Fleming v Toltz

[2000] NSWSC 606

CITATION:	Fleming v Toltz [2000] NSWSC 606
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20274/94
HEARING DATE(S):	2-3, 25-26 May 2000
JUDGMENT DATE:	4 July 2000
PARTIES :	Karen Fleming (Plaintiff) v Richard Toltz as Executor of the Estate of the Late Ronald Franklin (Defendant)
JUDGMENT OF:	Davies AJ

COUNSEL :	P: Mr J Anderson, Ms E Glover D: No Appearance
SOLICITORS:	P: Maurice Blackburn Cashman D: Clayton Utz
CATCHWORDS:	Professional Negligence - whether psychiatric treatment was negligent - whether treatment caused plaintiff's inability to earn - damages
CASES CITED:	Norris v Blake (bht Porter)(No2) (Court of Appeal, unrep, 11/2/97) Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Griffiths v Kerkemeyer (1997) 139 CLR 161
DECISION:	Judgment for plaintiff with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES AJ

4 JULY 2000

20274/94 - Karen FLEMING v Richard TOLTZ as Executor of the Estate of the Late Ronald FRANKLIN
JUDGMENT

1    HIS HONOUR: In these proceedings, the plaintiff, Karen Fleming, seeks damages for personal injury resulting from medical negligence. The medical practitioner in question, Dr Ronald Franklin, died after the proceedings began and is now represented by the executor of his estate. In the proceedings, Mr J Anderson, with him Ms E Glover, appeared for the plaintiff. The defendant was not represented, although a Notice of Appearance and a defence had been filed.

2    Karen is now 37 years of age having been born on 25 September 1962. She left school after obtaining the school certificate. While at school, she demonstrated talent for singing, dancing and gymnastics and had performed, inter alia, with a group called "Dance Connection", which had a show involving singing, dancing and jazz ballet. After leaving school, Karen worked with that group and performed, not only in Australia, but also in Noumea, Britain and Europe. In about 1982, she left the group to pursue her own career and, in the next few years, she obtained engagements as a singer and a dancer. For one and a half years, she was engaged at Chequer's Nite Rider Theatre Restaurant. In 1983, Karen formed her own group called "La Madrid" and with it toured Japan for six months. Subsequently, she formed her own band called "Nocturnally Yours" which played at various venues in Sydney. In about 1983, Karen became a model with Chadwick Model Management, a top modelling agency in Australia. Thereafter, she performed as a model and artist, both for the print media and in television advertisements. From about the age of 17, her photograph was published on page 3 of the Daily Mirror and other newspapers on many occasions. Evidence has been given by Mr Chadwick that, in the field in which she worked, particularly television commercials, Karen was one of the top 10 models in Australia.

3    In 1988, Karen travelled to the United States of America with a view to progressing further in her career. Karen remained in the United States until February 1990. Although she was not "discovered", Karen was accepted as a model by LA Models, a leading modelling agency in Los Angeles. A leading professional photographer, Mr Harry Langdon, has given evidence that he had been most impressed by Karen, that he introduced her to his associates in Hollywood as much as he could and that, on one occasion, he took her to a James Bond premiere function hoping that she would be discovered at that affair. Karen also progressed with her singing. She was introduced to Mr Joe Isgro, who was the proprietor of the "Private One" music group. Mr Isgro was so impressed by Karen's voice and manner that he arranged for her to make a test recording at his own expense. Mr Charles Curtis, a personal entertainment manager, gave evidence that he had met Karen in November 1988. He considered that she had a great voice and the talent to write. Both Mr Langdon and Mr Curtis gave evidence via videolink that, in their opinion, Karen had had great potential. They spoke of the millions of dollars which a successful actor or singer could earn in the United States.

4    Unfortunately, before Karen's career could progress further, she found, in late 1989, that she had a lump in her breast. An operation was performed at a doctor's surgery under local anaesthetic. Subsequently, the breast became infected. Karen was anxious and unsettled. She was prescribed tablets including Xanax. Early in February 1990, Karen decided to return home temporarily to be with her mother. She arrived in Australia on 19 February 1990. On the morning of 21 February, Karen suffered a severe anxiety attack. Her mother and a neighbour were present at the time. A telephone call was put through to the family doctor, Dr G Fracchia. He was attending to another emergency. The neighbour was so concerned that she took Karen to see Dr Franklin. Dr Franklin admitted Karen to Ashburn Private Hospital. She remained there for five days until, according to Karen's evidence, she discharged herself.

5    While Karen was in the hospital she was treated with a number of drugs including Pentobarbitone or Nembutal as it is sometimes called. This was a barbiturate. Such a level of Pentobarbitone and other drugs was given that Dr Franklin's treatment has been described by medical experts as similar to the "deep sleep therapy" which was earlier practised in the Chelmsford Hospital and which, by 1990, was regarded by the medical profession as an inappropriate treatment.

6    Early in March 1990, Dr Franklin referred Karen to a psychiatrist, Dr B Westmore. He recommended to both Karen and Dr Franklin that Karen should take no further barbiturates. Karen saw Dr Westmore on about eleven occasions throughout the year but does not appear to have had confidence in him. Notwithstanding Dr Westmore's advice and the fact that Karen was under his care, Karen continued to see Dr Franklin and he continued to prescribe Pentobarbitone, the barbiturate. Karen became addicted to Pentobarbitone.

7    In October 1990, Dr Fracchia, the general practitioner who attended Karen's family, sent Karen to another specialist. She was admitted to a detoxification unit at Mosman. Karen spent eleven days in that unit. There is no evidence that, since her release from the detoxification unit, Karen has been addicted to barbiturates.

