Curtis v The Queen Elizabeth Hospital - [2008] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CURTIS v THE QUEEN ELIZABETH HOSPITAL
[2008] SADC 22
Judgment of Her Honour Judge McIntyre
7 March 2008
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
Action in negligence - Plaintiff claims damages alleging a doctor employed by the defendant failed to properly diagnose and treat her for meningitis causing complete sensorineural deafness of the right ear. Defendant admits duty of care to plaintiff and further admits it fell short of the required standard of care on the basis that the plaintiff was diagnosed and treated for migraine and discharged without considering a differential diagnosis of meningitis.
Causation - Did the delay in diagnosis and appropriate treatment materially contribute to the plaintiff's hearing loss?
Quantum - Whether any discount should be made for the possibility that the plaintiff might have suffered a hearing loss in any event? Whether the plaintiff has failed to take appropriate steps to mitigate her loss? - Accounting evidence - proper basis for assessment of economic loss.
Held - the plaintiff established causation and her claim succeeds. No evidence to establish that the plaintiff might have suffered a hearing loss in any event and accordingly no discount should be made to her damages. The plaintiff has not failed to take appropriate steps to mitigate her loss. Damages assessed. Accounting evidence presented unhelpful - distinction drawn between hypothetical loss of earnings and loss of earning capacity.
South Australian Health Commission Act 1976; Civil Liability Act 1936 s55, referred to.
Chappel v Hart [1998] CLR 232 at 244; Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121; Fazlic v Milinginbi Community (1981) 150 CLR 345; Medlin v SGIC (1994) 182 CLR 1; Murray v Dawson (1996) 24 MVR 244; Ghunaim v Bart [2004] NSWCA 28, applied.
Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421; Naxakis v West General Hospital (1999) 197 CLR 269 at 279, considered.

CURTIS v THE QUEEN ELIZABETH HOSPITAL
[2008] SADC 22
Preliminary

The plaintiff, who was born on 10 February 1983, has brought an action in negligence against the defendant, a hospital incorporated under the South Australian Health Commission Act 1976.
Summarised, the plaintiff’s case is that a doctor employed by the defendant failed to properly diagnose and treat her for meningitis when she attended at the Emergency Department on 29 December 1999. In consequence the plaintiff says that she suffered complete sensorineural deafness of the right ear and is entitled to damages.
The defendant admits that it owed a duty of care to the plaintiff and further admits it fell short of the relevant standard of care on the basis that the Emergency doctor diagnosed and treated the plaintiff for migraine and discharged her without considering a differential diagnosis of meningitis.
The central issue is whether or not the failure properly to diagnose the plaintiff’s condition, and to offer appropriate treatment on 29 December 1999, caused or materially contributed to the plaintiff’s hearing loss.
Witnesses
The plaintiff and her mother gave evidence concerning the development of the plaintiff’s meningitis, her treatment at the hospital and her subsequent recovery. They also gave evidence about the effect of the plaintiff’s hearing loss upon her usual social, domestic and employment activities.
The plaintiff called two medical witnesses. Professor Philip Newall, an Audiologist, and Dr Glen Croxson, Ear Nose & Throat Surgeon. Professor Newall is Emeritus Professor at Macquarie University, a conjoint Professor at the University of Newcastle and a Professorial Fellow at the Royal Institute for Deaf and Blind Children in Sydney. Dr Croxson is a Senior Consultant Otolaryngologist Head & Neck Surgeon at Royal Prince Alfred Hospital in Sydney with appointments at Ryde Hospital and the Mater Hospital in Sydney.
In addition, the plaintiff tendered by consent reports of Dr Rob Baird, an Infectious Diseases Physician and Microbiologist who is currently the Director of Microbiology at Melbourne Pathology, Dr Marty Ewer, a consultant Psychiatrist and Clinical Lecturer at the University of Adelaide and Dr John Raftos a specialist in Emergency Medicine who is Director of Emergency Medicine at the Sutherland Hospital Caringbah, New South Wales and Senior Specialist in Emergency Medicine at St Vincent’s Hospital at Darlinghurst New South Wales.
The plaintiff also called Mr Steven Magor a Chartered Accountant who is a member of the Tax Advisory Group of the South Australian Division of the Institute of Chartered Accountants to give evidence concerning her economic loss.
The defendant called only one witness, Dr John Tomich a consultant Ear Nose and Throat Surgeon. The defendant also tendered a report of Mr Michael O’Connell, an Audiologist, reporting on Audiological test results relating to the plaintiff.
A number of exhibits were tendered including the defendant’s hospital notes, records of the plaintiff’s academic achievements and her employment history, the plaintiff’s taxation returns, various employment awards and agreements, Australian Bureau of Statistics figures, actuarial information and medical notes of the plaintiff’s general practitioner Dr Sharma.
Background
The plaintiff was born on 10 February 1983. She left LeFevre High School at the age of 15 when she became pregnant with her son who was born in January 1999. She left home at about the same time. She has lived independently and supported herself and her son since that time.
At the time of the circumstances that led to this action the plaintiff was working in a part-time customer service role at a vegetarian café called Vegetarian Creations. Following her illness she obtained work in a part-time role as a “sandwich artist” at Subway and subsequently she took up alternative part-time employment, again in a customer service role, with K-Mart.
In 2004 she undertook some bridging courses at TAFE and then gained a place as a re-entry Year 12 student at her former school LeFevre High School. She completed Year 12 successfully and in 2005 commenced a Bachelor of Education (Primary and Middle) at the University of South Australia, Mawson Lakes Campus. She continues in that course and is due to complete the course in December of this year.
