Dorothy Vesna Skea v NRMA Insurance Limited ABN 11 000 016 722
[2005] ACTCA 9
•24 March 2005
DOROTHY VESNA SKEA v NRMA INSURANCE LIMITED ABN 11 000 016 722 [2005] ACTCA 9 (24 March 2005)
NEGLIGENCE – nervous shock – causation – novus actus interveniens – compensable damage – remoteness of damage – claim for damages arising out of perception of aftermath of accident – recognised psychiatric illness suffered – where appellant subsequently cared for tortiously injured husband and daughter – finding that role as carer exacerbated or aggravated initial injury – whether trial judge correct to discriminate between aspects of injury caused by shock and those aggravated by role as carer – damages reassessed.
Jaensch v Coffey (1984) 155 CLR 549
Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164
Griffiths v Kerkemeyer (1977) 139 CLR 161
Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Bourhill v Young [1943] AC 92
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Hinz v Berry [1970] 2 QB 40
Pham v Lawson (1997) 68 SASR 124
De Francheschi v Storrier (1988) 85 ACTR 1
Todorovic v Waller (1981) 150 CLR 402
Thompson v Faraonio (1979) 24 ALR 1
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 26-2003
No. SC 123 of 2002
Judges: Crispin P, Gray and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 24 March 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 26-2003
) No. SC 123 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DOROTHY VESNA SKEA
Appellant
AND:NRMA INSURANCE LIMITED ABN 11 000 016 722
Respondent
ORDER
Judges: Crispin P, Gray and Lander JJ
Date: 24 March 2005
Place: Canberra
THE COURT ORDERS THAT:
the appeal be allowed. The judgment entered by the trial judge in the sum of $215,341.70 be set aside and, in lieu thereof, enter judgment for the appellant in the sum of $412,376.70;
the order for costs made by the trial judge stand;
the respondent pay the appellant’s costs of the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 26-2003
) No. SC 123 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DOROTHY VESNA SKEA
Appellant
AND:NRMA INSURANCE LTD
ABN 11 000 016 722
Respondent
Judges: Crispin P, Gray and Lander JJ
Date: 24 March 2005
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P:
I agree with the orders proposed by Lander J and am in broad agreement with his Honour’s reasons for judgment. I would, however, like to add a brief explanation of my own.
In my opinion, the crucial point, which did not emerge with clarity from the submissions of counsel, is that the distinction drawn in Jaensch v Coffey (1984) 155 CLR 549, between psychiatric illness caused by nervous shock and psychiatric illness caused in other ways, does not require the concept of damage caused by nervous shock to be artificially confined to the initial psychiatric illness caused by the nervous shock without regard for any subsequent deterioration or aggravation. The decisive question of whether such a deterioration or aggravation is properly attributable to the shock of the accident must be answered by reference to the normal principles of causation.
In Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522 at 527 Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ explained that the relevant damage includes “both the injury itself and other foreseeable consequences suffered by the plaintiff”. Hence, as their Honours explained at 528,
A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfesor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor’s negligence alone. (Citations omitted)
If it is reasonably foreseeable that the psychiatric illness caused by the shock might be aggravated by some other factor then the further damage will also be compensable unless that factor can be regarded as a novus actus interveniens. The mere fact that the defendant would not otherwise be liable for any injury attributable to that factor is not sufficient to break the chain of causation. Hence, as their Honours observed at 529, even negligence in the provision of medical treatment for the injuries may not relieve an initial tortfeasor of liability for the plaintiff’s subsequent condition. When subsequent stresses have led to an aggravation of a psychiatric illness, the aggravation may well be attributable to the psychological vulnerability arising from the initial illness and hence the very kind of thing that was likely to occur as a result of the defendant’s negligence.
It is open to a defendant to attempt to show that some or all of the plaintiff’s continuing disabilities are not attributable to the initial illness but to subsequent non-compensable stresses. However, in that event, the defendant bears the onus of “disentangling” the non-compensable from the compensable components of his or her condition: see Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
In the present case, the appellant’s psychiatric illness was clearly caused by the immediate shock of the accident. It was foreseeable that such injury would be aggravated by the stresses of caring for the injured family members and the emergence of that stress cannot be dismissed as a novus actus interveniens. Accordingly, damages should have been assessed by reference to the psychiatric illness as so aggravated.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Crispin.
Associate:
Dated: 24 March 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 26-2003
) No. SC 123 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DOROTHY VESNA SKEA
Appellant
AND:NRMA INSURANCE LTD
ABN 11 000 016 722
Respondent
Judges: Crispin P, Gray and Lander JJ
Date: 24 March 2005
Place: Canberra
REASONS FOR JUDGMENT
GRAY J:
I agree that, for the reasons given by Lander J, the appeal should be upheld. I agree with the orders that he proposes.
I certify that the preceding paragraph numbered seven (7) is a true copy of the Reasons for Judgment herein of his Honour Justice Gray.
Associate:
Dated: 24 March 2005
IN THE SUPREME COURT OF THE ) No. ACTCA 26-2003
) No. SC 123 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DOROTHY VESNA SKEA
Appellant
AND:NRMA INSURANCE LIMITED ABN 11 000 016 722
Respondent
Judges: Crispin P, Gray and Lander JJ
Date: 24 March 2005
Place: Canberra
REASONS FOR JUDGMENT
LANDER J
This is an appeal from a decision of a judge of the Supreme Court of the ACT.
The appellant was the plaintiff in the Court below. She brought proceedings against both NRMA Insurance Ltd and the nominal defendant claiming damages for personal injuries as a result of a motor vehicle collision which occurred on 11 January 1995 on Sutton Road in the Australian Capital Territory. She was successful against the first defendant, NRMA Insurance, the respondent to this appeal. Her action against the second defendant was dismissed. She does not complain of the order dismissing her claim against the second defendant. The trial judge assessed her damages at $215,341.70 made up as follows:
General damages $ 40,000.00
Interest $ 5,125.00
Past economic loss $ 75,000.00
Interest $ 32,000.00
Future economic loss $ 50,000.00
Past out-of-pocket expenses $ 6,216.70
Future out-of-pocket expenses $ 7,000.00
Total $ 215,341.70
The appellant’s complaint on this appeal is that the damages assessed by the trial judge were inadequate and I will refer to the grounds shortly.