8    After her release from the detoxification unit, Karen continued to feel mentally unwell. She became overweight and later developed very high blood pressure. In late 1990, Karen felt that she was unable to resume her career notwithstanding that she wished to do so. She cashed in her return ticket to the United States. Karen gradually improved over the next few years but she felt she was not capable of returning to remunerated employment. At the end of 1990, Karen became pregnant having forgotten to take the pill. She decided that it would be good for her to have a child. Her son Tyson was born in September 1991. Karen and Tyson were cared for by Karen's mother until about twelve months ago, when Karen felt able to move into separate accommodation. Karen, who at the time of the trial was no longer overweight and who appeared to be an attractive woman with a good presence, said that she had undertaken a cosmetic course with a view to obtaining employment with make-up and cosmetics. She had obtained two certificates. However, on completion of the course, she had neither the money which she needed to buy a cosmetic kit nor the confidence to work. She remains unemployed.

9    On a history given to him which was generally similar to that which I have set out, Dr Jonathan Phillips, a consultant psychiatrist, reported, on 24 August 1993:

"Ms Fleming's problems appear to have worsened following her admission to Ashburn Private Hospital where she was treated by Dr F Franklin. There were adequate reasons for inpatient care at that time but it is unlikely that her regimen of medication was appropriate. Prothiaden would have been an acceptable form of medication, it being a powerful antidepressant drug with some anxiety reducing action. Nembutal, a barbiturate sedative, would not have been an appropriate drug to use in the circumstances.
It was generally accepted by 1990 that barbiturate drugs were inappropriate in the management of depression and/or anxiety, whether or not there was a disturbance of sleep. The barbiturates were known to both be psychologically habituating and physically addictive. Their use had been criticised by the RANZCP and may well have been criticised by the RACGP in addition. There is little doubt that Ms Fleming became addicted to Nembutal and note should be taken of one episode where she had a major seizure and several other episodes which appear to have been epileptic in nature.
There is good evidence to suggest that Ms Fleming's behaviour changed substantially whilst she was taking large doses of Nembutal. Her problems were compounded when she began to drink heavily in addition. It appears that her course deteriorated until the time of Dr Tucker's intervention. His decision to admit her to a detoxification programme was appropriate.
…
It is unlikely that in 1990, peers of goodstanding would have accepted such instructions as being appropriate, particularly as Nembutal was known to be an addictive drug.
…
In summary, Ms Fleming does not have any diagnosable personality disorder. I have no information to suggest that she suffered any psychiatric illness prior to the period of breast surgery and there is nothing in her history to suggest that she had been a drug user at any point in time during her professional life. It seems more probable than not that Ms Fleming's drug taking was initiated by injudicious prescribing during her admission to Ashburn Hospital."

10    In a further report of 10 February 2000, Dr Phillips said:

"Ms Fleming is currently suffering from a dysthymic disorder DSM IV 300.4. In using this term, I refer to the presence of a pervasive lower/middle grade depressive disorder. The disorder is of intensity sufficient to interfere with the smooth conduct of her life and her enjoyment in life. The disorder is deeply entrenched and is unlikely to alter even with moderately aggressive treatment. Ms Fleming's dysthymic disorder has been caused and perpetuated by her changed station in life, particularly following the inappropriate treatment provided by Dr Franklin.
…
The case of Ms Fleming is difficult. On balance she was likely to have continued in a successful career if it had not been for the problems associated with and following breast surgery in the United States. It remains more likely than not that Ms Fleming's changed status in life has been the result of psychological habituation and probably physical dependence on drugs (principally barbiturates) which in turn had been initiated by injudicious prescribing by Dr Franklin during her period of admission to Ashburn Hospital and following her discharge from that place."

11    Dr Andrew Byrne, a general medical practitioner specialising in drug and alcohol abuse, reported in December 1999, inter alia:

"Whether Ms Fleming was habituated to tranquillisers or not, the treatment given in Ashburn Private Hospital was still highly irregular, but perhaps for slightly different reasons in each possible scenario.
The continued prescription of barbiturates in the months following the hospitalisation was also inappropriate and inconsistent with a proper standard of care. The quantities and doses provided should have indicated a problem with control over the medication but no efforts were taken to supervise doses or seek help from dependency services until the episode with Mosman detoxification unit."

12    As a result of these reports, Mr Anderson opened the case for a very large damages claim as follows:

"She travelled to the United States and in May 1989 recorded a number of demonstration tracks known as demos for a record label called Private One and your Honour will hear evidence in particular from the United States witness to the effect that she demonstrated a lot of promise and in his opinion had a reasonable opportunity to become a talent of the calibre of Whitney Houston.
It was expected she would go on to sign a multi-million dollar a year contract as a singer and whilst all of that was happening she developed a lesion in her breast. That lesion was surgically removed in the United States in late 1989 and as a result of the surgery she developed an infection. She became highly concerned about that, very agitated about it and as a result was prescribed Xanox tranquillisers by her American physician.
She felt that she needed the support of a family whilst she recuperated and for that reason she purchased a return ticket to come to Australia to recuperate. She arrived in Australia on the 19 February 1990 and on the 21 February consulted Dr Franklin a general practitioner for the first time.
Dr Franklin admitted her to the Ashburn House institution at Gladesville and prescribed and administered what might be called loosely deep sleep therapy, therapy of precisely the nature that your Honour might recall Dr Bailey prescribed in connection with the Chelmsford litigation.
…
She was addicted. Your Honour will hear her description of how she felt at that time which is in my words, not hers, totally lacking in confidence. Your Honour will hear evidence to the effect that she was incapable of completing an exercise prescribed at the detoxification unit that involved going to the nearby news agency and buying a newspaper.
As a result she spent several years out of the industry. She obtained a refund for her return ticket to the United States. That occurred in early 1991, that is a year after she had come to Australia, and almost a year after she had anticipated returning to pursue her career in the United States.
As a result of the loss of confidence and her absence from the industry and pursuing her contacts in the industry it is the case that her claim is that she has been denied the opportunity to develop the career that was blossoming so handsomely and healthily at the time of the injury."