She chose not to work in 2004 in order to concentrate upon her studies but in May 2005 commenced work at North Haven Deli in a customer service role on a part-time basis. She continued in that work until March 2006 when she again ceased employment to concentrate upon her studies.
On 1 November 1999 the plaintiff saw her general practitioner Dr Sharma. She was diagnosed with otitis media, a middle ear infection. It is not clear from the notes which ear was affected. A swab was taken and there was a follow up visit on 9 November 1999. It is unclear from Dr Sharma’s notes what was discussed on that occasion. The plaintiff could not recall either the middle ear infection or the visits to Dr Sharma when giving evidence. There was limited evidence as to the relevance, if any, of this condition to subsequent events.
On or about 22 December 1999 the plaintiff commenced to suffer symptoms of dizziness, nausea and headache and possibly right earache, although the onset of the latter symptom is the subject of some dispute.
At about 2.00 am on 29 December 1999 the plaintiff awoke with a very severe headache, nausea and significant dizziness. She called her mother who made arrangements for the plaintiff to be reviewed at her general practitioner’s rooms by a locum at about 8.00 am. The locum diagnosed a migraine and treated her with medication for that condition. He indicated that if the plaintiff’s condition did not improve her mother should take her to The Queen Elizabeth Hospital Emergency Department.
The plaintiff returned to her mother’s home where she slept for a period but awoke with no improvement in her condition and possibly some worsening. Her mother therefore took her to The Queen Elizabeth Hospital. There is some dispute as to the time of presentation. The plaintiff says that she attended at about midday whereas the hospital notes indicate an attendance at 2.15 pm.
The plaintiff was diagnosed as suffering from a migraine and treated accordingly. She was discharged at 8.00 pm.
She returned to her parents’ home and slept for a period, but on awaking her condition was no better. Her mother again took her to The Queen Elizabeth Hospital. This occurred late on 29 December or early in the morning of 30 December 1999. The hospital notes indicate that the plaintiff was first seen at 12.03 am. There is no dispute about this time frame.
At 1.00 am on 30 December 1999, a presumptive diagnosis of meningitis was made. The plaintiff then underwent a CT scan and a lumbar puncture. The lumbar puncture occurred at 4.20 am and was strongly indicative of meningitis at which point antibiotics were administered to the plaintiff in line with the treatment protocol for meningitis.
The plaintiff was admitted to The Queen Elizabeth Hospital where she remained an in-patient until 3 January 2000.
The plaintiff’s mother gave evidence that she noted that the plaintiff was apparently unable to hear on her right side and she reported this to the nurse. There is no note of Mrs Curtis’ report in the hospital notes. It does however appear that the plaintiff was assessed by an ENT registrar on 31 December 1999 and the hospital notes indicate that this “ruled out otogenic focus”. It further appears that the plaintiff’s hearing was not tested at that stage.
The first note of possible hearing loss affecting the right ear is in the general practitioner’s notes on 7 January 2000.
The plaintiff attended the Infectious Diseases Outpatients department of the hospital following her discharge. On 24 February 2000 she underwent a hearing test that showed that she had a profound hearing loss in the right ear. In a letter to the plaintiff’s general practitioner dated 7 March 2000 Professor Grove reported that the plaintiff was deaf in the right ear and that he had referred her to the ENT surgeons for further review. In a further letter dated 24 July 2000, Professor Grove indicated that this review confirmed that the plaintiff had a “profound unilateral deafness in the right ear, which I took to be sensorineural in nature.”
Issues
Liability
The key issue is that of causation. Specifically whether the failure to administer antibiotics on the plaintiff’s first attendance at the Emergency Department caused or materially contributed to her hearing loss.
Quantum
Whether any discount should be made for the possibility that the plaintiff might have suffered a hearing loss in any event?
Whether the plaintiff has failed to take appropriate steps to mitigate her loss specifically by wearing a CROS-aid?
A proper basis upon which to assess the plaintiff’s claim for damages under the various heads of loss available to her.
Liability
The defendant has acknowledged that it owed a duty of care to the plaintiff and that the standard of care received by the plaintiff on her first attendance at the Emergency Department on 29 December 1999 fell short of the appropriate standard of care.
There was initially a controversy as to whether the plaintiff suffered bacterial or viral meningitis. It is now agreed that it was bacterial meningitis. This is significant because the medical evidence establishes that hearing loss is the most common disability caused by bacterial meningitis. There is evidence that hearing loss occurs in 5% to 30% of cases of bacterial meningitis. The difficulty is that the precise mechanism by which this occurs and the time frame in which it occurs is unclear.
Doctors Croxson and Tomich gave evidence and provided medical reports. They concurred that the plaintiff’s right hearing loss was causally linked to her meningitis. Both indicated that she sustained cochlear hearing loss from meningitis. In his report dated 15 March 2004, Dr Croxson states his opinion as follows: -
The exact mechanism by which bacterial meningitis causes deafness remains uncertain. However, bacterial meningitis is believed to precipitate sensorineural hearing loss by way of extension of meningeal infection from the subarachnoid space along the eighth nerve, the peri otic duct, and the cochlear aqueduct. Infection initially affects the perilymphatic spaces, and eventually spreads to the endolymphatic spaces.
Direct infection of these spaces leads to labyrinthitis which initially may be transient and partial, but may lead to complete hearing loss, if left untreated.
Dr Tomich gave evidence along similar lines and, in his report of 10 October 2005 expressed a view, following examination of CT scans, that these scans were: -
……entirely consistent with an infective process which has entered the right inner ear including the cochlea with resultant new bone formation…
I would concur with earlier expressed opinions that the likelihood of meningitis being complicated by a hearing loss is greater when appropriate treatment is delayed.