On 11 January 1995, the appellant’s husband and two children, Fiona and Bruce, were proceeding along Sutton Road in the Australian Capital Territory. The motor vehicle being driven by the husband suffered a steering failure and capsized. The appellant’s husband and two children were seriously injured.
The respondent failed to properly maintain the vehicle and, as a result, a failure occurred in the steering arm, which gave rise to a loss of control of the motor vehicle and it capsizing.
At about noon, the appellant was working in her business when she was telephoned by an unidentified male who told her that her husband had been involved in a motor vehicle accident on Sutton Road. Immediately after, the appellant’s husband spoke to the appellant. He was in a distressed state. He said there had been an accident and that he had been hurt. He said that he did not know where the two children, who had been in the vehicle with him, were. The appellant’s evidence was that he said:
I can’t see the kids, … I can’t hear them and no one will tell me where they are, I think they might be dead, you have to come over and find them.
The appellant immediately left her business and travelled to Sutton Road. Shortly before reaching the point at which the motor vehicle had come to rest, she was stopped by a police officer. She persuaded him that the persons involved in the accident were her family and she was allowed to travel to the damaged vehicle. Photographs tendered at the trial show the motor vehicle on its wheels but extensively damaged. The whole of the top of the vehicle above the height of the bonnet had either been shorn off or compacted to the height of the bonnet. There were a lot of people there; ‘it seemed like about 100 people … and a couple of ambulances and three to four police cars and there was just people everywhere’.
The appellant first came across her daughter who was being treated by ambulance officers. Fiona saw her and screamed ‘Mum I can’t breathe, I can’t breathe, I can’t breathe’. Fiona would not allow the paramedics to treat her. The appellant instructed them to give Fiona something for the pain. She next saw her husband and reassured him that their daughter was alive but badly injured and being treated. Her husband had blood on him and a big chunk cut out of his head. He was crying and in pain whilst the paramedics worked on him. She was not able to find her son for some time but, eventually, located him. He was lying still and appeared to be lifeless. He was being attended by paramedics. They reassured her that he was alive but seriously injured.
All three of the family were removed to hospital and all three required extensive treatment. The appellant went to the hospital. She said by then she was totally confused and shattered. She was concerned that Bruce would die. She remained at the hospital for seven or eight hours.
Fiona remained in hospital for a week, her husband three weeks and Bruce six weeks. Each of the family members achieved different stages of recovery. The appellant’s son recovered quite quickly after being released from hospital and was able to return to independent living soon after the accident.
The appellant’s husband received serious head injuries which have left him with severe impairments. Since the accident he has required extensive care which has been supplied by the appellant.
The appellant’s husband and her daughter both suffered personality changes which dramatically affected their relationship with each other. That has caused serious tensions within the home and has made the appellant’s life quite difficult. That has been relieved recently by her daughter marrying and moving away.
At the hearing before the primary judge, both parties tendered various reports from medical practitioners. None of the medical practitioners were cross-examined. The appellant also gave evidence on her injuries and their consequences.
The appellant’s evidence was that she became more and more distressed after the accident.
However, she was unable to articulate her belief as to the cause of her distress.
The only oral evidence given by the appellant at the trial concerning the cause of her injuries was contained in the following extract from the respondent’s cross-examination:
Q:The stresses that you were feeling at the time, did you consider that they arose from what you were required to deal with at home? That is looking after your husband and your daughter and being confronted by how they had changed since the time of the accident?
A:I don’t know if that’s what caused it, or whether it was the accident…
Eventually, she consulted her husband’s and daughter’s general practitioner, Dr Cross of Bungendore. In January 1996 Dr Cross referred the appellant to Sutton & Williams Psychology Services and the appellant consulted that practice five times between February and May 1996. Ms Pauline Allingham reported on 24 June 1996:
At our first meeting, Mrs Skea described her current situation as caring for both Fiona and Mr Skea as well as the youngest two children. She appeared drained and fatigued and upset at her condition as she said she had always considered herself strong and capable of doing whatever was required of her. She reported that her memory was not as good as it used to be, that she was having difficulty making decisions and was frightened to answer the telephone.
Mrs Skea described Mr Skea’s and Fiona’s need for care as resulting from the injuries, and subsequent pain, caused by the accident in January 1995. Mrs Skea described her experience of the accident as follows:- She was at work when informed by phone that her husband, son and daughter had been in an accident. The call came as a shock to her. Leaving her youngest daughter with a friend, she drove to the scene of the accident. When she arrived, the accident scene appeared confused and chaotic. Fiona, Bruce and Mr Skea had all been flung from their vehicle and were lying in different places. She did not know whom to go to first and could not stay with any one of them. This sense of confusion continued at the hospital as they were admitted to different wards.
According to Mrs Skea, the three members of her family sustained spinal injuries and subsequent back pain. Bruce also had some head injuries. After returning home, both Fiona and Mr Skea tended to be irritable and to argue with one another. Mrs Skea has thus felt the need to keep the peace between them as much as possible, for example, by taking on a greater share of the household chores than previously. The apparent alteration in both Fiona and Mr Skea has itself been a cause of sadness to Mrs Skea. Additionally, the consequences of the accident have prevented both Mrs and Mr Skea from running their business and Mrs Skea has concerns about their financial survival.
In my opinion Mrs Skea is suffering from a reactive depression occasioned by the accident to members of her family and subsequent losses and fatigue. Since she describes herself as previously having abundant energy and positive affect, I am hopeful that her present state is temporary. To some extent her recovery will be linked to that of Fiona, Bruce and Mr Skea.
Dr Cross provided a report on 20 June 1996. She diagnosed the appellant with ‘reactive depression, consequent on the critical incidents and changes in her life as a result of the motor vehicle accident of January 11, 1995’. Dr Cross had met the appellant on many occasions prior to providing her opinion because the appellant accompanied her husband and daughter to medical consultations with her. Dr Cross said in her report that the appellant’s depression had been evident for a year or more ‘but Mrs Skea was in strong denial’. Dr Cross said that she made her formal diagnosis of depression in May 1996.
