Glozier v State of Tasmania
[2000] TASSC 186
•20 December 2000
[2000] TASSC 186
CITATION: Glozier v State of Tasmania [2000] TASSC 186
PARTIES: GLOZIER, Jane Helen
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 307/1995
DELIVERED ON: 20 December 2000
DELIVERED AT: Hobart
HEARING DATES: 2, 3, 4, 7 September 1998, 29, 30 March and 4 July 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Damages - Particular award of general damages - Tasmania - Post-traumatic stress disorder - Loss of earning capacity.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C J Bartlett
Defendant: T J Ellis & C Owen
Solicitors:
Plaintiff: Bartletts
Defendant: Director of Public Prosecutions
Judgment Number: [2000] TASSC 186
Number of Paragraphs: 83
Serial No 186/2000
File No 307/1995
JANE HELEN GLOZIER v STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
20 December 2000
The plaintiff claims damages from the State of Tasmania for loss, injury and damage suffered as a result of an incident at her work place on 25 March 1995.
The plaintiff was then employed as a receptionist at the North-West Regional Hospital at Burnie. Whilst at work at about 5am on Saturday 25 March 1995, she was assaulted by a drunken young man who threatened to slit her throat. Although the plaintiff was not harmed physically in the attack, she suffered psychological harm from it and seeks to recover consequential loss and damage.
Liability to pay damages was in issue at trial but in his closing address for the defendant, the Director of Public Prosecutions did not contend that the defendant was not in breach of the duty of care owed to its employee and accepted that a finding would be made that the defendant was liable to pay damages.
The principal issue at trial was the nature and extent of the plaintiff's psychological disability and the cause of it. At the heart of this dispute was the credit of the plaintiff whom the Director of Public Prosecutions submitted was an untruthful witness and an unreliable historian for the medical practitioners whose opinions were given in evidence. The trial commenced in Burnie on 2 September 1998. On 4 September 1998, evidence was taken from Dr Sale in Hobart and the trial resumed in Burnie on Monday 7 September 1998. At the end of the morning of that day, the plaintiff broke down in the witness box and after the luncheon adjournment, her counsel, Mr Bartlett, asked for and was granted, an adjournment. Mr Bartlett informed the Court that he had just learnt that his client was alcohol dependent.
The plaintiff's solicitors did not seek a resumption of the trial for about 18 months. No time was available until 29 March 2000, when the trial resumed. It was not complete at the end of the following day and could not be concluded until 4 July 2000. The long delays between hearings have resulted in a substantial delay in the delivery of this judgment.
The plaintiff's background
The plaintiff was born in Burnie and completed her secondary schooling at the Burnie High School. After leaving school, she went to Melbourne where she worked as a telephonist at a telephone exchange. Not long after, she returned to Burnie and married her first husband. There are three children of that marriage, now all adults. The plaintiff's first husband died in an accident in 1970. The plaintiff commenced living with her second husband some years later. They did not marry until 1984. There is one child of that union, Kelli-Anne McInnes, who gave evidence.
Some time prior to 1970, the plaintiff commenced work at the North-West General Hospital. Initially, she worked part time, but in 1977 she became a full time employee. Thereafter, she worked continuously at the hospital, apart from two years unpaid leave that she took during 1990 to 1992. During that time, the plaintiff and her husband managed the Valern Hotel in Hobart. On her return to the hospital, the plaintiff worked for a brief period at the Spencer (Psychiatric) Division of the hospital in Wynyard and then returned to her customary work as a receptionist at the hospital in Burnie. The plaintiff worked as a receptionist both at the old, now abandoned, hospital in Burnie, as well as at the new hospital in Bridport Road.
The plaintiff described her general health prior to the assault in March 1995 as good and her personality as robust.
The plaintiff said that when she worked on the night shift at the old North-West General Hospital on the corner of Marine Terrace and Edward Street, it was quite common for drunken agitated males to arrive at the hospital in the early hours of the morning, but the staff were able to avoid any trouble from them as the exterior doors could be closed by a remote locking device and there was a direct telephone line to the police station fitted with some kind of switch which, if pushed, would alert the police to the fact that they were needed at the hospital immediately.
The incident
On 25 March 1995, the plaintiff was working on the night shift. She was then 49 years of age. At night, the hospital reception area was part of the Department of Emergency Medicine. Public entry was by way of swinging glass doors into an open plan foyer. There was a time locking device fitted to these doors but the unchallenged evidence was that it had never worked since the hospital was built.
The plaintiff worked behind a counter, one part of which was higher than the rest. Computer monitors were in front of the high part of the counter and behind the low part was the telephone switchboard. At 5am on Saturday 25 March 1995, the plaintiff, a Sister Parry and Dr Stilger were in the Department of Emergency Medicine.
A young man entered the reception area. He was drunk and abusive. He was looking for another young man who had been to the hospital earlier that morning. He asked the plaintiff if he could use the telephone. She permitted him to do this and put a phone on the counter. During the course of the phone call, the young man was noisy and swearing. He then phoned for a taxi and went outside. The taxi arrived, but about 20 minutes later, the young man, still noisy and abusive, re-entered the hospital. Without asking permission, he reached over the counter, picked up and used the telephone. He became even noisier and even more abusive and commenced swearing at the plaintiff and the other staff. He threatened to bring "his mates" and "trash the place". The young man then positioned himself in front of the plaintiff as she picked up the phone to ring the police. He told her that if she rang the police, he would slit her throat. The plaintiff told him she was not ringing the police but making a hospital call. This enabled her to dial the police station and when the call was answered, the police were able to hear the noise and immediately left to go to the hospital.
In the meantime, the young man became more violent and abusive. He banged his fists on the counter. He leaned towards the plaintiff and repeated his threat that he was going to slit her throat. The plaintiff described this young man as lunging at her. She had earlier noticed that he had a leather pouch at his side but did not know if it contained a knife. The plaintiff believed that she was going to be hit, but fortunately the police arrived in time and the youth was arrested. He was later charged and convicted of assault.
It is relevant to interpolate here that the young man died about two years after this incident, apparently from a drug overdose.
