Crockett v Roberts
[2002] TASSC 73
•26 September 2002
[2002] TASSC 73
CITATION: Crockett v Roberts & Anor [2002] TASSC 73
PARTIES: CROCKETT, Louise Mary
v
ROBERTS, D (MR)
STATE OF TASMANIA (THE)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 646/1986
DELIVERED ON: 26 September 2002
DELIVERED AT: Hobart
HEARING DATES: 13 - 16, 19, 26 - 28 November 2001 (Melbourne)
10, 11 December 2001, 8, 11- 15, 18 February 2002
28, 29 May 2002
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts - Negligence - Essentials of negligence - Standard of care - Particular persons and situations - Other cases - Hospitals and medical practitioners - Post operative intracranial infection - Failure to diagnose and treat properly.
Aust Dig Torts [49]
Torts - Negligence - Essentials of negligence - Damage - Causation - Generally - Hospitals and medical practitioners - Post operative intracranial infection - Whether failure to use CT Scan and appropriate drug therapy caused respiratory failure and consequential loss and damage.
Chappel v Hart (1998) 195 CLR 232; Naxakis v Western General Hospital (1999) 197 CLR 269, applied.
Aust Dig Torts [60]
Damages - Measure and remoteness of damage in actions for tort - Measure of damages - Personal injuries - Other pecuniary damage - Provision of purpose built housing for the plaintiff - Method of assessment - relevance of "windfall" to estate on death.
Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 applied; George v Pinnock [1973] 1 WLR 118; Cunningham v Harrison [1973] QB 942; Moriarty v McCarthy [1978] 2 All ER 213; Rosecrance v Rosecrance (1995) 105 NTR 1 not followed.
Aust Dig Damages [47]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
First Defendant: S P Estcourt QC & L D Wilkins
Second Defendant: S P Estcourt QC & L D Wilkins
Solicitors:
Plaintiff: Abetz Curtis & Worsley
First Defendant: Director of Public Prosecutions
Second Defendant: Director of Public Prosecutions
Judgment Number: [2002] TASSC 73
Number of Paragraphs: 230
TABLE OF CONTENTS
Introduction........................................................................................................................................... 1
Pre-morbid state.................................................................................................................................... 1
The onset of depression........................................................................................................................ 3
The leucotomy...................................................................................................................................... 4
The immediate sequelae of the leucotomy............................................................................................ 4
What happened at the Launceston General Hospital.............................................................................. 6
What happened at the Royal Hobart Hospital........................................................................................ 8
The infective process............................................................................................................................ 9
What should have happened at the hospitals?..................................................................................... 10
Did the defendants' breaches of their duty of care cause injury?........................................................ 12
How successful would the leucotomy have been?.............................................................................. 14
The plaintiff's physical disabilities...................................................................................................... 15
The plaintiff's mental disabilities......................................................................................................... 17
The plaintiff's history from 1983 to date............................................................................................. 17
Lost earning capacity........................................................................................................................... 20
Medical and other like expenses.......................................................................................................... 24
Past care and attendant services........................................................................................................... 25
Future care and attendant services....................................................................................................... 25
Griffiths v Kerkemeyer....................................................................................................................... 26
Future costs of specific aids and home appliances.............................................................................. 28
The future cost of housing.................................................................................................................. 29
General damages................................................................................................................................. 36
Financial care...................................................................................................................................... 36
Summary............................................................................................................................................. 40
Serial No 73/2002
File No 646/1986
LOUISE MARY CROCKETT v
MR D ROBERTS and THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
26 September 2002
Introduction
At 5pm on 31 May 1983, the plaintiff suffered a respiratory arrest. She was then a patient in the Royal Hobart Hospital. She was immediately transferred to the operating theatre for surgery. She was critically ill for some days afterwards but eventually recovered. However, the respiratory arrest has left the plaintiff with severe and extensive mental and physical deficits as a result of damage to her brain. It is her case that these deficits were caused by the negligence of:
· Mr D Roberts, surgeon;
· the staff at the Launceston General Hospital;
· the staff at the Royal Hobart Hospital.
The plaintiff claims damages for that negligence. The defendants join issue with the plaintiff's allegations that there were breaches of the duty of care admittedly owed to her by those whom she claims have been negligent. The defendants also join issue with the plaintiff's allegation that breaches of the duty of care resulted in her suffering loss, injury and damage and, finally, issue is joined with respect to the quantum of damage. There is no issue between the defendants.
It was a substantial trial. I record my appreciation to counsel and their instructing solicitors for the way in which they prepared for and conducted this trial. Where there was no dispute, facts were agreed and reduced to writing. Where there was dispute, the ambit of the dispute was clearly identified and dealt with succinctly. I am in no doubt that their labours considerably reduced trial time and assisted me greatly in reaching this judgment. For convenience, some of the evidence was taken in Melbourne. Much of the evidence-in-chief was reduced to writing. Some of it was tendered either by consent or through formal testimony from a witness. In all, nearly 50 witnesses gave oral evidence. They included neurosurgeons, neuropsychologists, psychiatrists, radiologists, a micro-biologist and experts with specialised knowledge and experience in the rehabilitation and care of persons who have been severely disabled by an acquired brain injury, as well as friends and family members of the plaintiff. In some instances, differences of expert opinion were resolved by the experts conferring together prior to being called to give their evidence. What follows in these reasons for judgment constitutes findings of fact unless otherwise stated.
Pre-morbid state
With respect to the plaintiff's pre-morbid state, evidence was given by a number of witnesses. They included Mr Warner, an uncle by marriage who has known the plaintiff since she was three months old. Although he only saw her for about a week every two years, as he and his family lived in Melbourne, the plaintiff visited and stayed with him and his wife in Melbourne from time to time. The plaintiff's father, her older brothers, Mr John Baulch, senior counsel of the Queensland bar and Mr David Baulch, Deputy Auditor General for the State of Tasmania, also gave evidence about this aspect of the plaintiff's case as did the plaintiff's husband, Mr David Crockett. Particularly useful and detailed evidence of the plaintiff's pre-morbid and post-morbid condition was given by Mrs Hanson, Ms Bearman and Ms Bewsher. The latter two witnesses were particularly close friends of the plaintiff when all three were at university. They remain friends with the plaintiff and keep in contact with her, although they live in Sydney and the plaintiff now lives in Melbourne. None of this evidence was challenged by the defence.
The plaintiff was born on 26 March 1950. She was 33 years old when she suffered the respiratory arrest at the Royal Hobart Hospital. She was the youngest, and only female in a family of three children. Her father was a school teacher and, at the date of the plaintiff's birth, living in Launceston.
The plaintiff's childhood years were unremarkable. She was intelligent, extroverted, gregarious and good at both sport and academic work. Mr Warner described her as "a bit of a tomboy". The plaintiff attended the University of Tasmania and gained a Bachelor of Economics degree. Interesting and insightful accounts of the plaintiff's life at university were given by Ms Bearman and Ms Bewsher. These witnesses described the plaintiff as a person of strong character, intelligent, very articulate and with a biting wit. She was active in all aspects of university life. She enjoyed sport, playing hockey, tennis and basketball. The plaintiff represented Tasmania in the State under 18 and under 20 female hockey teams. The plaintiff was also active on the student council and took part in the many demonstrations and protests that were part of the social scene in the late 60s and early 70s. In addition, the plaintiff, who had a talent for making clothes, worked backstage for the University Old Nick Company. Ms Bewsher said that the plaintiff was "not a tactile person", but there was a soft side to her, evident when she was with her mother and later with her first born child. The plaintiff was never short of social partners and friends and was noted for being intolerant of intellectual laziness.
The plaintiff graduated from the university in 1971 and I infer, as I do not think that there was any direct evidence about this, that she was bonded to work for the State Education Department.
The plaintiff and her husband, now general manager, Corporate Services at the Maritime College Launceston, met while both were undergraduates. He, like the plaintiff, was interested in sport and he said they spent considerable time together water-skiing, boating and the like.
On graduation from university, the plaintiff went to teach in Burnie. She was directed to teach typing. She regarded that as a waste of her degree and stayed for only one term. It appears that she returned from Burnie to Hobart and worked for the Schools Board of Tasmania. Her father was then the secretary to the Board having been appointed to that position in 1962 or 1963. The plaintiff then did some research work for the State Tourist Development Board. Mr Crockett said that she enjoyed the latter job and changed her "university clothes" for "dress suits".
The plaintiff and her husband married in 1973. They bought a house at Old Beach, a suburb of Hobart. Together they enjoyed a full social, family and sporting life. Ms Bewsher and Ms Bearman spoke of the plaintiff as being a good cook, a good entertainer and a good housewife. They said she was the first of their university group to "settle down".
The plaintiff's first daughter, Harley, was born in 1976. Following Harley's birth, the conversation between the plaintiff and her friends, Ms Bewsher and Ms Bearman, was often about the kind of work that the plaintiff might do when the family had grown up. When it was thought that this might happen was not disclosed by the evidence, but Mr Crockett said that he and his wife decided that they would have two or three children, "with a preference probably leaning to three". The plaintiff spoke of qualifying in accountancy and studying computers which, of course, were quite new in the general world in those days.
Not long after Harley's birth, the plaintiff returned to work one day a week with the Schools Board of Tasmania. In 1979 her husband's employer, the Commonwealth Auditor-General, transferred Mr Crockett to Darwin for six months. The whole family moved north, for the plaintiff saw it as an adventure. This move made the couple restless and Mr Crockett started looking for other work after they returned from Darwin. In consequence, Mr Crockett started work at the Launceston Maritime College on 8 October 1979 and the family moved from Old Beach to Launceston.
The onset of depression
The plaintiff's second child, Zoe, was born on 5 June 1980. Mr Crockett described the plaintiff's pregnancy as "reasonably easy" and the plaintiff during that time as happy; "just a good mother and a good wife". Immediately after Zoe's birth, Mr Crockett said that the plaintiff suffered from "the baby blues". He said that at first, she was a "bit unhappy" but got over that quickly and was anxious to get home.
At six weeks, Zoe was found to have a "hole in the heart" and flown to Melbourne for surgery. This discovery affected the plaintiff. It appears that she, quite unreasonably, blamed herself for the child's condition. Mr Crockett said:
"I think really from then she started to question what she'd done wrong. When she was pregnant with Harley she continued to drink and smoke and everything was right. She'd given up smoking by the time Zoe was - she was pregnant with Zoe and said if she did everything right how come this has happened?"