Both Dr Cross and the psychologist were of the opinion that the appellant was suffering from a reactive depression. Both sourced that reactive depression to the accident and to the appellant’s lifestyle changes consequent upon the accident. Both had reached that opinion before the end of June 1996.
Eventually, Dr Cross referred the appellant to Dr Brian White, psychiatrist, who first saw the appellant on 4 June 1997. This was almost a year after Dr Cross had first diagnosed the reactive depression.
Dr White recited the appellant’s history. He said:
Her history is that she was called to the motor vehicle accident involving her husband and two children. She arrived at the scene shortly after the ambulance and saw the three of them lying on the ground in a widely spread out area. She had a desire to attend all three but found it impossible to give all of them the attention she felt each needed. She feared initially that one or more had been killed.
Dr White also noted:
She has ongoing stresses from her husband and daughter who have not fully recovered from the accident.
He formed the opinion that she suffered from a major depressive disorder and associated post-traumatic stress disorder ‘brought on by the effect of witnessing the aftermath of the accident’.
In a second report given on 14 December 2002, Dr White repeated the history to which I have already referred and added this:
Her husband in particular continues to be very handicapped, even has difficulty in travelling by car, and is very depressed and irritable, with the major burden of running the house falling on her. Prior to the accident he had been a high functioning intelligent and resourceful man who now has become very dependant and unreliable in any planning, managing finances and coping with any stress.
In that report, Dr White said further:
She has ongoing stresses from her husband and daughter who have not fully recovered from the accident.
…
My diagnosis is that she has a Major Depressive Disorder and associated Posttraumatic Stress Disorder (PTSD) brought on by the effect of witnessing the aftermath of the accident, and since then due to the stresses of her husband’s condition.
I consider her condition continues to be exacerbated by [her husband’s] continuing problems. The prognosis therefore is that she is likely to suffer some degree of depression while his condition persists. (Emphasis added.)
Dr White offered the same opinion in a further report dated 18 June 2003, where he said:
My diagnosis is that [the appellant] has a chronic Posttraumatic Stress Disorder (PTSD) brought on by the effect of witnessing the aftermath of the accident and she has an associated Major Depressive Disorder. She was called to the motor vehicle accident involving her husband and two children. She arrived at the scene shortly after the ambulance and saw the three of them lying on the ground. I consider the initial condition is the Posttraumatic Stress Disorder (PTSD) and this continues to be aggravated by exposure to reminders. She has a Major Depressive Disorder associated with the PTSD and aggravated also by the stresses of her husband’s condition. (Emphasis added.)
There is a degree of ambiguity in Dr White’s evidence in relation to identifying the appellant’s prevailing psychiatric injuries and the cause or causes of those injuries. There is no attempt to set out the degree to which the illness sustained as a consequence of the nervous shock is ongoing; the degree to which any ongoing effects have been aggravated by the appellant’s domestic circumstances since the accident; or the degree to which the appellant is suffering from psychiatric illness solely as a distinct consequence of caring for her husband and daughter.
However, in my opinion, a proper reading of Dr White’s evidence is that the appellant continues to experience the ongoing effects of the initial nervous shock caused by her witnessing the aftermath of the accident and that nervous shock, which has manifested itself as a major depressive disorder associated with the post-traumatic stress disorder, has been aggravated and exacerbated by caring for her seriously injured husband and daughter.
The respondent tendered a medical report from Dr Duke, a psychiatrist who saw the appellant on one occasion in April 2002.
His opinion was at variance with the general practitioner, the psychologist and Dr White. He said:
Ms Dorothy Skea, aged 47 years, previously worked as an office manager for Kit Homemakers but is now operating as a carer for her husband who sustained brain damage following a motor vehicle accident in 1995.
She could be described as suffering from Dysthymia DMSIV Category 300.4. This has not responded to the various treatments offered to her by her treating psychiatrist Dr White. Ms Skea has under-utilised resources such as Headway. Her complaints of sleep disturbance, agitation, anxiety, confusion and feelings of guilt and fatigue, are all secondary symptoms of her dysthymia.
She does not suffer from post traumatic stress disorder not having been exposed to the relevant event. Her complaint could be described as Major Reactive Depression, however Chronic Dysthymia is more accurate.
He also offered an opinion on her prognosis.
Dr Duke took a very long and involved history from the appellant but it must be noted that he took no history of her having attended at the scene of the accident. In those circumstances, it is easier to understand why he would have said that she had not suffered an event which could give rise to post-traumatic stress disorder.
It is not clear, on the evidence, whether his failure to obtain that history was his fault or the fault of the appellant.
In the end, however, nothing much turns on that. The fact is he did not have regard to the most important fact impacting upon the appellant’s health.
The appellant’s case at trial, as it was on appeal, was that she should be compensated by way of ‘general damages’ for all of her psychiatric illness whether caused by witnessing the aftermath of the accident or by caring for members of her family.
In relation to that claim for damages, there was a paucity of evidence before the trial judge on the aetiology of the appellant’s injuries. Furthermore, none of the medical practitioners who had examined the appellant gave oral evidence.
The trial judge found that the appellant had suffered quite severe psychiatric injury following the motor vehicle accident.
However, the trial judge concluded that some part of the appellant’s psychiatric injuries were non-compensable. Connolly J discriminated between those effects caused by the compensable injury (i.e. the original nervous shock) and those effects which resulted from the stresses placed upon the appellant in having to care for her husband and her children, the changes of personality suffered by her husband and her daughter, and the effect on their relationship.
He said:
12.The law relating to liability for nervous shock has developed as medical science has advanced our understanding of the impact of trauma on the mind. It was originally held that a person must actually witness an accident in order to recover damages in this form of action, but it has been clear in Australia, at least since Jaensch v Coffey (1984) 155 CLR 549, that a plaintiff exposed to the consequences of the tort, but who did not witness the actual accident may recover damages.
13.However, it remains the case that the liability is limited to the psychiatric harm caused by the immediate “shock” of the accident, and that this is to be distinguished from the long term impact of living with a seriously injured partner or child. As Brennan J stated in Jaensch v Coffey at 565:
A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by “shock”. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.
