| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GREENWOOD -v- THE SHELL COMPANY OF AUSTRALIA LIMITED & ANOR [2005] WADC 203 CORAM : COMMISSIONER SCHOOMBEE HEARD : 7-14 JUNE 2005 DELIVERED : 31 OCTOBER 2005 FILE NO/S : CIV 470 of 2000 BETWEEN : SHIRLEY HELEN GREENWOOD Plaintiff
AND
THE SHELL COMPANY OF AUSTRALIA LIMITED
Defendant
OFFLINE HOLDINGS PTY LTD
Second Third Party
Catchwords: Tort - Causation - Electric shock - Preexisting vulnerabilty to psychiatric illness - Competing causes of psychiatric injury - Onus of proving causation - Loss of earning capacity - No deduction for contingencies arising from preexisting vulnerability - Judicial notice - Industrial award
Legislation: Industrial Relations Act 1976, s 105
Evidence Act 1995 (Cth), s 5, s 143(1), s 143(2)
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Result:
Judgment for the plaintiff Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr J A Thomson
Second Third Party : No appearance
Solicitors:
Plaintiff : Marks & Sands
Defendant : Mallesons Stephen Jaques
Second Third Party : Not applicable
Case(s) referred to in judgment(s):
Attorney-General (SA) v Gabell [1968] SASR 44
Bowen v Tutte (1990) A Tort Rep 81-043
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
Dulieu v White & Sons [1901] 2 KB 669
Fox v Wood (1981) 148 CLR 438
General Motors–Holden Pty Ltd v Moularas (1964) 111 CLR 234
Grieve v Lewis (1917) 23 CLR 413
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Limro Pty Ltd v McKenna, unreported; Fed C of A; BC9003260; 26 July 1990
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Malcolm v Broadhurst [1970] 3 All ER 508
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Negretto v Sayers [1963] SASR 313
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALTR 533
Tubemakers of Australia v Fernandez (1976) 10 ALR 303
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 7 ALR 571
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Case(s) also cited:
Beatty v Beatty [2004] WADC 58
Duval v Pederson (2003) 33 SR (WA) 211
Ingrilli v De Sales, unreported; FCt SCt of WA; Library No 980596; 14 October 1998
Kohler v Cerebos (Aust) Limited [2002] WADC 108
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Trigwell v Trigwell (1997) 18 WAR 83
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1 COMMISSIONER SCHOOMBEE: Mrs Shirley Helen Greenwood, the plaintiff, was 50 years of age and the manager of the Roebuck Plains Roadhouse ("the Roadhouse") in Broome Road, Broome in the State of Western Australia, when she was electrocuted upon touching a metal door handle in the portable home where she was living next to the Roadhouse. She, her husband and one of her daughters were directors of Offline Holdings Pty Ltd, the second third party, which company had been leasing the Roadhouse and the portable home from the Shell Company of Australia Ltd, the defendant, since about 1992. On the previous day the plaintiff had received a slight electric shock when she had turned the shower tap off in the bathroom of the portable home. She had telephoned the defendant's representative in Fremantle, Perth as well as a maintenance and service company representing the defendant in the Eastern States and one of them had arranged for an electrician to come and have a look at the problem.
2 The electrician arrived late on the afternoon of the next day and the plaintiff gave him access to the portable home. A short time later she and her two daughters entered the portable home. The back door was open and the plaintiff took hold of the door handle with her left hand and closed the door. As soon as the back door came into contact with its metal frame the plaintiff received a severe electric shock. She said that she was in extreme pain and saw a large red and orange flame in front of her eyes. She felt as if she might fall over, but her hand was stuck to the door handle. She thought that she would die and thoughts of concern flashed through her mind regarding her two daughters, one of whom was very sick at the time. She was in extreme pain and screamed. After a few seconds, which she estimated to have been three to five seconds, but felt forever, she was thrown backwards and released from the door handle. She called out to the electrician and he came to test the door handle. It was found to carry a current of 240 volts. 3 At the opening of the trial, counsel for the defendant indicated that the defendant admitted that it owed a duty of care to the plaintiff to ensure that the premises were reasonably safe, that the plaintiff suffered an electric shock when the door handle came into contact with the steel frame at the portable home, that the current travelling through the door handle was measured at 240 volts and that the plaintiff's electric shock was caused by the negligence of the defendant, its employees, agents or contractors. The defendant's claim against Dogfish Pty Ltd, the first third party, had been dismissed prior to the opening of the trial. Counsel for the defendant indicated that the claim against the second third party was no longer pursued as the second third party had been deregistered.
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Accordingly, the only matters for consideration at the trial were the injuries sustained by the plaintiff as a result of the electric shock received, the plaintiff's resultant medical condition and disabilities and the quantum of damages flowing from this.