13    There is no doubt, on the evidence before me, that Dr Franklin was negligent in his treatment of Karen. The evidence of Dr Phillips and Dr Byrne accords with the advice given by Dr Westmore, at the time, that the prescription of barbiturates was wrong. Accordingly, damages must be awarded for the distress which Karen suffered in the Ashburn Private Hospital and thereafter as a result of what has been called the "deep sleep therapy" and for her distress and confusion thereafter insofar as her condition was caused or contributed to by Dr Franklin's treatment. The damages would also unquestionably include compensation for the distressing time whilst Karen was in the detoxification unit at Mosman and recovering thereafter.

14    The issue remains, however, whether Karen's inability to work in subsequent years can be fully attributed to Dr Franklin's negligence and whether Karen in fact had a state of health, prior to the treatment, which would have permitted her to achieve the success and financial rewards which she had hoped. It is necessary to look at the medical evidence in more detail.

15    Amongst the medical reports which were tendered in evidence is one from Dr Hans Knutzelius, a consultant psychiatrist, who had seen Karen on 16 December 1985 at the request of Dr Fracchia. Dr Knutzelius reported to Dr Fracchia as follows:

"As you know she has considerable difficulties which have been with her for most of her life. Of late she has had intermittent episodes of severe depression and feelings of frustration - feelings which she has taken out on herself by inflicting cuts and burns to her body.
Most of her feelings appear to be directly related to problems she has in her relationship with her mother who herself sounds to be a woman with considerable emotional difficulties. What appears to usually happen is that, after a particularly difficult phone call or meeting with her mother, she becomes upset. Most self-injuries occur at these times. She also vents her feelings on Peter, a fact about which she feels quite guilty. This area itself is a difficult one for her as she is, at times, uncertain herself about her feelings for Peter - whether these feelings are genuine or whether they merely reflect transference problems with her mother.
Clearly her relationship with her mother is pathological and one in which ambivalent feelings of love, anger and guilt are coupled with manipulative interactions. Their contacts appear to be highly emotionally charged events and it appears that Karen has not been able to separate fully from her. In part this relates to difficulties her mother herself appears to be having in life - a life which sounds rather bleak.
I feel that Karen will benefit from having a chance to try to talk through these difficulties and I have arranged to see her for ongoing psychotherapy in the near future."

16    It is a curious feature of this case that the circumstances outlined in Dr Knutzelius' report were not referred to by Mr Anderson in his opening or by Karen or her mother in their evidence and that the report itself had not been shown to Dr Westmore, Dr Byrne or Dr Phillips before they wrote their respective reports. It is a very significant document for it reports intermittent episodes of severe depression leading to self mutilation. Notable also is the fact that Karen then complained of problems with her mother and her then boyfriend. This also was a feature of Karen's subsequent presentation.

17    Dr Knutzelius' report achieves particular significance in relation to a paragraph in Dr Phillip's report of 10 February 2000 which reads as follows:

"A worrying development noted at the recent consultation was Ms Fleming's self damaging behaviour which included probable purposeful slashing of her left arm approximately one year ago and other earlier episodes where she cut her wrists. I noted in my earlier report that Ms Fleming did not have any diagnosable personality disorder. For the sake of completion, it is now important to mention that recurrent self damaging cutting will not uncommonly occur in a person with a borderline personality disorder, particularly where self damaging cutting has begun during adolescent years. On the history Ms Fleming's self induced lacerations began much later in her life and are more likely to be a marker for the depth of depression rather than indicative of a personality disorder."

18    One can see that Dr Phillips proceeded upon the assumption that Karen had no problems prior to the operation for a benign cyst. Dr Knutzelius' report shows, however, that Karen had suffered considerable difficulties for much of her life and that there had been occasions of self damaging cutting in her adolescent years. It would seem to follow from Dr Phillips' observations that, well before Karen came under Dr Franklin's care, she had a borderline personality disorder of the type which Dr Phillips described in February 2000. Necessarily, I brought this matter to Mr Anderson's attention and adjourned the hearing to give him an opportunity of putting the report of Dr Knutzelius before the medical experts on whom he relied.

19    I now turn to the evidence in more detail. In looking for a cause of Karen's anxiety attack on 21 February 1990, Dr Franklin noted problems with her mother and boyfriend, a different boyfriend to that referred to in Dr Knutzelius' report. Dr Franklin also noted that Karen had been taking Vasotec and Xanax and he queried Cocaine. Obviously, Dr Franklin was not informed as to Karen's earlier problems.

20    Dr Westmore, likewise, was not informed of Karen's earlier problems. He noted in his report dated 16 March 1992 that, in the original interview on 6 March 1990, Karen and her mother displayed considerable hostility and antagonism towards one another. Dr Westmore's initial diagnosis was that Karen was suffering from a drug withdrawal condition, most likely being related to her treatment with the minor tranquilliser, Xanax. Dr Westmore noted that this medication had been taken for the previous twelve months. Nevertheless, there is no definitive evidence as to when Karen commenced to take Xanax. She was asked by her counsel whether she had been prescribed Xanax before she left the United States. She said, "Yes". Not even the date of the surgical operation on her breast was given in evidence. It would seem that that was not long before her return to Australia, for Karen was still suffering from the infected breast when she was admitted to Ashburn Private Hospital. The infection was there treated and the problem cleared up.

21    In his report of 16 March 1992, Dr Westmore noted that Karen suffered from personality difficulties which resulted in her having impaired relationships with those around her. He noted that he was unaware of the extent of Karen's addiction to barbiturates and he noted, "There is certainly a previous history of 'addiction' this occurring while she was residing in the United States". Dr Westmore said that Karen's history of drug use/overuse included minor tranquillisers, alcohol, cannabis and barbiturates, all of which had some mood altering properties. He reported that Karen's prognosis had to be considered in a guarded sense because of her underlying personality difficulties and the likelihood that the family issues would continue to be unresolved.

22    It seems clear that Dr Westmore was searching for an explanation for Karen's problems. He thought the personality difficulties and drug use had contributed. Dr Westmore's reactions are important for he saw Karen initially on 6 March 1990, which was not long after Karen had left Ashburn Private Hospital. In his first report of 19 March 1990, Dr Westmore attributed Karen's condition, in part, to the excessive use of minor tranquillisers which he said seemed to have been reasonably extensive in the past. If that was incorrect, as Karen in her evidence said it was, the inference would be that Karen's underlying personality problems were more deep-seated than Dr Westmore realised. I think it is likely that Dr Westmore, not having been informed of Karen's earlier problems, placed undue weight on his inferences of Karen's drug use in the United States.