As time went by, the plaintiff became more and more depressed and sought treatment from a Launceston psychiatrist, Dr Ian Martin.
The plaintiff and her husband were advised that it would be necessary for Zoe to return to Melbourne for more surgery when she was aged about 13 years. However, at 12 months the medical advice was that this surgery should be done forthwith. The advice concerned the plaintiff for she thought that it meant that Zoe's condition was worse than had previously been thought. The first attempt at the further surgery was aborted because Zoe had a cold. However, it was carried out shortly after she recovered from her cold and has proved to have been entirely successful.
Mr Crockett described the plaintiff as being seriously depressed and suicidal at this time. He said that conversation between them following Zoe's birth and the surgery had become virtually non-existent and that when he came home from work, the plaintiff would just go to bed. She frequently cried and laughter was unknown. Mr Crockett said "most days" he had to get the plaintiff's parents or friends over to help with the children as the plaintiff totally lacked motivation. Mr Crockett's evidence was supported by that given by the plaintiff's then very close friend, Mrs Hanson. She gave a graphic account of the extent of the plaintiff's depression. Mrs Hanson said that the plaintiff unreasonably blamed herself for Zoe's hole in the heart. She said that the plaintiff told her that if she had not smoked, the condition would not have occurred. Mrs Hanson said:
"She cried over the fact that Zoe had this hole in her heart, and nothing would persuade her that hole in the heart wasn’t directly related to her smoking. She had that very firmly fixed in her head."
Following the operation on Zoe's heart, Mrs Hanson said that the plaintiff remained very depressed. She said that she suffered from violent mood swings. Some days she would be euphoric and energetic and others she would be so unable to manage her daily life that she stayed in bed and Mrs Hanson looked after her children. I accept all the evidence of Mr Crockett, Mr Warner and Mrs Hanson.
For this depression, the plaintiff was, as I have said, treated by Dr Martin. She was referred to Dr Martin by her general practitioner, Dr Lawson. The plaintiff was first seen by Dr Martin on 6 January 1981. He found her to very depressed, very irritable with adverse effects on the family, gloomy, prone to break into tears and finding it "difficult to cope". Dr Martin prescribed various anti- depressants including tri-cyclics and tranquillisers, all to no permanent good effect. The plaintiff's depression was intractable. She was admitted to hospital on at least four occasions largely because she was suicidal. She was given electroconvulsive therapy during the course of one admission. The plaintiff remained resistant to treatment. There was talk of a leucotomy. Dr Martin referred the plaintiff to Dr Sale, consultant psychiatrist, for a second opinion. Both psychiatrists were of the opinion that, at the time, a leucotomy was a reasonable management strategy having regard to the plaintiffs' failure to respond to more conservative treatment and the depth of her depression.
The leucotomy
On 12 May 1983, almost exactly three years after Zoe's birth, the plaintiff underwent a bilateral partial frontal leucotomy at the Alfred Hospital in Melbourne. It appears that the surgeon who carried out this procedure is now deceased, but evidence about it was given by Mr David Brownbill, a consultant neurosurgeon at the Epworth Hospital, Melbourne and by retired neurosurgeon, Mr Peter Petty. Both of these medical practitioners have carried out leucotomy procedures. There was no difference between their evidence. Mr Brownbill described a leucotomy in the following terms:
"… the brain cells are on the surface of the brain and they're connected with each other by nerve fibres. They're rather like telephone cables that run from the surface down deep into the brain and then run through the big structures of the brain. It's been found that some of those fibres that connect the frontal lobe, that is, the front part of the brain which is the part that we have that the animals lower on the tree of evolution don't have - that's what constitutes us because it's the one that gives the emotions, the personality, the awareness of past and present and those things in the front of the brain. Those connections, it had been found that certain of them, if interrupted or divided, had effects in the clinical way. Those ones are on the - if we take a frontal lobe, those are the ones that are on the inside towards the mid-line and those that are low down. The ones are the mid-line are called mesial because mesial means medial which means towards the middle and orbital because they're situated just above the eye, so the fibres in the orbito-mesial part, if they're divided, they're the things that carry out the desired clinical effect. The technique basically is to put two little holes - well, it is a brace and bit - in the side of the head on either side towards the front with a very fine probe, feel and measure the distance to the roof of the orbit, take a large pair of calipers across from side to side so that they can be measured and we know exactly the distance then from the surface to the mid-line. From that a calculation can be made as to where those orbital mesial fibres are. A fine instrument is then passed - I am talking about in the early 80s, 70s; techniques have changed of course since then - but this instrument is placed into that area of the brain."
The instrument to which Mr Brownbill referred is a leucotome. As a matter of interest, Mr Brownbill explained that leuco means white, and that the fibres to which he referred were white in colour, unlike the brain cells on the surface of the brain which are grey. Hence the name of the procedure.
The immediate sequelae of the leucotomy
The leucotomy appears to have been an initial success. Mr Crockett said that after the first day, the plaintiff showed a remarkable change which remained constant for the six days or so that she stayed at the Alfred Hospital. He said that the plaintiff was aware that she had lost "quality time". She spoke of her children and of being anxious to get home to them and of getting on with family life. He said that the plaintiff read the newspaper, something that she had not done "for ages", and seemed to be surprised that she was unaware of recent news events. Mr Crockett said that the plaintiff laughed again and talked with him as she had not done for a long time.
Mr Crockett's description of the plaintiff's immediate post-operative condition was corroborated by Mr Warner who visited her while she was in the Alfred Hospital. He said that the plaintiff had made friends with others in the ward and was walking around, talking and joking with them. He said that:
"[She was] bright and happy. You wonder whether the operation could have been such an instantaneous success but apparently it is supposed to be an instantaneous success. She was bright and happy like she was - well, when she was first married."
The evidence of those two eye witnesses is corroborated by entries in the nursing records of the Alfred hospital for the days following the operation. Those entries include "quite cheerful", "very cheerful", and "talkative". Although a leucotomy is not always an instant success, the uncontested expert opinion of Mr Petty was that instant recovery such as that which occurred in the plaintiff's case was not an uncommon outcome of a leucotomy procedure.
The plaintiff was discharged from hospital on the morning of 18 May 1983. The concluding note in the nursing records is the same as that made on each of the preceding five days "wound is clean and dry". The plaintiff returned home and the plaintiff's husband went back to work. Mrs Hanson had looked after the plaintiff's children while she had been in Melbourne. When the plaintiff got back to Launceston she picked up her children. Mrs Hanson saw her that day and the next day, 19 May 1983. The following description of the plaintiff's condition on Wednesday, 18 May is taken from Mrs Hanson's evidence:
"How did she appear to you then? … Fabulous. Amazing. She was happy. She was smiling at the door - I can still see her standing at the door - I opened the door and this big grin on her face. She was smiling and she was happy. Pleased to see the children. Excited. … Actually, I was amazed at the difference."
With respect to Thursday 19 May Mrs Hanson's evidence was:
"… she came down the following day because she hadn’t picked up all the children's clothes. So, that was Thursday, and she stayed for, perhaps, a couple of hours. She was - it was nice, because she was her old self. You could have a conversation with her, and she was bubbly … And excited still. Very pleased with herself."
When he left for work on the morning of Friday 20 May 1983, eight days after the leucotomy, Mr Crockett described the plaintiff as her "new normal self". About 2pm that day the plaintiff visited Mrs Hanson. Mrs Hanson said "it was awful". She was referring to the plaintiff's head which she described as being swollen and misshapen on one side. She said that the plaintiff kept saying that Zoe was unwell. She described the plaintiff as confused. She said that some things that the plaintiff said made no sense and "it was as if she had to concentrate to stay with me". Concerned about the plaintiff, Mrs Hanson telephoned Dr Lawson and took her to his surgery.
Dr Lawson's evidence was to the effect that he saw the plaintiff at 5pm on Friday, 20 May. He was surprised that she appeared so well. He noted a great improvement in her manner and saw no confusion. The plaintiff said that she had come to get her wound checked. Dr Lawson noted the wound was weeping a little and prescribed Amoxil, a broad spectrum antibiotic, 250 milligrams every eight hours. Dr Lawson said that had the plaintiff not recently undergone surgery, he probably would not have prescribed any drugs at all. Mrs Hanson drove her home.
When the plaintiff's husband came home from work, he found the plaintiff in the toilet trying to give Zoe some tablets. Zoe was upset and crying. Mr Crockett noted that the tablets were for the plaintiff. He said that the plaintiff was confused. The plaintiff told her husband that Zoe had been sick and that she had taken her to the doctor who had prescribed some tablets. When Mr Crockett pointed out that the tablets were for the plaintiff, she said that the chemist made a mistake. At this time, Mr Crockett noted that the plaintiff's surgical wound on the left side of her head was red and swollen. He said that either then, or shortly afterwards, he also noted that it was weeping.
Mr Crockett immediately made inquiries on the telephone to find out what had transpired whilst he had been at work. He spoke to the plaintiff's general practitioner, Dr Lawson, and either he or Mr Crockett telephoned Dr Martin. Dr Martin immediately came to the house. Upon arrival he described the plaintiff as being in a state of akinetic mutism. She appeared to understand commands but was unable to comply with them. She told Dr Martin that she was not depressed and in no pain. Dr Martin said that in his opinion the plaintiff was then "very sick" and needed immediate hospitalisation with possible post-operative intracranial infection. He felt that "it was much more likely that she was physically ill as opposed to suffering some form of psychiatric response to the leucotomy surgery". Dr Martin spoke to the Surgical Registrar at the Launceston General Hospital and explained the situation to him. He also gave the Registrar the telephone numbers of those involved with the plaintiff's treatment at the Alfred Hospital. Dr Martin himself, then drove the plaintiff to hospital and she was admitted.
It was common ground at the trial that an infection is always a risk of any surgical procedure. Mr Brownbill's evidence was that in the 1980s, the infection rate for all neurosurgery was somewhere between 1 and 3 per cent. Mr Petty said that such infection rate is still in the order of 1 per cent.