The pleadings 4 Paragraph 11 of the plaintiff's statement of claim pleads the following in respect of the remaining matters in dispute: "In the accident, the Plaintiff was injured and has required and will require treatment. The plaintiff has sustained residual disabilities and has suffered and will suffer pain and suffering and loss of enjoyment of life". 5 The particulars provided under this paragraph deal with the plaintiff's injuries, her treatment, the residual disabilities, her loss of earning capacity, loss of superannuation benefits and future medical and rehabilitation expenses. Counsel for the defendant submitted that the words "in the accident" limited the plaintiff's claim to the actual, direct and immediate injuries received in the electrocution incident and did not include the sequelae of the incident. Counsel for the plaintiff submitted that the sequelae of the injury were covered by the second sentence in par 11 and that insofar as was necessary, an application was made to add the word par 11. In my view the second sentence in par 11 together with the listed particulars indicates clearly that the plaintiff suffered physical and mental injuries in and as a result of the accident and an amendment to the statement of claim is not necessary. 6 In answer to par 11, the defendant denied in par 10 of its defence that the plaintiff was injured, had required or would require treatment, and had or would suffer residual disability, pain and suffering or loss of enjoyment of life. After the plaintiff had given evidence, counsel for the defendant applied to amend par 10 of the defence by adding the following: "… and says further that if (which is denied) the plaintiff had suffered frustration, depression, post traumatic stress disorder, or symptoms consequential upon any of those conditions, since 26 June 1997, these have been caused by the plaintiff's marital breakdown in 1996 and 1997, the stress imposed upon the plaintiff in managing the premises and associated roadhouse business between 1992 and 1997, the sale of the premises and associated roadhouse business in 1997, and the destruction by fire of a house owned by the plaintiff and her husband in 1999,
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in the context of family abuse between the plaintiff's father and mother whilst she was growing up, the death of her infant son in or about 1968, a serious boating accident suffered by the plaintiff in or about 1977 and one of the plaintiff's daughters suffering a serious disease since the early 1990's". 7 Counsel for the plaintiff objected to the amendment on the basis that the amendment was made too late and would cause the plaintiff prejudice if it was intended to support a defence that the causative factors pleaded had led to a pre-existing condition and that the defendant would then be entitled to "disentangle" the loss and damage suffered by the plaintiff by reason of the electrocution from the loss and damage caused to the plaintiff by reason of the other factors and ask for an apportionment of the damages to be awarded. The concern by counsel for the plaintiff was based on the judgment by Dixon CJ in Watts v Rake (1960) 108 CLR 158 where his Honour said the following at 160: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred". 8 In Purkess v Crittenden (1965) 114 CLR 164 at 168, the High Court made it clear that the onus of proof referred to by Dixon CJ in Watts v Rake (supra) was an evidentiary onus and that the overall onus of proving that the accident was a material cause of a plaintiff's injuries remained with the plaintiff. 9 Counsel for the defendant submitted that the proposed amendment only served to spell out the various other factors that were competing causes for the plaintiff's physical and mental injuries received in and as a result of the electrocution incident and that the defendant was not attempting to prove an apportionment of the damages claimed by the plaintiff. I allowed the amendment to the defence on the basis that the plaintiff had to prove, with or without the amendment, that the electrocution was a material cause of the plaintiff's disabilities, that it was not sought by the defendant to plead a pre-existing illness and that the causative factors pleaded had already been raised in the expert reports.
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The plaintiff's evidence
10 The plaintiff gave evidence that immediately after the accident she was in shock and shaking and had a severe ache in her left arm which moved across her chest and down into her right arm. She went to the Roadhouse to telephone the maintenance company representing the defendant and told them what had happened. She also asked the defendant whether she and her family could book into a hotel for which she received confirmation a few hours later. The plaintiff also had to deal with a gas leak which had developed at the Roadhouse. Her husband was in Waroona, a small country town in Western Australia where she and her husband had lived prior to taking up the lease of the Roadhouse, at the time and only returned to the Roadhouse upon being advised of her electrocution. 11 The plaintiff said that after the accident the severe pain and ache in her arms and chest lasted for well over a week and then only started to subside very gradually. She had so much pain and was so tired that she was not able to run the Roadhouse. She spent a week resting at a hotel in Broome and then tried to do some paperwork at the Roadhouse. She was only able to do paperwork for about two hours when she got so tired that she had to be taken back to the hotel. She tried to do this for two or three days and then settled for paperwork being brought to her at the hotel. She said it would take her all day to do the same amount of paperwork that she would otherwise finish in about half an hour. She remained at the hotel for just over a month and then moved back to Waroona. The plaintiff said that in July 1997, that is about two months after the accident, she still mostly rested because she was too ill to work. She still had the same pain, ache and fatigue as immediately after the accident and those symptoms had only very slowly and minimally decreased over time. 12 The plaintiff and her husband had to give up the lease of the Roadhouse as she was no longer able to manage it and her husband was not fit enough to run it himself. He had only assisted in running the Roadhouse during the first year or two after they had taken up the lease in about 1992 and had then left the management of the Roadhouse, except for organising maintenance with the defendant, to the plaintiff. Her husband had obtained a Vietnam veteran's pension on account of a psychiatric illness and a skin condition. 13 The plaintiff gave evidence that even at the time of the trial, eight years after the accident, she still has constant pain in her arms and chest and that she takes between 8 to 12 Panadol per day to deal with the