14.A similar point was made by Deane J, who after stating (at 606) that:
a person who has suffered reasonably foreseeable psychiatric injury as the result of contemporaneous observation at the scene of the accident is within the area in which the common law accepts that the requirement of proximity is satisfied.
continued:
On the other hand, it would seem reasonably clear that the requisite duty relationship will not, on the present state of the law, exist in a case where mere psychiatric injury results from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. An example of psychiatric injury suffered as a result of such post-accident contact is that which may result from the contact involved in the nursing or care of a close relative during a period subsequent to immediate post-accident treatment.
It seems to me, and it was not argued to the contrary, that this remains the law.
15.In Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449, Gleeson CJ said at [18]:
I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.
16.These remarks do not, it seems to me, go so far (even if expressly joined by a majority) as to overrule the distinction drawn in Jaensch v Coffey between the impact of the accident, and the long-term impact of caring for a tortiously injured partner or child.
Connolly J said that the issue for determination in the case was to distinguish the extent to which the appellant’s psychiatric injury was due to the direct impact of the accident from the extent that it was a consequence of her ongoing role as a caregiver for her severely injured husband and children. He held that the respondent would be responsible for the former but not the latter.
In particular, he said, insofar as she had been a full time carer for her seriously injured husband, that would be reflected in any award of damages to which he was entitled pursuant to the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161.
That may be so but that does not bear upon her claim. Her claim is that she has suffered an aggravation or exacerbation of a psychiatric illness as a result of caring for her husband. That is a quite different claim from any claim he may have. His claim arises out of a need for voluntary services which have been performed by the appellant. They are conceptually quite different claims.
He turned to the evidence and said at [19]:
The medical evidence is consistent in acknowledging that [the appellant’s] present condition has been caused by the combination of the direct effect of the accident and the ongoing stress of caring for her family. Her general practitioner in first making the diagnosis described her reactive depression as being “consequent on the critical incidents and changes in her life as a result of the motor vehicle accident”. Dr White in his first report of June 1997 made the diagnosis of Major Depressive Disorder and associated Post Traumatic Stress Disorder “brought on by the effect of witnessing the aftermath of the accident”, but in his later report of December 2002 he as [sic] ascribed the condition to “the effect of witnessing the aftermath of the accident, and since then due to the stresses of her husband’s condition”. This is consistent with the opinion of the psychologist, Ms P Allingham, who also reported in the plaintiff’s case in June 1996 (exhibit C) that she was suffering from “a reactive depression occasioned by the accident to members of her family and subsequent losses and fatigue”.
He noted, as I have, that the medical experts did not, in their reports, ‘quantify the extent to which each factor has contributed to the plaintiff’s ongoing difficulties’. He found, however, that the ongoing stresses of caring for a significantly injured spouse and her children ‘had been of great significance’. He also found that the condition described by Dr Cross and Dr White, ‘will persist so long as her husband continues to require care and assistance, which seems to be indefinite’. The appellant’s evidence supports that finding. It must be noted, however, that the appellant’s husband was not called. Nor was any medical evidence tendered to prove his condition or how long it might persist.
He continued at [22]:
In relation to general damages, while it is clear that the accident and its aftermath have had a devastating effect on the plaintiff’s life, her compensable injury must be limited to the direct consequence of observing the accident scene and its immediate consequences, and not the ongoing impact of the care provided to her family. Clearly if the entirety of her condition were compensable it would suggest an award of general damages at the upper range for psychiatric disorder, but the evidence before me is that the original condition has been aggravated and continues to be exacerbated by the burden of care and ongoing reminders of the accident. (Emphasis added.)
He assessed her ‘general damages’, being her damages for pain and suffering and loss of amenities at $40,000 attributing the bulk of it, namely $30,000, to the past. He awarded interest on the past losses of $5,125.
The appellant sought damages for loss of earning capacity, both past and future. She particularised her past loss at $224,000 and her future loss at $308,026.04.
As to her past loss, she claimed that at the time of the accident she was earning $26,000 (gross) per annum. She claimed she would have ‘continued to earn $26,000 plus expected increases with the passage of time and improvement in the business’. She claimed eight years’ losses at $28,000 per annum, totalling $224,000.
She claimed loss of future earning capacity upon the basis that she was 48 years of age and would have worked until 65 years. It was claimed that she would have earned $28,000 per annum (gross) or $538.46 per week. She calculated that loss to age 65 using a discount rate of three per cent at $362,383.58. She allowed 15 per cent for vicissitudes of life and claimed $308,026.04.
The only evidence apart from her own offered in support of her claim for loss of earning capacity was a copy of her income tax return for the financial year ended 1994. That return showed a gross income of $20,700, after deduction of income related expenses, upon which $3,060 tax was payable. In relation to her claim for loss of earning capacity, Connolly J found that until the accident the appellant had played an active role in a business which she and her husband had conducted building homes. Originally, the business had operated as a partnership but by the time of the accident the business was operated by Skea Holdings Pty Ltd, a company of which the appellant was a director. The appellant was active in the business. He found that she was involved in the sales and management of the business ‘while her husband was involved in the design and construction’. He noted that her attempts to return to the workforce had not been particularly successful. He referred to his finding at par [22] of his reasons. He said:
23.This finding [referred to at par [52] above] must also translate into the economic loss claim. There are some further difficulties here in relation to the precise nature of the plaintiff’s pre-accident earnings. Although the claim is for ongoing full past and future loss in the order of $550 a week, the best tax records available show an after tax earnings for the tax year ending in June 1994 at $340 per week. The real issue, however, is not the rate of an ongoing loss claim, but the impact the psychiatric consequences of observing the aftermath of the accident has had on her earnings as opposed to the consequences of being the ongoing full-time carer.
24.The family business was brought to an end by the accident, but the plaintiff’s prior work history is such that she clearly would have been able to obtain remunerative employment in the building industry had her health, and her responsibility as a carer, permitted. I would accept that there was a total loss of economic capacity for a period after the accident, but it seems to me that the direct accident related impact of this has diminished over time, and that at present her employability is affected predominantly by the ongoing responsibility as a carer, and the psychiatric consequences of the ongoing responsibilities as a carer. Mr Black conceded that there was still probably a degree of ongoing economic loss.