The immediate sequelae
Statements were given to the police on the morning of the attack and various supervisors and the hospital's superintendent came to the Department of Emergency Medicine. The plaintiff was very upset by the incident. She gained the impression that the supervisor and the superintendent did not consider it to have been a serious incident. It appears that the staff present at the scene of the incident made it clear that they would not work on the night shift again unless more security was provided. The superintendent agreed to engage a security guard until the time locks on the doors were made operational. The plaintiff considered that the superintendent did not care about this event, nor did he care about the upsetting effect that it had upon her.
The plaintiff went home and took some Valium that had been given to her at the hospital. She tried to rest but could not do so. The following morning she went to see her general practitioner, Dr Gameau. He described her condition as extremely anxious, and said that she was suffering from palpitations and trembling. Dr Gameau said that the plaintiff's blood pressure and pulse were elevated and that she had anxiety tachycardia.
Dr Gameau knew the plaintiff well. He had been her general practitioner since 1968. He described the plaintiff as a "sound, reliable individual" prior to the consultation in March 1995. He said that the plaintiff had consulted him with symptoms somewhat akin to those from which she was suffering on 25 March 1995 on only two prior occasions. The first was when her first husband died exactly twenty five years earlier and the second was when her mother-in-law died. He said that on the latter occasion, the symptoms did not require treatment.
The plaintiff said, and I accept, that Dr Gameau suggested that she take some time off work, but she declined to do so because the hospital was short staffed. The plaintiff returned to work at 11pm that night as scheduled and continued, as she described it, "on automatic pilot" until early in the following week. She then went on holidays that had been scheduled long before the incident on 25 March 1995.
At the suggestion of a nursing sister at the hospital, the plaintiff visited a counsellor in private practice in Burnie. It provided her with no relief from her symptoms of anxiety. The plaintiff said, and I accept, that she expected her anxiety symptoms to abate, but to her surprise, they did not do so. She said that no one at the hospital counselled her and she felt very angry "at the hospital; at the system because they never listened to us". She said that concerns about the security at the hospital reception area had been expressed before the new hospital was occupied.
The issue of liability
Senior staff at the hospital, and thus the defendant, knew or ought to have known that the plaintiff was exposed to the risk of being assaulted by persons affected by liquor coming to the hospital when she was working on the 11pm shift. That had been the experience at the old hospital on Marine Terrace. The defendant was obliged to take reasonable steps not to expose the plaintiff to harm from such risk. Such steps would have been, at least, the installation of effective remote control locks on the exterior doors, which would have enabled the plaintiff to stop the man who assaulted her from re-entering the hospital. Further, as it subsequently did, the defendant could have erected perspex barriers on top of the counter in order to prevent persons like the young man who assaulted the plaintiff from lunging across the counter at the staff.
The defendant was in breach of the duty of care it owed the plaintiff and in consequence the plaintiff suffered immediate psychological harm, being acute anxiety. Liability to pay damages is established.
The psychological sequelae
In the week that the plaintiff was on holidays, she suffered from sleeplessness and nightmares. She had flash backs to the incident. She had episodes of crying. She suffered from acute trembling. She was unable to pull herself together and unable to do that which she had been looking forward to doing, helping to organise her daughter's wedding due to take place in October of that year. Dr Gameau described the plaintiff's condition when she consulted him on 10 April 1995:
"She seemed to be just as stressed if not more stressed and anxious. She was tearful, she felt easily frightened and intimidated. She had certainly lost her confidence, she felt tired, she had lost interest, she was tending to dream, from her husband she was beginning to talk in her sleep, just generally very nervy, decreased concentration, she admitted feeling depressed, and as I say lack of confidence and in particular in driving a motor vehicle and when facing other people.
… she felt comfortable in her home environment and felt threatened when she was outside that environment at that time."
Dr Gameau diagnosed post-traumatic stress disorder and referred her to Dr Marianne Haughton, psychiatrist.
The plaintiff did not return to work at the end of her holiday and has not worked since. She developed a phobia about the hospital and could not bring herself to return there. She said, and I accept, that she was unable to bring herself to go there, not even when her mother was admitted for major surgery, nor when her daughter gave birth to her first baby.
The plaintiff said that she resigned from her employment on 17 July 1997. However, it was an agreed fact that weekly payments, pursuant to the Workers Rehabilitation and Compensation Act 1988, continued until 29 November 1997. However, nothing turns upon this apparent discrepancy. Since the cessation of weekly payments, the plaintiff's income has been a disability support pension.
The course of the trial
On the first and second days of the trial, the plaintiff gave evidence-in-chief to the general effect that her condition had remained largely unchanged during the three and a half years that had elapsed since the incident in March 1995. She said that she continued to consult Dr Haughton and took antidepressants and other medication on her prescription. The plaintiff said that she still suffered from sleeplessness and described symptoms of agoraphobia. She said that she suffered from panic attacks. She said that she was fearful of leaving her home and was dependent upon her daughter to take her to the supermarket. She said that she believed that she was being watched all the time. She said that she was listless and unable to get herself organised to do anything. She said that she was frightened to go out unless she was in the company of her daughter or her husband. In the witness box, she cried from time to time, spoke in a listless manner, looked withdrawn and rather dishevelled and drank copious quantities of water. The plaintiff said that she had lost her power of concentration in that before the incident she was an avid reader of fiction, but since the incident, she had been able to do no more than glance through a magazine from time to time.
The plaintiff said that she and her husband had separated and that he lived in a "granny flat" in one part of the house and she lived in the rest of it with her dogs. The plaintiff said that she no longer enjoyed a social life in that she no longer visited people. She complained of being lethargic and lacking motivation. Under cross-examination, the plaintiff said that her husband was in receipt of an unemployment pension and that they were treated by the relevant government department as living separately and apart. However, the plaintiff admitted seeing her husband virtually every day as she either drove him to or from a local hotel that he frequented. The plaintiff said that she and her husband used a joint credit card account. She said that her husband sometimes made money from a pyramid money-making scheme called "Concorde" and from the occasional sale of cars.