23    There is no doubt that Karen had achieved very considerable success in Australia. Mr Chadwick, the principal of Chadwick Model Management, gave evidence that, "Karen had a great personality, she was vivacious and attractive" and "a special person". He said she was probably in the top 10 per cent of the models working in that field in Australia. He said that, at the present day, a top commercial girl would earn in the vicinity of $100,000 plus. Notwithstanding Mr Chadwick's oral evidence, the written details of Karen's remuneration, which he provided and to which I shall later refer, gave a less encouraging picture of Karen's earning capacity.

24    Mr R W Nichols, a principal of Ross Nichols Productions, gave evidence that he had been a film producer and director. He said that he first met Karen in 1978. He said that Karen had a quality that you did not find in a lot of people. He said that Karen was "young, attractive, could sing, could dance, could walk, could speak … had a quality that was unique, it was just different". He said that, in his view, "Karen could have gone on to be anybody" and that "she could have achieved anything she wanted to in the entertainment field basically". Mr Nichols also said that Mr Chadwick's agency was the most respected, most expensive model agency in Australia and that Mr Chadwick only used girls who were extremely talented.

25    Karen went to the United States to progress her career. She said in her evidence that, "I was leaving at my peak which was what I thought was the right thing to do …. My portfolio was credible, my music and my demonstrations were excellent, so I was going over there accomplished".

26    Karen said that, in the United States, she was very happy and did not have any health problems. Two witnesses who knew Karen in the United States spoke of Karen in similar terms to Mr Nichols. Mr Langdon, who did a major photo session with Karen photographing her for at least six hours said, "Karen is one of the most exciting of personalities that I photographed during that time … I was very impressed by her presence and her charisma and her professional abilities in front of the camera", "she really photographed even better than she looks in person". He said that, "she had tremendous potential, as much as not more than some of these other actors in the industry … besides being a beautiful woman she has a great voice … is also very musically talented". Mr Langdon also spoke of Karen's potential to earn millions of dollars.

27    Mr Curtis also gave a glowing picture of Karen in the United States. Mr Curtis gave, inter alia, this evidence:

"Q. What were your impressions of her?
A. I thought she was very pretty. I thought she was very good. She had a great voice and she had the ability to write as well.
Q. Was it then rare in the industry to have that combination?
A. Beauty and talent is, sort of, difficulty. To sing and write is also, you know - that's where most of the money comes from. When you are writing - when you are singing and writing, it is very, very good. It is the best way to go.
Q. I think you introduced her to a producer and owner of a record label?
A. Yes.
Q. Was that Joe Isgrow?
A. Yes. I think he had three companies.
…
Q. What did Joe Isgrow think when you introduced him to Karen?
A. He said she was very pretty. He was very interested. He wanted to hear what she sounded like and he was interested and what he did then, he decided to make a demo.
…
Q. Who paid for it?
A. Joe Isgrow. He was very impressed when he saw and heard her voice. When he saw that, especially since she wrote as well, he was very interested because that means a lot of money for the company as well as.
…
Q. I think about the time this demo was being made, Mr Isgrow's company was involved in litigation?
A. That's correct.
Q. And for that reason this project was by-passed while the litigation was pending?
A. Yes, it was postponed temporarily.
Q. And it was then that Karen returned to Australia?
A. Yes.
Q. Had it not been for that, have you an opinion as to what might have become of her as a singer, performer and song writer?
A. I think she would have been very big - got very big. I could have seen her starting with singing, then going into producing, possibly acting. She could have had a great career; a real good career.
…
Q. I know this is very difficult, but if she had not been ill, and if she stayed on in the US, where would she be today in your view?
A. She would be a big movie star. She would be a big movie star. Record albums too. I think she would have been very, very big. …
…
Q. You said in your letter, and you wrote this back in 1993, you referred to the fact that she would have been able to sign a multi-year, multi-million dollar contract within a few years?
A. Yes, in my opinion, yes."

28    Karen's mother gave evidence that she spoke to Karen regularly by phone whilst Karen was in the United States. She said that Karen "was happy, successful, had a wonderful life in front of her. She was just bubbly, she had already gone through the hardest stages to prove that she could handle this life-style. She was happy, very happy".

29    Notwithstanding these glowing reports of Karen, there are reasons for thinking that Karen may, within herself, have been anxious about her success. Karen had lived in the United States since 1988, probably the middle of 1988. During that period, she was not fully engaged in work as a model, as a singer or as a dancer. No record of her earnings in the United States has been tendered in evidence. Karen obtained regular income by being a waitress at a restaurant which employed aspiring models. Certainly, Karen was taken on by LA Models. However, unlike the position in Australia, it seems her portfolio of photographs was filled principally with the photographs taken by Mr Langdon in the one session. Some of the photographs were also taken from Karen's Australian portfolio. Very few of the photographs appear to come from material which was published in the United States. Karen performed in some television commercials in the United States but they may have been only "a couple of commercials" for Victoria Jackson. I have already set out the evidence given by Mr Curtis as to his introducing Karen to Mr Isgro of the "Private One" music group and as to how Mr Isgro had been pleased with the demonstration album but had been unable to pursue the matter further, being taken up by litigation. No date was given in evidence as to when the demonstration album was made but the statement of particulars filed on behalf of Karen give it a date of May 1989. Assuming that to be correct, one can understand that Karen may have become despondent when there was no further progress in the next six months.

