DAVIES v Pacific Access Pty Ltd

[1999] NSWSC 1262

CITATION:	DAVIES v PACIFIC ACCESS PTY LTD [1999] NSWSC 1262
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	20742/94
HEARING DATE(S):	25/05/99, 26/05/99, 27/05/99, 28/05/99, 12/07/99, 16/07/99
JUDGMENT DATE:	12 July 1999
PARTIES :	Lois Jean Davies (Plaintiff) Pacific Access Pty Ltd (Defendant)
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr P M Donohoe QC with Mr J W Dodd (Plaintiff) Mr I G Harrison SC with Mr R J A Sergi (Defendant)
SOLICITORS:	Marsdens Solicitors (Plaintiff) Hickson Wisewoulds (Defendant)
CATCHWORDS:	Damages; assault causing physical injury; episodic depression; extent of incapacity
DECISION:	See paragraphs 25-30

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

MONDAY 12 JULY 1999

20742/94
LOIS JEAN DAVIES v PACIFIC ACCESS PTY LTD
JUDGMENT

1    HIS HONOUR: In this matter I gave judgment on the question of liability on 28 May 1999. It is not necessary for me for present purposes to again rehearse the circumstances in which this plaintiff suffered injury giving rise to the action. 2    I accept that on the occasion of the assault upon her, the plaintiff suffered a significant blow or blows to her stomach area. This is important because the plaintiff in August of 1982 had undergone a gastric stapling procedure with a cholecystectomy for the purpose of controlling her then excessive weight. Following this procedure she experienced significant weight loss which was maintained until the time of the injury in October of 1991. Up to this time also she enjoyed normal health. She was physically active, apparently vivacious and ambitious. She was extremely hard-working and during her life had from time to time worked as many as three jobs at once. 3    In about mid 1983 she commenced employment with a firm then known as Edward O'Brian and which, by a number of corporate changes, was transmogrified into the present defendant, colloquially known as the “Yellow Pages". Essentially her employment was as a salesperson. It was a job which she said, and I accept, she enjoyed immensely. She was successful, she was hard-working, her hours sometimes amounting to 12 to 15 in a day during periods of particular campaigns and often including work on weekends. Part of the inducement offered by the employer for this level of service comprised prizes given to the employees and to their partners consisting of trips to exotic locations around the world where the employee and his or her partner would enjoy accommodation at the highest degree of comfort. The value of these prizes was something of the order of 8 to 10 thousand dollars. In addition, the personal satisfaction from winning such a bonus was a significant incentive to this plaintiff. 4    Before her accident she had won such a prize in five of the previous six years and I am satisfied that had she continued with her employment, it would have been marked with a similar degree of success, though had she worked to perhaps 60 or 65, it is obvious that the extent to which she could earn such a prize must have been qualified by the loss of youthful energy, whose expenditure was obviously a prerequisite for success. 5    Following the attack in late 1991, the plaintiff experienced upper abdominal discomfort associated with nausea, which did not diminish, together with a rapid increase in weight. Radiography demonstrated a disruption of the staple line and the plaintiff underwent a laparotomy in March 1992 where a revision of the stapling was carried out. It was noted at the time that the upper gastric pouch was much larger than normal and this dilated stoma was reduced. The plaintiff's rapid increase in weight following the incident and preceding the operation was attributed to this enlarged dilated upper gastric pouch, itself reasonably to be regarded as having been caused by the trauma occasioned in the incident. 6    In September 1992 the plaintiff underwent a Nisson’s fundoplicatian for the purpose of dealing with the upper gastric pouch which had again dilated and enlarged. Dense adhesions in the left upper quadrant of the abdomen which resulted, it appears, from the trauma of the previous year, caused a subcapsula tear of the spleen and it was necessary to remove it to control the bleeding. Post-operatively the plaintiff developed a severe bilateral pneumonia and was transferred into intensive care. Her condition improved, but there can be no doubt that this operation caused her considerable mental distress. She was already suffering from anxiety resulting from the assault itself and from the operation in March 1992. 7    It will be necessary for me later to describe her present symptoms, but I am satisfied that it is reasonable to conclude that they resulted from the initial trauma of the attack on her, which itself led to the need for the operative treatment to which I have referred. 8    The evidence, especially the medical evidence, abounds with the history of her psychiatric and mental state following the trauma. I consider a fair account is that given by her husband in evidence before me. Having said that his wife's personality had dramatically changed since the accident, he went on to say -

"It has been building up ever since when she came back. You could see a gradual change in her, as she went to the doctors and through these operations and that, it was affecting her and her demeanour, her whole outlook on life. She was becoming very depressed and very down, especially when she couldn't get back to work. She was looking a little bit forward to getting back to work and to my perspective, it has been a gradual change ever since and it is to the worse ... It has been sort of building up and building up."