The plaintiff said that she did not like to go out and that she only did so if "pushed" by her family or by her medical advisors to try and go out more. She agreed that generally she had let her personal care and hygiene deteriorate. She agreed with counsel cross-examining her that she dreaded a car trip and could only go shopping if accompanied by someone, usually her daughter. She said that she avoided shopping if at all possible and yet before the accident, she enjoyed that very much. The plaintiff said that she had not asked her husband to give evidence to corroborate her account and that her daughter was then in Coffs Harbour on holiday and therefore not available to give evidence to corroborate her account.
The plaintiff admitted to her cross-examiner that she had been in the gaming room of the Seabrook Hotel, Somerset, but said that she had not been there more often than four or five times over the preceding 12 months. She said that she went there for meals but had "been known to put a couple of dollars in the machine when Kellie's been playing a machine".
In her evidence-in-chief, the plaintiff said that in March of that year (1998) she and her husband went to Melbourne. She said that she went to see her son, who lived in Western Australia, but who was then visiting Melbourne. She said that her husband also wanted to go to attend a "Concorde" meeting due to be held at Essendon.
The plaintiff was extensively cross-examined about this visit to Melbourne. It transpired that the defendant had engaged investigators to follow the plaintiff and surveillance video film was taken of her when she was in Melbourne. Her account of her visit was at marked variance with the video film. The plaintiff claimed that she stayed with her brother at Spotswood and that each day the family met in the gaming lounge attached to the Welcome Inn Hotel in the middle of the city. She said that once they were all there, the family would decide what they were going to do for the day. The plaintiff claimed that while she was in Melbourne, she was anxious and tried to avoid being in places where there were a lot of people. She agreed that she went to the Victoria Market.
"I went to the Melbourne Market with my brother and sister-in-law. They left me. I went and sat in the - where they keep the trolleys on the seats outside because it was just too much for me.
… I went to the market and started wandering around but it was just too many people around. I was too stressed out and there was people bumping and touching you all the time over there it's awful [sic]."
The plaintiff said that she felt someone was following her in Melbourne and, indeed, as it turned out, she was correct in this respect.
In the course of her cross-examination, the plaintiff was confronted with a travel document in the name of Mr and Mrs Glozier for accommodation at the Welcome Inn, Melbourne. The plaintiff was then asked if there was any part of her evidence that she wished to change and, in an extraordinary outburst, she exclaimed:
"No there is not actually, apart from letting everybody know what an ass hole my husband - excuse me, can be."
The plaintiff then proceeded to invent what can only be described as an incredible story of her husband having another woman and although she and he travelled to Melbourne together, he stayed at the hotel with this other woman while she had stayed with her brother at Spotswood. Somehow her husband managed to keep this other woman out of sight during the whole of their five day visit to Melbourne. The plaintiff, who by this stage of the cross-examination was obviously aware that she had been followed by a private investigator, struggled to maintain this account. The cross-examiner not only attacked the plaintiff's credit generally, but also attacked a claim, made in the proofs of expert medical opinion evidence, that the plaintiff suffered from agoraphobia or a morbid dislike of public places. During the course of this cross-examination, she was reluctantly compelled to admit:
· That her bags were taken to her husband's room upon their arrival in Melbourne.
· That someone delivered her bags to her husband's room on the day of her departure and those bags, together with her husband's bags, were taken downstairs to the hotel lobby and ticketed together for collection.
· That she went alone in the lift to her husband's room late one evening to visit the toilet. She said she did not like using public toilets. There was no sign of this other woman.
· That she went with her husband to the "Concorde" meeting at Essendon attended by quite a number of strangers when she could have stayed with her brother at his home at Spotswood.
· That she was often in the gaming room at the Welcome Inn, mostly with her husband, sometimes until quite late at night playing the gaming machines.
· That she and her husband went shopping on several occasions in central Melbourne and on a number of occasions, she went into crowded stores alone.
· That on occasions, she was in the gaming room at the Welcome Inn for up to one or two hours with about 50 to 60 other persons whom she did not know.
· That she visited the Myer foodhall with her husband and then caught a cab to the Victoria Market, where she went shopping alone.
· That she gave her husband money.
· That she took a taxi to Richmond and there went to a number of clothing shops.
· That she went to the Casino where she met her husband and her brother and where she played the gaming machines.
I am well satisfied that the plaintiff's account of her husband staying with another woman at the Welcome Inn, Melbourne was false. I find that she and her husband went to Melbourne together for five days and stayed together at the Welcome Inn. From the video film of the plaintiff taken in Melbourne, and shown in cross-examination, I find that she spent periods alone in crowded places, such as the Victoria Market, without exhibiting any visible signs of anxiety or agoraphobia.
The cross-examination then turned to the evidence that the plaintiff had given in chief about going to hotels in Somerset only occasionally, only for a meal, and then only in the company of a family member. Eventually, the plaintiff admitted that between about the end of 1996 and March 1998, she had been a regular visitor to the Somerset Hotel where she regularly played the gaming machines. As will be seen later, this evidence was corroborated by Mrs Allen, the licensee of the Somerset Hotel, who was called to give evidence. The plaintiff finally admitted that she felt she was becoming addicted to the gaming machines. This was quite contrary to her evidence-in-chief that she was "not the sort of person who goes and sits and plays the pokies".
As the cross-examination proceeded, the plaintiff became more and more tremulous. She continually drank water, but had great difficulty holding the glass sufficiently steady to enable her to do so. She fidgeted continually, her hands flickering across her mouth and over her face and hair. The plaintiff was cross-examined about her drinking habits and she eventually got to the stage where she admitted that perhaps, sometimes she drove the car when her blood alcohol concentration would have exceeded the legal maximum. At that stage, the plaintiff's shaking and apparently uncontrollable hand gestures reached such a stage that she felt unable to continue and she was permitted to step down. She said that she had "electric legs".
At that stage, evidence was taken from Dr Gameau and then the court took the luncheon adjournment. As I have already mentioned, Mr Bartlett then said that he had just learnt that his client was addicted to alcohol and he needed an adjournment. Again, as already mentioned, that adjournment lasted for approximately 18 months. Before that adjournment, Dr Sale's evidence had been taken in Hobart.