30    Obviously, there were people in the United States who were interested in Karen. However, she had not reached the stage of being "discovered". The efforts of Mr Langdon and Mr Curtis had not been rewarded with success, although Karen would have been pleased that she had attracted the attention of two such eminent persons. It does not appear that Karen had reached the stage of being employed regularly as a model, as a singer or as a dancer. Having regard to the disappointment which Karen must have felt when her perspective singing career was halted by the litigation in which Mr Isgro became involved, it is likely that, regardless of how she appeared to others, Karen became anxious about her career. One and a half years is quite a time to be in a country without obtaining steady work of the type for which Karen had hoped. It seems to me likely that anxiety about her future, as well as anxiety over the lump in her breast, was the cause of the breakdown which commenced in the United States and which came on fully in Australia.

31    There is no express evidence that the anxiety state which Karen developed in the United States was due in part to concern about her career. Karen did not say that. However, there were parts of Karen's evidence which suggest to me that she developed an anxiety state without understanding the cause of her anxiety. For example, Karen said in her evidence:

"I was anxious. …
…
I didn't have many people, women over there who could understand the emotion, the mood swings I was going through, and I wanted to go back to Australia.
…
… I was anxious.
…
Well I was feeling anxious because of the point; I was scared about my breast because I wasn't sure how bad the infection was. I had no idea. I had not had any trouble with my breast and my career. I was scared that it may hinder my career because I didn't know everything. I was not aware of the outcome and I was feeling anxious, and also I was anxious because I did want to come home and see my Mum before I went back. I did want to spend some time with my family."

32    These passages and the events that occurred lead me to conclude that, in the United States, Karen developed a personality or psychiatric condition involving mood swings and anxiety.

33    In Australia, on the morning of 21 February, Karen suffered a florid attack. Karen's mother described the events of the morning as follows:

"A. … I honestly don't know what happened. I came in and she was talking to this neighbour, and all of a sudden Karen was crying, nervous and shaking and I went to approach Karen to talk to her, and I asked the neighbour to leave, you know, 'You are probably emotionally overwhelmed, you haven't seen the family a long time, talk to me.' She tried to talk, but she really, really was breaking her heart and I said okay, I asked the neighbour to leave, and she said, 'No, Karen is very sick, Karen is anorexic, Karen is dying'. And I said, 'No, don't talk to her like that because you know it's none of your business, I'll take her to the family doctor.
…
A. Yes, I tried to call the family doctor but he was in emergency, and while I did that this lady, neighbour up the street next minute, I don't know, she had Karen out the door.
…
A. Yes, this lady took her to Dr Franklin.
…
A. He said, 'I don't want you to see your daughter. I think you and your daughter have got a problem.'
…
A. … then he instructed me not to see my daughter for a week."

34    Dr Franklin's notes of 21 February recorded that Karen had problems with her mother and boyfriend. This is a very similar complaint to that noted in Dr Knutzelius' report of 18 December 1985. It seems to me to be unlikely that there was any communication between Karen and her mother or Karen and her then boyfriend which was a significant factor actuating her breakdown. Karen had been away from Australia for a considerable time. There is nothing in her evidence or her mother's evidence which suggests that the conversations which they had caused Karen any problems. It is more likely that Karen suffered from a personality disorder, which Dr Phillips has described as a dysthymic disorder, a pervasive lower/middle grade depressive disorder. One result of that disorder was that Karen tended to focus aggression and anger upon persons close to her, particularly her mother and boyfriend.

35    One can perceive that there was a marked contrast between the external person which Karen presented and which made her such a good performer, that of a vivacious, outgoing, happy person, and her inner person, one with a tendency to anxiety and depression. Perhaps because she worked so hard on developing her external persona, Karen does not appear to have understood her inner problems, and therefore tended to blame others when she became anxious.

36    Karen's mother said that Karen was in hospital for about a week after her admission. She said that Karen, "was very violent towards me and nasty and angry". When Karen left Ashburn Private Hospital, she returned to her mother's home and lived there until May 1991. Karen's mother said that Karen's personality had changed. She gave this evidence:

"Just she wasn't happy in herself, everything seemed to be an angry attitude and if you commented, she was violent, smashed things or say nasty things back to you."

37    On one occasion, Karen became violent. She smashed a cake and a wine bottle. Her mother asked her to leave. Karen then went to live with her boyfriend, Ian, for some months. After that time, Karen returned and asked for her mother's help. Karen subsequently stayed with her mother until about a year ago. The mother said that, after detoxification, Karen was, "Very neurotic, very unstable, very insecure, a wreck as a human being emotionally. … Angry and the violence was always there, very hurt, very very dangerous lady".

38    Evidence in the same vain was given by Karen. She said that, over the years, she made a number of attempts to kill herself. She said that Dr Franklin, whom until her treatment in the detoxification unit she saw every one or two weeks, treated her for chronic aggression. It was for that reason that he prescribed the barbiturate, Pentobarbitone. Karen said that she continued to take the drug because, "when I was coming down or when the drugs were wearing off, I would start to go into what they call a seizure and panic".

39    There was a clear pattern connecting this behaviour with that reported by Dr Knutzelius. He spoke of severe depression and aggression reflected in the inflicting by Karen of cuts and burns to her body. Dr Knutzelius reported of "ambivalent feelings of love, anger and guilt".

40    As a result, it is difficult to determine to what extent Dr Franklin's treatment aggravated or enhanced the illness from which Karen suffered.

41    It is clear that Dr Franklin is liable for damages for the suffering which was caused by his treatment. Karen described her feelings when she was in hospital as follows:

"A. He had put me on - I started to get very groggy, extremely, not being able to control myself which, I don't know, I can't stand not being, having my own control. I couldn't stand up properly. My speech was very slurred. My vision was very in and out, like wobbly, wavy.
…
A. I remember I became very aggressive; I just became very; I was fighting, I remember I was fighting and I hated it and I became aggressive and I don't know why but I just became - everything was going fast, slow, fast slow - aggressive, and they had to restrain me they said. I mean in the hospital I was restrained, yes, and then I was put down again. Sorry, not put down, but put to sleep, deeper again.
…
A. It's a horrible feeling; you can't, you are fighting to wake up and your body won't respond, and you just cannot wake up and you are falling deeper and deeper. It's like you are still there, your body is still there. You are still conscious but you can't wake up. It's horrible. Very panicky. It's an awful, awful feeling."