I find that the plaintiff fell into that 1 - 3 per cent category of patients who undergo neurosurgery. Her brain became infected with what was later identified as the bacterial organism Staphylococcusaureus or, as it is more commonly known, Staph Aureus. This bacterial infection is a species of staphylococci responsible for (inter alia) abscesses and septicaemia. It is the bacterium most commonly encountered post-operatively.
What happened at the Launceston General Hospital
It is admitted upon the pleadings that the first named defendant was the consultant in charge of the surgical ward at the Launceston General Hospital and had a duty to ensure that the medical treatment of the plaintiff was adequate and proper. The records establish that the plaintiff was admitted to the surgical ward just after midnight on Friday 21 May 1983. The first named defendant was informed of her admission at 9am the next morning, Saturday. He did not see her until 9am the following Monday. The defendants called no witnesses on the issue of liability, so the evidence of what transpired at the Launceston General Hospital was confined to that disclosed by the hospital records, as illuminated by the expert opinions of those who have examined those records, and the evidence given by those who visited the plaintiff while she was a patient at the Launceston General Hospital. She remained there until the afternoon of 28 May 1983.
The plaintiff arrived at the Launceston General Hospital at about 7.15pm on Friday 20 May 1983. The notes of her examination on admission refer to her being confused. The plaintiff thought that she was at the Alfred Hospital and that she had been there for days. She also thought it was Sunday evening and that she was 29 years of age, whereas it was Friday evening and she was 33 years old. According to the notes, it was hard to establish verbal communication with the plaintiff as she remained mute unless pressed for an answer.
According to the notes, the plaintiff was afebrile with a temperature of 37.6 degrees Celsius. The notes record cellulitus (swollen tissue) and pus oozing from the left frontal burr hole. In a different coloured ink "no neck stiffness" has been written.
On the examination sheet there is written "?developing meningitis". Underneath is written:
| "needs FBA | (full blood examination) |
| C & E | |
| IV Pen Clox | (Intravenous Injection of Penicillin and Cloxicillin) |
| HI? Overnight | (head injury query observations overnight) |
| Wound Swab Sent | |
| echo encephlogram? in am | |
| No psychotropics" |
On the progress sheet written on the evening the plaintiff was admitted to the hospital, but in a different handwriting, a provisional diagnosis of "psychiatric reaction to leucotomy and wound infection" is made. There follows the direction "admit for IV Pen and Clox", followed by the words "urgent psychiatric consultation".
It appears from a letter written by the consultant psychiatrist, Mr Radcliffe, that on the evening of the plaintiff's admission, the casualty officer at the hospital summoned him as he was unsure of what to expect with respect to the mental state of a post-leucotomy patient. Mr Radcliffe went to the casualty department of the Launceston General Hospital at 9.30 that evening and examined the plaintiff. The results of his examination were the same as those noted by the casualty officer. According to Dr Radcliffe's letter, contained in the hospital records and dated 15 August 1983:
"I concluded that she was suffering from delirium, possibly due to a bacterial meningitis associated with a wound infection. I recommended that she should be admitted to hospital, that psychotropic drugs should be avoided and neurological observations carried out, including checks for meningeal signs. I made the verbal suggestion that discharge from the wound should be cultured immediately."
According to the drug therapy chart, 500 milligrams of Cloxicillin was ordered to be given intravenously four times a day and 1.2 milligrams of penicillin also to be given intravenously three times day. The first of these drugs was administered at midnight on the day of her admission. A swab of the wound was taken and sent to pathology in order to identify the bacterial infection.
Dr Martin was most diligent. He visited the plaintiff in hospital on Saturday 21 May, the day after her admission. He said that she recognised him but got the name of the ward that she was in wrong and she appeared to be slow to respond. Cellulitis was very apparent. Dr Martin discussed the plaintiff with the hospital's staff psychiatrist, Dr Ratcliffe, and they were both of the opinion that the cause of her condition was likely to be physical and not psychiatric. Dr Martin then spoke with the surgical registrar, Dr Jensen. The latter thought that meningitis was not a likely diagnosis and that the plaintiff's confusion was probably due to a skin infection and resulting temperature. According to a progress sheet in the hospital notes for Saturday, the wound was discharging "purulent fluid [which] ran into left eye and … produced conjunctivitis". Chloromycetin was administered for this condition.
Dr Martin saw the plaintiff again on Monday, 23 May. Although her temperature, which had become elevated following her admission to hospital, was coming down and the cellulitis was responding to antibiotics, she was confused, slow to respond and vague. Intracranial infection was the most likely diagnosis in Dr Martin's mind and he spoke daily to either the Surgical Registrar or the House Officer at the hospital enquiring when a CT scan was going to be arranged. No CT scan was done in Launceston.
Mr Crockett visited his wife continually. He said that she was confused. He spoke to Dr Jensen and asked why the plaintiff could not have a CT scan. Although there was no CT scanning facility at the hospital, there was one at nearby St Vincent's Hospital. Dr Jensen said that a CT scan was not necessary as the problem was a psychiatric one. Dr Jensen referred to the leucotomy and said to Mr Crockett, "if you have that sort of operation you get what you deserve". That this was Dr Jensen's view is corroborated by an entry in the nursing notes for Saturday, 21 May, "Seen by Dr Jensen - will not organise echo-encephalogram. Remain in ward until Monday. Then to be treated by psychiatrists". An earlier note indicates that an echo-encephalogram had been arranged by someone.
The nursing notes reveal that some medical officer, presumably the first named defendant, shared the view that the plaintiff was a psychiatric problem, for it is noted that on Monday 23 May the plaintiff's transfer to a psychiatric ward was only prevented by the joint intervention of Dr Martin and Mr Crockett. That day the pathology results are noted. The infection was identified as Staphylococcusaureus, sensitive to erythromycin and cloxacillin but not to penicillin.
Although the records note that a swab from the wound was taken and sent to pathology, no result from a Gram stain seems to have been obtained. I accept the evidence of Mr Brownbill and Mr Petty that a Gram stain from the wound would have enabled identification of the bacteria within about an hour of it being taken. Such knowledge would have given rise to the likelihood, pending receipt of a full pathology report, that the Staphylococcusaureus would have almost certainly been resistant to penicillin, but almost equally certainly, not resistant to erythromycin and cloxacillin. Administration of penicillin was not stopped even though it was entirely infective and the administration of cloxacillin was altered from intravenous to oral. Why this occurred is inexplicable on the evidence.
The plaintiff's condition deteriorated. Mr Crockett made several attempts to speak to the first named defendant about her but it seems that this was not possible for some unknown reason. The plaintiff became less and less communicative.
The uncontested medical evidence was that in 1983 there were three radiological diagnostic tools. One was an echo-encephalogram. It is an inexact tool. Mr Brownbill explained that the procedure is akin to radar. It is used to detect cracks in metal such as railway train wheels and aircraft frames. If there is raised intracranial pressure the midline may be forced to one side and this may be detected on an echo-encephalogram. Another available radiological diagnostic procedure was the radio-isotope brain scan. This too, is an inexact tool. Radioactive material is injected into the blood vessels and the amount of radiation that is given off indicates whether, in any given area, there is an increase or decrease in vascularity. The third radiological investigative procedure available in 1983 was a CT scan. This was described by the specialist medical practitioners who gave evidence, as an essential step to be taken in a case of suspected intracranial infection because it can detect the existence of "walled up" abscesses in the brain, thereby permitting accurate surgical expiration of the contents of such abscesses.
On Tuesday 24 May the plaintiff had a radio-isotope brain scan. The report described the scan as abnormal but was inconclusive with respect to that abnormality. In more than one place increased uptake was noted. Mr Brownbill said that the only conclusion that could be drawn from the report was that something abnormal was going on inside the plaintiff's head, but what that was could not be ascertained from the procedure. A possible explanation for the increased uptake was the presence of a walled up abscess. This possibility made an immediate CT scan imperative. It was not done.
On Tuesday 24 May the only change that was made to the plaintiff's treatment was to administer cloxacillin 500 milligrams, four times a day orally instead of intravenously. Over the next two days the leucotomy wound continued to ooze. Although the plaintiff was afebrile, her appetite was poor and she was lethargic. Mr Crockett said that during the time that the plaintiff was at the Launceston General Hospital, there was ever increasing swelling of her head in the vicinity of the wounds. I accept that evidence. It is corroborated by an entry in the nursing notes for 27 May, "swelling". By the afternoon of that day the plaintiff was very drowsy and "seemingly more confused". She was seen by Dr Jensen and a Dr Sexton. The notes raise as a possibility an unobserved epileptic fit. She was incontinent. The right leucotomy wound was fluctuant and had to be drained. The medical opinion at the Launceston General Hospital was that the plaintiff should be transferred to the Royal Hobart Hospital's neurological unit for a CT scan and treatment. There can be no doubt that by this stage the plaintiff was very seriously ill and urgently needed appropriate investigation and treatment. The records note a diagnosis of possible cranial abscess. She was not transferred to Hobart until the next day, Saturday 28 May 1983.
What happened at the Royal Hobart Hospital
The plaintiff did not get to the Royal Hobart Hospital until 3.30pm on Saturday, 28 May 1983. Prior to her arrival, Dr Jensen discussed her condition with a neurosurgical registrar at the Royal Hobart Hospital and, I infer, reported to him the matters that I have already set out. On admission to the Royal Hobart Hospital, a CT scan was ordered for Monday, 30 May. The only treatment given to the plaintiff that day was 250 milligrams of flucloxacillin orally four times a day, and panadeine when required. Nothing of particular significance is noted in the nursing records for Sunday, 29 May. On Monday 30 May, Dr Walker, who saw her on admission, noted "more confused, drowsy to-day". That day she was incontinent on two occasions. The probabilities are overwhelming that the plaintiff's condition deteriorated over the weekend.