Dr Sale saw the plaintiff on a number of occasions and three reports of his dated 14 February 1996, 18 November 1996, and 21 January 1998, were tendered in evidence. Dr Sale diagnosed the plaintiff as suffering from a post-traumatic stress disorder with significant depressive elements caused by the incident at the hospital in March 1995. In his first report, Dr Sale expressed the view that the prognosis was favourable, but by 1998, he no longer held that view. On 21 January 1998, he wrote:
"Ms Glozier has become chronically disabled. For all intents and purposes her condition resembles agoraphobia in that she is virtually unable to leave her home unless accompanied, generally by her daughter. She remains subject to chronic anxiety symptoms and sleep disturbance. Treatment has only modest benefit. Clinical management by the local psychiatric team appears to be mainly along a maintenance model, rather than any further attempts at more active rehabilitation.
The prognosis appears poor. The likelihood is that Ms Glozier will remain much as she is now, subject to chronic anxiety symptoms, reliant upon others for being able to cope within the community. She is likely to need anti-depressants on a long term basis. She will also be likely to need ongoing clinical support although whether there is any point to further counselling at this juncture is debatable." [Emphasis added.]
Dr Sale said the plaintiff told him that she was virtually unable to leave her home unless accompanied by her daughter. He said that she told him that she was acutely anxious, that she suffered from panic attacks and was unusually and morbidly security conscious, keeping the blinds drawn at home. Dr Sale said that she gave no indication that she would leave her home for the purpose of pleasure or recreation.
Although the plaintiff's cross-examination was incomplete when Dr Sale gave his evidence, she had been cross-examined about her visit to Melbourne with her husband. Dr Sale was told of this and shown the video film of the plaintiff shopping and getting in a taxi. He said that the trip to Melbourne and the activities of the plaintiff that he saw on the video, together with a visit to the casino, were inconsistent with the existence of agoraphobia. With respect to the trip to Melbourne, Dr Sale said it is "a big ask for someone who is phobic to catch a plane to Melbourne". Dr Sale conceded that his opinion rested substantially on the history given to him by the plaintiff.
At the time the adjournment was taken, I formed the tentative view that the plaintiff had told lies in a number of respects and that she was not suffering from agoraphobia. There was nothing that followed to cause me to change the tentative view that I had formed, and in the light of my findings with respect to the plaintiff's account of her trip to Melbourne, I am unable to accept Dr Sale's opinion, given before he saw the video film of the plaintiff in Melbourne, that the plaintiff suffered from agoraphobia. However, that is not the end of the matter, for it was clear to me from seeing and listening to the plaintiff in the witness box for long periods of time over many months, that she was not well. She appeared to be thin, withdrawn and unkempt. She continually shook and her hands continually made empty fluttering gestures to her mouth, her face and her hair.
The cross-examination of the plaintiff resumed in March this year. Counsel for the plaintiff said nothing about the circumstances that gave rise to the adjournment and nothing about what had transpired during the intervening 18 months. The cross-examination simply resumed.
Video film of the plaintiff taken in Melbourne in March 1998 and which had been shown to the plaintiff and Dr Sale, was tendered in evidence. This film had not been discovered before trial by order of the Court. In addition, a short video film of the plaintiff watching the Christmas Parade in Burnie on 3 December 1999 and a short film of her shopping a little later that month, was also tendered in evidence. In addition to the video film, the following witnesses gave evidence upon the resumption of the trial:
· Anne Maureen Powell, retired community psychiatric nurse;
· Sidney Thomas Humphrey, former employee of the hospital;
· Julie Anne Paine, former employee of the hospital;
· Philip Glozier, the plaintiff's son;
· Kelli-Anne McInnes, the plaintiff's daughter;
· Beryl Elaine Austin, licensee of the Somerset Hotel;
· Marianne Winifred Haughton, the plaintiff's treating psychiatrist until September 1998;
· Michael John Marriott, clinical and forensic psychologist, who did not see the plaintiff until after the trial was adjourned in 1998;
· Nigel Mark Henry Strauss, consultant psychiatrist retained by the defendant.
The three former employees of the hospital were united in their view of the plaintiff. They all described her as a well groomed, well dressed and a competent employee before the incident in 1995. The plaintiff's hospital identity tag was tendered in evidence. It bore a head and shoulders photograph of the plaintiff. The photograph is consistent with the description of the plaintiff given in evidence by the former employees of the hospital, but bears little resemblance to the plaintiff as she appeared at trial. Each of those former employees described the plaintiff, prior to March 1995, as being helpful and able to cope well with emergency situations that arose in the hospital. Illustrations of her capacity to cope well in a crisis were given. This picture of the plaintiff prior to March 1995, was very much at odds with the thin, tremulous and unkempt woman who gave evidence. I accept the evidence of the three former employees. It was not weakened in any respect by cross-examination.
Mrs Powell knew the plaintiff particularly well. She knew the plaintiff when she worked at the psychiatric division of the hospital in Wynyard after ceasing her employment at the Valern Hotel. Mrs Powell then worked with her on the wards. Mrs Powell also knew the plaintiff after she returned to switchboard duties at the main hospital. Mrs Powell knew the plaintiff particularly well after the incident in March 1995. She saw the plaintiff when she went to Wynyard to consult Dr Haughton after being referred to her by Dr Gameau, and after Dr Haughton left the hospital at the end of 1998, Mrs Powell, acting as a community psychiatric support worker, visited the plaintiff in her home for about three hours each Thursday afternoon.
Mrs Powell described the plaintiff's changed appearance, weight loss and lack of grooming. She said that the plaintiff constantly fidgeted and appeared ill at ease and wrung her hands. When she visited the plaintiff, Mrs Powell noted that her home was dirty. She said the plaintiff was always nervous, fidgeting and constantly looking out of the window. She said that the plaintiff's confidence appeared to be "at an all time low". Mrs Powell said that the plaintiff's condition had remained basically unchanged throughout the whole period since the incident in 1995. I accept Mrs Powell's evidence. She was not, and had never been, either a personal friend or social acquaintance of the plaintiff. To Mrs Powell, the plaintiff was no more than a fellow worker and subsequently a patient. Mrs Powell was an impressive witness.