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pain. She also has a headache most of the time for which she takes Panadol. These pains have been present ever since the accident and although they were more severe immediately after the accident, have only very slowly decreased in intensity. In addition, the plaintiff said that she suffers from constant fatigue. She is only able to do limited physical activity and after any physical exertion she is so tired that she has to rest for at least a day. She also suffers from what she called "jumpiness" which she said was sometimes noticeable to other people but "mostly inside". She does not like attending large shopping centres where there are big crowds and is reluctant to socialise. The plaintiff said that since the accident she has suffered from sleeplessness and interrupted sleep and can only sleep if she takes an anti-depressant, Aranza. She still wakes up about three times per week with numbness in her arms. She is forgetful and lacks concentration, has to write everything down in order to remember it and sometimes struggles to bring certain words to mind. She does not socialise anymore, because people do not understand what the electrocution has done to her. 14 The plaintiff also gave evidence that she is hesitant to touch any door handle or use a light switch or power plug. She feels apprehensive when she has to plug an appliance into an electrical socket, holds her breath and thinks "don't zap me". She said that she keeps the doors in her present home slightly ajar so that she does not need to close them and she has taken up all the carpets in her house to avoid the use of a vacuum cleaner. She also had her house in Waroona completely rewired, although it was not in need of this. She thought that a freshly rewired house would be safer. 15 Prior to the accident the plaintiff had none of these problems. She managed the Roadhouse effectively and efficiently without the help of her husband. She had approximately 10 staff at the Roadhouse and enjoyed the interaction with the staff and visitors to the Roadhouse. She said that the Roadhouse was extremely busy and well run and that it had a large clientele of truck drivers and tourists in the tourist season. She had worked at the Roadhouse from 6 am until 11 pm managing the staff, dealing with customer's complaints, keeping the six to eight motel rooms clean, attending to the washing and general cleaning, stock deliveries and stock rotation, the garden, lawn and reticulation, balancing three tills and doing regular bowser readings. She took a break between about 3.30 pm and 6 pm, but was otherwise busy all day. She said that she had no problem working to that degree of intensity, enjoyed it and thought that she had actually "thrived on it". She never took sick leave and had only one week off per year, apart from the second half of 1996 when she took
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about three to four months off because she was very tired. She had enjoyed socialising and had experienced an active social life, particularly prior to moving to the Roadhouse. 16 Prior to managing the Roadhouse she had worked since the age of 15 as a cashier and shelf filler in various shops and supermarkets including two positions as manager of a supermarket. Just prior to moving to the Roadhouse the plaintiff had been working as the manager of the Foodland Supermarket in Waroona for a period of approximately eight years. On an earlier occasion, when no work at a supermarket was available, she was employed for approximately two years at the abattoirs in Waroona which she said was very hard work including cleaning offal, a lot of scrubbing and carrying of cartons. She took off only about three months from work after her first daughter was born and about 12 months after the birth of her second daughter. Prior to the birth of her first daughter she had a son who died at the age of approximately four and a half months from pneumonia. 17 In January 2002, about four and a half years after the accident, the plaintiff tried to rejoin the workforce of her own accord. She said that she has been working as a night filler for Dewsons Supermarket in Waroona. She initially worked three nights a week for lesser hours, but the night filling is now done over two nights a week for longer hours. The night filling starts at approximately 6 pm and continues until all stock has been placed on the shelves, which means that she works between six to nine hours on average per night. The work involves carrying cartons from pallets to the shelves and unpacking the items in the cartons. The plaintiff said that after a night's work she is exhausted the next day and needs one or two days rest before she can take on any more heavy work, including any gardening at her home. The work aggravates her pain and aches and brings on greater fatigue. However, she does whatever work is being expected of her as a night filler, as she does not believe in refusing work that she has undertaken to do. 18 Approximately two months after the accident the plaintiff separated from her husband. She said that the reason for the separation was that her husband had been abusive to her since about 1996, mentally and physically, and that on the last occasion of physical abuse she had decided to leave him as she feared for her life. The physical assaults occurred on five occasions, two or three were prior to the accident. On each occasion, her husband tried to choke her and hit her in the face, apart from on the last occasion, when she evaded him and decided "I am out of here".
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19 The plaintiff denied that the abuse suffered by her and the break-up of her 30 year marriage caused her to suffer from depression. She said that it had been coming over a long time and that she had experienced a sense of failure for about one month after her separation from her husband, but then took the view that it was not her fault and that she did not have to put up with his abuse. The plaintiff gave evidence that she now has a cordial relationship with her husband and sees him occasionally. She is still married to him, as she has been able to get a service pension and remains entitled to this as long as she is married to her husband. She also denied that she had experienced undue stress from the fact that a house owned by her and her husband in Waroona had burned down. She said that it had been rented out at the time (she and her husband owned another house in which she had been living), she did not lose many possessions and the house was insured.