On Monday, 30 May, a CT scan was carried out and detected three intra-cerebral abscesses with considerable oedema in the plaintiff's frontal lobes. The plaintiff's drug regime was immediately changed to flucloxacillin, 1 gram intravenously two hourly and chloramphenicol 1.2 grams intravenously eight hourly. That day, probably some time after noon, the plaintiff was operated upon. Both left and right frontal leucotomy wounds were re-opened. On the left side, inspissated pus was "pouting" from the leucotomy track or path down which the leucotome had passed. Ten millilitres of pus was aspirated from the cavities. On the other side, no abscess cavity was located, but approximately 3 millilitres of foreign fluid was aspirated and a small amount of pus flowed back along the line made by the needle used by the neurosurgeon. The plan was to repeat the CT scan and if further abscesses were detected, the surgical procedure to aspirate the pus would be repeated. According to Professor Rosenfeld, neurosurgeon and professor and Director of the Department of Neurosurgery at the Alfred Hospital, Monash University, it was, and is, quite common practice in the case of intracranial abscesses to aspirate, repeat the CT scan, find more abscesses and re-aspirate. He explained that aspiration is a blind procedure. The surgeon cannot see where the needle is going. In the case of multi-located abscesses, as was probably the case here, the needle may enter one part and aspirate the contents of that part of the abscess, but if that part is not communicating with the other parts, pus in the latter may remain. This would be detected upon subsequent CT scan.
Unfortunately, at 5.30pm on 31 May the plaintiff suffered an acute deterioration in her condition. She failed to respond to painful stimuli, her pupils were dilated and she lapsed into a respiratory arrest. She was rushed back to theatre and the brain was re-entered. On the left side inspissated pus and necrotic tissue was protruding through the burr hole. From an abscess cavity 2.5 millilitres of blood and 2.5 millilitres of pus was drawn off. No pus was aspirated from the right side because the elevated pressure prevented access to it. A new burr hole was made on this side and instruments inserted for the purpose of removing cerebral spinal fluid, in order to reduce the pressure, and to permit monitoring of the plaintiff's intracranial pressure. Another CT scan was taken. This showed that there was still a cavity on the left side. The plaintiff was returned to theatre and 5 millilitres of bloodstained serous fluid was removed from this cavity. The plaintiff was then sent to intensive care for ventilatory control and general stabilisation. By this time the brain was irreversibly damaged.
It is now necessary to consider what should have been done (if anything) but which was not done by each of the defendants to discharge the duty of care that they owed the plaintiff. Before turning to this issue, it is appropriate to examine the evidence from the expert medical witnesses about the infective process in the case of an intracranial infection. All the medical evidence was united upon this aspect of the case.
The infective process
The following events preceded the plaintiff's respiratory arrest:
(a)The Staphylococcusaureus entered the site of the leucotomy. Upon the evidence it is impossible to determine whether the infection started at the external or the internal site of the leucotomy. However, the difference is immaterial for the purpose of these proceedings.
(b)The entry of the bacteria caused damage to the surrounding cells. The bacteria produced toxins and more likely than not, the damaged cells themselves also produced toxins.
(c)The toxins caused the surrounding blood vessels to swell and to become leaky. This swelling or inflammation is called cerebritis.
(e)The toxins and damaged cells attracted an increased supply of white blood cells. These cells took up the damaged cells, toxins and bacteria.
(f)A large proportion of these extra white cells remained in situ and formed pus.
(g)At the same time as the pus was developing, vessels on the outside of the areas of cerebritis started to lay down fibres which formed a wall around an area of pus in an attempt to contain its spread. This marked the commencement of the formation of an abscess. The process is sometimes known as "walling up".
(h)Increased pus and increased cerebritis exerted more and more pressure on the nearby brain cells.
(i)The forming fibrous walls were not able to contain all the toxins and some leaked through and attacked other tissue outside those walls.
(j)There followed more cerebritis and the process continued, resulting in continually increasing pressure on more brain cells.
(k)The increased pressure decreased, or cut off the supply of blood to healthy brain tissue.
The process is a continuing one. If not arrested, it gets worse and worse. The intracranial pressure continues to rise and if the process is not stopped and reversed, it can lead to respiratory arrest and even death.
Mr Estcourt QC, senior counsel for the defendants, put to Mr Brownbill the proposition that the plaintiff's respiratory arrest was, or might well have been, caused by an epileptic fit, a known complication of an intracranial infection. Mr Brownbill conceded that it was possible that the respiratory arrest was caused by breath holding consequent upon an epileptic seizure. However, he described the possibility as theoretical and not the likely cause of respiratory arrest in this case. He said that he had never seen an epileptic fit lead to respiratory arrest, but he had seen several instances of respiratory arrest due to coning consequent upon swelling caused by intracranial infection with its associated oedema and abscesses. I accept the opinion of Mr Brownbill and find that it is more probable than not that the oedema and pus resulting from a post operative infection caused raised intracranial pressure and ultimately, the plaintiff's respiratory arrest. Mr Brownbill's opinion was shared by Mr Petty.
What should have happened at the hospitals?
The neurosurgical evidence was also united with respect to the diagnosis that should have been made on or very shortly after the plaintiff's admission to the Launceston General Hospital and the treatment that she should have been given. The plaintiff's history, particularly the recent onset of confusion, the cellulitis, and the pus oozing from the left burr hole should have immediately led to a diagnosis being made of possible post-operative intracranial infection. I did not understand Mr Estcourt to contend to the contrary. This diagnosis occurred to Dr Fuller who admitted the plaintiff to the ward on Friday, 20 May 1983 for it was she who wrote in the notes "?developing meningitis". Indeed, it occurred to the plaintiff's treating psychiatrist Dr Martin, and the hospital's psychiatrist, Dr Radcliffe, at about the time of her admission. It does not appear to have occurred to the Surgical Registrar, Dr Jensen, who seems to have seen the plaintiff as primarily a psychiatric case. Whether or not a possible diagnosis of intracranial infection occurred to the first named defendant is unclear on the evidence, but if it did, it is clear that the treatment he ordered for the plaintiff was not appropriate and in breach of the duty of care that he owed her.
The three neurosurgeons who gave evidence said that possible post-operative intracranial infection is a very serious medical condition that requires urgent treatment. Mr Brownbill said that treatment for a possible post-operative infection should commence immediately, without waiting for confirmation of the diagnosis. He said that the first thing to do was to consult a neurosurgeon and the surgeon who performed the operation in the first place. He explained that "to the person who's not highly experienced with this, the most important instrument to treat the patient with is the telephone".
With reference to the plaintiff, the expert evidence was that appropriate treatment required, as a first step, the obtaining of a Gram stain to identify the bacteria within an hour of taking the swab. Once it was realised that it was the most common post operative bacterium, Staphylococcusaureus, the plaintiff should have immediately been given large doses of two antibiotics, preferably intravenously. Although it would not be known until the full pathology results were to hand, to which antibiotics the Staphylococcusaureus would respond, common experience was that the most likely would be flucloxacillin and chloramphenicol. Mr Brownbill said that these drugs should be given to the level of their toxicity. The neurosurgical opinion was that the appropriate dosage of antibiotics was that given by the Royal Hobart Hospital on 30 May 1983, namely, flucloxacillin, 1 gram intravenously two hourly and chloramphenicol 1.2 grams intravenously eight hourly. A low dose, such as that administered in the Launceston General Hospital, does no more than slow down the development of the bacteria.
Once high doses of antibiotics are in place and the swab at pathology, a CT scan should be arranged. The purpose of a CT scan is to identify the whereabouts and the stage of development of any abscesses. In 1983 CT scanning was an essential tool for the proper treatment of possible intracranial infections. There was some doubt about whether in 1983 it would have been possible to aspirate pus before the abscess had walled up. But there was no doubt that if a CT scan identified a walled up abscess the contents should be aspirated surgically. This procedure reduces the space that the abscess occupies, thus reducing the pressure to that degree. More importantly, as antibiotics cannot penetrate pus, aspiration makes them more effective at reducing the infection and associated oedema consequentially reducing the pressure on the brain.
Thus it can be seen that if a possible intracranial infection is detected and treated at an early stage, the infective process may be stopped by the use of large doses of appropriate antibiotics alone. However, if the process has reached the stage of abscess formation, the contents of the abscess or abscesses must be aspirated surgically to reduce pressure, to reduce oedema and to permit the antibiotics to be more effective. Sometimes it may be necessary to aspirate more than once. Although the CT scan will indicate the location of any abscesses, the surgeon may still miss one or more of them and the infective process may continue for a while until checked by the antibiotics. The process is a continuing one. In the plaintiff's case, large doses of antibiotics should have been applied continuously, CT scanning should have been undertaken repeatedly to monitor any abscess development and any detected walled up abscesses should have been aspirated.
There is one other factor in the treatment of a possible intracranial infection, the use of steroids. If a CT scan shows at lot of oedema, steroids can be used to reduce it. It is thought by some to be a dangerous path to tread because steroids potentiate infection. Steroids must not be used without large doses of antibiotics, but some think that even then, they should not be used unless the risk of damage from a considerable amount of oedema is high and the patient's clinical condition indicates that there is insufficient time to wait for the antibiotics and aspiration to work. It is a matter of judgment to be exercised by the treating neurosurgeon.
Professor Rosenfeld and Mr Petty gave evidence to the same effect as that given by Mr Brownbill. The neurosurgical opinions were supported by the evidence of a very experienced and highly qualified micro-biologist, Professor Gordon. However, Professor Gordon thought that there was no harm in using steroids provided that large doses of antibiotics were simultaneously administered, but conceded that there was a widespread view that steroids hampered the work of the antibiotics and should only be used in conjunction with antibiotics when there existed an urgent need to reduce oedema.
None of the foregoing was undertaken at the Launceston General Hospital. None of the foregoing was undertaken at the Royal Hobart Hospital until the morning of 30 May. The failure to immediately undertake the procedures and treatment outlined by the expert evidence called on behalf of the plaintiff, constituted breaches of the duty of care owed by each defendant to the plaintiff.
On behalf of the defendants, Mr Estcourt did not concede that by failing to do any of the foregoing, all three defendants were in breach of the duty of care that they owed the plaintiff, but he did not adduce argument to the contrary. On the issue of liability, Mr Estcourt argued that the plaintiff had not established that the breach of any duty of care caused the plaintiff to suffer loss, injury or damage. The contention was that notwithstanding any breaches of the duty of care, the plaintiff would not have undergone surgical aspiration prior to Monday 30 May 1983 in any event. It was submitted that even if CT scans had been taken prior to that morning, they would not have shown the presence of walled up abscesses. Mr Estcourt supplemented the contention by submitting that although the dose may not have been as high as it should have been, the Launceston General Hospital did use the correct antibiotic for the bacteria and that it was not demonstrable that two broad based antibiotics were more effective than the administration of a single antibiotic which was not resistant to the infection.
Did the defendants' breaches of their duty of care cause injury?