The picture painted by Mrs Powell was corroborated by the plaintiff's two children. Their demeanour as they gave evidence was equally impressive. Their manner of giving it, which included moments when there were tears, or near tears, was such that it was impossible to believe that it was either invented or exaggerated except perhaps to the least degree. Their evidence was not weakened by cross-examination, and although I am well aware that there was no doubt a natural bias towards their mother, there was nothing about the content of their evidence, nor their manner of giving it, to suggest that it was not truthful and in substance, accurate. I so find.
Of the two children, Kelli-Anne McInnes was the more articulate. She and her brother painted a pre-incident picture of a strong, well organised and self confident mother who brought up her children with firm rules and who ran an efficient household, as well as holding down her job at the hospital. Mrs McInnes married in October 1995, seven months after the incident, and then moved out of the plaintiff's home to live nearby in Somerset. Mrs McInnes was on holiday in Coffs Harbour when the incident happened in March 1995. When she returned, she immediately noticed signs of acute anxiety. She said that her mother was fearful that whenever she went out, the man who assaulted her might be there. Mrs McInnes said that her mother would not go into a shop alone in case he was inside. She said that even after the man's death in 1997, her mother remained apprehensive that his friends might be there in his place. Mrs McInnes said that for a while after the death of her attacker, her mother's condition improved, but it regressed shortly afterwards because her mother felt that people were following her. She said that her mother was acutely anxious that she was being watched all the time. Evidence was adduced from the insurance company that insured the hospital against liability under the Workers Rehabilitation and Compensation Act that surveillance of the plaintiff was first undertaken in December 1997 and continued intermittently throughout 1998.
Mrs McInnes said that she visits her mother every day and that if she has not made contact with her by 11am, her mother telephones her wanting to know where she is. Mrs McInnes said that she was her mother's "security blanket".
Prior to 1998, Mrs McInnes said that her mother "stuck to her like glue" and that she or her father used to take her shopping. She described her mother's complaints of panic attacks while shopping. She said that this had got a little better with the passage of time. Mrs McInnes said that her mother let her house get dirty, smoked incessantly, drank excessive amounts of coffee, did not look after herself properly and spent a great deal of time just sitting about and looking out of the window. She said that her mother now also drank quite a lot of alcohol each night. It was usually light beer and wine. She described her mother's fidgeting hands, as I had observed them in the witness box, and her general shakiness.
The remaining non-medical witness, Mrs Austin, said that she took over the lease of the Somerset Hotel in October 1997 and that the plaintiff came in the hotel "quite often" and "played Keno and had a beer, played the gaming machines just like any other customer". Mrs Austin said that the plaintiff was usually, but not always, with her husband, who generally arrived at the hotel about an hour before the plaintiff got there. Mrs Austin said that the plaintiff stayed for "a couple of hours, sometimes longer" on each visit. She said that Mr and Mrs Glozier ceased coming to the Somerset Hotel in about March or April the following year. She said that "something" happened, but she did not elaborate as to what it was that happened that caused the Glozier's to stop visiting the hotel. Mrs Austin said that she had known the plaintiff for many years and that the plaintiff looked and appeared normal to her when she was at the hotel. I accept Mrs Austin's evidence that the plaintiff was a reasonably frequent visitor to the Somerset Hotel in 1997 and 1998. The plaintiff finally admitted that herself under cross-examination. Mrs Austin said that she never saw the plaintiff leave, other than in the company of her husband.
In cross-examination, Mrs Austin admitted that there may have been a couple of occasions when the plaintiff was in the hotel looking distraught and dishevelled. As the cross-examination progressed, it became clear to me that Mrs Austin had no particular memory of the plaintiff, other than that she was a regular visitor to the hotel, almost always in the company of her husband. When it was put to her that on occasions the plaintiff appeared nervous, Mrs Austin said, "well I don't know because I probably wasn't paying attention to that, wasn't looking for that".
I place little reliance upon the evidence given by Mrs Austin as to the plaintiff's appearance and her manner when she was at the Somerset Hotel between October 1997 and March 1998.
I turn now to the balance of the medical evidence. Counsel for the plaintiff tendered in evidence six medical reports written by Dr Haughton. The first is dated 16 July 1996, and refers to the plaintiff's first consultation with her on 21 April 1995. The last is dated 28 March 2000 and refers to an assessment she performed on 23 March 2000. In addition to the evidence in the reports, Dr Haughton was examined and cross-examined. I found Dr Haughton's oral evidence difficult to understand and of little assistance, due largely to her apparent inability to respond to questions that were put to her and her insistence that she would tell the Court in the manner that she thought appropriate, what she thought the Court needed to know.
In her written opinions, Dr Haughton's view was that the plaintiff suffered from post-traumatic stress syndrome following the incident at the hospital in 1995, the symptoms of which included severe lack of motivation, poor concentration, impaired short term memory and generalised anxiety. She wrote that the plaintiff also suffered from avoidance of the hospital and a major depressive disorder.
Dr Haughton expressed the opinion that the plaintiff was agoraphobic, but when shown the video film of the visit to Melbourne, she conceded that she saw no evidence of agoraphobia there. However, she said that the video film of the trip to Melbourne was completely equivocal with respect to the existence of depression and anxiety. After the adjournment in 1998, Dr Haughton wrote that the plaintiff had revealed to her that she had substantially increased her consumption of alcohol since the incident in March 1995. It was Dr Haughton's opinion that alcohol dependence is an established complication of post-traumatic stress disorder. Consistent with that proposition was the plaintiff's evidence given in cross-examination on the resumption of the trial, to the effect that alcohol helped her "cope". As mentioned, this state of affairs was corroborated by the plaintiff's daughter.
With respect to her diagnosis of agoraphobia, Dr Haughton agreed that it would be inconsistent with regular visits to the gaming room at the Somerset Hotel.
Dr Strauss is a consultant psychiatrist practising in Melbourne. He first saw the plaintiff in 1997 and thereafter on three separate occasions, the last being 23 February 2000. On the occasion of the first consultation, Dr Strauss, like Dr Haughton, diagnosed a post-traumatic stress disorder, the stressor being the incident at the hospital in March 1995.