20 The plaintiff readily agreed that she had suffered a number of traumas prior to the accident. She grew up in a household where her father drank heavily and regularly assaulted her mother. She left home as soon as she could find a job to get away from her father. She lost her son when he was only four and a half months old and had to deal with her daughter developing Crohn's disease since the early 1990's. She also had a boating accident in which she received severe injuries from a propeller, fractured some ribs and had to receive more than 200 stitches. Further, although she received a salary as manager of the Roadhouse from the second third party, she put that money back into building up the Roadhouse business and did not have any savings. When the lease on the Roadhouse was sold, the plaintiff did not receive any money from the sale. After the break that she took at the end of 1996, she told her husband that she wanted to receive her salary as money in hand and she said that she intended to save this so that she could be financially independent and leave her abusive husband. 21 Counsel for the defendant tendered a statutory declaration signed by the plaintiff in Waroona on 29 July 1997. In this document the plaintiff described her work history and her job at the Roadhouse in terms similar to those expressed by her during her evidence. As regards the electrocution she said the following: "I held the door handle as Faith came through. I closed the door and when it made contact with the steel frame I felt a severe shock travel up my left arm. I saw a large orange and red flash. It was all very fast. I screamed and my hand had somehow come off the door handle".
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22 The plaintiff also stated that while ringing the Eastern states to organise repairs and temporary accommodation, she had aches in her forearms. She said that she stayed at the Roadhouse working until about 9.30 pm and that she was in "automatic manager's mode". She said that she kept waking during the first night as the pain from her forearms slowly travelled up her arms into her shoulders and her chest. The next morning the pain was even worse. She drove to a shopping centre to pick up some items for the Roadhouse, but felt that she was slowly but surely getting worse. When she left the shopping centre she asked her daughter to drive her straight to hospital. The plaintiff stated that the arm, shoulder and chest pain continued for at least a week. She said that she still had a constant dull ache in both arms and got very tired very easily. After two hours of housework she felt exhausted. Her energy levels were right down. The plaintiff further reported that she normally had slept like a log, but since the accident woke up three to five times during the night. She sometimes had trouble going back to sleep, sometimes not. She said that the lack of sleep was also causing headaches and that she felt very jittery and nervous. She said that she would not employ herself as she was not up to the work.
Dr Tropiano 23 Dr Tropiano, the plaintiff's general practitioner, did not give evidence, but his reports were tendered by consent between the parties. He said that the plaintiff first saw him on 7 October 1997 when she complained of pain in the upper arms, had increased blood pressure and problems sleeping since the accident. He diagnosed her as having chronic pain following the electric shock and distress/mild depression as a result of the trauma. He referred her to various specialists.
Professor Harper 24 Professor Harper, an occupational physician, gave evidence on behalf of the plaintiff. He first saw the plaintiff on 25 June 2004 for a medico-legal report. He took a history from the plaintiff regarding the electrocution incident which was similar to what the plaintiff had stated in evidence. Professor Harper diagnosed the plaintiff as suffering from post-electrocution myalgia (pain in the muscles) and fatigue. He agreed that the plaintiff's myalgia could have a psychological component, but was of the view that it was mainly a physical problem. He said that the plaintiff's muscles could have been affected by the electric shock as electric current passes through the blood vessels and muscle is made up of millions of tiny blood vessels. He relied for his opinion that the electric current could have caused vascular injury to the muscle on the standard
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text book of pathology (the name of which he could not then recall) and another text book on occupational medicine. He further relied on his clinical experience of seeing patients who had received a non-fatal shock. In his view, the fact that the plaintiff did not have a muscle spasm in her left hand during the electrocution was not necessarily indicative of the absence of internal damage to the muscles, as it only indicated a lesser exposure to the electric current. He explained that it was not possible to obtain any objective evidence of the damage done to muscular tissue and blood vessels by a non-fatal electrical shock, as there was no way of conducting a biopsy on the muscular tissue. An EMG (Electromyogram) test would not be helpful, as it only tests the neuromuscular conductive mechanism, which was not disrupted in the plaintiff's case. 25 Professor Harper said that his diagnosis was based on three factors; the temporality element, the biological plausibility of the injury and the coherence of the whole picture. As regards the temporality element, he emphasised that the plaintiff had good physical health prior to the electric shock, was a hard worker who worked long hours and was totally free of symptoms, whereas she experienced pain and fatigue immediately after the accident. The biological plausibility of vascular injury to the muscle was supported by the fact that the plaintiff is able to lift and carry and reach while stacking shelves, but cannot do so for a long time and needs rest in order to recover. The pattern of being able to do some work but needing recovery was consistent with vascular injury to muscle. The whole picture of the plaintiff's injury and its sequelae was coherent, as the plaintiff reported that her pain and fatigue increased on physical activity and not when she was stressed, anxious, and panicky or feeling depressed.
