintiff's husband is almost 70 years old and will not be able to continue to provide the level of assistance he provides to the plaintiff either.
The plaintiff also claims that her injuries and their sequelae not only prevent her from working, but also cause her to be unable to care for herself as she once did; including personal grooming, preparing food, cleaning and undertaking the daily chores of life in an efficient and dignified manner. She is right hand dominant and her injuries have therefore had a more significant effect on her functional capacity. In addition, the plaintiff also claims that the psychological trauma she suffered prevents her from getting a good night's sleep, causes severe anxiety in certain circumstances, and causes her to ruminate about what has occurred. The physical and psychological consequences for the plaintiff are said to be permanent.
It is also said that she will require psychological assistance to enable her to return to driving a motor vehicle, as well as requiring modifications to her motor vehicle.
The plaintiff's current symptoms are said to include reduced functional use of right hand, impaired sleep patterns, increased anxiety, including fear of traffic and crowds of people and post-traumatic stress disorder. The physical and psychological sequelae are claimed to be permanent and such as to prevent the plaintiff from ever enjoying a normal life.
Are the plaintiff's claims made out?
As I have already noted, the plaintiff gave evidence-in-chief by way of affidavit, the contents of which were not challenged by the defendant, and which were supported for all practical purposes in their entirety by unchallenged evidence from Mr Cooper. It remains therefore only for me to be satisfied that those claims are both reasonable and supported by medical evidence.
Before turning to the medical evidence it is convenient, as it is in affidavit form, to set out the plaintiff's evidence as to the details of her disabilities and her needs arising from them. She deposes as follows:
"PSYCHOLOGICAL ISSUES
107 As I have outlined, since the incident I have become extremely anxious and security conscious.
108 I keep constantly thinking about what happened to Olga and how Olga was too young to die and how Mr Neubert has ruined my life. I have a tremendous amount of hatred for Mr Neubert who I regularly refer to as a 'bastard'.
109 Whenever I think about what happened to myself and Olga I begin to cry and then I begin to become angry and agitated.
110 Whenever I hear about the case on the TV or read about it in the newspaper I can't help but cry and become angry.
111 I am now scared of the world around me and I think about all the bad things that are happening in the world and how they might happen to me.
112 I try to avoid other people and going out.
113 When I first returned home I would awaken most nights with terrible nightmares in which I would see Olga and Mr Neubert and relive what happened. I would wake with tears streaming down my cheeks and feel terrible. I am told by Tom and Jacqui that I scream in my sleep and that is how they know that I am having a nightmare. They will come and help me. I will 'talk to Olga' in my sleep. These nightmares have now reduced to about once or twice per week.
114 Other times I will wake up early in the morning and be unable to sleep thinking about what happened. I will pace up and down the hallway thinking about things.
115 For example I will think that things shouldn't have happened like this, that Olga was so young to die, and what a waste of a life it was.
116 Since this incident my ability to sleep has reduced significantly.
117 I also now suffer phantom pains in my right hand where I imagine that my fingers are still attached. This leads to sensations in my right hand such as tingling, hot and cold sensations and numbness.
RETURN HOME & IMPACT ON ACTIVITIES OF DAILY LIVING
118 Prior to my injuries sustained on 14 May 2015 I had no significant medical problems. I was fit and health and capable of doing anything a reasonable lady of my age would be able to do.
119 I was completely on top of running my home alone (as I have done since 2013 when Tom moved out). I was able to do all domestic tasks myself. For example:
a) Cooking;
b) Cleaning;
c) Washing;
d) Ironing;
e) Washing up;
f) Shopping;
g) Gardening;
h) Splitting fire wood;
i) Moving furniture;
j) Driving myself;
k) Washing the car;
l) Changing sheets on beds; and,
m) Other household duties.
120 Likewise I was also able to look after myself properly. For example:
a) I could wash and shower properly;
b) Go to the toilet and wipe my bottom so that it was perfectly clean;
c) Feed myself;
d) Put on clothes and shoes;
e) Put on earrings;
f) Brush my hair;
g) Put on makeup and other cosmetics;
h) Cut my fingernails and toenails;
i) Put toothpaste on the brush;
j) Do up buttons and zips; and,
k) Other personal care tasks.
121 Since the incident I have either been unable to do the above or my ability to do these tasks has been significantly reduced or impacted.
122 I am now very security conscious both at home or when I am out. When I am home I always make sure the doors and windows are locked.
123 I now have difficulty using a mobile telephone with only one hand.
124 I also have difficulty opening door knobs, jars, containers, handles or turning keys with just my left hand. I cannot even use a knife, fork and spoon properly to feed myself with dignity.
125 I have difficulty in caring for my granddaughter Willow for two reasons. Firstly because of my physical disabilities I find it difficult to change Willow's nappy, to feed her from a bottle or to hold and nurse her because I fear that I may drop her. I am also unable to bath Willow because she gets slippery and I am unable to hold her properly. Secondly, because I cannot drive I am unable to travel to Abigail's home at Midway Point and care for Willow there. In this respect I feel as though I am not able to fulfil my duties as a grandmother to my daughter.
126 I am also concerned that as Willow becomes a toddler and older that because of my disability I will not be able to properly control Willow, discipline her, and keep her safe. When we are away from home and she might have a tantrum and I would be unable to control her. I would not be able to discipline her or lift her and carry her. It would be very embarrassing.
127 Whenever I have a shower or wash in the basin I find it very hard to turn the taps on and off. Either Tom or Jacqui helps me with this.
128 I can't squeeze the shampoo or conditioner properly with just my left hand and it is very difficult washing my hair with my disability. I have intentionally cut my hair shorter to make it easier to wash and dry
129 I try very hard to brush my teeth but I find this very hard also.
130 Whenever I go to the toilet I have lot of difficulty wiping my bottom with my left hand. Often I will miss some material and it will leave a mark on my underwear which I find highly embarrassing. The next time I will go to the toilet I see it and have to change my underwear and do my best to remove the rest of the material but it is very difficult. I find that I now have two or three showers a day to keep clean.