The defendant says that the probable cause of the plaintiff’s injury was an existing infection in her inner ear and that it is not possible to say on the evidence when the hearing loss occurred. Accordingly the defendant argues that the plaintiff has failed to establish that the failure to institute antibiotic treatment at an earlier time caused or materially contributed to her hearing loss.
In the alternative, the defendant contends that the medical evidence shows that hearing loss occurs early in the course of the disease and that the plaintiff’s symptoms became acute at around 2 am on the morning of 29 December 1999, well before the defendant was in a position to administer antibiotics. Further the defendant submits that there is evidence of prior earache which suggests that the damage was probably underway well before there could have been an intervention by the defendant.
The plaintiff says that there is no dispute on the evidence that the possibility of hearing loss is a foreseeable risk of a delay in treatment. The plaintiff relies on the evidence of Dr Raftos concerning the pathology of meningitis and its appropriate treatment. The plaintiff’s treatment was delayed by the defendant’s breach of the standard of care and therefore there was a significant increase in the likelihood of her suffering hearing loss. The plaintiff says that no-one can put a time on when the hearing loss occurred but the medical evidence is plain that, having regard to the foreseeable risk of ear problems from bacterial meningitis, any delay in treatment can be said to have caused or materially contributed to the hearing loss.
The plaintiff gave evidence that she had been suffering from a headache for about a week prior to her attendance at The Queen Elizabeth Hospital and had been feeling dizzy and light headed for a few days prior to that. It was put to the plaintiff by the defendant that she had a right earache during this period. The plaintiff stated that she did not recall having a right earache prior to her attendance at hospital. It was put to her that the hospital records indicate that she spoke to a doctor during her first day on the ward telling the doctor that she had a right ear ache before she developed vomiting and photophobia. The plaintiff again indicated that she did not recall having an earache until after her admission to hospital.
A history of right earache is noted in the clinical records on 31 December 1999 by the ENT registrar. The note is unclear as to when the earache was reported to have commenced. Specifically the note does not indicate that the plaintiff said she had right ear ache before the onset of vomiting and photophobia. The note is equally consistent with the plaintiff’s evidence that she did not experience earache before attending hospital. I also note that earache was not a symptom that the plaintiff complained of on either attendance in the Emergency Department. The ENT Registrar’s note appears to be the first reference to this symptom. Having considered this matter, I find that the plaintiff did not suffer earache until after her admission to hospital.
The ENT examination excluded otogenic meningitis but made no note of hearing loss or examination of hearing. The significance of excluding an otogenic cause for meningitis is not clear on the evidence. It does appear, however, from the reports of Drs Croxson and Tomich that the plaintiff’s otitis media diagnosed in November 1999 could be excluded as a cause of her meningitis and hearing loss.
The breach of standard of care admitted by the defendant falls somewhat short of the position advanced by the plaintiff. The defendant admits that the emergency doctor fell short of the relevant standard of care in discharging the plaintiff without considering a differential diagnosis of meningitis. The defendant does not concede that it was possible to diagnose meningitis at the time of the earlier attendance. It is not clear precisely when the defendant concedes the differential diagnosis should have been considered and when it says steps should have been taken to investigate that condition. The most that can be said is that the defendant concedes this should have occurred at some stage of the first attendance rather than sending the plaintiff home around 8 pm on 29 December 1999.
The plaintiff says that the breach occurred at a somewhat earlier stage and relies principally upon the report of Dr Raftos dated 24 August 2003. Dr Rafto’s views as to the appropriate course of treatment are supported by Dr Baird and are not contradicted by any other evidence. Dr Raftos states in his report that:
The role of the Emergency Department in the assessment of patients presenting with headache is to exclude potentially life threatening and disabling causes. In the case of a patient presenting with headache, this is done by considering the nature of the headache, performing a physical examination, and performing investigations including cerebral CT scan and lumbar puncture and analysis of the cerebrospinal fluid (CSF). Features of headache that indicate the need for urgent investigation with CT scan and lumbar puncture include:
·first or worst headache. The presence of a patient’s first severe headache or their worst ever headache is strongly suggestive of intracranial haemorrhage or meningitis and requires urgent investigation,
·photophobia is suggestive of meningeal irritation by blood or infection and requires urgent investigation,
·neck stiffness is suggestive of meningeal irritation by blood or infection and requires urgent investigation,
·vomiting associated with headache is suggestive of meningeal irritation and increased intracranial pressure and requires urgent investigation,
·neurological disturbance is very suggestive of a sinister cause of headache and requires urgent investigation,
·abnormal blood white cell count in the presence of headache, neck stiffness and photophobia is suggestive of meningeal infection and requires urgent investigation.
The plaintiff presented to the Emergency Department with a severe headache associated with vomiting, photophobia initially and then subsequently a complaint of neck pain and stiffness.
In summary, Dr Raftos considers that the plaintiff’s presentation to the Emergency Department at The Queen Elizabeth Hospital on 29 December 1999 was:
…….very suggestive of a sinister cause of headache (either an intracranial haemorrhage, a meningeal infection, or a tumour). The only reasonable response to such a presentation is to confirm or exclude potentially life threatening or disabling causes of headache either by performing blood tests, a cerebral CT scan, and a lumbar puncture with analysis of CSF.

I accept Dr Raftos’ assessment and find that the defendant, by its servant or agent, breached the appropriate standard of care to the plaintiff in failing to consider a differential diagnosis of meningitis at an early stage of her presentation on 29 December 1999.