Dr Salmon 26 Dr Salmon gave evidence on behalf of the plaintiff. He first saw the plaintiff on 12 February 2004 at the request of her general practitioner. He also provided a medico-legal report on 24 March 2004. Dr Salmon noted as part of the plaintiff's account of the incident that she was "stuck to the door for sometime" and that after a few days she noted the development of blisters on the tips of the right hand fingers. On examination, he found diffuse tenderness over the cervical spine and upper dorsal region and adjacent para-cervical tissues. Brachial plexus stretching was restricted and pain provoking, more pronounced on the left side. There was no disturbance of pinprick sensation in the arms or hands. On the basis of the physical symptoms apparent during the examination and the history of pain and fatigue recounted by the plaintiff since the date of the electrocution, Dr Salmon was of the opinion that the plaintiff was
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suffering from neural sensitisation together with chronic pain and post-traumatic stress symptoms. He referred her to specialised physiotherapy to address her neural sensitisation and to a psychologist. He also suggested that if progress with the physiotherapy was slow, inter-scalene brachial plexus injections and a trial of Gabapentin could be undertaken. 27 In giving evidence Dr Salmon explained that he was an anaesthetist by training, but had specialised in pain management since the early 1980's. He said that in his opinion the plaintiff suffered from neural sensitisation, a condition where the central nervous system had moved into a state of sensitisation. This condition caused heightened and chronic pain which, together with her mood disturbance, caused fatigue. Patients who developed persistent pain and as a result became overly anxious, depressed and fatigued tended to experience a worsening of their pain and disability. This caused a vicious circle whereby pain caused mood disturbance and fatigue and vice versa. 28 Dr Salmon said that the neural sensitisation was indicated by the positive brachial plexus test. He agreed that this test was somewhat controversial, but said that pain specialists found it useful in context with other findings. The diffuse tenderness over the cervical region and the numbness and tingling experienced by the plaintiff in her lower arms and fingers also indicated neural sensitisation. There was no test available for neural sensitisation other than a PET (positive emission tomography). However, as there were only two PET scanners in Western Australian, their use was very restricted and they were not normally available to patients with chronic pain. He was of the view that the electrical shock caused a dysfunction or distortion of the controls of the central nervous system, but that there was no way of testing this objectively. It was not possible to describe in detail what the physical dysfunction or distortion of the central nervous system was as there was no objective measure of it, but he said that electrocution injury was notorious for producing profound alterations in the nervous system. He also placed some emphasis on the plaintiff's description that she could not let go of the door handle and said that this was typical, as the muscle contracted when the current flowed through it. 29 Dr Salmon agreed with the finding by Dr Silbert, a neurologist, called on behalf of the defendant, that there was no evidence of a neurological injury, which is peripheral damage to the nervous system. However Dr Salmon said that this did not mean that there could not be a dysfunction in the physical functioning of the central nervous system. The cause of the dysfunction was likely to be an interactive state
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generated by physical and psychological input. He was of the view that there was some physical input and that this resulted from the electrocution, as the plaintiff's symptoms dated from that event. In his view, he had more neuro-physiological knowledge, ie, knowledge of how the neuro-physiological control systems get distorted in a patient with chronic pain, than Dr Silbert, to whom he would defer on matters of general neurology. Dr Salmon said that he had worked in this particular area and had attended every relevant conference on neurophysiology over the past 20 years. Neurologists, including Dr Silbert, referred patients to him. 30 In his view, the plaintiff's chronic pain, fatigue and mood disturbance all contributed to her incapacity. It was not possible to say how much was a physical and how much a psychological dysfunction. He explained that patients with chronic pain typically have a restricted activity capacity where, if they push themselves too hard, they will go into cycles of pain and fatigue flare-up. The problem also became more difficult to treat as it became more severely implanted in the nervous system over the years. 31 He said that cognitive behaviour treatment ("CBT") had been found to work well for chronic pain and chronic fatigue patients. He was involved in one programme which offered 20 hours of CBT at about $2,000 and an intensive programme of 120 hours at approximately $6,500. He recommended specialised physiotherapy for the plaintiff, but did not say how many sessions were required. He explained that inter-scalene injections could be given into the scalene muscles along the side of the neck. They provided temporary relief of nerve sensitivity, but their main purpose was to break the cycle and allow the nervous system to reset itself. They also allowed the patient to progress better with other treatment strategies so that the patient could become more active and set new goals. Dr Salmon explained that Gabapentin is an anti-epileptic drug which had been found to be useful for the reduction of neural sensitisation pain. The treatment with Gabapentin was not guaranteed to work, but the majority of his patients did well on it. Patients had to take three to six tablets per day for a period of two to three years. 32 In Dr Salmon's view the plaintiff's symptomatology prevented her from working as a full-time manager of a roadhouse, but she was able to work part-time as a night filler. It was likely that treatment would result in the reduction of her symptomatology, but it was difficult to estimate her likely permanent disability at this stage where she had received no specific treatment for her condition. The plaintiff gave evidence that she
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had not taken up Dr Salmon's recommendations of treatment, as she could not afford it.
