Ehlefeldt v Rowan-Kelly

[2009] NSWSC 331

CITATION:	Ehlefeldt v Rowan-Kelly [2009] NSWSC 331
HEARING DATE(S):	27/04/2009
JUDGMENT DATE :	1 May 2009
JUDGMENT OF:	Hoeben J
DECISION:	I enter judgment in favour of the plaintiff against the defendant for $6,046,562.00. I order the defendant to pay the plaintiff’s costs of these proceedings.
CATCHWORDS:	DAMAGES - Ex parte assessment of damages - brain injured plaintiff - application of Civil Liability Act 2002 - plaintiff unable to care for children - damages for loss of capacity to perform domestic services for children - s15B Civil Liability Act.
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Amaca Pty Limited v Novek [2009] NSWCA 50 CSR Limited v Eddy [2005] HCA 64, (2005) 226 CLR 1 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kendrick v BlueScope Steel (AIS) Pty Limited & Ors [2007] NSWSC 1288 Sullivan v Gordon (1999) 47 NSWLR 319
PARTIES:	Bianca Lee Ehlefeldt by her tutor Moerangi Kennedy - Plaintiff Dr Michael Charles Leigh Rowan-Kelly - Defendant
FILE NUMBER(S):	SC 20351/2005
COUNSEL:	Mr GR Graham - Plaintiff No appearance - Defendant
SOLICITORS:	Rishworth Dodd & Co - Plaintiff No appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 1 May 2009

20351/2005 – Bianca Lee EHLEFELDT by her tutor Moerangi KENNEDY v Dr Michael Charles Leigh ROWAN-KELLY

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
The defendant is a medical practitioner who was in general practice at a medical centre in Leichhardt in 2002. The plaintiff alleges that while under his care between April and August 2002 she became addicted to Xanax, a benzodiazepine. In August 2002 the plaintiff alleges that the defendant placed her on a home detox program in order to overcome her addiction to that substance.

2 The plaintiff alleges that at the time that the defendant placed her on the home detox program he failed to advise either her or her mother about the risks accompanied Xanax withdrawal, in particular the risk of seizures. On 14 November 2002 the plaintiff suffered hypoxic brain damage as a result of a seizure. The plaintiff has brought these proceedings against the defendant alleging negligence on his part in failing to advise her as to the dangers associated with Xanax withdrawal and in failing to properly treat her by administering anti-convulsant medication. Although the defendant was served with the originating process, he thereafter departed for the United States and his present whereabouts is unknown. Judgment on the issue of liability was entered in favour of the plaintiff against the defendant by Studdert J on 2 March 2007. This left the assessment of damages outstanding.

3 The present proceedings relate to the assessment of damages. The hearing proceeded on an ex parte basis. There was no appearance by the defendant. The evidence relied on by the plaintiff comprised the oral evidence of her mother and reports from Dr Walsh of 22 September 2005; Dr Bleasel of 30 August 2005; Dr Buckley of 24 April 2006 and Ms Ravagnani, an occupational therapist of 19 April 2009.

Factual background

4 The plaintiff was born in Rockhampton Queensland on 13 December 1976. She left school at the end of 1992, having obtained her school certificate in New South Wales. Thereafter she worked for a couple of years as a receptionist. By July 1994 she was in a relationship with a Mr Seaward. Her first child, Amber, was born in that month. Unfortunately the relationship with Mr Seaward was associated with drug abuse. By 1996 and perhaps earlier, the plaintiff had become a poly drug abuser and was addicted to heroin. At the time of her seizure, the plaintiff was on a methadone program. The plaintiff does not appear to have worked on anything but a sporadic basis following July 1994.

5 Her second child, Vilham, was born on 25 February 2002. By April 2002 when the plaintiff commenced consulting the defendant, she was a regular Xanax and Methadone user and had a history of depression, asthma, intravenous drug usage, Hepatitis C and anxiety attacks. She also had alcohol abuse problems.