131 I am very embarrassed by what remains of my right hand. I will try and hide my hand as much as possible to the point that if I am going out I will put on a glove that has the missing fingers packed with tissues. I will then try and hide it in my pocket.
132 Whenever I talk about what happened to me or my injuries I will look down and stare at my hand as a reminder of what happened to me. Likewise, whenever I see my hand it will remind me of what happened and that alone is enough to cause me to become upset and cry or become angry.
133 When I am at home I wear a rubber glove on my injured hand. This is partly to hide my hand and also because my injured hand gets very dry and I have to put cream on it so the glove stops the cream from being spread all around the house.
134 Another example of the difficulty I face is folding clothes. It takes a lot longer with just one hand than if I still had both my hands.
135 Because I am right hand dominant I am now unable to write properly and require the assistance of others to write for me.
136 As I have stated above and will elaborate on further in this affidavit my eldest daughter Jacqueline and my husband Tom have provided a significant amount of care to me. As I have also said, Jacqueline lives with me at home and is available to provide care overnight. In December 2016 for approximately a month Jacqueline and her partner Jackson went on a holiday to the mainland. During this time Tom stayed over at my place to care for me overnight. If Tom wasn't available to look after me during this time I would be 'stuffed'.
137 I appreciate that Jacqui will leave my home in the next year or two and I also appreciate that Tom is getting older and will require care of his own in the future. The thought of not having Tom or Jacqui around to care for me, particularly overnight, terrifies me.
CHANGE IN PERSONALITY
138 Prior to the incident I was usually always a cheerful and happy person. I had a strong sense of humour and I enjoyed social interaction.
139 For example I used to love going to events in the Filipino community such as Independence Day. I used to also love attending work functions such as the Christmas Party or social drinks.
140 Prior to the incident I would attend BBQs with Tom or have friends over to our place for a small gathering.
141 I also used to go to church with Tom.
142 Since the incident I hardly socialise at all. I would only attend a function if I had someone to go with such as Tom or my sisters.
143 I recently went to a prayer day but that was with my two sisters. I would not have gone to this on my own because of my anxiety and fear. I would also have been unable to drive to the event and would have required transport.
144 I find now that I try to make excuses about going to events and may even cancel at the last minute because I just don't feel like I am able to go.
145 Since the incident I have:
a) Lost confidence in myself;
b) Felt hopeless about myself;
c) Had a tendency to repeat myself;
d) Feel less happy;
e) Not felt the need to smile;
f) Felt frustrated;
g) Become more emotional about matters unrelated to the incident.
146 For example, Abigail recently snapped at me about something relatively minor. I became very quiet and as I felt frustration and emotion building up inside me I had to go outside to calm down. This is unfair on Abigail and I would not have reacted like this before the incident.
147 The biggest change that I have noticed in myself since the incident is my forgetfulness. I have become extremely forgetful and now have to write almost everything down in order to remember it. My family have noticed my forgetfulness and have commented on it to me."
I again observe that the plaintiff's evidence as set out above was not challenged by the defendant. Moreover, I am positively satisfied as to its veracity given that in all but some quite minor respects (such as her reaction on being "snapped" at by her daughter Abigail, and not smiling as much anymore), the matters of detail deposed to were corroborated by the evidence of the plaintiff's husband and her daughter Jacqueline who still resides with the plaintiff and sleeps in the room next to her mother's bedroom. The plaintiff's claims are also made out on the medical evidence adduced on her behalf.
The medical evidence
Evidence was given by Dr Michael Evenhuis, a forensic psychiatrist, who examined and assessed the plaintiff on 1 September 2015. He was of the view that the incident in which she was involved was sufficiently harrowing in nature to give rise to post-traumatic symptoms in an individual without psychological vulnerabilities.
Dr Evenhuis expressed the opinion that the plaintiff's initial acute stress reaction had progressed to a post-traumatic stress disorder (PTSD) and that in addition she was frustrated at the loss of functioning in her right hand, and that and her absence from the workplace and fearfulness had contributed to a degree of social isolation. He said that those factors and the plaintiff's belief that she had contributed to her friend's death contributed to deterioration in her mood. He thought that it was difficult to ascertain whether she also met the threshold for a diagnosis of major depressive episode. He noted that there is some overlap between the symptoms of a major depressive disorder and PTSD.
Dr Evenhuis was of the view that the symptoms that the plaintiff described were consistent with her having been traumatised by the incident in which her friend was shot dead, and in which she believed that her life was also at risk. He said that the incident to which she was exposed was at the more severe end of the trauma range and might be expected to cause post-traumatic symptoms and affect her sense of safety. He noted that individuals who develop PTSD may require extended courses of psychological treatment.
He expressed the view that at that time, because the plaintiff did not leave her home unaccompanied on account of her anxiety, that she was effectively incapacitated for any work. He felt that in the short to medium term she was likely to remain incapacitated for any work as a consequence of that inability, her difficulties with concentration and problems with fatigue, and he noted that approximately one third of individuals make a full recovery from PTSD and return to their previous level of functioning, whereas a similar proportion experience long term symptoms that severely impact on functioning.
Dr Evenhuis was of the view that as it had been slightly over two years since the incident the plaintiff's prognosis must be guarded, and that it was likely her psychiatric condition would now follow a chronic path. He agreed in answer to a question I posed to him that the fact that the plaintiff's right hand injury provided a constant reminder to her of the incident that gave rise to her PTSD, created a "vicious circle" preventing her from rehabilitating her hand usage and perpetuating her psychiatric condition.
The next medical expert called was Dr Walter Slaghuis, a clinical psychologist who had seen the plaintiff over 22 one-hour long appointments between first seeing her on 6 July 2015 and writing his expert report for these proceedings on 17 January 2017.