Ms Maserow 33 Ms Maserow, a registered psychologist, gave evidence for the plaintiff. She did a psychological assessment of the plaintiff in March 1998, ie, less than a year after the accident. She diagnosed the plaintiff as having severe depression and some post-traumatic stress symptoms, although she did not regard those as sufficient to justify a diagnosis of post-traumatic stress disorder ("PTSD"). She reviewed the plaintiff on 23 May 2005 when she reported that the plaintiff's mood had improved, but that according to the Beck Depression Inventory the plaintiff still had mild to moderate depression. 34 In her view the plaintiff's depression resulted from the electric shock, because the symptoms of her depression occurred after the electrocution. She said that hyper-vigilance, fear, lack of confidence and lack of sleep caused by the electrocution could have led to the plaintiff's depression. She gave evidence that she had also considered the other traumas which had occurred in the plaintiff's life, such as the break-up of her marriage, her husband's abuse and her son dying at the age of four and a half months, but had not identified these factors as having caused a pre-morbid psychiatric condition. She expressed the view that physical abuse or the break-up of a marriage does not always cause depression; it may sometimes empower a person to do something. In any event, those factors did not cause the plaintiff's fear of electricity and her related actions, such as the rewiring of her house. 35 Ms Maserow recommended that the plaintiff attend eight to twelve sessions of therapy at $120-$150 per hour.
Dr Skerritt 36 Dr Skerritt, psychiatrist, also gave evidence on behalf of the plaintiff. He first saw the plaintiff on 11 September 2002 for a medico-legal report. He noted that when relating the history of the accident, the plaintiff reported that it "seemed like ages" before her hand could be released from the doorknob. Dr Skerritt diagnosed the plaintiff with PTSD. He tested the plaintiff for this disorder on the basis of the criteria outlined in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th ed ("DSM-IV-TR"). The diagnostic criteria were attached to Dr Skerritt's report with those relevant to the plaintiff being underlined. This indicated that the plaintiff suffered from almost all of the criteria.
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Dr Skerritt also outlined in his report the symptoms described by the plaintiff which led to him identifying the underlined criteria. This procedure allowed the Court to readily follow the reasoning adopted by Dr Skerritt. The symptoms outlined by Dr Skerritt in his report as supporting his finding of PTSD were the following: "1. The plaintiff was in tears when she described episodes such as hotel cleaners plugging in a vacuum cleaner which led to her thinking 'I hope it doesn't happen to them'. 2. On returning to the Roadhouse she felt anxious with tightening of the stomach and clenching of her hands. 3. She continues to experience difficulty facing electrical equipment. 4. She still experiences a flash in front of her eyes which is provoked by the vision or thought of doorknobs or turning electricity on. 5. She was uncomfortable talking about her problems with electrical equipment and said that she avoids people, as she does not like to talk about her experience. 6. She avoids big supermarkets and shopping centres as she feels discomfort in such situations. 7. She feels 'lonely, unwanted, used and useless'. 8. She feels hopeless and sees no future and no point of life. She described her thoughts of suicide. 9. She has difficultly sleeping and wakes 3 to 5 times during the night. 10. She feels alienated from family functions." 37 Dr Skerritt came to the conclusion that the plaintiff also suffered from depressive and anxiety symptoms which could be appropriately categorised as a dysthymic disorder. He said that most of the symptoms of PTSD were symptoms of anxiety such as physical symptoms and avoidance of situations associated with the original trauma. Dr Skerritt said that the plaintiff may also have a panic disorder with agoraphobia. This disorder manifested itself in the plaintiff avoiding large shopping
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centres and big supermarkets. Typical behaviour was, as described by the plaintiff, to avoid a larger shop like Bunnings, but being prepared to go to a smaller section of it, like the garden centre. In Dr Skerritt's view the three categories of disorders, ie, PTSD, dysthymic disorder and panic disorder with agoraphobia, occurred together very commonly and that it was arguable exactly which category, or all of them, applied to the plaintiff. 38 Dr Skerritt reviewed the plaintiff on 27 April 2005. He noted some improvement in the criteria indicating PTSD and that her interest and motivation had improved somewhat. The plaintiff still reported significant anxiety symptoms "to the point of panic" which occur when she is turning on a power switch. 39 Dr Skerritt gave evidence that the plaintiff's pain was likely to be of multi-factorial causation. He said that muscle tension attending anxiety and depression causes muscle aches and pain, but there may also be somatisation or addition to pain behaviour by psychological mechanisms. Feelings of pessimism, hopelessness and distress can get translated in terms of pain rather than misery. He was of the view that the plaintiff's fatigue and lack of concentration were also symptoms of her anxiety, depression and lack of motivation caused by the depression. 