6 The evidence about the plaintiff’s pre-injury life came from her mother and tutor. For obvious reasons, the plaintiff was unable to give evidence. It was her mother’s evidence that despite her problems the plaintiff was trying to overcome her addictions. That was the reason she was on a methadone program and why she tried to withdraw from her Xanax addiction in August 2002. She said that the plaintiff tried to be a good mother to her children.

7 Following the start of the home detox program, the plaintiff commenced to have seizures. These were occurring at the rate of one per week and lasted for short periods of time. They culminated in the seizure on 14 November 2002 which led to the plaintiff experiencing a cardiac arrest with consequential hypoxic brain damage.

8 While I accept that the plaintiff was trying to deal with her drug addictions, those efforts were only partially successful in that there is clear evidence that the night before her last seizure she had used heroin. While I accept that the plaintiff was trying to look after her children, it is not clear how much time she spent doing so. It is also not clear to what extent the plaintiff was complying with the home detox program prescribed for her by the defendant. Doctor Walsh in his report of 22 September 2005 described the situation as follows:

“The evidence indicates that she lived a chaotic lifestyle which may have interfered with her ability to adhere to a rigid and graded program of detoxification as proposed by Dr Kelly.”

9 As a result of the seizure the plaintiff was taken to the Royal Prince Alfred Hospital where she remained for fourteen days. She was transferred to the Balmain Hospital on 28 November 2002 and was discharged into her mother’s care on 20 December 2002.

10 Between that date and January 2007 the plaintiff has been cared for by her mother. From time to time her mother has required respite care. The task of looking after her daughter became particularly difficult in 2005 when the plaintiff’s mother was diagnosed with breast cancer. In January 2007 the plaintiff was given a place in a group home at Maroubra with two other female residents. The group home provides 24 hour residential care workers for its residents.

11 The plaintiff works in supported employment four days a week for four hours per day performing packaging work under supervision. Her mother visits her and takes her out once a week. The plaintiff has little contact with her son and daughter. Since her seizure, her daughter has been raised by her mother and her son has been raised by the mother of her partner.

12 As a result of her hypoxic brain injury, the plaintiff suffers from a number of physical disabilities. When outdoors the plaintiff usually walks with a forearm support frame. When walking at home, she balances against walls and furniture. She can move around the home adequately but does better after she has practised with her carers.

13 The plaintiff’s voice is slow and dysarthric. She has some trouble with swallowing so that she usually eats soft things like pasta which she swallows well. She has difficulty with foods such as steak because she does not chew well. There have been some examples of urinary incontinence from time to time.

14 The plaintiff has difficulty with all fine motor function because of problems with co-ordination and a tremor in her hands. She fatigues quickly with activity and requires many rest breaks through the day.

15 The plaintiff suffers significant intellectual difficulties. She has global impairments of higher cognitive function similar to dementia. She has poor short-term memory. She is unable to follow instructions with more than one component. She has poor concentration.

16 She has impaired judgment. She is not able to judge if a situation or person is dangerous. On one occasion the plaintiff sat without reacting in a room full of smoke when a smoke alarm was sounding. The plaintiff is apparently trusting and childlike with people she does not know.

17 The plaintiff has impaired motivation and initiative. She will sit and do nothing all day unless organised by someone. She requires prompting with personal care. By way of illustration, her mother explained that the plaintiff will not react if the water in the shower is too hot or too cold.

18 The plaintiff is unable to care for her children. She is unable to drive, unable to use public transport and unable to go shopping by herself. She is not able to manage her own finances. She is unable to initiate or engage in interpersonal relationships.

19 On a practical level, the plaintiff requires help with day to day activities such as cleaning, washing clothes, changing bed linen, cooking, lifting and carrying bags. She requires assistance of a more intimate nature in activities such as bathing, feeding, dressing, toileting etc. This assistance is now being provided in the group home. Before then it was provided by the plaintiff’s mother.

Assessment of damages

20 The plaintiff’s claim is governed by the provisions of the Civil Liability Act 2002 (CLA). Accordingly, the assessment of the plaintiff’s needs made by Dr Buckley and Ms Ravagnani needs to be adjusted against that legislation.