25.This type of analysis necessarily, it seems to me, and this was acknowledged by Mr Parker, leads to a global award for economic loss, which should be considered inclusive of superannuation type losses. In relation to the past, I am not satisfied that the economic loss since the accident has been solely due to the compensable psychiatric condition, as opposed to the burden of being a full-time carer and the psychiatric consequences of such care. I award the sum of $75,000, generating interest of $32,000, making a total of $107,000. For the future, I am of the view that her ongoing difficulties are predominantly due to the burden of her role as a full-time carer, and the consequences of this in aggravating the original condition, and I am not satisfied that the claim for ongoing full-time loss of earnings is made out. I would award the sum of $50,000 in respect of future economic loss. (Emphasis added.)
The appellant claims that Connolly J’s findings in relation to his assessment of what he has termed ‘general damages’ and for economic loss should have led him to conclude that the appellant was entitled to be compensated for the aggravation of her psychiatric illness caused by the burden of caring for her family.
In particular, it is asserted that in par [22] of his reasons the trial judge has made a finding supporting that submission:
That the original condition has been aggravated and continues to be exacerbated by the burden of care and ongoing reminders of the accident.
The appellant also relied on the further finding in par [25] of the trial judge’s reasons:
For the future, I am of the view that her ongoing difficulties are predominantly due to the burden of her role as a full time carer and the consequences of this in aggravating the original condition, and I am not satisfied that the claim for ongoing full time loss of earnings is made out.
It was submitted that those findings amount to a determination that the psychiatric condition which was caused by the witnessing of the aftermath of the accident which was undoubtedly compensable has been aggravated and exacerbated by her burden as a carer and, in those circumstances, is of itself compensable.
The appellant also claimed ‘out-of-pocket expenses’ in the sum of $6,216.70 ‘in relation to care from Dr White and Dr Cross’.
His Honour awarded the appellant the total amount claimed. He said:
Although her condition to date has, I have found, been a combination of direct compensable injury and non-compensable psychiatric injury, I am satisfied that she would have needed attention to the, albeit diminishing, original condition, and it is appropriate to award the full sum.
The appellant has been treated by a massage therapist, Mr Bob Murray. On 14 March 2001, Dr White wrote to Mr Murray:
Thank you for attending Dorothy for therapeutic massage to help reduce her muscle spasm and tension related to Major Depressive Disorder and associated Posttraumatic Stress Disorder (PTSD) brought on by the effect of witnessing the aftermath of the accident of 11 January 1995. She was called to the motor vehicle accident involving her husband and two children. Since this time she has had persisting depression.
On 18 December 2002, Mr Murray wrote to Dr White:
I have been treating Mrs Skea twice per week for 21 month [sic]. Her physical symptoms are muscular tension through her entire back with an emphasis around the hips and shoulder/neck areas causing pain and discomfort. Other areas of tension include behind the knee and her feet. Massage has helped as part of a maintenance program for Mrs Skea to cope with this by reducing the tension and spasm in her muscles, giving relief for approximately 3 day [sic].
It is my opinion that these symptoms will continue to be with Mrs Skea for an indefinite time. Therefore I recommend massage continue at twice a week with an open time frame.
The appellant gave evidence of that treatment:
Q:What about – I mean, are you getting any massage treatment?
A:Yes. That’s something that I’ve found over the time is that I – even when I’m sitting watching television or something I’m always very tense, I clench my teeth a lot, I wake up in the morning and my teeth are just aching, my body is aching, and I get massage twice a week just to relieve all my muscles and my fascia, and it just helps me continue without being in pain, and just, it relaxes me a lot.
The two letters, and the short passage of the appellant’s evidence, constituted the whole of the evidence in relation to this head of damage. The appellant claimed $25,032.70 for Mr Murray’s fees but Connolly J allowed nothing. He said:
26.… There is also a very substantial claim for $25,032.70 for remedial massage from a massage therapist, Mr B Murray, who has reported in exhibit C that he has been treating for her for muscular tension. His report is dated December 2001, and indicates that he has been providing this treatment for 21 months, that is from about March 2000, over five years after the accident. The only medical support for this treatment is a note from Dr White to Mr Murray saying, “Thank you for attending Dorothy for therapeutic massage to help reduce her muscle spasm and tension related to Major Depressive Disorder”. In his June 2003 report, Dr White refers to an ongoing need for medication and periodic psychiatric review, but does not refer to massage as a psychiatric need.
27.It seems to me that this type of treatment, absent clear medical evidence as to the need and relation to the original compensable condition, and commencing five years after the accident when the original condition would, on my findings, be receding in severity and the ongoing drain of the role of the caregiver would be in the forefront of her difficulties, cannot be seen as an accident related necessary expense, and I do not make any award to cover this expense.
The appellant also claimed the future costs of Mr Murray’s treatment. In a Statement of Particulars she claimed that she would require two sessions of massage per week at a cost of $115.50 per session. Using a multiplier which reflected a discount rate of three per cent to reflect present day cost, she claimed $346,962 for the future cost of that treatment.
Connolly J’s failure to make any award for those past or future costs was agitated on this appeal.
It would be appropriate to deal with this aspect of the appeal immediately. The appellant’s claim for past and future losses under this head of damage failed because of an absence of evidence establishing the need for the services to trial or after trial. If that finding is to stand, then this aspect of the appeal must fail.
In my opinion, no error has been demonstrated in the finding made by the trial judge. The appellant did not lead evidence sufficient to make a finding that there had been a need for remedial massage therapy to trial or that there would be a need for that service into the future.
It might be supposed, that because she underwent the therapy and to the extent that she did, that it was of some benefit to her. But that is not enough to make the finding that her psychiatric condition had generated a need for these services. The appellant did not call that evidence at trial which must have been available to her. She gave the very brief evidence about the massage treatment, to which I have referred. She did not call Mr Murray to prove what the treatment was. She did not attempt to establish that the cost of the treatment was reasonable. She did not call any medical practitioner to prove the need for the treatment.
In my opinion, this aspect of the appellant’s appeal must be dismissed even if the appellant is correct that his Honour erred in discriminating between the two causes of her psychiatric illness.