Dr Slaghuis was of the view that the plaintiff presented to him with a cognitive symptom profile consistent with PTSD when assessed using two different modes of assessment for that disorder. He stated that his assessment of the plaintiff revealed affective symptoms (mood), somatic symptoms (physical), and cognitive symptoms (thinking). His assessment revealed that the plaintiff's level of depression and anxiety from the symptoms was within the severe range of intensity in comparison with a normal community sample of people. Dr Slaghuis stated in his report:
"Ms Cooper experiences significant symptom intensity in relation to the three main components of PTSD which are (1) cognitive intrusion experiences reflected in thoughts and images, (2) somatic (physiological) arousal, and (3) cognitive avoidance and behavioural avoidance.
First, in terms of cognitive intrusion Ms Cooper experiences intense cognitive intrusive experiences including frequent vivid intrusive visual flashbacks during the day and especially at night, generalised recurrent distressing memories, and feelings of marked apprehension.
Second, Ms Cooper experiences intense somatic (physical) arousal resulting in insomnia in which her sleep is disturbed by nightmares and flashbacks and feeling exhausted when she wakes up she feels exhausted during the day and wants to sleep. She also feels irritable, agitated, and harbours uncharacteristic feelings of anger. Ms Cooper's somatic (physical) arousal has resulted in ongoing difficulty with thinking and she displayed difficulty maintaining her focus and concentration and reported that she was no longer able to adequately make decisions and plan for the future.
Finally, in terms of cognitive and behavioural avoidance, Ms Cooper experiences avoidance of thoughts and feelings, and conversations relating to the event because she either breaks down in tears becomes angry at Mr Neubert. She complained that her thinking was preoccupied with safety and avoiding situations in which she is exposed to guns, the specific location where the event occurred and she feels tense and nervous as a passenger in vehicles."
Dr Slaghuis reported that following assessment of the plaintiff a treatment program was initiated for her using a number of psychological and behavioural interventions. He said that it was anticipated that her response to treatment would be slow because of a number of barriers to progress, including that she was dominant right-handed and her injury served as a constant reminder of the incident itself; that she remained in grief, that the attendance of court proceedings and negotiations with Centrelink had been a re-traumatising experience for her, and finally because her expressive and written English was only functional and likely to be a barrier to the kind of work she may be able to perform.
In relation to prognosis, Dr Slaghuis anticipated that the plaintiff's PTSD symptom profile was likely to remain until legal proceedings were finalised, and that even then it was anticipated that progress was likely to be gradually slowed in her case mainly because of her physical injury. He agreed with the diagnosis and possible future course described by Dr Evenhuis in his report tendered in evidence.
Dr Slaghuis concluded that Ms Cooper would need daily support in order for her to be able to live on her own, and that she would need an ongoing multidisciplinary treatment intervention that included ongoing psychological assessment of symptoms and progress and treatment intervention, involving cognitive behavioural treatment strategies for the PTSD symptoms and for her depressed mood anxiety and grief, and to support her adjustment to a life on her own, most likely without the benefit of employment. He was not able to estimate the duration of treatment, but he felt that the plaintiff would derive significant benefit from a driving course by a clinical psychologist in order to increase her mobility and possibly lead to desensitisation in relation to her fear and her avoidance of specific locations.
In his oral evidence Dr Slaghuis said that any psychological counselling required after the conclusion of the legal proceedings generated by the incident in which the plaintiff was involved would be on an "as needs" basis and would be "patient driven". He did consider that a review and assessment would be warranted in 12 months' time after that point.
The next expert witness called was consultant occupational physician Dr Peter Sharman. Dr Sharman reviewed the plaintiff on 10 and 17 November 2015 and again on 8 February 2017. In addition, Dr Sharman conducted a brief assessment of the plaintiff at Court prior to giving his evidence on 17 May 2017.
In his first report to the plaintiff's solicitors, Dr Sharman noted that in November 2015 the plaintiff reported that she had attempted driving but found that pain and reduced grip strength and function made this difficult. He also noted that the plaintiff reported that she can undertake all activities of daily living independently, slowly and with more difficulty than previously. And Dr Sharman noted that the plaintiff reported that she no longer vacuumed or cleaned floors, and found it difficult to undertake any cleaning or cooking because of her injuries. I observe in passing that to the extent that anything the plaintiff reported to Dr Sharman at that time is inconsistent with the relevant corresponding evidence contained in her affidavit, it is purely a matter of history and that the claims of disability she makes in that affidavit are established to my satisfaction on the balance of probabilities, on the evidence of her husband and daughter Jacqueline, and by the combination of the expert evidence called on the trial.
Dr Sharman expressed the following opinion in his first report:
"If the AMA Guides to Permanent Impairment (4th edition) are used, Mrs Cooper had 73% Upper Extremity Impairment which equates to 44% Whole Person Impairment as a result of the hand injury. The treatment for her hand injury was not complete at the time of my review with possible future surgery planned in order to increase function and reduce symptoms however it is likely that she will be left with permanent impairment of this order irrespective of further treatment.
In addition to her hand injury, Mrs Cooper has suffered significant and disabling psychological symptoms as a result of the circumstances of the injury. She has been formally diagnosed with Post-Traumatic Stress Disorder (PTSD), for which she continues to have treatment I defer to the specialist psychiatrist about the prognosis, but does seem clear that her psychological condition will affect the overall prognosis for recovery and rehabilitation.
Mrs Cooper has been unable to return to her preinjury role as a cleaner at Calvary Hospital as a consequence of her injury. The physical hand injury alone is sufficient to cause at least temporary total incapacity for her usual role and is likely to have a permanent effect on her capacity to work in her preinjury role where bilateral hand function is essential.
It is too early to assess the final prognosis, but it is unlikely that Mrs Cooper will ever be able to undertake unrestricted commercial or domestic cleaning, but might be able to undertake restricted work in the longer term. The final prognosis is best assessed after all treatment is complete, perhaps two years after the original surgery."