40 In his opinion there was some hope of improvement of the plaintiff's symptoms with further treatment, but the symptoms were likely to persist for the foreseeable future. He said that in his experience even with the best and persistent treatment, patients often did not get a lot better after the length of time (8 years) that the plaintiff had suffered from her symptoms. On the balance of probabilities it was not likely that the plaintiff would achieve a prognosis better than what she had at the time of the trial. 41 It was put to Dr Skerritt by counsel for the defendant that the plaintiff's psyche was not affected by the electrical shock as immediately afterwards she was capable of making complaints to the defendant's representatives, organising repairs for the electrical system and remained at the Roadhouse. Dr Skerritt answered that this behaviour was not contrary to the development of PTSD. There was a delayed form of this disorder which could take months before the symptoms fully declared themselves. Further, he had seen a lot of people who had suffered electric shocks and each one reacted differently to the trauma. One could not predict how a person would or should react to a particular trauma. Dr Skerritt was of the view that the plaintiff was a person who was used to
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"pushing her way through problems", that she expected to do this on occasion of the electrical shock and that the fact that this did not work was part of the frustration for her. 42 Dr Skerritt was also of the opinion that the plaintiff's current psychiatric illness had been caused by the electric shock. This view was firstly based on the chronology, namely the fact that the symptoms set in immediately after the electric shock and that the plaintiff had not suffered similar symptoms before. She had worked very hard prior to receiving the electric shock and was not able to work at all thereafter. Further, her symptoms did not change or become worse after her break-up with her husband. Secondly, her recurrent thoughts about the incident and her avoidance behaviour in respect of light switches and doorknobs indicated that the electric shock caused her PTSD, anxiety and depression. He agreed that the traumas experienced by the plaintiff in her earlier life such as the abuse of her father towards her mother, her own abuse by her husband, the death of her child and her boating accident, had made her a person vulnerable to psychiatric illness. However, none of the earlier traumas had caused any symptoms in the plaintiff prior to the electrocution. The plaintiff's vulnerability caused by the earlier traumas made her susceptible to psychiatric disease but did not cause the psychiatric illness. 43 Dr Skerritt was also of the view that the events which occurred after the electric shock, such as the separation from her husband and loss of some perceived financial security in the Roadhouse, did not cause the plaintiff's psychiatric illness. This view was based on the fact that the plaintiff's thought processes did not indicate that these factors caused her any anxiety. She did not repeatedly think of how her husband had assaulted her, but rather how she had received the electric shock. The plaintiff's behaviour also did not indicate that the break-up of her marriage caused her distress. She reported a cordial relationship with her husband after they separated, whereas she still avoids electric plugs and doorknobs. 44 Dr Skerritt said that one should be careful to assume that particular events would have an inherent impact on people's psychological makeup. This depended entirely on how a particular person reacted to certain events. It was important to determine what event had caused the symptoms and not to assume that particular events would cause symptoms. Dr Skerritt said that in this respect he differed from his colleagues, Drs Piirto and Edwards-Smith, whose reports were put to Dr Skerritt. He also disagreed with Dr Piirto that the plaintiff had an "avoidant" aspect of her personality.
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45 In Dr Skerritt's view it was not possible to distinguish between the start of the symptoms resulting from PTSD, anxiety or depression. The whole package of symptoms started after the electrocution and was thoroughly established before the plaintiff's separation from her husband and the sale of the Roadhouse.
46 Dr Skerritt said that an objective indicator of the plaintiff's psychological state was the hours that she had been working in the past and was currently working. Whereas she had worked very long hours in a hard job for the past 20 years, she was currently only able to do limited hours and not on consecutive days. The plaintiff was a person who wanted to work and her current work capacity was therefore a sound indicator of her current psychological state. There was some room for improvement of her mental condition, but he was pessimistic about the possibility of restoration of the plaintiff's previous good health after such a long period of symptoms. In his view the plaintiff was permanently disabled from work.