The next issue to be resolved is when treatment should have commenced given the time necessary to diagnose meningitis and the dispute about the time the plaintiff first presented at the hospital.
Dr Raftos, who has considered the hospital notes, expresses the view that the failure to properly diagnose the plaintiff on first presentation means that there was a delay in treatment of some 10 – 12 hours.
It appears from the evidence that the treatment protocol applied on the second attendance by the plaintiff at The Queen Elizabeth Hospital was appropriate and in line with Dr Raftos’ views. Accordingly this second attendance provides a useful guide to the timing of the treatment. On that occasion the plaintiff presented at 12.03 am and a presumptive diagnosis of meningitis was made at 1 am. The plaintiff commenced antibiotic treatment at about 4.55 am following examination, blood tests, CT Scan and a lumbar puncture. Accordingly I find that the plaintiff should have received antibiotic treatment within four to five hours of her first attendance at The Queen Elizabeth Hospital.
There is some dispute as to when the plaintiff first presented at The Queen Elizabeth Hospital. The plaintiff gave evidence that she thought it was about 12.00 noon or lunchtime. It was put to her that she arrived at 2.15 pm in cross-examination and she denied that this was the case[1].
[1] Transcript [90]
The plaintiff’s mother could not recall the time of arrival at The Queen Elizabeth Hospital but thought that a doctor first saw the plaintiff within about half an hour of arrival.
The hospital notes indicate that the plaintiff arrived at about 2.15 pm and was first seen by a doctor at 3.15 pm.
Both the plaintiff and her mother were somewhat vague about the precise times. This is hardly surprising given the lapse of time since the events described, the plaintiff’s condition at the time and her mother’s concern for her daughter’s well being. I prefer the evidence of the hospital notes in relation to the time of the plaintiff’s attendance.
Accordingly I find that the plaintiff first attended at the hospital at about 2.15 and should have been commenced on antibiotic treatment between 6.15 and 7.15 pm. This is some 10 - 11 hours prior to the time at which such treatment was actually commenced. This is slightly more conservative than Dr Raftos’ assessment but is not significantly at odds with his views.
Has the plaintiff established that this delay in treatment caused or materially contributed to her hearing loss?
Dr Raftos’ second report dated 24 February 2004 encloses abstracts of two papers concerning this issue. He summarises the papers as follows:
The scientific understanding of the hearing loss that occurs in bacterial meningitis is that it is caused by damage to the cochlea by the infection and that this damage begins soon after the initial infection and continues through the course of the infection. Individuals treated with appropriate antibiotics early in the course of the illness generally recover normal hearing. As time progresses from the initial infection without treatment, the damage to the cochlea becomes increasingly more severe. Patients whose treatment is delayed have a significantly greater likelihood of permanent hearing loss because of the progressive cochlear damage.
Dr Rob Baird in his report dated 20 February 2007 also encloses a number of papers and summarises what he describes as “five generally agreed points” as follows:
·Sensorineural deafness is one of the most important complications of bacterial meningitis, occurring in up to 10% of patients.
·Hearing loss develops during the acute stage of meningitis.
·The inner ear is the site of the auditory lesion in meningitis.
·Many children have a reversible loss of hearing during the first two days of the illness.
·Early diagnosis and prompt treatment may be associated with a lower incidence of hearing loss.
Dr Croxson also gave evidence that, whilst hearing loss is thought to occur early in the course of the disease and to increase in severity if left untreated, it is not known precisely when this occurs. It is usually noticed within 48 hours of hospital admission[2] however this may be because it is not usually appropriate to test for hearing loss whilst treatment for the acute condition is underway.
[2] Transcript [160 – 161]
Dr Croxson and Dr Tomich both agree with Drs Baird and Raftos that the likelihood of meningitis being complicated by hearing loss is greater when appropriate treatment is delayed.
The defendant argues that this evidence is insufficient to discharge the onus that the plaintiff bears.
I have been referred to a number of authorities on this issue. The statement of the law by McHugh J in Chappel v Hart[3] is relevant:
Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff’s suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.
[3] [1998] CLR 232 at 244
The plaintiff referred to the case of Bennett v Minister of Community Welfare[4] and the comments of Gaudron J. The plaintiff contended that once the breach of duty was shown the onus fell to the defendant to establish that there was no connection between the breach and the injury. In Naxakis v West General Hospital[5] Gaudron J quotes the paragraph from Chappel v Hart and states:
…. and in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.
[4] (1992) 176 CLR 408 at 420 - 421
[5] (1999) 197 CLR 269 at 279
In Birkholz v Gilbertson Pty Ltd[6] obiter comments of King CJ are relevant. These dealt with a submission that it was not proven that the plaintiff’s disease in that case was contracted through contact with animal carcases in the chill room at his place of employment. King CJ states at [130]
Even if the evidence does not go so far as to prove that the infection occurred in that way, it is quite clear that the appellant’s contact with the carcasses in the chill room must have constituted a major risk of infection. It is a risk which could have been greatly reduced by the provision of gloves and adequate instructions. I do not think that the appellant’s inability to prove on the balance of probabilities that the infection occurred in that way would be fatal to the success of his case. The respondent was clearly under a duty to take such reasonable precautions as it could and these included reducing the risk by the supply of gloves and the giving of adequate instructions. It then becomes a question of causation. Has the failure to take those precautions been shown to have caused or materially contributed to the contracting of the disease by the appellant? It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant’s infection unless it can be established how that infection occurred. But the law’s view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease.