In his second report, Dr Sharman had had the benefit of reading the report of Dr Slaghuis dated 17 January 2017, and noted that he had expressed the view that the plaintiff would not be capable of returning to the kind of work that she used to perform, but recommended an assessment by Dr Sharman with respect to whole person impairment and disability. Dr Sharman expressed the following opinion:
"While Ms Cooper's hand function has improved to some extent her psychological symptoms remain prominent and disabling, and I see little prospect of a resumption of working any capacity in the foreseeable future due to the combination of her injury to her dominant right hand in combination with the PTSD condition which affects her ability to attend a workplace and travel the PTSD condition will also affect her ability to concentrate and perform tasks, and even of a nonphysical nature.
I did discuss with Ms Cooper the impact of her daughter moving out. This is possible within the next 12 months or so, which would leave her living alone, perhaps reliant on support from her husband from whom she is now separated. I believe it would affect both her mental state in physical care if her daughter moved out. I would suggest the need for some outside form of assistance, particularly for driving to appointments, should this occur. There is likely to be a period of adjustment to losing the assistance of her daughter in that she is out."
Dr Sharman revised his assessment of the plaintiff's whole person impairment and expressed it at that time as 34% WPI when assessed using the methodology used for the Tasmanian workers compensation system. Dr Sharman expressed the view that this degree of impairment and the associated disability were likely to be permanent. He did not believe that there was any realistic prospect of a return to the workforce in any capacity. Finally, Dr Sharman expressed the view that the plaintiff would require significant ongoing psychological and household help, particularly with transport arrangements, although she was unlikely to require ongoing treatment for her hand.
In his evidence Dr Sharman said that from his brief examination of the plaintiff outside the Court on the day he gave evidence, he confirmed a continuing permanent sensory loss in the first two joints of the plaintiff's right index finger and some sensory loss in her right thumb. He said that given the thumb opposes all of the other digits, the sensory loss would make it difficult for her to carry out ordinary tasks with her thumb and index finger such as doing up buttons. Dr Sharman said that if he were to reassess the plaintiff's whole person impairment it would probably be slightly higher at the time of trial than his earlier assessment of 34% WPI, which he said could be contrasted with a complete loss of a lower limb which gave an individual a 40% WPI on the same method of assessment.
Dr Sharman confirmed his oral evidence that the plaintiff needed assistance in washing her hair, dressing, food preparation, cooking, clothes washing and cleaning, lifting and carrying, although he felt that, leaving aside the psychological component of her injuries, she should be able to use a dishwashing machine. Dr Sharman was unable to estimate the extent of the outside domestic assistance necessary, and said that he would normally recommend an on-site assessment by an occupational therapist.
The next witness called by the plaintiff was Dr Jacqueline Triffitt, a clinical psychologist who had developed a program called "Back in the Driver's Seat" which was designed as a cognitive behavioural management program aimed at desensitising an individual's fear of driving. The course consisted of six hour-long sessions of counselling by Dr Triffitt, and three one-hour long driving lessons with a qualified driving instructor. The counselling sessions cost $241 per hour and the driving sessions $65 per hour. Dr Triffitt had never experienced an individual participating in the program as a result of a fear of driving generated by a criminally inflicted injury. She had however had experience of returning people to driving who had suffered PTSD and anxiety as a result of involvement in a motor vehicle accident.
The plaintiff next called Alison Kelleher who was the acting chief executive of Independent Healthcare Services. Her company provides integrated homecare services to people needing homecare assistance. She gave evidence as to the company's hourly rates for homecare assistance and for "sleepover" services. Ms Kelleher said that there were about 12 similar companies competing in the Tasmanian market and that her company's rates were slightly below the median.
The plaintiff next called her general practitioner Dr Stephen Rogers. Dr Rogers had been her general practitioner since July 2014 and confirmed that she had been a patient of his practice since August 2007. Dr Rogers gave evidence that he had had little active role in the plaintiff's hand injury, and that while he monitored her PTSD symptoms, Dr Slaghuis provided the bulk of her psychological care.
As to her current medication, Dr Rogers noted that the plaintiff's last prescription for painkillers was in October 2016, and that she was currently prescribed Mirtazapine for significant anxiety depression and insomnia (although he said its efficacy was questionable), and more recently diazepam for the increased anxiety created because of court proceedings. He expected the diazepam to be short term. He noted that she was not currently taking significant analgesia, although analgesia, anxiolytics and antidepressants may be trialled in the future.
Dr Rogers provided a list of the plaintiff's current medications which are Mirtazapine, Mometasone Furoate ointment for eczema and paracetamol.
Dr Rogers expressed the following opinion as to the plaintiff's condition:
"PTSD is an overwhelming feature of her day-to-day existence. It is to be hoped that there will be a significant improvement in her psychological symptoms at the close of the legal process, though it is unlikely that the PTSD will resolve completely. If it does this is likely to take years. She is not likely to gain much further function in her hand stop she may well develop further contractures and require further surgery, and she may well develop osteoarthritis in the damaged joints over time. Pain should decrease gradually over time but is unlikely to ever fully resolve.
I think there is broad agreement between all the clinicians who have written reports. Both her physical and psychological injuries are severe, and whilst they may improve over time both are likely permanent. Her function, employability and quality of life have been dramatically affected by her injuries. She herself has continued to try hard to recover from those injuries and has been compliant with treatment."
The last piece of evidence in the plaintiff's case was from her employer Calvary Hospital to the effect that the plaintiff could have worked in her role as housekeeping assistant for as long as she liked, and that there was no compulsory retiring age.
Assessment of damages
The defendant did not challenge any of the evidence given by the plaintiff, or by any of the plaintiff's lay and expert witnesses called during the course of this trial, and having asked such questions of them as I felt were necessary and appropriate, I have been left with no reason to doubt the reliability of any of the evidence given by any of those witnesses. I turn therefore to the quantum of the plaintiff's damages to be assessed on the basis of that evidence. Before I do so, I observe that given that the plaintiff's claim for damages is not one resulting from a breach of duty, Pt 7 of the Civil Liability Act 2002 has no application to the assessment of her damages.