The following correct statement of the relevant law is taken from the opening paragraph of the closing submissions made on behalf of the defendants:
"If a wrongful omission results in an increased risk of injury to the plaintiff and that risk eventuates, a trier of fact is entitled to conclude that the omission caused the injury unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and caused the damage in any event.
· Betts v Whittingslowe (1945) 71 CLR 637 at 649;
· Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421;
· Chappel v Hart (1998) 195 CLR 232 at 237-238, per Gaudron J; at 247-248, per McHugh J; at 257-259, per Gummow J; at 272-273, per Kirby J;
· Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 per Gaudron J; at 312 per Callinan J;
· Rosenberg v Percival (2001) 75 ALJR 734 at 749-751 per Gummow J."
With respect to that proposition of law, Mr Estcourt submitted that careful analysis of the history of the plaintiff's illness and its treatment shows that even if appropriately treated, the plaintiff would not have made a complete recovery from the intracranial infection.
Mr Brownbill said if the plaintiff had been treated in an appropriate manner from the time of her admission to the Launceston General Hospital, "on the balance of probabilities, overwhelmingly, it would have been a good result". He explained that by a good result he meant a return to normal following the leucotomy. Mr Petty said that had the plaintiff been treated in an appropriate manner she probably would have made a complete recovery. The only other neurosurgical opinion evidence on this issue was given by Professor Rosenfeld. In his written evidence he said, "I am of the opinion that if [the plaintiff] had been more aggressively managed by way of diagnosis and treatment as I have indicated, it is more probable than not that she would have made a good recovery". From the witness box he explained that by "a good recovery" he meant that the plaintiff "would have been close to her normal state prior to the onset of the depression, depressive illness. She would have been independent and close to, if not, the same as she was prior to the onset of the depressive illness". Professor Gordon said in his written evidence that:
"I am confident that had the appropriate principles of medical and surgical management for intracranial infections been adopted from or soon after her admission to the Launceston General Hospital [the plaintiff] would have made a complete or near complete recovery. I would describe the chances of that occurring as significantly likely being of a higher order that the balance of probabilities."
Professor Gordon said that the plaintiff was not treated as a medical emergency as she should have been, even after she was diagnosed as suffering from intra-cranial infection on 27 May 1983 as there was no change in her management for three days.
Notwithstanding these unanimous neurosurgical and micro-biological opinions, Mr Estcourt submitted that upon the evidence, I should conclude that surgical aspiration of the pus would not have occurred earlier than it did, and that the failure to administer larger and multiple doses of antibiotics prior to 30 May 1983 had no affect on the events that occurred.
Mr Estcourt accepted that the state of the evidence was such that a finding was likely that had a CT scan been taken on, or shortly after, the plaintiff's admission to the Launceston General Hospital, it would have revealed the presence of intracranial infection at the stage of early abscess formation. I make such a finding as it is in accordance with the expert opinion evidence. I also find, in accordance with that evidence, that in 1983, it would not have been a breach of the duty of care not to have attempted surgical aspiration of pus prior to the commencement of the walling up process. At the early stage of abscess formation large doses of appropriate antibiotics are likely to be effective. I find that it is a matter of balance for the judgment of the treating neurosurgeon, a judgment that is exercised in the light of information conveyed by repeated CT scans and the patient's clinical state. It was Professor Rosenfeld's opinion that it is likely that the encapsulation, or walling up stage of the abscess had sufficiently advanced by 21 or 22 or possibly 23 May, to enable aspiration to have taken place.
Mr Brownbill was of the opinion that it was likely that on admission to the Launceston General Hospital the plaintiff was in a state of early abscess formation. Mr Estcourt cross-examined him with respect to the length of time that would have elapsed between early encapsulation and "late abscess formation". He said that this depended on several things, including the virulence of the organism and the ability of the patient's immune system to handle that. He said that it could range from a couple of days to a week. He said that in the case of the plaintiff, "I would be looking at from early abscess to late abscess eight days, maybe 10 days". Mr Estcourt relied on this evidence to make the submission that it demonstrated that surgical intervention would not have occurred until about 10 days after the plaintiff's admission to the Launceston General Hospital, and of course, that is when it in fact did occur, but at the Royal Hobart Hospital. When he gave that evidence Mr Brownbill qualified it as is clear from this extract from his cross-examination:
" … But what is the most important thing on this is the clinical correlet, how the - - -
The clinical? … Clinical correlet, how the patient is clinically, what their clinical state is like. When the abscess tends to really form, as you say, the extended or the late abscess - and it usually does enlarge; not only firm up but enlarges - that is an association with a deterioration, a severe deterioration, in the clinical state. So that's what is going on. So if we're talking about this patient, I would be looking at from early abscess to late abscess eight days, maybe 10 days - eight days, 10 days."
After he had given his evidence-in-chief and been cross-examined, Mr Brownbill was recalled. He then said, in effect, that aspiration in this case should have occurred earlier than 30 May. Mr Estcourt submitted that I should not accept this evidence. However, I do accept it because there is evidence of the patient's clinical condition deteriorating prior to 30 May indicating surgical aspiration. It is true that until 27 May, the records at the Launceston General Hospital say little about deterioration. However, Mr Crockett, and Dr Martin noticed deterioration in the plaintiff's condition. Perhaps the nursing notes were not so vigilant to record this, as it seems to have been the prevailing view that the plaintiff was psychiatrically ill and not physically ill. With respect to these notes, it is worth observing that there seems to have been little attention paid to the fact that the plaintiff was carrying the bacterium that is dreaded in a well run hospital, but there is no reference to the need for extra hygiene to prevent its spread. Comparison with the nursing notes at the Royal Hobart Hospital is instructive in this respect. In any event, all the expert opinion evidence leads to the conclusion that absent the urgent administration of high doses of the right antibiotics, it is inevitable that the plaintiff's condition would have deteriorated.
I reject the submission that I should find that the administration of cloxacillin was just as effective as the administration of that drug with another broad based antibiotic such as chloramphenicol. There is little in the evidence to explain why two antibiotics are better than one at treating the infection, although Professor Gordon did speak of the different powers of penetration of different antibiotics. Unfortunately, he was not cross-examined about this aspect of the case. The common evidence of all the experts who have treated intracranial infections was that in their experience, the administration of two antibiotics has proved more effective than one. I accept that evidence. There was no evidence to the contrary.
I do not accept the submission that even if the plaintiff had been given CT scans at St Vincent's Hospital Launceston, or transferred earlier to Hobart for that purpose, no surgical aspiration would have been undertaken prior to 30 May 1983. The submission is inconsistent with the three neurosurgical and one micro-biological opinions. There was no contrary opinion to support the submission.
Mr Estcourt also submitted that I should find that neither the respiratory arrest nor any damage done to brain tissue due to toxicity and/or oedema, was due to the failure to administer appropriate doses of antibiotics. This submission also flies in the face of all the expert opinion evidence. It is based upon facts such as the use of the words "considerable cerebral oedema" [emphasis added], as opposed to - say - "extensive cerebral oedema" on the CT scan report of 30 May, and the fact that those who treated the plaintiff on that day did not use steroids. It was submitted that this material, and more like it to be found in the plaintiff's post 30 May medical records, indicates that the oedema on 30 May was not extensive. Interesting though these submissions may be, they do not warrant the drawing of an inference contrary to the unanimous opinion evidence called on behalf of the plaintiff. As I have said, there was no contrary opinion evidence adduced.
I conclude that the breaches of the duty of care by the defendants caused the plaintiff to suffer the respiratory arrest and consequential loss, injury and damage.
How successful would the leucotomy have been?
There is no doubt that the leucotomy was an immediate success. The question is whether that success would have continued, if there had been no intracranial infection and subsequent breaches of the duty of care. Evidence on this issue was given by Dr Sale and a neuropsychiatrist, Mr Lloyd. Mr Lloyd said that in 1983 the literature reported that somewhere between 60 per cent and 70 per cent of patients who underwent the psycho-surgical procedure that the plaintiff underwent, achieved a very good outcome. 14 per cent to 23 per cent of patients remained unchanged after surgery, and the remaining 7 per cent to 26 per cent achieved some good results but required further treatment. The nature and extent of this treatment varied from patient to patient. With respect to his own work, Mr Lloyd said that he had been involved with approximately 25 patients who had undergone a leucotomy. Of those 25, at least 50 per cent had made a significant and sustained improvement, 15 per cent showed some improvement and the remainder were unchanged. Taking into account the post-operative evidence of the immediate success of the procedure in the case of the plaintiff, Mr Lloyd opined that "on the balance of probabilities, [the plaintiff's] improvement would have been maintained and she would not have suffered any adverse psychological sequelae".
It was common ground that for a long time now the plaintiff has been taking an anti-depressant drug. It was Mr Lloyd's opinion that any depression from which the plaintiff might have suffered since 30 May 1983 was reactive to her disabilities and living conditions and was quite different from the major depressive disorder from which she suffered prior to the leucotomy. He said that post-leucotomy, there was no evidence of a return of the endogenous depression which led to the procedure being undertaken. Mr Lloyd was cross-examined about his opinions and statements. It was put to him that a Professor Kirkby held different views with respect to the success rates of the leucotomy procedure. Mr Lloyd agreed that he had read Professor Kirkby's different views, but he adhered to those expressed by him in his evidence in chief. No evidence was called by the defendants from Professor Kirby or anyone else on this issue and I accept the evidence of Mr Lloyd.
Dr Sale's research into the literature disclosed a success rate of something in the order of 40 per cent, with 15 per cent showing no improvement and the remainder showing improvement to varying degrees. He expressed the opinion in his written proof of evidence that in the case of the plaintiff, had the infection not occurred, she would have sufficiently recovered from her endogenous depression to have been able to cope as a wife and mother, with a reasonable likelihood of being able to return to the work force when her children were older. With respect to the plaintiff's current condition, Dr Sale agreed with Mr Lloyd's opinion that any depression was reactive and not endogenous. As was the case with Mr Lloyd, Dr Sale was cross examined upon the basis of views held by Professor Kirkby but he did not alter the substance of his opinion. Although there is a difference in percentages, generally speaking Dr Sale's researches and opinions coincided with those of Mr Lloyd.