Non-economic loss

21 I am satisfied that the disabilities the plaintiff suffers, both mentally and physically, as a result of her hypoxic brain injury should be characterised as a most extreme case. Accordingly, she is entitled to damages for non-economic loss calculated at the maximum amount under the CLA, i.e. $450,000.

Past and future out-of-pocket expenses

22 I have been advised by counsel that it has not been possible to obtain information as to past out-of-pocket expenses. It was his understanding that these amounts have been paid by government agencies and that there are no amounts outstanding. He is unaware of any claims in respect of those amounts which have been or which are likely to be made against the plaintiff. In those circumstances, it is not possible for the Court to award any damages for past out-of-pocket expenses.

23 Future out-of-pocket expenses have been calculated by Dr Buckley and Ms Ravagnani. The amount claimed is relatively modest, i.e. $17,000. Given the extent of the plaintiff’s disability, this seems a conservative assessment and I have no hesitation in awarding that amount to the plaintiff for future out-of-pocket expenses.

Past economic loss and future loss of earning capacity

24 As of 14 November 2002 there were no real prospects of the plaintiff turning her life around in the near future and being able to engage in remunerative employment on a regular basis. She had a seven year old daughter and a nine month old son. She had not worked for eight years. She was still abusing drugs such as heroin.

25 In those circumstances, I am not prepared to award any damages for past economic loss. I am not satisfied, on the balance of probabilities, that had this seizure not occurred, the plaintiff would have obtained and maintained regular employment over the last seven years. The contrary was not submitted on behalf of the plaintiff.

26 In relation to the future, counsel for the plaintiff submitted that the Court should have regard to the plaintiff’s expressed intention of overcoming her addictions and the fact that she had put those intentions into effect by trying to overcome her addiction to Xanax. He referred to her efforts to be a good mother to her children. On that basis he submitted that an appropriate methodology was to take as a start point the average weekly earnings of women in Australia and to allow in favour of the plaintiff one-third of that amount in order to have regard to the chance that the plaintiff would have overcome her addictions and returned to paid employment.

27 There is no doubt that the plaintiff’s earning capacity has been totally destroyed. The only question is the extent to which she would have utilised that earning capacity had she remained uninjured. The approach recommended by counsel for the plaintiff has much to recommend it. It has regard to the plaintiff’s attempts to overcome her problems, but it also has adequate regard to the fact that her past employment history was poor.

28 One matter which counsel for the plaintiff has not factored into his assessment of damages is the likely life expectancy of the plaintiff had she remained uninjured. In that regard it is not without significance that her partner took his own life in 2004. While I am prepared to accept that the plaintiff did lose the chance of turning her life around and engaging in paid employment, one does need to take into account the real likelihood that had this catastrophic event not occurred, the plaintiff’s chaotic lifestyle may well have led to an early death in any event.

29 Taking those matters into account, I am prepared to award in favour of the plaintiff $175,000 for future loss of earning capacity, rather than the $215,000 submitted on her behalf.

Past voluntary care

30 It was submitted by counsel for the plaintiff that up until January 2007 when the plaintiff entered the group home, approximately 80,000 hours of gratuitous care had been provided to her. Most of this care was provided by her mother but some, in the nature of child care, was provided by the mother of her partner. It was submitted that allowing $21 per hour for each hour of that past care, an appropriate award of damages for the plaintiff was $1,697,892. These calculations were based on the report of Ms Ravagnani (page 12).

31 Those calculations fail to have regard to s 15 CLA which deals with gratuitous attendant care services. The maximum amount which can be awarded for gratuitous care services in the nature of Griffiths v Kerkemeyer (1977) 139 CLR 161 care is 40 hours per week.

32 In that regard I am prepared to accept that between her discharge from the Balmain Hospital on 20 December 2002 and her admission to the group home in January 2007, her mother provided more than 40 hours of gratuitous attendance care services for her. Under the Act this would be reflected in damages of $174,720.