9    Shortly after the plaintiff returned from Papua New Guinea, she went on holidays in Bali, but then returned to work. However, shortly after her return, after vomiting up some blood and having a barium meal test, she needed to undergo the first operation to which I have referred. 10    She returned to work in about April of 1992 feeling, as she said, very weak and commenced her involvement in an extremely busy campaign. It was clear that she was unable to cope with the stress and demands of this employment in the same way that hitherto she had done and, indeed, had enjoyed doing. She was placed on probation. There is no question and it is not really disputed that at this time she was almost certainly depressed. She plainly found her inability to work at the same level of efficiency and accomplishment as that to which she had been used for a long period of time the cause of great anxiety which, for obvious reasons, also affected her self-esteem. 11    Following her second operation, the plaintiff returned to active duty at Yellow Pages at the beginning of the year, but lasted only about five weeks or so and was eventually advised by her general practitioner to go into a rehabilitation hospital at Thirroul. After some time there, she accepted advice that she may be able to return to work for perhaps a few hours a day several days a week and sought that work from Yellow Pages. However, no such work was available and in effect she was dismissed. For all practical purposes, she has not worked since. 12    Regrettably, the plaintiff began to drink excessively. This continued for some time, although relatively recently it has stabilised. Although she has continued to live with her husband, they have not had satisfactory sexual relations, if any, since May 1993. The plaintiff is troubled and has been at all material times by feelings of helplessness and hopelessness, touched, not surprisingly perhaps, with self-pity. She suffers from continual headaches and has been treated with a number of antidepressants which she continues to take. 13    Dr Jonathon Phillips, whose opinion in this respect I accept (at all events, it is supported by a number of other appropriately qualified specialists, including those consulted by the plaintiff at the defendant's behest), is of the view that the plaintiff's symptoms are diagnostic of a major depressive disorder and she may well also have had symptoms of post-traumatic stress disorder up until the relatively recent past. 14    Having regard to the sequence of events, I have no doubt that the plaintiff’s present disability is a result of the chain of events triggered by the assault on her in Port Moresby. 15    It was submitted by Mr Harrison of Senior Counsel for the defendant that the exiguous character of the medical evidence concerning the cause of the second operation was such that I should not accept that it arose out of either the trauma or the first operation. I am satisfied upon a slight preponderance of the medical evidence that the necessary link is established, but at all events, having regard to the history given by the plaintiff, which I accept, of the period between the incident in Port Moresby and her second operation, that the ensuing symptoms of psychiatric disability and emotional dysfunction represent a continuum in which the second operation and its immediate sequelae played a part, but the role of which became more destructive than it otherwise would have been were it not for her pre-existing condition. As I have concluded that this condition was in every relevant sense caused by the initial trauma, I reject the submission made by Mr Harrison in this respect. 16    It is clear that the plaintiff's misery is not continuous, or at least continuously apparent. However, I am satisfied that during the relevant period it is close to, though often beneath the surface. Crises of a trivial kind or stresses which ordinary persons scarcely notice will bring it to the surface. Indeed, as she and her husband say, sometimes she acts in an emotionally upsetting way even where no apparent cause can be attributed to the sudden change in behaviour. The plaintiff is concerned that this emotional lability will affect her employability and she is unwilling to undertake the risk that she will be embarrassed or otherwise be unable to carry out any work that she undertakes by virtue of this ever present threat. I accept that this is not an unreasonable attitude to have, although I think that the plaintiff is capable of undertaking more work than she has expressed a willingness to undertake. 17    The defendant has tendered a large number of photographs taken over the years on what are obviously special occasions showing that she is happy and apparently enjoying herself. This is not altogether surprising. Firstly, such photographs are self-selective. One does not take photographs of people who are at that moment unhappy or miserable in the ordinary course of things. Secondly, it is well-known that people put on a brave face, especially for the camera. But at all events, the plaintiff does not assert that she is in a continual state of unhappiness; to the contrary. Her problem is that frequently, but without warning, she is subject to moods of considerable unhappiness which are most distressing for her, but, of course, pass. 18    The plaintiff admits to a love of golf and over the years since her loss of employment has played both regularly and frequently. It is a game which plainly gives her a sense of achievement. Of course, it is undertaken in a friendly environment. She is a member of a golf club where for some time she acted as the secretary of a committee of women members, a job which required preparation for monthly meetings and the necessary communications which that responsibility entails. This confirms what I have already conjectured, namely, that the plaintiff is able, indeed, to undertake some work. Of course, the pressures of seeking, obtaining and maintaining employment are far different from those involved in playing games of golf and being a member of a voluntary committee of the kind which I have described. 19    Dr Lee, consulted by her for the purposes of this litigation, diagnosed her position as follows:

"I believe that her history and presentation indicates that she has suffered chronic post-traumatic stress disorder and dysthymic disorder as a direct result of an extremely frightening assault in 1991 when she was in New Guinea. She has had ongoing problems with marked anxiety, hypervigilance, nightmares, depression, inability to concentrate and impairment of her family and professional life. These are the diagnostic criteria for post-traumatic stress disorder. She has also had a major depressive disorder which antidepressant medication has only partially alleviated. She currently suffers from chronic depression (dysthymic disorder)."