General damages
It is clear from the plaintiff's evidence set out at [26] above that as a result of being shot by the defendant she has suffered very considerable physical pain and very severe psychological effects which, as can be seen from the expert medical, psychiatric and psychological evidence, have combined to largely destroy the plaintiff's enjoyment of her previously happy and industrious life. There is not likely to be any appreciable improvement in this state of affairs in the future, indeed, on the contrary, the plaintiff's day to day existence may become even more unbearable when, as seems inevitable, she will be left living alone, with paid health care assistance replacing the loving care of her elderly husband and her daughter Jacqueline.
In Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, the High Court established that as a matter of principle there is no "standard" to be derived from a consideration of amounts awarded in other cases, and that bearing in mind general considerations of fairness and moderation, damages must be fair and reasonable compensation for the injuries received and the disabilities caused by the tortfeasor.
I note however that in Chenery v Cole (No 2) [1985] TASSC 8, A8/1985 Nettlefold J, with whom Cosgrove J and Cox J (as he then was) agreed, observed at [6]:
"Notwithstanding what was said in Planet Fisheries Pty Ltd v La Rosa & Anor [1968] HCA 62; (1968) 119 CLR 118 I have no doubt that, in Tasmania, the judge exercising original jurisdiction and the judges constituting the Full Court, must have regard to that standard which emerges from a consideration of the work over the year of the High Court, this Court and the individual members of it, due consideration being given also to the work of Courts serving comparable communities."
Bearing those observations in mind, and having regard to that standard, I assess general damages in the sum of $175,000.00. In allowing that sum, and indeed in approaching the question of assessment under other relevant heads, I am conscious of and made allowance for the criticisms levelled at the plaintiff's credibility by the defendant in his closing submissions. The defendant submitted that I should be sceptical about the plaintiff's credibility (and that of her husband where he supported her), when the plaintiff had made inconsistent claims about her proposed retirement age, her inability to drive and her complete loss of a social life.
Aggravated damages
The plaintiff claims aggravated damages against the defendant in reliance on Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.
In Gunns Limited v Alishah(No 4) [2010] TASSC 24 at [53]-[54], Porter J said:
"I need to say something further about the relationship between aggravated damages and exemplary damages. In Uren's case at 130, Taylor J said that aggravated damages fix upon the circumstances and the manner of the wrongdoing of the defendant, and contrasted the function of exemplary damages as punishment and deterrent of the wrongdoer, observing that 'in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages'. Windeyer J at 149 described the difference as being that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done, whereas exemplary damages were intended to punish the defendant.
54 The conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages was maintained in Lamb v Cotogno, and further confirmed in New South Wales v Ibbett (2006) 229 CLR 638 at [33]. At [34] Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ highlighted the need to maintain the conceptual distinctions between aggravated and exemplary damages, and said that it was necessary to determine both heads of compensatory damages before deciding whether or not an award of exemplary damages was justified. At [35] their Honours said that in cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damage, and no element more than once."
As to the manner and circumstances of the defendant's wrongdoing I accept, as I have already alluded to, the plaintiff's unchallenged evidence that she fixed the defendant's gaze and asked him not to fire the rifle which he was holding against the palm of her right hand as she sought to shield her friend's head with that hand. The defendant could have desisted, but he fired nonetheless, shooting through the plaintiff's hand and into her friend's head killing her, if indeed she was not already dead from the first shot the defendant had discharged into her head through the car window.
I reject out of hand that the defendant did not intend to injure the plaintiff. He did so as a necessary means to the end of killing his wife, the plaintiff's friend. In doing so he not only grievously injured the plaintiff, but in doing so forced her by what he did to witness her friend's atrocious murder.
It is difficult to conceive of a more compelling case for an award of aggravated damages. Those damages must be substantial. I award the sum of $75,000.00
Special damages
Medicare
The plaintiff claims those expenses which have been paid by Medicare and in respect of which she has a repayment liability. The plaintiff has been provided with a Medicare payment history document which shows that Medicare has paid $4,339.40 in respect of treatment associated with her injuries. I allow that claim.
Royal Hobart Hospital
The plaintiff claims the expenses she incurred with respect to her admission and treatment at the Royal Hobart Hospital which she is required to pay. They comprise inpatient fees of $23,534.00, and outpatient fees of $7,000.00, a total of $30,534.00. I allow that claim.
Psychologist
Between 6 July 2015 and 21 February 2017, the plaintiff attended Dr Walter Slaghuis on 22 occasions at a cost per consultation of $170.00 - $175.00. Overall she paid a total $3,765.00 and I allow that sum.
General practitioner
Between 17 June and 3 October 2016, the plaintiff attended Dr Rogers on 12 occasions. Consultation fees ranged between $71.00 and $138.00 depending on the type of consultation. The plaintiff paid a total of $1,045.00 and I allow that sum.
Pharmaceutical expenses
The plaintiff has paid for prescribed medication for injuries. She claims that she has paid to date approximately $500.00. I assess that sum as reasonable and allow the claim.
Travel expenses
The plaintiff claims expenses in travelling for medical treatment at a rate of $0.66/km as follows:
a) General Practitioner
i Return distance = 10.4 km
ii 12 trips x 10.4 km return
iii $82.36
b) Psychologist
i Return distance = 29km
ii 22 trips at $9.57 per trip
iii $421.08
c) Miscellaneous
i Travel to and from the Royal Hobart Hospital, pharmacist and other medical appointments
ii Broad brush claim - $300.00
Those journeys, their length and their cost are made out with precision on the plaintiff's evidence, save as to the broad brush claim of $300 which I assess on the basis of all of the evidence as to the plaintiff's hospital and medical treatment and pharmaceutical needs as reasonable. I allow the sum of $803.44.
Past economic loss
The plaintiff's net weekly income at the time of the accident was $515.00. Her loss from 14 May 2015 to the date of judgment on 26 May 2017, comprises 106 weeks multiplied by $515.00, a total of $54,590 and I allow that sum.