By April 1998, Dr Strauss considered that the plaintiff no longer suffered from a post-traumatic stress disorder but did suffer from anxiety, depression and some agoraphobic problems. He said that he found it difficult to make a firm diagnosis because in his view, the plaintiff was an unreliable historian. He postulated that possible causes for her present symptoms of anxiety and depression might be the "empty nest syndrome", viz, the departure of her last child from the home in October 1995, the plaintiff's marriage breakdown and/or financial problems.
In cross-examination, he agreed that video surveillance would have increased the plaintiff's anxiety, but overall, Dr Strauss was of the view that although there was evidence of anxiety, he considered the plaintiff to be so unreliable that he was unpersuaded that she suffered from any identifiable psychiatric illness.
Mr Marriott is a clinical psychologist. He was called for the plaintiff, but not consulted by her until after the adjournment of the trial in 1998. He initially interviewed her, untrammelled by any evidence that had been given in court, and untrammelled by any previous medical opinions. He carried out a detailed psychological assessment of the plaintiff by way of a 344 multiple choice personality questionnaire called the Personal Assessment Inventory. In summary form, the results of this assessment were:
· maximum score for depression and anxiety;
· social isolation;
· thought processes marked by confusion and difficulties of concentration;
· unusual perceptions, probably from the belief she was being watched;
· high score on phobias;
· functional impairment, complaints of physical symptoms and pre-occupation with health problems.
I accept those measured findings. There was no evidence to contradict them. They are consistent with the evidence given by the witnesses who have known the plaintiff for many years. The cogency of the assessment was not diminished by cross-examination.
Following his initial assessment of the plaintiff, Mr Marriott saw her again and was made aware of the video films, the other medical opinions and the evidence of the plaintiff given prior to the adjournment in 1998.
It was Mr Marriott's opinion, like that of Dr Haughton and that of Dr Sale, that the plaintiff suffered from a post-traumatic stress disorder with secondary depression. In common with the opinions of Drs Sale and Haughton, expressed after seeing the video film, he did not consider that the plaintiff suffered from general agoraphobia. However, Mr Marriott said he did consider that it might have been an early complaint but was one that did not develop. Also in common with Dr Haughton, Mr Marriott said that the videos did not "say anything about the presence or absence of anxiety, post-traumatic stress disorder or really, depression". His view, with respect to the plaintiff's future, was expressed as follows:
"Well my assessment is that she has some chronic post-traumatic stress symptoms which have proven quite resistant to treatment. I'm aware that she's had a lot of input from the local community mental health centre, including ongoing medication which, when I last saw her, she felt was giving her some symptomatic relief. So I would encourage her to continue with the supports that she's received in the past. I think it's probably too late to attempt to desensitise the traumatic recollections although, depending on the budget we had … if we had an unlimited budget I would perhaps want to refer her to some inpatient facilities in New South Wales which are particularly expert at defusing post-traumatic recollections. But failing that I think I would focus more on symptom management of her anxiety, treating her with relaxation therapies, using an occupational therapy approach and possibly a vocational training approach to help her become more active and outward looking so that there may be some prospect of engaging her in the work force in the future. … I wouldn't be overly confident that we could achieve wonderful outcomes at this stage, some five years after the event."
An analysis of the evidence
| 66 | (a) | The evidence from the plaintiff's general practitioner who has known her for more than 30 years, her two children and three former fellow employees is that before the incident in March 1995, the plaintiff: |
· had worked hard for virtually all her adult life;
· had given birth to four children and brought them up in a well organised and disciplined way;
· was a competent and efficient employee of the hospital for many years, able to deal with the general public and with emergency situations in a competent manner;
· was a well groomed, well dressed, energetic and friendly person who went about her life in an organised way.
(b)There was an incident at the hospital in March 1995 that the medical opinions unanimously agreed caused a post-traumatic stress disorder.
(c)There was no challenge to the plaintiff's evidence, which was corroborated by the former fellow employees, that immediately after the incident, the plaintiff became upset, anxious, tearful, unable to sleep, suffered from nightmares, avoided her workplace, lost concentration, was tremulous and was unable to work.
(d)The plaintiff's account, which I accept, was that in the light of her prior robust personality, she thought that she would soon be over the effects of the incident and would be able to deal with it as she had dealt with other difficulties in the past.
(e)The evidence of those who have known the plaintiff well for a long period of time is undivided and unimpeachable that since the incident, the plaintiff has developed an obsession that she is being watched, has become lethargic and has lost concentration. Her personal care and hygiene is lacking and her motivation is at a very low level. She is acutely anxious and is consuming alcohol on a daily basis to an excessive degree in an attempt to alleviate the symptoms of anxiety. She is tremulous. She is dependent upon family members for support.
(f)In the light of the foregoing, it is prima facie improbable that the plaintiff has voluntarily abandoned the habits of a lifetime, assumed a depressed demeanour and feigned or seriously exaggerated symptoms in order to avoid a return to the work she enjoyed and in order to recover compensation.
(g)The divergence of medical opinion is principally confined to the plaintiff's mental state after about 1997 and arises principally out of Dr Strauss' belief that the plaintiff is an unreliable historian.
(h)As I have found, the plaintiff did lie about the circumstances surrounding her trip to Melbourne. However, I am far from satisfied that it follows that the plaintiff has been a generally unreliable historian, either in the witness box or to the medical practitioners, the nurses and the psychologist.
(i)Also, as I have found, the plaintiff was less than frank with respect to the amount of time she spent playing the gaming machines in hotels and with respect to the amount of alcohol that she was consuming.
(j)These findings are corroborated by Mr Marriott's psychological assessment of the plaintiff insofar as it suggested "some element of exaggeration of complaints and problems".
(k)Notwithstanding all of the foregoing, I am satisfied that the plaintiff has continuously suffered from acute anxiety, associated depression and, more recently, secondary increased alcohol consumption since the incident in March 1995 to a degree that has seriously debilitated her.