[6] (1985) 38 SASR 121
In view of the fact that hearing loss is a recognised risk of bacterial meningitis that is thought to occur early in the course of the disease, and further, that delay in antibiotic treatment causes a significant increase in risk of hearing loss I consider that the plaintiff has established that there is a link between the failure to administer antibiotics at the time of the first presentation to The Queen Elizabeth Hospital and her hearing loss.
The defendant has admitted a duty to treat the plaintiff appropriately and promptly for her presenting condition and has admitted a failure to meet the appropriate standard of care. The evidence presented, and the state of scientific knowledge, does not enable me to make a finding as to when the plaintiff’s hearing loss occurred. It is simply not possible to say this on the evidence presented. It is clear, as a matter of common sense, that earlier treatment would have significantly reduced the likelihood of adverse outcomes including hearing loss. The defendant has not shown that the delay had no effect at all on the plaintiff nor that the risk would have eventuated in any event.
Whilst the defendant’s position that the failure to administer treatment at an earlier stage does not establish causation in the absence of evidence concerning the onset of the hearing loss has some appeal, I consider that acceptance of this position would produce an unjust result. The uncontroverted medical evidence was that the state of scientific knowledge does not allow a precise time of onset to be determined. The best that can be said is that hearing loss occurs early in the disease, is progressive and is thought to occur in the first 48 hours following admission to hospital. This is consistent with my finding that the plaintiff did not suffer earache prior to her hospital admission. Whilst the comments of King CJ in Birkholz[7] relate to the failure to take precautions substantially increasing the risk of contracting a disease, I consider that they are equally applicable in these circumstances where failure to administer treatment at an early stage substantially increased the risk of the damage that the plaintiff suffered.
[7] (1985) 38 SASR 121
I find that the plaintiff has established causation.
Accordingly the plaintiff’s claim succeeds and I must now turn to the assessment of damages.
Damages
Preliminary
The plaintiff is a young woman presently aged 25. She is left with a significant and permanent disability in the form of complete deafness in the right ear. Dr Tomich gave evidence that the plaintiff’s binaural hearing impairment is 17%. This reflects normal hearing in the left ear and a total hearing impairment in the right. He further gave evidence that there was no prospect of restoring the plaintiff’s hearing according to present medical standards. The only possible treatment was theoretically a cochlear implant of some type. Dr Tomich however did not consider this a realistic possibility. Dr Croxson did not give evidence on this point; however, it appears likely that he would agree with Dr Tomich given his reports refer to the plaintiff suffering a total and permanent sensorineural hearing loss in the right ear.
Both Dr Croxson and Dr Tomich gave evidence that it is possible the plaintiff’s difficulties can be partially overcome by the use of hearing rehabilitative devices. There are two types of devices potentially available to the plaintiff, the first is a Bone Anchored Hearing Aid (BAHA) and the second is a Contralateral Routing of Signal Hearing Aid (CROS-aid). I will return to the issue of these hearing aids.
The plaintiff gave her evidence in a clear and generally candid manner. She impressed me as a remarkably determined and resourceful person who despite the challenges she has faced in her life has managed to attain considerable achievements. She left school at an early age owing to pregnancy. She has maintained herself and her son by a combination of Centrelink benefits and earnings from part-time employment to the extent that she has managed to purchase her own home and has hopes of paying her home off within the next three years. In addition, she has taken up further studies with a considerable degree of success and will complete her Bachelor of Education this year. These achievements have, in the main, occurred against a background of the plaintiff’s right ear deafness.
She gave evidence, which I accept, that she does not like to tell people that she is deaf and has not informed her employers or the various educational institutions that she has attended of her difficulty. She gave evidence concerning the manner in which she coped with her disability by asking questions, positioning herself appropriately and generally by hard work. Not surprisingly she indicated that this left her tired but it is to the plaintiff’s credit that notwithstanding these difficulties she has obtained excellent results in her secondary and tertiary education including the attainment of a Commonwealth Learning Scholarship.
On occasions she was visibly distressed whilst giving evidence as to the effect the loss of hearing has had upon her life particularly as it affects her relationship with her son.
The only reservation I had concerning the plaintiff’s evidence was that she was somewhat reticent in answering questions whilst under cross-examination and exhibited apparent unwillingness to answer questions or concede issues that might be positive to the defendant’s case. However this is a minor reservation and I consider that the plaintiff in general gave truthful evidence to the best of her ability.
The plaintiff’s mother gave evidence concerning the circumstances of the plaintiff’s admission to hospital and her subsequent hearing loss together with its effect on her life. I was impressed by her evidence, which I accept.
Drs Tomich, Croxson and Professor Newall gave very similar evidence concerning the effect of the plaintiff’s hearing loss. In general terms their evidence was that a unilateral profound sensorineural hearing loss causes a decreased ability to understand speech, particularly where there is background noise, and a decreased ability to localise sound. The key difference between these experts related to the effect that this condition might have upon the plaintiff’s ability to work in her chosen career as a primary and middle school teacher.
Professor Newall’s evidence was that whilst the plaintiff would “put a lot of effort and be very motivated to succeed that is very different from actually succeeding[8].” He indicated that he had primary and high school teachers amongst his patients. He did consider that the plaintiff would “be able to function to some extent”[9]. He acknowledged the possibility that she would be able to teach but had reservations from the point of view of having his child in the class room. The effect of his evidence was that whilst the plaintiff might be able to work as a teacher he thought it more probable that she would not be able to pursue this career.