Lastly, the appellant claimed for ongoing medication and care.
His Honour said in that regard at par [28]:
It is clear that there will be a degree of ongoing need for medication, and care, although this will be predominantly now due to the ongoing difficulties rather than the original accident, and I award a buffer against future care and medication in the sum of $7,000.
His Honour does not give any further explanation as to how he arrived at that sum.
That is no criticism of his Honour. His Honour was faced with assessing damages where the appellant put little or no evidence before the Court.
There was the evidence of Dr White who said in his June 2003 report:
I recommend that she needs to be on anti-depressant medication regimes for the long term and will need periodic psychiatric review. She will need to have access to her general practitioner for treatment related to her depression.
That evidence would support a finding of the need for ongoing medical treatment.
However, there was no evidence before his Honour as to how often she would need medical treatment or the cost of it.
The only evidence before his Honour was that she had spent nearly $7,000 on medical treatment between the date of the accident or, more particularly, since about the middle of 1996 and the date of trial, about the middle of 2003 – some seven years.
Of course, that aspect of his Honour’s award does raise another matter and that is whether his Honour’s overall approach to the assessment was correct. I will turn to that.
Connolly J discriminated between those effects caused by the compensable injury (i.e. the original nervous shock) and those effects which resulted from the stresses placed upon the appellant in having to care for her husband and her children, the changes of personality suffered by her husband and her daughter, and the effect on their relationship.
It is asserted on appeal that, in that respect, he erred.
At the hearing the appellant sought and obtained leave to amend her grounds of appeal.
The amended grounds of appeal are:
1.The Appellant appeals from the judgment of Justice Connolly given on 29 July 2003.
2.The grounds of the appeal are that the damages assessed by his Honour Justice Connolly (“the primary judge”) were inadequate for the following reasons:
(a)The primary judge erred in attempting to determine the extent to which the Appellant’s condition was a direct consequence of the accident and consequent severe psychiatric illness, and the extent to which the Appellant’s condition was a consequence of an alleged indirect non-compensable psychiatric condition.
(b)The primary judge erred in finding that the Appellant’s compensable injury must be limited to the direct consequences of observing the accident scene and its immediate consequence, and not the ongoing impact of care provided by her family on her ongoing medical condition.
(c)The primary judge erred in finding that the Appellant’s damages were not solely due to a compensable psychiatric condition.
(d)The primary judge erred in finding that the Appellant’s ongoing difficulties were predominantly due to the burden of her role as a full-time carer.
(e)The primary judge erred in not finding that the Appellant’s claim for full-time earning loss had been established.
(f)The primary judge erred in finding that the need for remedial massage was not caused by the accident.
(g)The primary judge erred in finding that the ongoing need for medication and care was not predominantly due to the original accident.
(h)The primary judge erred in not finding that, absent any novus actus interveniens, the Appellant’s ongoing disability was, in its entirety, caused by the accident.
(i)The primary judge erred in not finding that the entirety of the Appellant’s ongoing psychiatric disability was foreseeable, and that the entirety of that disability should sound in damages.
(j)The primary judge erred in not finding that aggravation of the pre-existing severe psychiatric condition caused by domestic circumstances was caused by the accident.
(k)The primary judge erred in not finding that, even if the aggravating effect of the Appellant’s domestic circumstances was a separate contributing cause of the Appellant’s ongoing disability, the Respondent had been unable to “disentangle” the contributing causes to the ongoing disability, entitling the Appellant to recover damages for the entirety of her disability.
The amended grounds of appeal raised these complaints:
· whether the trial judge was right to separate out the appellant’s psychiatric condition which was caused by the nervous shock from that aspect caused by the appellant’s caring for her family;
· whether the trial judge’s assessment for loss of earning capacity should stand;
· whether the appellant should have been awarded damages for massage fees to the date of trial and into the future; and
· whether the assessment of damages for need for medication and care should stand.
In effect, the appellant seeks a reassessment of the appellant’s damages under each head of damage. I have already dealt with and diagnosed the complaint of the failure of the trial judge to award anything for the massage treatment.
The appellant’s argument was essentially two fold.
First, the appellant submitted that the trial judge misunderstood the premise upon which the appellant said she was entitled to damages. The appellant’s case was not that she was entitled to damages only because she had incurred psychiatric injury as a result of caring for injured relatives. The appellant acknowledged, correctly, that a claim put forward on that basis would be contrary to authority.
However, the appellant’s case was that she was entitled to recover damages for the full extent of the direct consequences of the respondent’s negligence, which would include a psychiatric illness caused by the shock of witnessing the aftermath of the accident subsequently aggravated or exacerbated by the need to provide domestic care. The appellant argued that aggravation of a psychiatric illness by domestic circumstances is a foreseeable, and therefore compensable, consequence of nervous shock.
Counsel for the appellant submitted that:
8.The views of [Ms] Allingham and Dr Cross are…consistent with, and support, the views of Dr White expressed on several occasions, that the plaintiff’s post-traumatic stress disorder, caused by the shock of the accident, continued, being aggravated by reminders of the traumatic circumstances surrounding the accident and being also aggravated by stresses associated by her husband’s need for care. The appellant submits that the aggravation of psychiatric injury by domestic circumstances is a foreseeable and compensable result of the nervous shock suffered by the appellant.
9.Unless the appellant’s ongoing psychiatric disability was caused by a novus actus interveniens, the chain of causation remains unbroken, and the appellant is entitled to recover damages in relation to the consequences of the initial injury, including any subsequent aggravation.
In its written submissions, the respondent argued:
5.It is clear from the above [referring to the numerous reports of Dr White] that there were two causes of the plaintiff’s psychological state. Firstly, the plaintiff was affected by the scene of the accident and the immediate aftermath. Clearly this provided the appellant with a compensable cause of action. His Honour found that this was so and the defendant conceded as much.
6.Equally, the plaintiff’s psychological status was brought about in part by her exposure to the injuries of her family members and the need to care for those members – particularly her husband. His Honour (correctly) distinguished such psychiatric harm from the “nervous shock”.