(l)The medical and psychological opinion is united in that the plaintiff does not suffer from agoraphobia, although there may have been agoraphobia in the early days after the incident. I accept Mr Marriott's evidence that early complaints of panic attacks may have led to this erroneous diagnosis. There is a vast difference between being anxious if not with people whom the plaintiff could trust such as members of her family, and a general fear of being in public places, although it is understandable, upon the facts of this case, how the latter diagnosis was made. The erroneous diagnosis of agoraphobia understandably led to a concentrated attack on the plaintiff's credit about her capacity to go shopping in crowded places as depicted on the videos.
(m)With respect to the plaintiff's lies, it does well to bear in mind the direction that is given to juries with respect to the use of evidence of lies when considering the guilt of the accused. There could be reasons for the plaintiff's lies about her trip to Melbourne, her visits to hotels and her gaming, other than to manufacture or exaggerate her symptoms. It would be wrong to immediately conclude that those lies lead to an inference that the plaintiff is a generally untruthful historian, or that she was generally an untrustworthy witness. I do not find, as the evidence does not permit me to do so, but it is possible that fear of repercussions from the Department of Social Security, if it was discovered that the plaintiff and her husband travelled together to, and stayed together in Melbourne, may have been a motivation to lie about the circumstances of that visit. Further, shame is a common motivation for people to lie about the extent of their gambling and their drinking, especially if there is a belief that either or both are becoming an addiction.
(n)The core factor in the evidence is the history given by the independent witnesses. It is corroborated by my observations of the witness in the witness box.
(o)There is no dispute that fear of being confronted by the assailant and consequential withdrawal to the home and/or reluctance to be abroad without family support (initially believed to be agoraphobia) is a recognised symptom of the post-traumatic stress disorder from which the plaintiff suffered.
(p)Mr Marriott referred to the plaintiff's fear that her assailant was following her and might harm her or her family. He said that the plaintiff found the idea of insurance company surveillance almost equally threatening. He then opined, "if she thinks that someone is following her - stalking her - she's likely to experience intense physiological arousal and psychological threat feelings". He considered this to be the likely reason for her not wanting to leave home (other than in safe company) and not agoraphobia as was originally considered. Dr Strauss dismissed this view upon the basis that there was no evidence that the plaintiff was under constant surveillance in 1998. However, there was such evidence. The plaintiff's assailant died in 1997 and the plaintiff's daughter, as I have mentioned, reported a brief period of improvement in her mother's condition shortly thereafter, but evidence was given by an officer of the insurance company that it engaged investigators and that they conducted surveillance of the plaintiff in December 1997, February 1998, March 1998 and July 1998. In addition, there was further surveillance of the plaintiff after the 1998 adjournment.
(q)It was suggested by Dr Strauss that any anxiety from which the plaintiff suffered might be due to her marriage breakdown and/or her children leaving home. There was no expert opinion to support this as a probable cause of the plaintiff's anxiety and I reject the suggestion that they were such causes. I do so because of the plaintiff's prior history of a robust personality, because there was no evidence that the marriage breakdown was traumatic for the plaintiff, and trauma is not to be readily inferred from the fact that the plaintiff and her husband live in the same house, and appear to socialise with one another on a more or less daily basis. With respect to the so called empty nest syndrome, it could hardly be said that the "nest" was empty, as the plaintiff's daughter was at her mother's house on a daily basis, her son, Philip was there on a weekly basis and her grandchildren were there frequently.
(r)Accordingly, where there is a difference between the opinion expressed by Mr Marriott and that expressed by Dr Strauss, I prefer the former.
Findings
| 67 | (a) | That the plaintiff suffered from a post-traumatic stress disorder as a result of the incident at the hospital in March 1995. |
(b)That she suffered from this disorder until at least April 1998.
(c)The stressor was the assault and its sequelae, including the way in which the plaintiff perceived she was treated by senior staff at the hospital, her fear of meeting her assailant and her anxiety arising out of her belief (correctly as it turned out) that she was being watched.
(d)During the period between March 1995 and April 1998, the plaintiff's symptoms were such that her earning capacity was destroyed.
(e)During the period between April 1998 and the conclusion of the trial, the plaintiff continued to suffer from symptoms of anxiety and depression caused by the stressor in March 1995 and its sequelae. It is immaterial whether those symptoms bear the label, post-traumatic stress disorder, or simply anxiety and depression, because I accept the account of them given by the plaintiff, her children and her former fellow employees. Such symptoms were, and are chronic, and were, and are, so severe that the plaintiff has been, and still is, unable to function normally in society. As such, I find that they constitute a recognisable psychiatric illness whether they satisfy the diagnostic criteria to bear the label post-traumatic stress disorder or not. I also find that the illness has virtually destroyed the plaintiff's earning capacity. It was suggested that the plaintiff might have been or might be able to find work in a caring, non-threatening environment such as a call centre where she does not see herself at risk of violent confrontation with strangers. With respect to the past, I consider the suggestion to be impractical. The plaintiff that I saw would not have been employed in any capacity. She lacked motivation, was tremulous, had poor concentration and was generally lacklustre.
(f)With respect to the future, it must be borne in mind, as Mr Marriott said, that the symptoms are chronic and have persisted for five years. However, with support, the future for the plaintiff is not entirely bleak. There was persuasive medical opinion (which coincides with common sense) that this drawn out litigation and the belief it has created that the plaintiff should not be believed, has contributed to her symptoms. Its conclusion may assist her recovery. The future existence of a small residual capacity to earn income is acknowledged. Perhaps it will gradually emerge from the plaintiff taking up some part time voluntary work. However, she will need to regain her confidence and self-esteem before even that is possible. It will be taken into account by way of increased contingency when assessing the loss or diminution of her earning capacity.
General damages
With respect to general damages, the defendant's tort has shattered the life of a middle aged, active and energetic woman and turned her into a lethargic, anxious, fearful and timid person. Although as I have said, the end of this litigation, support and proper counselling may improve her outlook, the probabilities are that the symptoms from which the plaintiff now suffers, and has suffered since the incident, are likely to continue permanently, albeit perhaps to a slightly lesser degree in the future. I assess her general damages in the sum of $50,000.