Two significant facts on this issue are that, although they were early days, the plaintiff's immediate results were good, and she has not suffered a return of her endogenous depression. I do not overlook the fact that the plaintiff's circumstances following the respiratory arrest are quite different from what they would have been had there been no breach of the duty of care, but whether this is relevant to this issue of depression was not directly addressed by the evidence. I find on the basis of the opinions of Mr Lloyd and Dr Sale, that but for the breach of the defendants' duty of care and its consequences, the plaintiff would have substantially recovered from her endogenous depression. She may have required some drug therapy from time to time. The evidence was that the effectiveness of this form of treatment has improved markedly since 1983. Upon the assessment of damages, the possibility that the leucotomy would not have been wholly successful will be taken into account as part of the general contingencies.
The plaintiff's physical disabilities
There was no dispute that as a result of the acquired brain injury, suffered in consequence of the failure to properly treat the intracranial infection, the plaintiff has been left with profound physical and cognitive deficits, together with personality impairments.
The plaintiff, who is left handed, suffers from right sided hemiparesis which has affected both her upper and lower right limbs. In addition, there is some impairment of the left upper limb.
The plaintiff has a decreased range of movement in her right shoulder. She cannot raise her right arm past the right angle and the range of rotation in this arm is diminished by about 20 degrees. There is also a small loss of movement when the right wrist is pulled back. The group of muscles that bend the upper right limb is hyperactive but those that straighten that limb are underactive. This state of affairs causes the plaintiff's fingers, her wrist, and then her arm, to go into spasm. Spasm is a major, painful disability. The plaintiff wears a wrist splint to try and correct the spasm, but it is only partially successful. Those who have had daily or regular care of the plaintiff report having seen the plaintiff's right arm go into cramped spasm as frequently as once every ten minutes. The plaintiff pulls at her fingers to release the contraction. Sometimes the right arm spasm is so severe that it forces the plaintiff's right arm in a twisting motion up behind her back. When this happens, assistance from a carer is required to "unlock" the arm from its cramped position. In addition to the muscular imbalance and associated spasm, the right shoulder and upper limb make involuntary movements whilst the plaintiff is using other groups of muscles to do things such as walking or picking things up.
The motor control of the left arm is disordered. The fine motor skills of the left hand are poor. There is increased muscle tone in the plaintiff's right lower limb. The right foot turns in and down. A splint is worn in an attempt to correct this.
The plaintiff's right arm has no useful function. It is a source of pain arising from spasm and involuntary movement. The uselessness of the right arm and the diminished fine motor skills on the left side have a profound effect on the quality of the plaintiff's daily life. She can write, but her writing is so ill-formed that even she has difficulty in reading it. The plaintiff has problems caring for herself. She cannot cut either her fingernails or her toenails. She cannot remove unwanted hair. She has difficulty dressing herself. The plaintiff has to wear clothes that are fitted with elastic and which she can just pull on because zips, buttons and ordinary fasteners are too difficult for her to manage. It takes the plaintiff about two hours to have a shower, wash her hair (with one hand) and dress herself.
The plaintiff finds using kitchen utensils, even those with modified handles, difficult. She prefers to eat with her fingers. She frequently drops things. The variety of her diet is limited as her capacity to cook is virtually reduced to putting frozen foods in a microwave oven. The plaintiff drinks a lot of coffee but never hotter than lukewarm to avoid the risk of scalding herself from a dropped cup. Not long after the plaintiff was discharged from the Royal Hobart Hospital, she took up smoking again and now smokes heavily. Dropped cigarettes have caused burn marks on her clothes, the carpets and the furniture.
The plaintiff attended Court in a wheelchair, but is able to walk limited distances, albeit slowly and in an ungainly manner, which causes pain and which the plaintiff finds embarrassing. She is unable to manage steps.
Around the house, or rather the dingy flat in which the plaintiff is presently living, there are many ordinary tasks that she is unable to perform because of her physical disabilities. She cannot hang clothes on the line. She cannot iron or make a bed without assistance. She cannot vacuum, use a mop or clean the bathroom or the oven. The standard of her washing up is poor. Plates, cutlery and benches are never properly clean.
Even sitting and standing are difficult movements for the plaintiff. Sitting down is more difficult than standing because it requires the plaintiff to release the increased muscle tone in her right leg in order to bend the knee. This she finds difficult to do. This increased muscle tone affects the plaintiff's gait. She walks with a tendency to swing her leg, rather than bend her knee. Not only is walking difficult and ungainly, it is also very tiring for the plaintiff.
Although there are some things that can be done to give the plaintiff minor assistance, such as physiotherapy, hydrotherapy, special shoes, and the like, the plaintiff's physical disabilities are not only permanent, but likely to worsen with the ageing process. The unnatural movements caused by the hemiparesis is likely to give rise to early arthritic changes.
In her evidence, the plaintiff complained of being in "constant pain" from head to toe on the right side. I accept that evidence. The existence of pain from the hemiparesis is supported by the expert medical opinion evidence. The evidence showed that if the plaintiff is distracted or enjoying herself, as seems to have been the case, for example, on her visits to see Ms Bewsher and Ms Bearman in Sydney, the plaintiff's spasms and complaints of pain are less frequent.
As will be seen shortly, the plaintiff has for years lived in the most deprived and depressing surroundings and it is likely that this has heightened her perception of her disabilities and pain. Her appalling living conditions have been wholly due to lack of money, and I accept the submission of Mr Estcourt that once the plaintiff receives proper physiotherapy, hydrotherapy and the like, and is living in more congenial conditions, it is likely that there will be some decrease in the level of pain and frequency of spasms. However, this likely decrease will result in no more than a marginal improvement in the plaintiff's quality of life.
The plaintiff's mental disabilities
The plaintiff's disablement by reason of her physical disabilities is compounded by her cognitive deficits. As a result of the defendants' tortious conduct, the plaintiff suffers from:
(a) severe short term memory loss;
(b) impaired long term memory loss;
(c) confusion;
(d) substantially diminished ability to organise her thoughts and to plan;
(e) severely reduced ability to learn; and
(f)poor verbal expression and impaired articulation due to inference with the muscles of the tongue or speech (dysarthria).
Mr Malcolm Hopwood, a consultant psychiatrist at the Austin Repatriation Medical Centre in Melbourne, explained that there are some parts of the plaintiff's long term memory that have been permanently lost to the plaintiff. With respect to the short term memory loss, Mr Hopwood said that there are two aspects, lost memory, and diminished concentration for the task of attempting to retrieve what memory is left. Mr Hopwood likened memory to boxes piled up in a warehouse. He said that if there is diminished concentration, it is almost like the driver of a forklift truck "struggling to know which row to go to, let alone which point along that row to go".
The plaintiff's short term memory loss is profound. Some parts of it are lost forever and those parts that are not lost forever are difficult for the plaintiff to retrieve because of poor concentration or cognitive fatigue.
The plaintiff's history from 1983 to date
In order to understand the depth and extent of the plaintiff's cognitive deficits, it is useful to trace briefly her history from the time of her discharge from the Royal Hobart Hospital. It is a tragic story.
As a result of her acquired brain injury, the plaintiff became aggressive and difficult to manage in the hospital. She spent some time at the Douglas Parker Rehabilitation Centre and the Lindsay Miller Clinic. She returned to her home just before Christmas 1983. Mr Crockett employed a full time housekeeper and the plaintiff's mother also came and helped. The plaintiff was difficult to manage at home. Aside from her physical disabilities, the plaintiff had to be watched all the time. Mr Crockett said for example, that the plaintiff would get dressed to go out and then go to bed because she had forgotten that she was going out. She was unable to remember something that she had done a few minutes previously. She took up smoking again and had forgotten that she had given it up before Zoe's birth. She was totally incapable of looking after her children, showed them no love or affection, and was difficult and aggressive.
Because of her behavioural difficulties, the plaintiff spent short periods in the Lindsay Miller Clinic. Eventually it became impossible to properly care for her at home and she was admitted to the Eskleigh Nursing Home near Perth. There, the plaintiff was a difficult inmate. She was unco-operative. She swore at other residents when they offered her help. Mr Crockett instanced as an example of her behaviour at Eskleigh, an occasion when the plaintiff refused to get out of the bath and pulled the matron in with her. Ultimately, the staff at Eskleigh were unable to cope and the plaintiff was sent back to the Lindsay Miller Clinic.
Mr Crockett and his daughters were caring and attentive but their devotion went unrewarded. Not surprisingly, the children did not enjoy visiting their mother and ultimately the marriage broke down. No blame for this can be attributed to Mr Crockett or his children.
In August 1985, the plaintiff was transferred to Mont Park Psychiatric Hospital, a Melbourne hospital for the mentally ill. The plaintiff remained there for almost four years. By all accounts, it was not a congenial place. I understand that this hospital has now been demolished. Mr Warner visited the plaintiff regularly while she was at Mont Park. After a while, he starting taking her for visits to his home about once a month. He said this about Mont Park:
" … Well, probably an advance of [sic] Charles Dickens' day but very poor. The majority of the patients were incapable of speech. The staff were generally not helpful … Whenever we visited her there you would describe her as being her as being well sedated or very subdued."
Ms Bewsher visited the plaintiff while she was at Mont Park Hospital. She described the plaintiff's physical disabilities and her slurred speech. She said that the plaintiff was unkempt. She burped a lot and spat in the sink. Ms Bewsher said that the plaintiff smoked a cigarette every 20 minutes, was rude and bullied other patients.
Diana McLachlan, a retired neuropsychologist, was the acting senior psychologist at Mont Park Psychiatric Hospital from 1983 to 1986 and a clinical neuropsychologist in a brain trauma program from the mid-1980s to the mid-1990s. Ms McLachlan said that the plaintiff was admitted to ward 7 at Mont Park, a ward devoted to persons with complex acquired brain injury. There were about eight to ten males and two females, one of whom was the plaintiff, in this ward. There was little privacy. This was an issue with the plaintiff. One of the patients was unable to communicate verbally but screamed repeatedly. Ms McLachlan said "It was a bit like the sound you imagine from madhouses of the early 19th Century".
Ms McLachlan said it was "pretty basic" and "pretty depressing", understatements I think having regard to the evidence given by people who visited the plaintiff while she was an inmate in ward 7. The plaintiff lived in this environment for almost three years. In June 1988, she was transferred to a general psychiatric ward.