42    Karen described her condition later in the year, prior to the time when she was treated in the detoxification unit, as follows:

"A. No, it seemed to get progressively worse as the time went on and I was taking more and more of the medication but at that time I was feeling calm about taking them but it would start to, it would wear off quick, and I would start to think that I was crazy again. I know it sounds a very difficult thing to explain but that is how I was feeling, totally not in touch with reality. I mean people scared me, noises would scare me, everything was not real."

43    During that period, Karen commenced drinking excessive amounts of alcohol. She became unfit and very bloated. Early in October, she found that she was vomiting blood and losing blood from her bowels. It was then that she was taken to see Dr Fracchia and was subsequently admitted to the detoxification unit, where she spent eleven days.

44    She described her condition while in the detoxification unit in these terms:

"A. Terrifying, very hallucinogenic, your body, the most scariest thing anybody can be put through, excuse me, fragile, very vulnerable, very weak, crying all the time, trembling, just panic after panic seizures, just a mess, just not a human being, put it that way, getting me.
…
A. Physically tremors, incredible tremors, a lot of aching, cramps, it's your mind, the 24 hours trying to turn your mind off and not being able to was horrific, trying functionally going in your head and all panic, you have to actually tell yourself to hold your hand up to your mouth and to let yourself know that you are breathing because your heart has gone that, that low because you are coming on, and other times your heart would go that fast that you would think it would burst and you had a couple of seizures in there as well.
…
A. Spasms, your whole body goes into a complete spasm, your eyes roll back into your head, your lips, your tongue and your lips started to swell up and you lose consciousness, I don't know for how long, but you do."

45    The evidence establishes that Dr Franklin added to Karen's problems by his "deep sleep treatment" and by the continuing prescription of barbiturates when he should have followed Dr Westmore's direction to wean Karen off tranquillisers and barbiturates. However, a more difficult question is whether Dr Franklin's treatment had on-going effects to the present day and was a cause of her inability to work in the years subsequent to her discharge from the detoxification unit. The problem arises because Dr Franklin's treatment did not initiate Karen's breakdown, a breakdown which was so severe that Karen was admitted to Ashburn Private Hospital for treatment. It has not been suggested by any medical expert that it was inappropriate for Dr Franklin to admit Karen to the hospital or that the length of her stay was inappropriate. The question therefore is what would Karen's prognosis have been had she been treated appropriately.

46    My impression is that Karen suffered a very severe breakdown in early 1990, a breakdown of such severity that Dr Franklin thought it proper to treat her in a heavy-handed way by the "deep sleep treatment" in hospital and a prescription of barbiturates subsequently to control chronic aggression. Karen's condition was of such severity that it seems to me unlikely that Karen would have returned to the United States and developed a successful career in that country. The depressive illness which Karen suffered was difficult to treat because it was entrenched. Dr Knutzelius spoke of "considerable difficulties which have been with her for most of her life". The illness had previously manifested itself in a significant way, including by the infliction of self-injuries. Karen, herself, seemed to be unable to understand and control her depression or her aggression.

47    In his report of 10 February 2000, Dr Phillips described Karen's ongoing condition as follows:

"It has been more than 6 years since my initial assessment of Ms Fleming. Unfortunately she has made no more than limited gains over this time. Her ongoing problems include recurrent episodes probably associated with hyperventilation (and complicated by sensory and motor symptoms associated with changes in the concentration of blood gasses), despondency of mood with feelings of helplessness and hopelessness, episodic anger (mainly linked with loss of career), episodic past inappropriate drinking, loss of direction in life, fears linked with the future and problems of sleep (particularly nightmares linked thematically with her various problems). She is concerned additionally about her physical health, noting calcification involving structures within her breasts.
A worrying development noted at the recent consultation was Ms Fleming's self damaging behaviour which included probable purposeful slashing of her left arm approximately one year ago and other earlier episodes where she cut her wrists."

48    In that report, of course, Dr Phillips proceeded upon the assumption that the self-injury commenced after Dr Franklin's treatment of Karen. We know that that was not the case and, therefore, that Dr Phillips' conclusion, that Karen's self-induced lacerations were more likely to be a marker for the depth of her depression than indicative of a personality disorder, was not well-based. In the light of Karen's previous history, it is more likely that her self-damaging cutting was indicative of the nature of her ongoing personality disorder. I have already cited a passage from Dr Phillips' report where he considered that the disorder was "deeply entrenched". It seems to me to be probable that it was Karen's deeply entrenched disorder which Dr Franklin sought to treat, although his treatment was inappropriate.

49    Karen gradually improved after completing the detoxification treatment. She was unable to look after herself for a considerable time. She was in a confused state. Karen failed to take the pill and became pregnant at the end of 1990. She developed very high blood pressure, which perhaps was associated with the pregnancy. She continued on blood pressure tablets until quite recently. Karen did not thereafter take drugs but she had bouts of alcoholism. She had an intermittent relationship with her boyfriend, Ian, who was the father of her child, but that ceased. Her relationship with her son has been valuable to her.

50    Karen attempted to return to modelling about four or five years ago but she found that she was out of touch with the industry and a little too old. She completed cosmetic courses at the Clarins Professional Training Program and The Academy of Cosmetic Careers and at the latter institution she received a Certificate of Attainment with Honours. However, Karen did not pursue a career in cosmetics. This was in part because she needed at least $5,000 to obtain a cosmetic kit and also because she lacked the necessary confidence.