Earning capacity
The plaintiff said, and her history confirms, that it was her intention to remain as an employee of the hospital until aged about 60 years, or "until they could no longer wheel me in in a wheel chair …". The parties presented agreed figures with respect to the plaintiff's past earnings and agreed figures upon which future earnings could be calculated had the incident not occurred and had the plaintiff remained at the hospital. Those figures assume that receipt of the workers compensation weekly payments up until their cessation on 29 November 1997, provided appropriate damages for lost earning capacity until that date.
The agreed figures dated 13 September 2000 include the statement that there are 148 weeks between 29 November 1997 and 30 September 2000. There follows agreed wage figures for the years, "1997/98", "1998/99", "1999/00" and "2000/01", "had the plaintiff continued in similar employment to that which she had in March 1995". Although it is not stated, I assume that the year references are to financial years. The agreed figures show a net wage loss for the specified period of 148 weeks in the total sum of $86,520. It is necessary to extend the calculation from 30 September 2000 to the date of this judgment, 20 December 2000, a further period of 11.5 weeks. The agreed figure for the year "2000/01" is stated to be:
"$40,400 gross: 18 weeks @ $10,782"
Although the line is incomplete, a division of 18 into $10,782 produces a net weekly figure of $599. Multiplication of that figure by 11.5 weeks produces $6,888.50, which should be added to the agreed figure of $86,520 to produce $93,408.50.
I set all that out at tedious length because the next agreed fact is:
"A future loss of earnings of $570 nett per week (based on $40,400 gross salary) to say 60 years of age would be $570 X 239.35 (discount factor)"
I do not know why the agreed figure for the calculation of the quantum of damage for lost future earning capacity is $570 and not $599. My reference to the tax tables shows that an annual salary of $40,400 attracts $9,974 income tax, plus 1.5 per cent Medicare levy, resulting in a net weekly income of $573. None of that was, of course, the subject of submissions as the agreed facts were sent to me on 13 September last, well after final addresses had been completed.
I propose to assess damages on the basis of the agreed figures, viz, $599 for the past and $570 for the future. On 20 December 2000, the plaintiff will be almost 55 years old. That means that had the incident not occurred, it is probable that she would have worked for about another five to ten years at the hospital. The present value of the loss of $1 per week at 7 per cent for five years, without discount for mortality, is $221. Application of that figure to a net weekly wage of $570 is $125,970. Application of the same formula for ten years produces $216,030. A reasonable figure to adopt is $170,000 to take account of the fact that the plaintiff will not be 55 until 9 February 2001 and, having regard to her history of industry, is likely to have worked past her 60th birthday. The figure of $170,000 needs to be discounted for the usual contingencies and for the small residual earning capacity that I have found is retained. I assess the plaintiff's damages for the diminution of her earning capacity in the future at $136,000.
Loss of superannuation
The agreed figures submitted after the conclusion of the trial, dealt with past and future loss of superannuation. However, these figures are no more than a reference to, and a calculation of the statutory percentages of the plaintiff's salary that would have been paid to an approved fund had she continued at the hospital until aged 60 or a little older. If I calculate the damages for lost superannuation in accordance with those figures, such assessment will not be in accordance with the law. See Heather v Vita Pacific Ltd (1996) 6 Tas R 52.
There is no need to resort to the agreed figures. The plaintiff called Mr Austin, chartered accountant, who gave evidence of the value of the plaintiff's lost superannuation benefits on various bases. All but one predicated an annual income of $40,000 per annum from the date of the incident and calculated the present day value of the superannuation fund upon retirement at 60, 62.5 and 65. The values ranged between $23,432 and $37,988. Those values are accepted. However, the agreed figures show that the plaintiff was not earning quite $40,400 over the whole period from the date of the incident until the last day of trial and the opinion has to be discounted to take that into account. It also has to be discounted in the same way and for the same reason that the damages for the loss of earning capacity were discounted. The plaintiff may have worked past 60 years of age and, taking all those factors into account, I assess damages under this head in the sum of $20,000.
As a footnote to all these figures, I observe that according to the taxation returns put in evidence, the plaintiff's gross income in the 1995/96 tax year was $40,482 and fell to $37,541 in the following year, no doubt reflecting a loss of overtime income following the incident.
Need for medicines and services
As I understand the particulars that were handed up on the last day of trial, the plaintiff's needs for medical services and pharmaceutical supplies have been satisfied by the defendant pursuant to the provisions of the Workers Rehabilitation and Compensation Act, to the date of judgment. Accordingly, this head of claim is limited to future needs.
In her re-examination on 29 March 2000, the plaintiff said that she was taking the antidepressant Moclobermide, one tablet twice a day, and Valium, four to five tablets per day. It was an agreed fact that the Moclobermide cost $59.34 per packet and the Valium cost $10 per packet, both 20 tablets per packet. Extrapolation of those figures produces a future weekly cost of Moclobermide in the sum of $41.65 and a future weekly cost of Valium in the sum of $14, a total of $55.65 per week.
Mr Marriott's opinion was that the plaintiff would need counselling and psychiatric support into the future. Dr Haughton, now in private practice, said that her current hourly charge was $120. The long term future for the plaintiff in this respect is unclear. According to the tables, her life expectancy is currently in the order of 26 years, but her consumption of tobacco and alcohol must have an adverse effect on this. On the other side of the coin, if her condition improves somewhat, her need for medical services and counselling will diminish, as may her consumption of tobacco and alcohol. If the plaintiff's condition improves, her need for psychiatric services may diminish, but in its place, there may arise a need for counselling and/or occasional visits to her general practitioner. She will incur some undefined travelling costs in connection with these services.
The assessment of damages under this head is very much a matter of judgment and not a matter of calculation. I allow $40,000 under this head.
Summary
| 82 | Loss of past earning capacity | $93,408.50 |
| Diminution of future earning capacity | $136,000.00 | |
| Loss of past and future superannuation | $20,000.00 | |
| Future needs for medical services and pharmaceutical supplies | $40,000.00 | |
| General damages | $50,000.00 | |
| $339,408.50 |
There will be judgment for the plaintiff against the defendant in the sum of $339,408.50.
1