[8] Transcript [149]
[9] Transcript [149]
Drs Croxson and Tomich put the likelihood of the plaintiff succeeding in her chosen profession somewhat higher. Both considered that the plaintiff, given her past employment history and determination, might be capable of pursuing a teaching career. Dr Tomich further gave evidence that there are a number of his patients with unilateral deafness who continue working as teachers. He further stated that it would be “the expected norm”[10] that people with one-sided deafness would work. With all due respect to the views of Professor Newall I prefer the evidence of Drs Croxson and Tomich on this point. They have both had the opportunity of reviewing the plaintiff and assessing her character and determination to succeed. They also took into account the plaintiff’s employment history, which indicates successful participation in employment of a customer service nature that Professor Newall also considered beyond the plaintiff.
[10] Transcript [194]
The defendant has put two arguments concerning assessment of damages, which I will deal with as preliminary issues. The first argument is that the plaintiff’s evidence is that there was a real chance that the plaintiff would have suffered a partial hearing loss in any event. In making this submission the defendant relies upon the evidence referred to above suggesting the possibility of injury before treatment. Specifically the plaintiff’s week of illness prior to her presentation at the Emergency Department, the onset of acute symptoms at around 2.00 am on 29 December 1999 together with dizziness and balance problems prior to attendance. The defendant concedes that it is impossible to be precise about what injury the plaintiff has suffered but urges a conclusion that the plaintiff had a 20 – 25% of suffering a lesser but still partially disabling degree of hearing loss.
I have referred to the difficulty in assessing the time of onset of the plaintiff’s hearing loss. The evidence, in my view, falls short of establishing that some level of hearing loss was inevitable even if treatment had been administered promptly. Even if I were to make a finding that there was likely to be some level of hearing loss in any event I have no evidence that would assist me to establish what that likelihood was with any degree of precision or confidence. Accordingly I decline to make a finding that the plaintiff was likely to suffer a degree of hearing loss even if she had received prompt and appropriate treatment.
The second issue is that of mitigation. I have referred to the hearing aid devices available to the plaintiff. The defendant does not press the BAHA but contends that the evidence is unanimous that a CROS-aid may, and indeed probably will, assist the plaintiff in at least some situations. It is suggested that the plaintiff’s refusal to undergo a trial is irrational and unreasonable.

The plaintiff gave evidence that she would not trial a CROS-aid because she did not want to be seen to use it. She was cross-examined on this point as follows[11]:
[11] Transcript [120]
QIt has been quite a long time now since all this happened, since 1999.
AYes.
QThis case has been running for a lot of years.
AYes.
QIt is going to be over soon.
AYes.
QDo you think once you’ve got that out of the way you would be prepared to give these wireless aids a try?
ANo.
QYou would rather not have whatever benefit they might be able to give you than try them?
AThat’s right.
QYou’d rather just put up with it?
AYes.
The plaintiff has been assessed by an Audiologist in test conditions. The results of this test were suggestive that the CROS-aid may assist the plaintiff but the medical evidence was unanimous that the only way to establish whether this was in fact the case was for the plaintiff to trial the use of a CROS-aid in real life settings such as a classroom, various social and domestic settings. The defendant says that the plaintiff’s claim should be assessed on the basis that is more probable than not that a hearing aid would diminish the consequences of her right sided deafness to some degree, and in particular it would remove at least some of the factors put forward by the plaintiff as an obstacle to her teaching career.

On the face of it the plaintiff’s refusal to attempt a trial of the CROS-aid appears unreasonable. Her refusal however must be taken against the background that she is particularly sensitive to the possibility of people knowing that she is deaf in one ear to the extent that she has not disclosed this to employers and friends over a significant number of years. It seems unlikely that her position will change. Indeed her evidence on this point was most definite that she would not. I note the report of Dr Marty Ewer, psychiatrist, tendered by consent. Dr Ewer noted a history that the plaintiff had difficulty accepting that she could not hear in her right ear. This is consistent with the evidence that she gave.
Further whilst the evidence was unanimous that the only way to establish whether a CROS-aid would assist the plaintiff was a trial it was far from unanimous that a trial would be successful. There is a clear disagreement between the medical specialists about the effectiveness or otherwise of these hearing aids in assisting her to teach. Dr Tomich generally appeared to consider that it would be of assistance whereas Dr Croxson and Professor Newall were more reserved. Even Dr Tomich indicated that “a number of people find the CROS-aid ineffective following a trial”[12].
[12] Transcript [199 – 200]
I was referred to the authority of Fazlic v Milinginbi Community.[13] This case establishes that the reasonableness of the refusal for treatment must be viewed in the light of the patient’s state of knowledge at the relevant time. The plaintiff in this case has been advised that there is a possibility the CROS-aid will assist her but it is also clear that she is aware of the fact that it may not. The plaintiff has refused to openly acknowledge her hearing loss over a number of years. A trial of the CROS-aid, which has been described as a somewhat unattractive and obvious device comprising binaural behind the ear hearing aids, would make her condition obvious and would likely cause her distress. Taking these factors into account I do not think that it can be said that the plaintiff is acting unreasonably in saying that she does not wish to undergo these tests. It is not as if there is unanimous opinion that use of the CROS-aid will make a significant difference. Indeed it may not make any difference. Accordingly I decline to make a finding that the plaintiff has failed to mitigate her loss.
[13] (1981) 150 CLR 345
General damages for pain and suffering and loss of amenities of life
The plaintiff’s claim pre-dates the amendments to the Civil Liability Act 1936 (as amended) requiring the use of statutory multipliers. Accordingly her damages for non-economic loss are at large.
The plaintiff has a permanent physical disability of right sided deafness. This impacts substantially on her normal social, domestic and employment activities. She is a young woman. Notwithstanding her remarkable approach to her disability and life generally it is clear that the disability has caused her and will continue to cause her difficulty and distress.