Secondly, the appellant submitted that if the respondent’s case was that the appellant was suffering from the ongoing effects of the nervous shock, as well as suffering injuries arising from unconnected circumstances, the onus was on the respondent to ‘disentangle’ the ongoing disability from the injuries occasioned by the domestic circumstances, so that an appropriate apportionment could be made.
Both the appellant and respondent referred the Court to Watts v Rake (1960) 108 CLR 158 at 160 and Purkess v Crittenden (1965) 114 CLR 164.
In the first case, the Court was concerned with a claim for damages by a plaintiff who suffered pre-existing disease of his back and who suffered significant injuries in a motor vehicle accident. Notwithstanding that disease, he was in apparently good health before the accident. Menzies J said at 164:
It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling – e.g., the loss of an only eye – does not mean that damages are not to be assessed according to the circumstances of the particular case. There are passages in the judgment here under consideration that are susceptible of meaning that the appellant had at the trial to establish not only that his present condition was due to the accident but, further, that he would never have reached that condition had it not been for the accident, whereas it was for the respondent to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable, but also the extent of the acceleration.
The decision in Purkess v Crittenden is concerned with the evidential burden of proof in a case where the plaintiff had a pre-existing back condition and suffered further injury to the back in an accident.
The appellant did not suffer from any pre-existing disability. She was a person of normal fortitude, insofar as that is still relevant, who suffered a psychiatric condition as a result of witnessing the aftermath of an accident, which psychiatric injury has been aggravated and exacerbated by events subsequent to the accident. The decisions in Watts v Rake and Purkess v Crittenden have no application.
That disposes of the appellant’s second argument.
The only real issue to be determined on this appeal is therefore whether the trial judge was correct to discriminate between those aspects of the appellant’s psychiatric injuries he considered to be caused by the nervous shock and those he considered to be the result of the appellant’s ongoing obligations as carer for her injured husband and daughter.
The appellant was entitled to damages for nervous shock, if she suffered nervous shock, as a result of the receipt of the telephone call advising her of the motor vehicle accident, her husband’s statement to her, including him saying that the children were possibly dead, and her witnessing the aftermath of the accident on Sutton Road.
The appellant did not have to establish that she directly witnessed the incident but, in fact, she did witness the aftermath: Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 per Gleeson CJ at [18]; per Gaudron J at [51]-[52]; per Gummow and Kirby JJ at [225]; per Hayne J at [266]-[267]; per Callinan J at [366].
The appellant’s medical evidence supported a finding, which Connolly J made, that she did suffer nervous shock as it is understood in the authorities and was entitled to damages for that nervous shock: Jaensch v Coffey (1984) 155 CLR 549; Tame v New South Wales; Annetts v Australian Stations Pty Ltd.
I agree with that finding. The appellant did not have to establish a sudden shock: Tame v New South Wales; Annetts v Australian Stations Pty Ltd per Gleeson CJ at [18]; per Gaudron J at [66]; per Gummow and Kirby JJ at [210]-[213]. She did, however, have to establish that she had suffered a recognisable psychiatric illness and not merely emotional distress or grief: Tame v New South Wales; Annetts v Australian Stations Pty Ltd per Gleeson CJ at [41]; per Gummow and Kirby JJ at [193].
In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394, Windeyer J said: ‘Sorrow does not sound in damages’.
In Jaensch v Coffey, Deane J said at 587:
It is now the settled law in this country that there is a distinction, for the purposes of the law of negligence, between mere grief or sorrow which does not sound in damages and forms of psychoneurosis and mental illness (which lawyers have imprecisely termed “nervous shock”) which may: see, e.g., Bunyan v. Jordan; Chester v. Waverley Corporation and, generally, Mount Isa Mines Ltd. v. Pusey. [Footnotes omitted.]
The appellant did establish that she suffered a recognised psychiatric illness. In those circumstances, she was entitled to damages for the psychiatric illness caused by the shock she suffered when she received her husband’s telephone call and when she visited the scene of the accident.
The medical evidence also supported a finding, which again was made by Connolly J, that some part of the plaintiff’s medical condition and her present disabilities have been occasioned by having to care for her family and the difficulties which she has experienced between her husband and her daughter and her concern generally for her family.
I also agree with that finding.
In Jaensch v Coffey at 565, Brennan J said:
The courts have insisted on proof of a demonstrable and readily-appreciable cause of psychiatric illness — the cause itself being a result of the defendant’s careless conduct — before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by “shock”. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.
A person is not entitled to damages from a tortfeasor if that person suffers a psychiatric illness by reason of that person caring for a person who has been injured by reason of the tortfeasor’s negligence.
If the appellant had not suffered a psychiatric disability by reason of the nervous shock, which I have described, she would not be entitled to damages for any psychiatric disability she suffered arising from her caring for her husband and children. That disability would not be compensable.
However, the appellant argued that she was entitled to be compensated for the whole of her psychiatric condition because it was foreseeable that caring for her family would aggravate her compensable psychiatric condition caused by the nervous shock.
Foreseeability is not only an element of the duty but it governs the measure of damages: Bourhill v Young [1943] AC 92; Jaensch v Coffey at 560 per Brennan J.
The appellant relied upon general principle and argued that any damage which is foreseeable sounds in damages. The psychiatric condition caused by the nervous shock was compensable. It was foreseeable that that condition would be aggravated by caring for her family.
Where a plaintiff suffers both a recognised psychiatric illness and also grief and sorrow there is an obligation on the Court, in assessing that plaintiff’s damages, to separate and ignore the aspects of grief and sorrow: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 413-416 per Lord Oliver; Hinz v Berry [1970] 2 QB 40 per Lord Pearson at 45; Pham v Lawson (1997) 68 SASR 124 at 152-153; De Francheschi v Storrier (1988) 85 ACTR 1.
If the appellant were to be suffering from a psychiatric illness which was caused by her caring and concern for the injured members of her family, the appellant would not be entitled to recover damages.
However, this case is not the same as those cases where the plaintiff has suffered both a recognised psychiatric illness and grief and sorrow, and where the Court is called upon to separate out from the damages awarded the non-compensable grief and sorrow.
In this case, the appellant is suffering from the one psychiatric illness which has been caused by the shock and by her caring and concern for the injured members of her family.