Past loss of superannuation
The plaintiff received the benefit of superannuation contributions made by her employer at the rate of 9.5% of her gross weekly wage of $538.69. I assess that in the 106 weeks from the date of her injury until the date of judgment she has lost an amount of $5,424.60 and I allow that sum.
Future lost earning capacity
The plaintiff claims that she would have continued to work until age 70. The evidence from her employer was that there was no impediment to her doing so. Her own evidence is contradicted to an extent, as pointed out by the defendant, by statements she made prior to swearing her affidavit read in these proceedings. I am of the view that, even accepting that she had made those statements, the preponderance of evidence is that she would have worked to age 70. The evidence establishes that the mortgage on her house for which she alone was responsible would, assuming current interest rates, have been paid out by the time she was 65 years old. However retirement age is now 67 years, and moreover she had been spending 70% of her net income on mortgage repayments. I am satisfied that on balance she would have worked the extra years until age 70 in order to save for her retirement and accrue as much as she could in superannuation.
The average of the plaintiff's last three years of pre-injury net income after tax is $515.00 per week. Using a discount rate of 3% (given that Pt 7 of the Civil Liability Act does not apply), the multiplier to age 70 is 632. The plaintiff has no retained earning capacity and accordingly I assess her future loss of earning capacity before any reduction for contingencies at $325,480. The plaintiff's employment had been stable in the past, and the evidence from her employer indicated without equivocation that it would be stable into the future until the plaintiff's chosen retirement age. The only relevant contingency therefore is that of serious disabling ill health beyond the parameters of sick leave entitlements. The plaintiff was in good health prior to her injury and drank alcohol only occasionally, did not smoke and enjoyed bushwalking. In my view a reduction for contingencies in the amount of 5% is appropriate. I allow the sum of $309,206.00 under this head.
Future lost superannuation
Actuarial evidence given by Mr David Heath was to the effect that the loss to the plaintiff of the benefit of her superannuation entitlements from the date of her injury to age 70, discounted at 3%, is $39,324.00. I accept that evidence and again apply a reduction for the contingency of disabling ill health of 5%. The resultant award is $37,357.80.
Future medical expenses
The plaintiff claims future medical expenses as follows:
"GP
The Plaintiff attends her GP monthly for review and to be prescribed medication
The current cost of a consultation is $80.00
Weekly cost is $18.46.
The future loss is $20,306.00 ($18.46 x 1,100) for 3% discount ... .
Psychologist
The Plaintiff attends her psychologist once per month.
The current consultation cost is $170.00.
The weekly cost is $39.23.
The future loss is $43,153.00 ($39.23 x 1,100) for 3% discount … ."
Medication
The plaintiff also claims the future cost of medication under this head. The claim is for the cost of the drug Mirtazapine on a regular ongoing basis for life and for intermittent use of paracetamol or codeine and diazepam. This claim is supported by the evidence of the plaintiff's general practitioner, Dr Rogers, but in addition Dr Rogers noted that the plaintiff regularly used Mometasone Furoate for eczema of her right hand. Using a broad brush approach I allow a sum of $5,000.00 under this head.
The claims for future general practitioner and psychologist expenses are established by the evidence of Dr Rogers and Dr Slaghuis, respectively and the claim for future medications by the evidence of Dr Rogers. I allow a total under this head of $68,459.00.
Past attendant care
The plaintiff claims damages for gratuitous assistance provided by her husband, her daughter Jacqueline and her sister. The plaintiff's evidence about this is set out in her affidavit as follows:
"PAST GRATUITOUS CARE
212 As I have said above during my stay in Hospital, Tom would come and visit me every day and help feed me and would comfort me and cause me to feel less anxious.
213 Abigail and Jacqueline would also visit me in Hospital.
214 While I was in Hospital Tom would do jobs for me like getting clothes, slippers, and other personal hygiene items that I needed.
215 Tom would also help take me out of the Hospital and was there for me when I became agitated and bossy about going outside the Hospital.
216 As I got better he would help me by taking me on short drives around the City to help me feel comfortable again.
217 Tom was a tremendous help during my time at the Hospital.
218 Following my return home I required care and assistance 24 hours a day. This care was provided in two components. Firstly I required and continue to require assistance with daily living and secondly I required and continue to require care for psychological issues. I could not be left alone because of my mental condition.
219 The care referred to above has been provided primarily by Tom and Jacqui but in recent weeks some assistance has been provided by my sister Jennifer who has been staying in Tasmania alternating between staying with myself and our sister Pinay at Kingston. Jennifer will likely return to the Philippines on 22 March 2017.
220 All of the care that has been provided to me would be unnecessary if I had not been injured in the incident. It has been provided to me at no charge by my family.
221 In respect of assistance required for daily living, assistance includes the following:
a) Cooking;
b) Cleaning;
c) Washing;
d) Ironing;
e) Washing up;
f) Shopping;
g) Gardening;
h) Splitting fire wood;
i) Moving furniture;
j) Changing sheets on beds;
k) Other household duties.
l) Assistance with washing and showering properly;
m) Some assistance with toileting;
n) Help feed myself;
o) Help putting on clothes and shoes;
p) Help putting on earrings;
q) Help brushing my hair;
r) Help putting on makeup and other cosmetics;
s) Help cutting my fingernails and toenails;
t) Help putting toothpaste on the brush;
u) Help to do up buttons and zips; and,
v) Other personal care tasks.
222 Without limiting the nature and duration of the care that has been provided to me by Tom, Jacqui and Jennifer I provide the following detail about certain care activities including approximate duration of that care activity where appropriate.