Ms McLachlan encouraged the plaintiff to think it was possible for her to live independently of the hospital environment. The plaintiff showed great interest in this, but her memory deficits made it all very difficult. Arrangements were made for the plaintiff to visit a Commonwealth rehabilitation program at Ascot Vale three times a week. An example of the extent of the plaintiff's short term memory loss occurred the day after a visit to Ascot Vale. The plaintiff was able to recall making the visit the previous day, but unable to tell Ms McLachlan what had been the purpose of her doing so.
On 19 January 1989, the plaintiff commenced what was known as "Step 2 Program" at Mont Park. This involved the plaintiff leaving the hospital and living in a house just outside the hospital grounds at 297 Waiora Road. It was the first move to train the plaintiff to live outside an institution. Although this house was staffed by personnel from the hospital 24 hours a day, seven days a week, it provided an opportunity for the plaintiff and another patient who lived there, to start doing some ordinary things, like housework and cooking.
Over these years at Mont Park, the plaintiff was visited by her husband and sometimes her children, but by this time, Mr Crockett had become a caring friend, rather than a husband. The plaintiff had some difficulty adjusting to this change and for a long time said that she wanted to return to live in Launceston. However, it was impossible to care for her in her home or in any institution in Tasmania.
At Waiora Road, the plaintiff learned from the staff how to do simple things again. If she did not shower regularly, the staff prompted her to do so. Although the cognitive deficits were such that she was incapable of planning and cooking a meal, the staff prompted her through the process by asking her simple multiple choice questions. The plaintiff's short term memory loss and poor concentration meant that this prompting had to be repeated over and over again, over a prolonged period of time. An insight into this process appears from this extract taken from Ms McLachlan's evidence:
"What about planning a meal? We've heard, you see, that she can't do that? --- She can't without someone sitting down with her and saying, 'Well, you know, let's have a look. What shall we do about - - -'
So then she has multiple choices, 'What about some fish from the fish shop today which you could cook by doing this or would you like a chop?' that sort of thing?---Yes, and even the nature of the choices has to be managed. So if you say to Louise, 'Would you like to cook tea tonight?' she might well say, 'I'm not going to bother.' If you say, 'Would you like to go and get a Lean Cuisine or would you prefer to do some chops?' then she'll make a choice balance sheet [sic] those two. So even how you present the alternatives make a difference."
In June 1990, it was felt that the plaintiff should try to live a little more independently, and she moved into a flat in Fairfield, a suburb of Melbourne. The plaintiff remained there until April 1994. At first, the support from the staff at Mont Park was intensive. The plaintiff was telephoned twice a day and reminded to take her medication. She was visited regularly. The phone calls were reduced to once a day. Then there occurred what Ms McLachlan described as a break through; the plaintiff telephoned Mont Park to ask the staff there what she should be doing.
In April 1994, the plaintiff moved to her present accommodation, a flat in Northcote. A snapshot of the plaintiff's cognitive disabilities at the time of this move appears from the following passage, also taken from the evidence of Ms McLachlan:
Is the plaintiff disbarred from recovering the reasonable capital cost of acquiring the land and building the accommodation merely because the capital value of the asset will benefit her estate upon death?
In many cases tortiously created needs are for a variety of goods or services. In the case of goods, damages are frequently assessed upon the basis that the provision of capital money to purchase those goods is the reasonable method of satisfying a need. This case is no exception. The parties have agreed that the defendants are liable to pay damages for a range of goods, such as a car, a wheelchair, an orthopaedic bed and so on. In addition, the parties have agreed that the defendants are liable to pay damages by way of capital sums to replace those goods from time to time. There has been no suggestion that there should be any deduction by reason of the fact that on death, the plaintiff's estate will obtain a windfall, being the value of those items at that time. As a matter of principle, I can see no difference between the provision of a motor car and the provision of custom built accommodation. In both instances, the issue is the reasonable cost of satisfying the need.
I accept that any assessment must take into account any amount that but for the defendants' negligence, the plaintiff would have spent on the provision of accommodation for herself. But the fact that on death, there may arise some consequential benefit to another seems to me to be entirely irrelevant to the assessment of what is a proper sum to meet a tortiously created need. As I understand it, this was the approach taken by the Full Court of this Court in Southern Regional Health Board v Grimsey (1998) 8 Tas R 166.
I appreciate, as did the Full Court in Grimsey, that in the United Kingdom there are a number of authorities which state that even though the need to live in custom built accommodation has been created by the defendants' negligence, a capital sum to provide that housing will not be allowed if it will provide a windfall to the plaintiff's case. See George v Pinnock [1973] 1 WLR 118; Cunningham v Harrison [1973] QB 942; Moriarty v McCarthy [1978] 2 All ER 213. These cases were examined by the Full Court in Grimsey at 171 - 173. A study of the reports of these case shows that in none of them is there any examination of this issue from the point of principle. There appear no more than short statements such as "that cannot be right", made by Lord Denning MR in Cunningham v Harrison at 953, with respect to a claimed entitlement to money to provide housing that will result in a "windfall" to the plaintiff's estate upon death.
The Full Court in Grimsey was also aware of some Australian cases, in particular, Rosecrance v Rosecrance (1995) 105 NTR 1 in which Mildren J accepted the proposition at 23 that:
"… the plaintiff is not entitled to recover a capital investment which will still be in existence at the time of his death (or at some earlier time when the property is realised) …".
However, with great respect to Mildren J, it seems to me that such a bald statement is contrary to principle and is never applied to many capital investments in such things as a motor vehicle, technological aids and the like which, although wasting assets, are constantly renewed and which "will still be in existence at the time of his death (or at some earlier time when the property is realised) …". In Dutcher v Government Insurance Office of New South Wales (unreported) 3 August 1988, Slattery CJ at CL said no more on this point other than, at 20:
"The cases seem to show that the capital costs of a new house cannot be awarded by way of damages in claims such as the present (see Cannuli v Di Matteo, Court of Appeal, 21 August 1979). The conventional way of dealing with this type of claim is to consider the additional cost of providing a suitable house, either an existing one or the extra cost if a new one is erected. The plaintiff has made a claim under the latter. I do not understand the defendant to be challenging this approach, but rather that the claims made are extravagant and excessive."
In Cannuli v Di Matteo (unreported) 21 August 1979, the Full Court of New South Wales did not consider this point, as the evidence showed that the plaintiff could not live alone and should reside with her parents or in an institution.
As I have said, consistent with principle and practice, an award of damages to satisfy the plaintiff's need to live in special housing should take into account any amount the plaintiff would have spent on providing her own housing had the tortious conduct not occurred. This is a difficult matter. As at May 1983, the plaintiff had not been in employment for four years. Immediately prior to that date, she had only been working one day per week. She was not in employment when she and her husband bought their family home in Launceston in 1980 for $48,250. At that time, $30,000 was borrowed from the Commonwealth Bank. It is unlikely that the plaintiff would have expended any money upon the provision of housing for herself prior to 1990, being the date I have found that it is likely that she would have made a gradual return to the workforce. Even after commencement of full time work, the prior arrangement whereby the plaintiff's husband provided her with a home may well have continued, permitting her earnings to be spent on the provision of material things for herself and the family.
The family home was sold in 1998 for $92,000. The debt to the Commonwealth Bank at that time had been reduced to $16,106. The net proceeds of sale were $72,000 (rounded off) of which the plaintiff was entitled to receive half. But for the negligence, it is likely that this half share would have been invested by her in another home and accordingly, at least this sum should be deducted from the cost of providing the plaintiff with custom built accommodation in Melbourne within which she can live for the rest of her life. Further, but for the tortious conduct, it may have been that about this time, the plaintiff would have started to contribute some of her earnings to the provision of her home and some account must be taken of this possibility.
It seems to me that upon the assessment of this head of damage, the issue raised by the evidence is not whether the plaintiff's estate will receive a capital benefit on her death, but whether allowance of the full capital sum to provide the accommodation that I have found reasonably satisfies the plaintiff's needs is the most reasonable way of proceeding.
I assess that capital sum to be $602,000 less $35,000 for the capital invested in her former home, less $25,000 for contributions that I find it is possible that, but for the negligence, the plaintiff would have made to her home, making a total sum of $542,000. In this context I am not unmindful that the plaintiff was forced to live in Melbourne in order to obtain the care that she needs and the cost of housing in that city is far in excess of that cost in Launceston.
If the plaintiff were awarded interest on that sum at - say - 6% over the rest of her life, the calculation would be $542,000 X 6% discounted by 3% over 31.5 years = $669,161 so obviously that approach is not the most reasonable means of satisfying the need. Mr Bendzulla provided some calculations based upon the real cost of borrowing the capital sum. It may be noted that his calculations used the discount of 7 per cent and not 3 per cent. Application of a 7 per cent discount factor produces $425,261.
However, leaving to one side the issue of what is the appropriate discount factor, there seems to me to be a problem about assessing damages upon the basis of interest on borrowed capital or interest foregone on capital. There was no evidence to suggest that the plaintiff could provide this accommodation by borrowing the necessary capital sum. In the first place, she would have to find a lending institution willing to lend that kind of money to her. In the second place, she would have to find a lending institution willing to lend her money to buy land and build a house on it, without her having any equity in the realty. Related to that, there was no evidence of the value of the custom built accommodation when complete. Prima facie, it seems to me that there is a grave risk that the value of the completed project may well be less than the capital sums expended upon it, having regard to the matters referred to by Wright J in Grimsey at first instance, reported (1997) 7 Tas R 67 at 97 - 99.
I allow $542,000 for the provision of future housing for the plaintiff
General damages
The plaintiff has been grievously injured, both physically and mentally. She has insight into her physical disabilities. She is in constant pain. The evidence of Mr Hopwood was that she has insight into her loss of memory but the extent of her total cognitive deficits is not clear to her. Assessment of damages under this head is always difficult. I direct myself in this respect in accordance with the Full Court in Grimsey at 188. Care must be taken not to overlap with other heads of damage. I have set out in some detail at the beginning of these reasons for judgment, the past and future pain, suffering and loss of amenities of life that have befallen and will befall the plaintiff. There is no need to repeat them. She is entitled to a substantial award but one that is fair and reasonable. I allow $100,000.
Financial care
This is the last head of damages to be assessed. It concerns the cost of managing the plaintiff's judgment sum. It was not disputed that the defendants' tort has incapacitated the plaintiff from managing her award of damages and created the need for professional management of the fund. See Nominal Defendant v Gardikiotis (1996) 186 CLR 49. However, there was a dispute about the reasonable cost of satisfying this need.