20    In Dr Lee's opinion it was likely that the plaintiff would require long-term supportive psychotherapy. I think that this is a reasonable conclusion on the whole of the evidence available to me. 21    Dr Wilkins, who has the great advantage of having treated her as a psychiatrist since August 1998, says this:

"Mrs Davies' recovery is incomplete and she has suffered for many years. Her prognosis is poor. She continues to experience various psychological and somatic symptoms. Further work is required to resolve lingering and recurrent effects of this perceived life threatening trauma. It is not possible to predict the outcome of such therapy, but given the degree of decompensation Mrs Davies experiences in the absence of supportive therapy, ongoing therapy is required."

22    I am of the view that more likely than not the plaintiff would suffer significant stress from the requirements of seeking, obtaining and maintaining employment. On the other hand, I consider that if she limited herself to employment, say for two days a week, and knew that this was all she needed to cope with, it would be reasonable in the light of the medical evidence for her to undertake this employment. For obvious reasons this conclusion will have an effect upon the extent of the plaintiff's economic loss. 23    I note in this respect that Dr Anderson, who was consulted by the plaintiff at the behest of the defendant on a number of occasions, concluded in March 1995 that the plaintiff was,

"Unfit for employment at the present time because of her depressive illness. In my view, her depression is quite chronic and the prognosis should be viewed as guarded. I take the view that there may be times when she is fit for low stress work, but she will be vulnerable to further recurrence of depression and that would make her an unreliable employee."

In June 1998 he still regarded her,

"As unfit for employment because of her depression for the foreseeable future."

24    Other medical evidence to the contrary has been tendered by the defendant and I have taken that into account in coming to the conclusion which I have expressed. I consider that Dr Anderson's opinion should be preferred. 25    I now come to the difficult task of applying a financial concomitant to the circumstances of the plaintiff as I have briefly outlined them. I have no doubt that this is far from the most serious case of injury and incapacity which requires compensation relating to non-economic loss. In this respect I think that the appropriate sum is $70,000. Past medical and hospital and cognate expenses are agreed at $47,813. Economic loss for the period 3 March 1992 to 11 April 1992 I allow at $4,300. 26    More difficult to assess is the appropriate amount of damages for past economic loss from 27 October 1992 to today. Having regard especially to Dr Anderson's report and my own assessment of the circumstances as set out in the evidence and the medical reports, I consider that for part of this time she was wholly unfit for work, but for most of it she was fit for some work, perhaps two days a week. The amount which would follow from a calculation of the applicable sum on the assumption that she was completely incapacitated for the whole of this period by allowing $1,000 per week is $351,000. I am of the view that the appropriate sum to allow for this period is $275,000. 27    I turn now to future economic loss. I am satisfied on all the evidence that the plaintiff would have worked to the age of somewhere between 60 and 65. I consider that she has a residual earning capacity, though in lowly employment, of something in the order of two days per week. I am unhappy about any precise quantification of these figures since this would give a misleading impression of precision to what is essentially a value judgment. Having regard to the relevant discounts, including that of 15 percent for the vicissitudes of life, I am of the view that the appropriate sum to award under this head is $270,000. [But see addendum below.] 28    The loss of superannuation benefits I assess at $27,000. Future medical expenses, having regard to the opinion that continuing psychotherapeutic assistance is necessary, I accept at $10,000. The allowance under Fox v Wood is agreed at $10,528. I allow interest on past economic loss at $53,900. Worker's compensation needs to be deducted. It is agreed at $146,279. 29    I therefore give judgment to the plaintiff for $621,362.05 plus costs.

ADDENDUM

30    On 16 July 1999, his Honour amended the judgment as follows -

When correcting the draft ex tempore judgment, I noticed that my assessment of future economic loss erred as being based upon a mistaken calculation of the plaintiff’s age, which I underestimated by two years. Accordingly, the amount of $270,000 should be reduced to $220,000. Judgment for the plaintiff is therefore $571,362.05 plus costs.


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Last Modified: 06/26/2000