223 Prior to the incident I did the majority of the cooking for our family. Because of my cultural heritage a lot of my cooking involved Asian themed dishes. To cook the evening meal would take between 30 mins to 2 hours depending on what we were having for dinner, how many courses, how many people, and any other preparation that was required. I used to enjoy cooking and had no difficulty with it. Following the incident I am unable to cook for myself or my family and either Tom, Jacqui and/or Jennifer do all the cooking. They still spend approximately 30 minutes to 2 hours to cook dinner. For example Jennifer recently cooked a meal of rice, stir-fry, salad, steak and dessert and this took about 2 hours to prepare. I can't cook because I can't hold things properly to cut them or peel them, I can't stir properly with just the one hand, things are slippery, and things are hot and cold. When I try and cut things or even something as simple as buttering a piece of toast they will usually fall on the floor leading to me becoming frustrated. I even struggle to do something as simple as making a cup of tea.
224 As a professional cleaner I was always able to look after my own home and it was always in a clean state and very presentable. For the same reasons as I have explained why I cannot work I cannot clean my own home. Tom, Jacqui and/or Jennifer now do all the cleaning for me. The time it takes depends on who does the cleaning but I would estimate that about 6 hours a week of cleaning are provided to me by my family.
225 I used to do a load of washing every day in our washing machine followed by pegging it out on the washing line then ironing it and folding it. I am now unable to do the washing because of my injured hand, in particular I find it extremely difficult to peg out the washing on the line. Jacqui now looks after the washing and Tom helps her when necessary. It would take them about an hour a day to complete the laundry not including ironing time.
226 Tom is now responsible for ironing. I simply cannot do it because of my injured hand. I could not hold the iron. It takes Tom about an hour or two every 2 or 3 days to do the ironing. This depends on how much there is to do.
227 We do not have a dishwasher at our home so all washing up is done by hand. I used to be able to do the washing up with ease but since the incident I am unable to wash up for several reasons:
a) The water makes the items very slipper. Glass in particular is almost impossible for me to wash up; and,
b) The water is hot, which causes pain in my hand.
Tom, Jacqui and/or Jennifer now do the washing up after every meal and it takes them about 30 minutes to do this but of course is depends on how much there is to do.
228 I used to be able to do all the shopping for our family myself. I would normally attend Coles supermarket at Eastlands about twice a week to shop for groceries and other household supplies for our family. Each of these shopping trips would take about 3 hours including travelling time (10-15 mins each way). I am a slow shopper and like to take the time to think about things, find the best bargains and to enjoy the experience. I also like to shop at the Chinese grocer in Moonah. This is approximately 15km from my home. A round trip from my home to the Chinese grocer to do the shopping there once or twice a week is approximately 1.5-2 hours. Since the incident I have been unable to do the shopping by myself for several reasons:
a) Initially I was too afraid and anxious to go out of my home, I am now able to go shopping with a relative;
b) I am unable to drive myself; and,
c) I am unable to carry the groceries and move them from a shopping basket into the car.
Either Tom, Jacqui and/or Jennifer have assisted me with shopping since the incident either by doing it for me or by accompany me while shopping, driving me to the relevant shops, and carrying the purchases.
229 Prior to my injuries I was a passionate gardener and enjoyed getting out of the house and working in my garden. Tom and I used to share the gardening at our home. Now Tom has to do all the gardening because I am physically unable to do it. For example, pushing a lawn mower with just one functional hand is a very hard task. I occasionally try and do some weeding with my left hand but without a lot of success. Tom would spend about 1-2 hours per week gardening.
230 I used to be able to split our firewood for the wood heater to keep our family warm. For obvious reasons I am now unable to swing a block-buster to split the wood. Tom or other relatives now have to split the wood into kindling for me. This used to take me an hour or two a week during the winter periods.
231 Occasionally furniture need to be moved for various reasons such a cleaning. I am unable to do this and require assistance if it needs to be done.
232 I like the sheets on my bed to be changed and washed ever 4th day. I used to do this but because of my injured hand I am unable to do this now. Tom assists me with this and it takes him about 15 minutes on each occasion to strip the bed of the old sheets and to put on a new set of sheets.
233 There are other miscellaneous household duties that I require assistance with that prior to the incident I was capable of doing myself. Tasks that come to mind include: changing clocks for daylight savings, changing smoke alarm batteries, changing light globes, opening cans, sewing, polishing silver or brass, and putting out the garbage.
234 I am unable to turn taps on and off by myself. This is important because I am unable to have a shower without someone assisting me to turn the taps on. Jacqui usually does this for me. I would have a shower between one and three times a day. While I am in the shower I have difficulty squeezing the shampoo and conditioner out of the container and then washing my hair. I then have difficulty drying myself with a towel.
235 It now takes me a lot longer to go to the toilet. In part for the reasons that I have explained above about the difficulty I have wiping myself but also because of the difficulty I have undressing to enable me to go to the toilet. Sometimes Jacqui or Jennifer will go to the toilet with me and help me with this.
236 Because of my injured hand and being right hand dominant I am unable to use cutlery properly to eat my food. If I try and eat soup with a spoon in my left hand I will almost certainly spill it on the table, floor or my clothes; which has to be cleaned up. I cannot cut my food properly so if we have something like steak or a roast for dinner someone will have to cut up my meal for me. This is usually Tom that does this.
237 As a consequence of the incident I require the assistance of my family to dress. Initially I needed assistance with most dressing tasks but over time I have been able to find a way to dress myself in clothes but still need assistance with certain aspects of dressing such as doing up buttons and zips, putting on socks and shoes and doing up belts. Jacqui would assist me with most of my dressing and Tom would assist with dressing that does not involve an intimate nature. As a woman I used to always wear a bra but since the incident I find it extremely difficult to do it up. Jacqui helps me sometimes with this. Other times I do it myself and I find myself becoming extremely frustrated to the point that I simply give up and do not wear a bra. I find this uncomfortable and embarrassing. This takes time and I am grateful for my family providing their time to help me. The amount of time varies from day to day.
238 I find it almost impossible to put on earrings and Jacqui, Jennifer and Tom have all assisted me with this. Likewise I find it difficult to dry and brush my hair and Jacqui usually helps me with this. I also find it difficult to put on cosmetics by myself and either Jacqui or Jennifer help with this task. All of this takes time and the amount of time varies from day to day but would usually be at least 30 minutes more likely 1 hour.