33 That does not end the matter. As the report of Ms Ravagnani points out, between 20 December 2002 and the present time there has been a substantial need for child care in respect of Amber and Vilham and that need has been met gratuitously by the plaintiff’s mother and by the mother of the plaintiff’s partner. Since Sullivan v Gordon (1999) 47 NSWLR 319 was overruled by the High Court in CSR Limited v Eddy [2005] HCA 64, (2005) 226 CLR 1, the only source of damages for such care is s 15B CLA. The question is whether the plaintiff can bring herself within that section so as to obtain an award of damages for the gratuitous child care services provided for her by her mother and the mother of her partner.

34 Section 15B CLA was considered in Kendrick v BlueScope Steel (AIS) Pty Limited & Ors [2007] NSWSC 1288 at [301] and in Amaca Pty Limited v Novek [2009] NSWCA 50. In accordance with those cases and the provisions of s 15B(2) I am satisfied that the preconditions for the awarding of damages under the section have been made out. Specifically, I am satisfied that before she suffered her injury the plaintiff was providing child care services for Amber and Vilham. I am satisfied that up until the present time the children have not been capable of performing the relevant services themselves. I am satisfied that had the plaintiff not suffered her injury, there was a reasonable expectation that she would have spent at least 6 hours per week for at least 6 consecutive months providing child care services for the children. Finally, I am satisfied that from the date of the plaintiff’s injury until the present time there has been a continuing need for such services and that in the case of Vilham, there will be a continuing need for at least another 7 years and that such child care services are reasonable.

35 When calculating damages the relevant consideration is not the amount of time which has actually been spent by the plaintiff’s mother and by the mother of her partner in looking after the children but what amount of time the plaintiff would herself have spent in that activity. The evidence is silent in that regard except to the extent that the plaintiff tried to be a good mother and was providing child care services. As was pointed out in Kendrick [324] one is not looking at the actual care provided but the capacity to provide care which has been lost. Section 15B(11) requires the Court to also take into account the vicissitudes and contingencies of life which may have affected that capacity.

36 In the case of the plaintiff although I am satisfied that she was providing child care services for at least 8 hours per day, I am concerned at her ability to do so on any long term basis, given her chaotic lifestyle. I propose to assess the plaintiff’s entitlement to damages pursuant to s 15B CLA at 50 hours per week up to the present time but not for the future. This produces a figure of $354,900. Unlike s 15 CLA my reading of s 15B(4) is that there is no 40 hour limit (Kendrick [317] – [321]).

Future care and equipment needs

37 A prescription for the plaintiff’s future care and equipment needs is set out as an appendix to the report of Ms Ravagnani. Most of the items in that schedule appear to be reasonable and commensurate with the plaintiff’s needs. There are some items which, in my opinion, are excessive and involve duplication. For example, I am not persuaded that the plaintiff needs or would use a motorised scooter and I have deleted that item.

38 I am not persuaded that the plaintiff needs specially modified accommodation. She has been living with her mother and in the group home, apparently without difficulty, over the last six and a half years. I accept that the house would need some basic modifications, such as rails in the bathroom, and I accept that some modifications may need to be made to a basic dwelling in order to enable a carer to have some privacy.

39 Otherwise I propose to allow the recommendations made by Ms Ravagnani. Allowing for a life expectancy of fifty years, I award in favour of the plaintiff damages for future care and equipment needs of $3,857,942.

40 Accordingly, my assessment of the plaintiff’s entitlement to damages is as follows:

Non-economic loss	$ 450,000.00
Past out-of-pocket expenses	$ Nil
Future out-of-pocket expenses	$ 17,000.00
Past voluntary care	$ 529,620.00
Future care and equipment	$ 3,857,942.00
Future loss of earning capacity	$ 175,000.00
Total	$ 5,029,562.00

Funds Management

41 The evidence is overwhelmingly to the effect that the plaintiff is unable to administer her own finances. A need for funds management has been created by her injuries. Applying the standard rates of the Protective Commissioner for an investment fund of $5 million, fund management fees for the next 50 years amount to $1,017,000. This amount should be added to the plaintiff’s damages.

Conclusion and orders

42 I make the following orders:

1. I enter judgment in favour of the plaintiff against the defendant for $6,046,562.00.

2. I order the defendant to pay the plaintiff’s costs of these proceedings.

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