51    After I had pointed out to counsel that the report of Dr Knutzelius was significant, the matter was adjourned to a later date when Dr Phillips was called to give oral evidence. After taking into account the report of Dr Knutzelius and my indication that Karen may not have had "a very successful career" in the United States and, indeed, may have become anxious about her career, Dr Phillips said that Karen could have developed a reaction in the domain of anxiety or depression from worry about her career and also from worry about the breast surgery and abscess. He said that the third relevant factor was her inappropriate treatment and her very rapid addiction. Dr Phillips then gave this evidence:

"The next issue is the issue of the inappropriate treatment with barbiturates and quite heavy sedation with barbiturates and her rapid addiction. For a number of years I struggled in this Court with the patients who had been treated at Chelmsford. I saw nearly 200 of them over seven years and that group of people were also treated with barbiturates in large doses and other medications as well. They started their Chelmsford career with a variety of disorders; a lot of them quite minor. Of the 200 people that I saw, almost none got back into the productive work force and, as I reflect on it now, some distance away from it, I believe it was because that group of people became addicted to barbiturate drugs over a period sufficient to interfere with the very fabric of their life. They lost esteem; they lost control; they lost their jobs; they lost their smooth family relationships and they were left at the end of it all, even if they were weaned successfully from the barbiturates, very damaged human beings.
In my view, Ms Fleming did not have deep sleep therapy in the Chelmsford sense but she was treated with the same core group of drugs, barbiturates, and I think we had a woman who was sufficiently vulnerable for a variety of reasons before that time to decompensate psychologically and decompensate in a chronic manner as a consequence of barbiturate treatment psychologically and addiction to barbiturates.
I think that was the final undoing but I accept both from what my colleague Hans Krutzelius has said and the material your Honour has brought to my attention, I think we would need to accept that Ms Fleming was vulnerable before this all started. I can only make a considered guess, I suppose, whether she would have gone on to do things later on in life. I think I can state comfortably that absent the barbiturates, Ms Fleming would not be in the psychological turmoil I saw her in and from which she did not recover. She, I think, would have probably slowly got her career together, whether it was going to be modelling or something else, I don't know, but I believe it was the power of the addiction, the barbiturates themselves, the disruption to her life, which had a material effect on her psychological status to the point where she really could no longer continue to have a firm grip on her life - and that's the way I have seen her now, three times."

I accept Dr Phillips' evidence on these points. The effect of this evidence is that it is unlikely that Karen will be able to resume remunerative employment. Having regard to the past history, I accept Dr Phillips' view that her employment in the future will be minimal.

52    Karen gave evidence that she and Tyson are now living in her own unit and that she lives on a single parent pension. She said that she still gets a lot of very bad panic cramps, which result from chronic panic and she still suffers nightmares a lot. She said she meditates using deep breathing techniques which help her a lot.

53    There are many uncertainties about the facts of this case. One of them is when Karen left Australia for the United States. The evidence shows that she returned to Australia on 19 February 1990. In the statement of particulars filed in this Court, it is alleged that, in 1988, Karen travelled to the United States and worked for LA Models for approximately two and a half years. That timing is inconsistent. In her evidence to the Court, Karen said that she left for the United States in "approximately 1987 I would say" and that she spent "Two and a half years" in the United States. However, her mother gave evidence that Karen was 26 when she left for America. That would put the date of departure after 25 September 1988. A list of clients who engaged Karen as a model was provided by Mr Chadwick. This showed that, in April 1988, she did work for Mojo MDA in an advertisement for Meadow Lea Lite and, in April 1988, she was engaged by DDB Needham for an advertisement for Arnotts Biscuits. It seems probable that Karen went to the United States after performing in those commercials, therefore, in the middle of 1988. Her time in the United States was therefore less than two years.

54    Estimating Karen's earning capacity is difficult. There is no record of her earnings in the United States. There are Australian taxation returns in respect of the years 1979/1980 through to 1984/1985. There is a letter from the Australian Taxation Office which states that the return for the 1985/1986 year was destroyed. There are no returns for the following years in evidence and their absence has not been explained. The returns were prepared by a tax agent. They would seem to be accurate insofar as they deal with the income from modelling. The 1981/1982 return showed income from Chequer's of $2,766 and from part-time dancing of $1,292, a total of $4,058. In the following year, there was an income from modelling but the total income was only $5,916. In the 1983/1984 year, all the income appeared to come from modelling, as was also the case in the 1984/1985 year, where an income of $19,218 was recorded.

55    Information provided by Mr Chadwick discloses the following income which was received through Chadwick Model Management:

"PERIOD GROSS COMM TAX DEDUCTIONS
1984-85 19858.00 3663.50 2433.80 620.90
1985-86 48212.50 8930.00 212.37 1890.70
1986-87 29650.00 5280.00 205.80 1543.00
1987-88 24477.50 4241.75 318.75 445.00
1988-89 6000.00 900.00 0.00 0.00
1989-90 500.00 75.00 251.25 0.00
1990-91 750.00 150.00 361.87 86.17
1991-92 0.00 0.00 0.00 0.00"

56    Many of the fees which Karen received were for the repeat showing of television commercials. The items of commission, tax and deductions are to be deducted from the gross. Even then, there would be tax payable, for the tax listed is merely the sums deducted at source.

57    Information supplied by Mr Chadwick also shows that 1985 was Karen's most productive year, there being eight separate engagements, including one for the Playtex Bras commercial for which the fee was $17,500. In the following year, there were only four engagements and, in 1987, only three engagements. In 1988, there were the two engagements which I earlier mentioned. Clearly, the 1985 year was Karen's most successful year. Her engagements thereafter were modest in number.

58    Karen had a severe breakdown. Because the uncertainty of her career, which she encountered in the United States, contributed to that breakdown, it is unlikely that Karen would have returned to the United States. I think she would have re-established her life, including her career, in Australia. There is no evidence as to how long this would have taken. However, I think it would be fair to conclude that she would have taken about eighteen months to recover and re-establish herself as a model in Australia.

59    In assessing Karen's capacity to earn, I have taken account of the fact that the work which Karen did, by way of singing and dancing, does not appear to have been well remunerated. There must be a good deal of speculation in assessing what Karen would have earned had she received proper treatment from Dr Franklin. She had a great deal of potential, but save in relation to television commercials, she did not achieve well-remunerated success. Apart from the 1985 year, her financial success as a model was quite limited.