In the light of the conclusion that I have reached with respect to this head of damage, it is not necessary to ascertain to what sum of money this assessment relates, but I do so in case there is appellate review of my conclusion. Relatively recent authority is to the effect that the fund is the whole of the judgment sum, including any amount assessed under this head, except money that is likely to be paid out before investment. See GIO of NSW v Rosniak (1992) 27 NSWLR 665 at 688, 694; Lynch v Lynch [1991] Aust Torts Reports 81-117; Burford v Allen [1992] Aust Torts Reports 81-184.
It seems to me that there will be an immediate expenditure of $46,500 (rounded off) on the purchase of all the items under the head of home appliances and specific aids. With respect to past medical expenses, there will be an immediate expenditure of $40,795.85 to repay indebtedness. There will be no immediate expenditure with respect to past care and attendant services as the cost of these services has been paid by the plaintiff's administrator out of her money and the award under this head is by way of reimbursement to the plaintiff. There are no debts in existence with respect to the Griffiths v Kerkemeyer claim and no immediate payments are likely. The only other head of damage for consideration on this question is future housing, $542,000.
Although it is likely that the task of providing the plaintiff with purpose built housing will be undertaken soon as possible, it is equally likely to take quite some time to find the right block of land, prepare plans, get planning permission and proceed to build. A prudent fund manager would immediately invest at least the majority, of the award for future housing in short term investments. The best approach to this is to exclude the cost of providing future housing from the fund to be managed, but upon an assessment of damages for the cost of managing the plaintiff's money, take into account the likelihood that some short term management of that sum will be required.
Upon those principles, I determine the fund to be the total award of damages assessed to date ($4,455,724.33), less immediate expenditure on home appliances and specific aids ($46,500), less the cost of provision of housing ($542,000). The produces the sum of $3,867,224.33 to which there has to be added any damages assessed for the management of the fund.
The reasonable cost of satisfying the plaintiff's need for a fund manager was a substantial issue at trial. Evidence was given of the cost of fund management by State Trustees Ltd, by the Senior Master of the Supreme Court of Victoria and by the Public Trustee of Tasmania. State Trustees Limited is a statutory corporation constituted by the Guardianship and Administration Act 1986 (Vic). It is akin to the Public Trustee, a corporation sole in this State constituted by the Public Trustee Act 1930.
Orders were made in Victoria and Tasmania that State Trustees Ltd be the administrator of the plaintiff's estate. Ms Haslam, a senior administrator at State Trustees Ltd, has managed the plaintiff's estate for the past nine years. On behalf of the plaintiff, Mr Porter contended the costs of State Trustees Limited managing the plaintiff's fund should be awarded by way of damages under this head. For the defendants, Mr Estcourt submitted that the costs of State Trustees Limited managing the fund were not reasonable in the light of the evidence of the cost of fund management by the Senior Master of the Supreme Court of Victoria.
State Trustees Ltd provides a full range of services that the plaintiff may require in connection with her financial affairs. These services include financial planning, receiving income and paying debts, preparing and lodging tax returns, providing property management advice and so on. In addition, an administrator from State Trustees Ltd will visit the plaintiff at least once a year, more often if necessary, and involve her and her family in her financial affairs.
The current order from the Victorian Civil and Administrative Tribunal authorises State Trustees Limited to charge the plaintiff the following:
"A A commission on gross income received at a rate not exceeding:
(i)3.3% in respect of Centrelink or Department of Veteran's Affairs pensions and allowances; and
(ii)6.6% in respect of other income;
B A commission not exceeding 5.5% of the gross value of any assets of the Estate; and
C A fee not exceeding 1% per annum on the capital sum invested in any common fund of State Trustees Limited."
After judgment there will be no pension or allowances. With respect to the other charges, Ms Haslam explained in her oral evidence that they were the maximum fees that State Trustees Ltd were allowed to charge and, in fact, the fees that the plaintiff will be charged will be less. She said that since the last order was made, State Trustees Ltd has reduced the maximum capital commission rate from 5.5 per cent to 4.4 per cent, but in the case of the plaintiff, would charge the following fees for the management of the plaintiff's fund:
· a "one off" 2.2 per cent capital commission on the whole fund;
· 6.6 per cent per annum on gross income received from investments made through State Trustees Ltd financial planning advice;
· 1.1 per cent per annum management fee on any capital sum invested in the common fund. (The addition of 0.1% to the 1% authorised by the order is due to the liability to pay GST.)
Ms Haslam said that the common fund is currently earning about 5 per cent, and that it was likely that all of the plaintiff's fund would be put into the common fund until a financial plan had been developed. Thereafter, it was likely that the common fund would retain only enough for the plaintiff's day to day living expenses and the balance would be invested in a broad portfolio.
Ms Haslam said an alternative to charging a "one off" commission of 2.2 per cent on the whole of the fund would be to charge 0.55 per cent on that sum annually. Obviously, if, as is more than likely, the plaintiff lives for longer than four more years, the first alternative would be far more attractive than the second. I got the clear impression from Ms Haslam that all these commissions were negotiable, and would be finalised after discussions with the plaintiff and, more importantly, her family.
Mr Wharton is a solicitor to the Senior Master of the Supreme Court of Victoria. He gave written and oral evidence. The Senior Master of the Supreme Court of Victoria is responsible for the administration of the "Funds in Court", established by the Supreme Court Act 1986, (Vic) and the Rules of Court. The fund consists of moneys paid into court for persons under a disability. There is a common fund but, in addition, a considerable number of beneficiaries have their funds in separate accounts and invested on an individual basis.
The Rules of Court (Vic), O79.10 provide:
"79.10 (1) This Rule applies where ¾
(a)money is held for the benefit of a person in respect of a claim by or on behalf of that person in another court, whether that court is within or out of Victoria; and
(b)if the claim were made in a proceeding in the Court, that person would be a person under disability.
(2)[Supreme Court only] Where ¾
(a)the money is held in Victoria; or
(b)the person for whose benefit the money is held is or is about to become domiciled or ordinarily resident within Victoria ¾
the Senior Master may order that if the money is paid to the Court it be held in court for the benefit of that person."
Although it will, of course, be a matter for the exercise of the discretion of the Senior Master, there is no reason to doubt that if an application were made to him, he would accept the plaintiff's judgment sum as part of the fund in court, as she does reside in Victoria and is incapable of managing her affairs.
The Senior Master determines how a beneficiary's fund is to be invested. In this respect he is assisted by an Investment Review Panel. This panel comprises a number of persons who volunteer their expertise concerning investments in real estate, equities, annuities and the like. In an appropriate case, the Senior Master might authorise the expenditure of funds to provide an investment plan for a particular individual.
I find from Mr Wharton's evidence, that if the plaintiff's fund formed part of the Senior Master's fund, it is likely that it would be the subject of individual investment and, at least initially, special investment advice. In common with State Trustees Ltd, the likelihood is that the fund would initially be paid into the common fund and subsequently invested to the plaintiff's individual account, except for a residual amount necessary for day to day living expenses. In 2001 the Master's common fund earned 6.5 per cent.
No fees or commission are charged on capital or income in the Master's fund. This applies equally to investments in the common fund and to investments to an individual's account. Net capital gains from common fund investments are retained by the Senior Master, transferred to a separate account and used to meet administration and other expenses. Income on investments in the common fund is credited to the beneficiary's account without deduction. A number of the existing beneficiaries in the fund have administrators appointed. In some instances, the administrator is State Trustees Ltd. In these cases, the staff of the Senior Master work in collaboration with the administrator. There appears to have been a little friction over this dual role in the past, but there is no reason to think that this would occur in the plaintiff's case.
Mr Wharton described the kind of service that officers of the Master's fund provide for the beneficiaries. I find that those services are, in substance, the same as the services provided by State Trustees Ltd.
In consequence of the view that I have formed with respect to the evidence on this head of damage, it is unnecessary to rehearse the evidence of Mr Beakley from the Public Trustee's office. Suffice to say that the Public Trustee charges fees and commissions generally along the same lines as those charged by State Trustees Ltd.
I accept Mr Porter's submission that the defendants' tortious conduct is the reason why the plaintiff has to live in Melbourne, and I accept that it is reasonable that the funds be managed in that city. However, I do not accept that the reasonable costs of managing those funds are the fees and commissions that State Trustees Ltd will charge. The Master's fund can provide, in substance, the same fund management services as are provided by State Trustees Ltd. There was no suggestion in the evidence that the returns earned by the investments made by the Senior Master were, overall, any less than the returns on investments made by State Trustees Ltd. In the event of the fund being managed by the Senior Master, the only cost to the plaintiff will be the loss of any capital gain on such capital sums as are in the common fund from time to time. Relative to the whole of the plaintiff's fund, those capital sums will be small. Nonetheless, this loss seems to me to be, in effect, a cost of fund management and an allowance should be made for it. In making that allowance, I take into account by way of offset, that the capital in the common fund is protected against losses but, in view of the nature of the common fund investments, the risk of loss is minimal.
In addition to the loss of capital gains in the common fund, there is likely to be incurred the cost of obtaining individualised financial planning advice and an allowance should also be made for this. Further, as State Trustees Ltd will remain the plaintiff's administrator, and in that capacity will perform some services not performed by officers of the Master's fund, some allowance should also be made for this. The evidence about all this is sparse but, doing the best I can, I allow on this basis $40,000 by way of damages to satisfy the need for fund management and administrator's services.
Summary
| 229 | Lost earning capacity | $700,000.00 |
| Past medical and other like expenses | $42,900.00 | |
| Future medical and other like expenses | $101,000.00 | |
| Past care and attendant services | $21,924.00 | |
| Future care and attendant services | $2,828,600.00 | |
| Past Griffiths v Kerkemeyer claim | $49,300.00 | |
| Future costs of specific aids and home appliances | $70,000.00 | |
| Future housing | $542,000.00 | |
| General damages | $100,000.00 | |
| Costs of fund management | $40,000.00 | |
| Total | $4,495,724.00 |
As the assessment is a matter of judgment, albeit judgment aided by calculations, it is appropriate to round off the above total. I assess the plaintiff's damages in the sum of $4,500,000.
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