239 I am unable to cut my toenails and what remains of my fingernails. One of my family members assists me with this. It may take 5-10 minutes once a week to maintain my nails. They grow very quickly and I feel uncomfortable if they are not trimmed regularly.
240 I find it very difficult putting toothpaste on the toothbrush to clean my teeth. This is something that I need assistance with from my family and would usually be care provide by Tom and Jacqui.
241 In addition to the physical care above my family also provide important emotional and psychological care to me.
242 Upon my return home from hospital I would wake almost every night screaming, shouting and crying with nightmares. Either Tom or Jacqui would always be there to wake me up and calm me down. Over time the frequency of the nightmares has decreased and I now have them about three times per week. This has remained consistent for approximately the past six months. By the time Tom or Jacqui wake, calm me down and return to sleep anywhere between 30 minutes to 2 hours may have elapsed. I feel like such a pain to my family waking them up all the time but I can't help it. I wish it didn't happen.
243 My psychological injuries include anxiety and I have developed a fear of being away from home alone. When I am out I will usually always go with family for support. For example I recently attended a prayer day for the Filipino community and I went with my two sisters Pinay and Jennifer for support. Whereas once I could, there is now no way I could go to an event like this on my own. This is true for all other activities outside the home.
244 Even while I am home I still like to have a member of my family there with me. If someone is not there with me I become anxious and distressed."
In addition to this evidence I had the wholly corroborative evidence of the plaintiff's husband and evidence from her daughter Jacqueline which also supported the level of care said to be given. The plaintiff also dictated notes to her husband of her routine and the care provided to her on randomly chosen typical days being 4 and 5 March 2017, and 14 and 15 March 2017, and these were annexed to her affidavit.
None of this was challenged by the defendant and the totality of the evidence comfortably establishes the average of six hours' care per day claimed by the plaintiff, as during the first few months after her release from hospital she received care from her family which was seven days per week and effectively around the clock. Thereafter the care was often six hours a day, and although I am not persuaded that that level of care is required when provided by an efficient commercial homecare assistance provider, I am not persuaded that the gratuitous care provided was unnecessary or ineffective. A reasonable allowance under this head is six hours per day from the date of injury to the date of judgment. That is a period of 106 weeks. The evidence establishes that a reasonable commercial cost of that care is $45.00 per hour. The resultant weekly sum is $1,890.00, giving a total of $200,340.00. I allow that sum.
Future attendant care
The plaintiff claims future attendant care at the rate of six hours per day. Based on the evidence of Ms Kelleher, which was unchallenged and which I accept, the average of the daytime rates of a competitive commercial homecare assistance provider is $48.50 per hour. The need for homecare is well established by the evidence of Dr Sharman. In my view, having regard to the plaintiff's affidavit and the annexed notes, and having regard to the evidence of Mr Cooper and their daughter Jacqueline, who I accept as honest and reliable, indeed impressive, witnesses, I am of the view that all of the plaintiff's established daytime needs for assistance in washing, dressing, cooking, shopping, housekeeping and gardening could be accommodated by a professional provider of integrated homecare services in a period of four hours per day, probably broken up into two hours in the morning each day and two hours in the late afternoon. I do not accept, although I did not understand senior counsel for the plaintiff, Mr Phillips, ultimately to pursue the matter, that there is a reasonable need for sleepover care for the plaintiff. Regrettably she will most likely continue to suffer nightmares as a result of her PTSD, but there is little that a sleepover carer could do to assist that would justify the extra level of care.
As Porter J said in Potts v Frost [2011] TASSC 55 at [140]:
"… Expenses must be reasonably incurred, so the question in any particular instance is what is reasonably required, not what are not the ideal requirements. The approach is to assess what a person would do if he or she were spending their own money, yet had sufficient funds, and were well advised and reasonably careful about their own welfare. The benefit from the particular item of expenditure may have to be weighed against the cost: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 662; Sharman v Evans (1977) 138 CLR 563 at 573."
The resultant sum of $48.50 x 4 x 7 for the balance of the plaintiff's life expectancy of 33.46 years (according to the life tables in evidence prepared in accordance with the principle laid down in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15, 229 CLR 498), using the 3% multiplier of 1,100 is $1,493,800.00. This amount must be discounted to take account of the plaintiff's need for care as a result of ageing. Mortality is already taken into account by the life tables in evidence which I have used. It might have been that the plaintiff lived alone in her own home until her death. Or it might have been that she sold her home and moved into supported accommodation. It is also to be noted that any care she might have required as a result of disability due to old age would never have been required to cater specifically for the needs generated by the plaintiff's tortiously caused physical and psychological injuries. In my view it would be inappropriate to discount the award under this head by more than 10%. Accordingly, I allow an amount of $1,344,420.00 for future attendant care.
Future miscellaneous expenses
The plaintiff has claimed future expenses for the cost of modifications to her motor vehicle, the cost of manicures and pedicures, the cost and replacement cost of electric can openers, jar openers, non-slip matting and cutting boards. I am not persuaded that the plaintiff will ever drive again. Manicure and pedicure assistance would be provided, in my view, by the carer assisting the plaintiff to wash her hair and dress, and the cost is included in future attendant care. I assess and allow a sum of $1,500.00 for home appliances.
Summary of awards
The following is a summary of the amounts I have allowed under each head of damages ultimately claimed by the plaintiff:
General damages
$175,000.00
Aggravated damages
$75,000.00
Special damages
$40,986.84
Past economic loss
$54,590.00
Past loss of superannuation
$5,424.60
Future lost earning capacity
$309,206.00
Future lost superannuation
$37,357.80
Future medical expenses
$68,459.00
Past attendant care
$200,340.00
Future attendant care
$1,344,420.00
Future miscellaneous expenses
$1,500.00
Total
$2,312,284.20
There will be judgment for the plaintiff against the defendant in the sum of $2,312,284.20.
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