60    In relation to past economic loss, I consider that Karen would have been capable of earning $40,000 in Australia in 1991 but for her problems and that, at the present time, her income earning capacity would have been $70,000 per annum. The average of $55,000 must be reduced to $38,500 to take account of income tax. This figure will then be multiplied by 9, amounting to $346,500. Interest thereon will be $346,500 x 6% x 9 years, a result of $187,110. Counsel suggests future earnings of fourteen years. I am content to accept that. $70,000 less tax will amount to $46,500. The calculation for fourteen years on the 3% tables will amount to $535,018. This should be reduced by 15% to allow for the normal vicissitudes. The resultant figure is $454,765.

61    Karen may have been much less successful than I have assumed. In the early years, she had the advantage of vibrant youth, a vibrancy which may not have lasted. Moreover, Karen suffered from her personality disorder, which Dr Phillips described as a pervasive lower/middle grade depressive disorder. This disorder had demonstrated itself in Karen's early years and led to her severe breakdown in 1990. It is unlikely that the rest of her years would have passed without a repetition of this problem. As Dr Phillips said in his evidence, where psychiatric illness is concerned, past history is the best guide to the future.

62    On the other hand, Karen may have achieved much greater success than I have allowed for. Had she been chosen for a television series or had she attracted the attention of a record producer in Australia, her earnings could have been very much higher.

63    I consider that I should adopt the figures I have mentioned as the basis for assessing Karen's lack of earning capacity and should do so without making an allowance one way or the other for vicissitudes, other than the normal vicissitudes. The sums I have calculated are sufficiently large to provide for favourable possibilities.

64    The figures which counsel has put forward for economic loss are differently calculated but not largely different in substance from those which I have adopted. However, counsel has sought an additional $500,000 to $1,000,000 for what he describes as vicissitudes. Counsel opened the case by relying upon the decision of the Court of Appeal, constituted by Clarke, Handley and Sheller JJA in Norris v Blake (by his tutor Porter) (No.2) (unreported, 11 February 1997). However, Mr Blake's circumstances were different. He had been "discovered" and the only question was the extent to his future success, whether he would become a major international star or would remain merely a good actor. Mr Blake had had success in the theatres, success in television and success in films. He had achieved and completed his first major role in a well regarded film.

65    Karen was talented but she had not achieved any major success in singing, dancing or film. She had, I believe, a personality disorder which would have prevented her from achieving that success, as indeed it did when Karen was forced by her developing anxiety state to return to Australia. An assessment of damages should proceed on the basis of probabilities, so far as it is practical to do so. I am comfortably satisfied that Karen would not have achieved the success for which counsel has sought compensation. In Norris v Blake, there was a possibility to be taken into account for, prior to his accident, Mr Blake had achieved success and the only question was how great the success would be. In the present case, as I am satisfied that Karen would not have achieved the success of the type of which Mr Langdon, Mr Curtis and Mr Nichols spoke, there is not a possibility which I need take into account: see The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64.

66    The past out of pocket expenses amount to $15,624. There are no future expenses to be taken into account.

67    Karen's mother gave evidence that, for some years after Karen's release from hospital and particularly after the birth of Tyson, she spent twelve to eighteen hours a day looking after Karen and the child and that, after Tyson started school, she spent two to three hours a day caring for Karen and Tyson. Counsel has calculated a claim on the basis of twelve to eighteen hours a day at $12 per hour for two years, $105,120-$157,680, and of six to twelve hours a day at $14 per hour for four years, $122,640-$245,280, a total of $227,760-$402,960. This claim appears to me to be grossly exaggerated. Griffiths v Kerkemeyer (1997) 139 CLR 161 considered the circumstances in which a plaintiff had been injured and services had been performed by members of the family, services that had been rendered necessary by reason of the injuries. In Griffiths v Kerkemeyer, the plaintiff had become a quadriplegic and it was easily demonstrated that the nature of the injuries called for the performance of services which, if they had not been provided by members of the family, would have had to have been provided by engaged help in the nature of nursing services or the like. The Court held that, in a case where the plaintiff had incurred the need for the expenditure of moneys, it was not an answer to the claim for damages that the services had been provided gratuitously by members of his family. In the present case, there has been no detailed evidence of services provided by Karen's mother, which, had they not been incurred by her, would have necessitated the employment of others at the rate of $12-$14 per hour. Much of the burden which fell upon Karen's mother arose from the fact that Karen was lethargic, confused in her thinking and tended to be angry and aggressive. As a result, she was difficult to live with. She did not contribute to the household by undertaking her share of the cooking and cleaning etc. But that did not show that the circumstances were such that, had Karen not been living with her mother, hired help would have been required. Similarly, her mother must have come under a considerable burden after Tyson's birth. Looking after young children is a very great burden. But the evidence does not show that, absent of treatment by Dr Franklin, Karen would not have lived with her mother after the birth of the child.

68    This is a difficult case in which to assess a Griffiths v Kerkemeyer claim. However, a sum should undoubtedly be awarded for the mother's services. The best I can do is to award a lump sum. It is impossible to work out a precise figure. I would allow a sum of $30,000.

69    Karen has suffered greatly over the last decade. Mental illness is a most distressing complaint because of the potential inability to control or deal with it. Karen suffered a change of personality for many years which caused her much anguish. And, of course, her ability to lead a normal life has been destroyed. I would allow $110,000 for general damages, of which I would attribute $90,000 to the past.

70    The summary of damages is as follows:

General damages $110,000
Interest on past general damages $18,000
Past economic loss $346,500
Interest on same $187,110
Future economic loss $454,765
Out-of-pocket expenses $15,624
Griffiths v Kerkemeyer claim $ 30,000
Total $1,161,999

71    The total of these sums, $1,161,999, seems to me to be a fair and reasonable compensation to be awarded to the plaintiff.

72    There will be judgment for the plaintiff. The defendant is to pay the sum of $1,161,999 to the plaintiff. The defendant is to pay the plaintiff's costs. The exhibits may be returned.

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Last Modified: 09/26/2000