There is no suggestion that there are two psychiatric illnesses and that the two separate causes, namely, the nervous shock caused by the aftermath and the caring for the appellant’s family can be identified as the sole cause of each of those two psychiatric illnesses.
In this case, there is only one psychiatric illness which, on the trial judge’s own findings, was caused by the initial nervous shock but has been aggravated and exacerbated by the subsequent caring for her family.
Nor is there any suggestion that the later events act as a novus actus interveniens. The initial chain of causation remains unbroken and, in those circumstances, the appellant would be entitled to recover damages in relation to the consequences of the initial injury including any subsequent aggravation: Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522.
In my opinion, the aggravation and exacerbation caused by caring for her family was a foreseeable event and the appellant is entitled to be compensated for the whole of her psychiatric injury.
In those circumstances, in my opinion, the appeal must be allowed and her damages should be assessed having regard to the totality of her psychiatric condition.
His Honour did not say whether he preferred the evidence of the appellant’s medical practitioners or Dr Duke. However, I think it is implicit in his findings that he accepted the appellant’s medical evidence and rejected Dr Duke’s.
There was a good reason for rejecting Dr Duke’s evidence, namely his failure to obtain a full history. I think the assessment should proceed relying upon the appellant’s medical experts.
It is not clear from his Honour’s reasons the extent to which his Honour discounted the assessment of the appellant’s damages either for pain and suffering or loss of earning capacity because of the ongoing stress of caring for her family.
I stress again that there was a paucity of evidence before the trial judge in relation to the appellant’s medical condition and the task which is imposed upon this Court is not easy. In those circumstances, this Court must do as good a job as it can to reassess the damages by reference to the evidence generally.
In assessing her claim for damages for pain and suffering and loss of amenities, regard has to be had to the finding made by the trial judge at [22]:
Clearly if the entirety of her condition were compensable it would suggest an award of general damages at the upper range for psychiatric disorder …
On the evidence of Dr White, the appellant suffers from a major depressive disorder and associated post-traumatic stress disorder. She suffers from sleep disturbance, agitation, anxiety and confusion and feelings of guilt and fatigue. Her condition has not responded to extensive treatment over a period of about seven years.
It is likely that her condition will persist as long as her husband’s condition persists. As I have already observed, there was no evidence from the husband or from the husband’s medical practitioners to establish how long his condition will persist. However, the evidence seems to suggest it will persist throughout the rest of his life and therefore she will suffer from a psychiatric illness during their joint lives.
In my opinion, on the evidence available and taking into account the whole of her psychiatric illness injuries, her damages under this head, for pain and suffering and loss of amenities, should be assessed at $80,000.
On the medical evidence, I would ascribe $60,000 of that amount to the past and $20,000 to the future. Interest should be assessed at $10,250.
Her damages for economic loss are also difficult to assess.
It is clear that a claim for loss of earning capacity both past and future was overstated and the evidence did not support the claim.
Of course, her loss of earning capacity should be assessed having regard to the totality of her psychiatric illness. She has had a significant loss of earning capacity to trial and will continue to have a significant loss of earning capacity into the future. The business in which she and her husband were occupied has failed and she is no longer employed. The cause of the failure of the business is not clear. Her husband’s injuries may have been enough themselves to have caused the business to fail. He was the creative influence within the business.
However, she is not to be compensated for the loss of the business. She is to be compensated for her loss of earning capacity. Her earning capacity can be measured by reference to the type of income that she obtained prior to the onset of her psychiatric illness.
Her loss of earning capacity to the date of trial extended over probably about seven years and it should be assessed on that basis.
The trial judge allowed $75,000 for past economic loss and a sum of $32,000 on that loss by way of interest.
There are other factors operating on her loss of earning capacity to trial apart from her psychiatric illness. She has had the burden of caring for her family, which she accepted for that whole period of time. Although, as I have already indicated, her claim should not be confused with her husband’s claim for a need for caring services, in a sense, her loss of earning capacity has been caused by both her psychiatric illness and the actual burden of caring for her family.
I would assess her loss of earning capacity to trial after allowing for those matters and the usual contingencies, apart from those associated with caring for her family and the like, at $100,000. Interest should be increased from $32,000 to $42,000.
The plaintiff was, at trial, 48 years of age. She was born on 15 January 1955. Her case was that she would have worked until the age of 65. I think that was accepted by the trial judge. Her loss of earning capacity into the future therefore has to be measured over that sort of time span. Any future losses should be calculated by reference to a discount rate of three per cent: Todorovic v Waller (1981) 150 CLR 402.
In that assessment regard also has to be had for her choice in rendering assistance to her husband and therefore not exercising her actual earning capacity.
I would assess her loss of earning capacity into the future at significantly less than her claim to reflect the lower earnings disclosed in the income tax return and a greater allowance for vicissitudes of life.
I would assess her loss of earning capacity for the future at $160,000. No interest should be awarded on the future losses: Thompson v Faraonio (1979) 24 ALR 1.
I have already dealt with the matter of the massage services.
The appellant has to be compensated for future medical expenses. I have already observed that there is no evidence of the frequency or cost of those medical services.
Doing the best I can, I would award the sum of $14,000 for those future losses.
In those circumstances, I would assess damages as follows:
Damages for pain and suffering and loss of amenities $80,000.00
Interest $10,250.00
Past economic loss $100,000.00
Interest $42,000.00
Future economic loss $160,000.00
Past out-of-pocket expenses $6,126.70
Future out-of-pocket expenses $14,000.00
Total$412,376.70
I would therefore allow the appeal. I would set aside the judgment entered by the trial judge in the sum of $215,341.70 and, in lieu thereof, enter judgment for the appellant in the sum of $412,376.70.
The order for costs made by the trial judge should stand.
The respondent should pay the appellant’s costs of the appeal.
I certify that the preceding paragraphs numbered eight (8) to one hundred and fifty-two (152) are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.
Associate:
Date: 24March 2005
Counsel for the Appellant: Mr J A McIntyre SC with Mr F G Parker
Solicitor for the Appellant: Colquhoun Murphy
Counsel for the Respondent: Mr A Black
Solicitor for the Respondent: Abbott Tout
Date of hearing: 14 May 2004
Date of judgment: 24 March 2005
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