Dr Ewer, consultant psychiatrist, noted a history that the plaintiff became anxious, depressed and tearful in March 2000, withdrawing from friends and having difficulty coping. She was reluctant to go out and avoided social contact. By the time Dr Ewer saw her in August 2005 her emotional state had improved considerably but she still felt anxious and depressed, she would become tearful every two to three weeks and often felt frustrated due to her hearing loss. This is consistent with the plaintiff’s evidence and my observations of the plaintiff in giving her evidence. Dr Ewer was of the opinion that the plaintiff suffered an adjustment disorder with depressed and anxious mood in 2000 but that this condition progressively improved. It had almost fully resolved at the time of his assessment in August 2005. He considered she was then experiencing minimal adverse effects due to her psychiatric disorder.
The plaintiff gave evidence that her loss of hearing affects her ability to care for her son. She was concerned that if she slept on the good ear she would not be able to hear her son crying in the night. It caused her considerable anxiety whilst he was a baby. Her hearing loss places some restrictions on her ability to enjoy her relationship with her son in that she is not able to go to certain venues and undertake certain activities with him due to the noise level. She generally avoids places where there is a lot of noise such as bars, clubs and movie theatres. She and her mother both described difficulties that she experiences when attending shopping centres. All of these matters caused her some degree of distress and impact upon her enjoyment of life.
Whilst she has coped remarkably well in maintaining employment in circumstances that would seem less than ideal for her condition and in furthering her education I accept her evidence that the additional effort associated with her hearing loss has caused difficulty and tiredness.
In all of the circumstances I assess the plaintiff’s claim for general damages in the sum of $80,000
Loss of earning capacity (past and future economic loss and superannuation)
The plaintiff called Mr Steven Magor, a Chartered Accountant to give evidence. In addition Mr Magor provided three reports dated 5 October 2005, 11 September 2007 and 6 February 2008. With all due respect to Mr Magor and those instructing him I found his evidence and the reports he prepared unhelpful.
The reports were a calculation of the plaintiff’s hypothetical loss of earnings based on a series of scenarios given to him by the plaintiff’s solicitors. This is not however the correct approach to an alleged economic loss. The plaintiff is seeking to recover damages for loss or impairment of earning capacity rather than a direct recovery of past or future lost earnings Medlin v SGIC[14]. Accordingly the premise underlying the reports, and Mr Magor’s evidence, was fundamentally flawed.
[14] (1994) 182 CLR 1
There are also a number of flaws in the presentation of the reports. The reports annex a series of calculations which were established in evidence to be the product of the input of data into a computer software programme. The calculations are a product of formulae that are not apparent to the reader of the report. Without evidence to establish that these formulae are correct it is impossible to rely on the accuracy of the calculations. In the main these formulae appear to be actuarial formulae. Mr Magor conceded that he was not an actuary and accordingly he does not profess expertise in respect of those particular calculations.
It is also plain that the various hypotheses upon which Mr Magor proceeded were not scenarios that arose on the evidence before me making the calculations of very limited assistance. Further, on cross-examination it became apparent that there were arithmetical errors in the calculations as a result of the difference between assumptions made by Mr Magor and the evidence as it was given. For example Mr Magor based his assessment of the plaintiff’s past economic loss upon the plaintiff’s earnings for the 2002/2003 financial year. A figure of $6,692. This was the lowest of the plaintiff’s earnings in the material available to him. He chose that year because it was the most recent employment performance. The evidence demonstrated however that those earnings were limited because of the plaintiff’s decision to work part-time in order to concentrate upon caring for her son. It was not reflective of her earning capacity. Mr Magor conceded that if the plaintiff had the capacity to work full time the figure of $6,692 was not an appropriate comparison figure. The effect of this assumption that $6,692 was the level of the plaintiff’s post injury earning capacity, which I find is incorrect, colours all of Mr Magor’s calculations. He has used this figure as the plaintiff’s “actual earnings” in his calculation of her loss of earnings both past and future. This figure has the effect of substantially inflating Mr Magor’s assessment of her loss of earnings both past and future. This is not an isolated example.
Finally Mr Magor’s approach to superannuation calculations was incorrect in that he calculated superannuation losses by apparently adding 9% to the loss of earnings figures as calculated by him and also by including capital growth in the superannuation scheme. This suffers first from the arithmetical problems referred to above but more fundamentally it is not the correct approach as set out in Ghunaim v Bart[15].
[15] [2004] NSW CA 28
In addition to Mr Magor’s reports the plaintiff has tendered taxation information for the financial years ended 30 June 2001, 2002, 2003, 2005, 2006 and 2007. It is common ground that the plaintiff did not earn income during 2004. A number of employment awards and agreements have also been tendered together with details of the Australian Bureau of Statistics Average Annual Earnings.
The plaintiff’s past economic loss is limited and has been conceded as such notwithstanding the material in Mr Magor’s reports. The plaintiff has a past loss of earning capacity related to her right ear deafness. The question is whether that was productive of financial loss in the past. It appears clear from the plaintiff’s evidence that she has in effect worked as much as she wished to do and that her earnings have been limited, not by her hearing loss, but rather by her childcare responsibilities and her desire to improve her education. The plaintiff was unable to work for a period of two months following her admission to hospital. I find however that this is not related solely to her hearing loss but rather to her recovery from bacterial meningitis.
The plaintiff’s taxation returns disclose no pattern suggestive of loss, nor did her evidence. Her earnings were in any event low. She gave evidence that her net average weekly earnings at Vegetarian Creations were around $100 per week[16], at Subway $110 per week[17], K-mart $188 per week[18] and at the North Haven Deli approximately $300 per week[19]. To take account of the fact that the plaintiff may have required some time off related solely to her hearing loss for attendance at medical appointments and recovery from the physical and psychological factors associated with her hearing loss I assess the plaintiff’s past economic loss at $500.
[16] Transcript [86]
[17] Transcript [93]
[18] Transcript [93]
[19] Transcript [94]
Assessment of the plaintiff’s future economic loss is difficult given the speculation surrounding her future career as a teacher. The plaintiff has a permanent incapacity which will impact upon her ability to undertake that work. The only position identified by the plaintiff as a potential source of alternative employment was as a School Services Officer.
Professor Newall took, as I have indicated above, the least optimistic view of the plaintiff’s ability to undertake work as a teacher. I prefer the view of Drs Croxson and Tomich. Clearly there is an element of speculation involved in an assessment of the plaintiff’s ability to undertake work as a teacher. She has however managed to work in various customer service roles with success. These are roles, which the medical evidence would suggest to be considerably less than ideal. Nevertheless she has had no difficulty obtaining and maintaining such employment albeit I accept with some problems and perseverance on her part. She has also managed to be a student in a classroom and lecture room environment with considerable success judging by the reports of her performance outlined in the academic records that have been tendered. The plaintiff is clearly a person of great determination and persistence. I find that the plaintiff will exercise what earning capacity she has to the greatest extent possible albeit that she may face difficulties in working as a teacher.
The South Australian Education Staff (Government Pre-schools, Schools and TAFE) Enterprise Agreement 2006 formed exhibit P8 and provides some assistance setting out the roles of both teachers and school services officers within the state school system. I accept the plaintiff’s evidence that she would be able to perform the work of a school services officer, as this does not involve classroom teaching. I do however consider that the plaintiff will try her utmost to work as a teacher given her persistence in pursuing that goal, notwithstanding her disability. I also consider that it is likely she could exercise her capacity in other areas of employment for which she is suited not limited to the role of school services officer. She has shown herself to be adaptable and persistent. Her teaching degree will, I consider, equip her for employment other than as a classroom teacher.
Accordingly I do not consider that a calculation of the difference between the earnings and of a teacher and a school services officer is necessarily a helpful exercise in assessing the plaintiff’s loss of earning capacity. Notwithstanding this however there is limited information upon which to proceed. This is a necessarily rough and ready calculation[20]
[20] (Murray v Dawson) (1996) 24 MVR 244
A band 1 teacher’s salary for the period commencing 1 October 2007 is $49,605 gross. Utilising the 30% tax rate applicable to this salary yields a net salary of $34,723.50. The starting salary for a school services officer step 1 for the same period is $34,071 gross and $23,849.70 net. This yields a weekly difference of $209 per week. The plaintiff is presently 25 years of age having regard to the tables appearing in Luntz “Assessment of Damages” 4^th ed., this shows that for a discount rate of 5% the multiplier applicable to the plaintiff to age 65 is 906 [21]. Applying the multiplier to a net loss of $209 per week yields a total amount of $189,354. From this must be deducted contingencies both positive and negative. I consider a reasonable deduction for contingencies taking into account all of the circumstances should be 30%, which yields an amount of $132,547.80. This calculation does not reflect a loss of superannuation. Rather than performing a direct arithmetical calculation of this I will round up the calculation to $140,000 to include superannuation.
[21] Discount rate in accordance with section 55 Civil Liability Act 1936 (as amended)
Voluntary services (past and future)
There is limited evidence on the question of voluntary services. The plaintiff’s mother in particular undoubtedly provided considerable assistance to the plaintiff following her discharge from hospital. At this time the plaintiff and her son lived with her parents and obtained assistance from her mother, father and sister. In the main however these services appear to have related to the plaintiff’s condition arising as a result of the bacterial meningitis rather than the loss of hearing per se.
There is little, if any, evidence of ongoing regular or substantial assistance given to the plaintiff by her family following her return home two months after her release from hospital. The plaintiff’s mother however does appear to have accompanied her to her various medical appointments and her sister has provided some childcare assistance associated with this. There may be need for limited similar assistance of this nature in the future. Accordingly I award a small amount for past and future voluntary services in the sum of $1,000.
Past medical treatment
This has been agreed in the sum of $346.65.
Future treatment
There is limited medical treatment available to the plaintiff for her condition. The CROS-aid trial has been referred to above. The plaintiff is adamant she will not avail herself of this treatment. Consistent with my findings on this issue I make no allowance for this in my assessment.
In 2005 Dr Ewer recommended that the plaintiff undergo a short course of psychological treatment. The plaintiff did not undertake that course of treatment and was similarly definite in her evidence that she did not intend to do so in future. Accordingly I make no allowance for this in my assessment.
The plaintiff may however require review appointments with her medical advisors from time to time associated with her condition. I therefore allow the sum of $500 for future medical treatment.
Interest
The plaintiff is entitled to interest on past economic loss and medical expenses. It is difficult to say when the plaintiff’s entitlement to interest arose, as there are no details of the dates of payment of medical expenses and past economic loss necessarily occurred over a period of time. Doing the best I can with this head of loss I assess the plaintiff’s interest at $200.
Summary
General Damages for pain & suffering & loss of amenities              $   80,000.00
Past economic loss  $       500.00
Future economic loss inclusive of superannuation                   $ 140,000.00
Voluntary assistance past and future  $     1,000.00
Special Damages past  $       346.65
Future medical treatment  $       500.00
Interest on past losses     $        200.00
Total of award  $222,546.65
There will be judgment in this action for the plaintiff in the sum of $ 222,546.65 inclusive of interest. I will hear the parties as to costs.