Dr Silbert 47 Dr Silbert, neurologist, gave evidence on behalf of the defendant. He first saw the plaintiff on 10 March 1998 at the request of her general practitioner. He recorded the plaintiff's history of the event as it lasting "only .. 1-2 seconds" and that it was not associated with spasm of the left hand which was holding the doorknob. Dr Silbert said in his report that a detailed neurological examination was normal. There were no focal neurological findings and minimal muscle tenderness. Accordingly, his diagnosis was that the plaintiff's symptoms were muscular and were perpetuated by her poor quality sleep. This also led to her fatigue. 48 Dr Silbert noted that the plaintiff had presented at the consultation with "a very genuine and honest manner", that she had an excellent work ethic and was motivated to return to work. 49 Dr Silbert reviewed the plaintiff on 2 June 2005 when he prepared a medico-legal report. He again noted that there was no neurological injury and that the plaintiff's ongoing symptomatology was psychological. 50 Dr Silbert gave evidence that after his training as a neurologist he did post-graduate fellowships in neurology and neurophysiology at the Mayo Clinic in Minnesota. He did 16 months of neurophysiology, four months of which were EEG study (the study of brain wave activity, often used in the diagnosis of epilepsy) and 12 months of electrophysiology, EMG nerve conduction studies and electrical studies of the nervous system. It
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was not clear to the Court whether these studies included the non-measurable effect of electric current on the dysfunction of the central nervous system. 51 In his view the plaintiff had not received any physical injury as a result of the electrocution. This view was mainly based on his understanding of what happened during the electrocution. Dr Silbert placed particular emphasis on the fact that the plaintiff's left hand did not go into spasm, which indicated to him that the electrical charge was not very large. It was the amount of current, rather than the level of voltage which determined the effect that an electrical current has on a person's body. The level of the electrical current was primarily dependent on the resistance. For example, a person with a wet hand would have a very low resistance and the current would travel strongly. Dr Silbert also emphasised the fact that the shock received by the plaintiff was very brief, only one or two seconds. On the basis of this information he was of the view that the current that went through the plaintiff was not very large and that the trauma potential would therefore be low. He acknowledged that the plaintiff had said that her whole body had tightened, but stated that people also tightened from fright, shock or surprise. 52 Dr Silbert explained that electricity was most likely to travel along the nerves, as they were made to carry electricity. It could also travel up the blood vessels but they disseminated electricity very quickly. Electricity could also travel up the muscles, but if that happened the muscle would contract. The fact that the plaintiff's left hand did not spasm indicated to him that the muscles had not contracted because of the conduct of electricity. The fact that the plaintiff's muscle pain was symmetrical, namely all the neck muscles and the trapezius muscles, did not reflect an injury going into the left hand. 53 Dr Silbert was also of the view that the pain reported by the plaintiff immediately after the accident did not result from physical damage to the muscles or nerves, because any such physical damage was not indicated by the brief exposure to the electric current and the lack of muscle spasm. He agreed that electrical injury does damage muscle, but said that it depended on the current received. In his opinion the plaintiff's pain was much more consistent with muscle tightness caused by the plaintiff having been anxious, stressed or depressed. The fact that she did not sleep well on the night after the electrocution would have caused some muscle discomfort and aching the next day. In Dr Silbert's view, the plaintiff's current muscular discomfort was due to her being anxious and tense and lacking good quality sleep.
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54 Dr Silbert was further of the view that the electrical shock did not cause any damage to the plaintiff's central nervous system. His reasoning for this view was again that the electrical shock was a brief stimulus and that the plaintiff did not "lock on". In his view the most important sign for indicating damage to the plaintiff's nerves or muscles would have been if there had been muscle contraction at the point where the current entered the muscle.
55 Dr Silbert said that he did not agree with Dr Salmon's diagnosis of neural sensitisation. In his view neural sensitisation was a fairly ill-defined diagnosis that lacked any specific test. It was a diagnosis that was too often made by many pain physicians to fit a condition that did not have a physical basis. Dr Silbert said that in order to diagnose neural sensitisation one would expect to see a nerve injury from which the neural sensitisation could have developed. When he saw the plaintiff in March 1998 she did not have a nerve injury. As part of the neurological examination, he checked her power and assessed her reflexes and sensation. That examination was normal. 56 Dr Silbert said that an important clinical sign of nerve injury was allodynia (abnormal sensitivity to normal stimuli). He did not test the plaintiff for allodynia when he saw her in 1998 or in 2005. Dr Silbert was of the view that the brachial plexus stretch test was not a clinically useful test. The pain evoked by this test would also be present in patients who merely had muscle tension. 57 Dr Silbert saw no benefit in applying inter-scalene injections or putting the plaintiff on a course of Gabapentin. In his view, the inter-scalene injections would only work for four to five hours and the Gabapentin might help to reduce the muscle tension, but would also make the plaintiff more sleepy.
Dr Home 58 Dr Home, occupational physician, was called on behalf of the defendant. He saw the plaintiff for a medico-legal report on 19 March 2001. In taking a history of the incident from the plaintiff, he noted that after she experienced the electric shock and saw a flash of yellow/red/orange light, her hand "came off the handle". She was not thrown from the door. He enquired from her whether she had any burn marks on her right hand or in her feet, but she said she could not recall this. In giving evidence, the plaintiff agreed that she had no burn marks but said that a couple of days after the electrocution she had "little blisters, dry spots" on her left hand fingers.
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59 Dr Home said in his report that a neurological examination of the plaintiff as well as a musculo-skeletal, cervical spine, shoulders and upper limbs examination was normal. He explained in giving evidence that as part of the neurological examination he had tested for muscle tone, evidence of wasting, power, sensory loss and reflexes. He had also undertaken a brachial plexus stretch test. All of these tests and examinations were normal. In his opinion the plaintiff's history of ongoing fatigue and insomnia was inconsistent with the effects of the electrocution incident. He did not explain in his report why it was inconsistent with the effects of the electrocution incident or what he thought the cause of the plaintiff's fatigue or insomnia was. Dr Home noted in is report that the plaintiff presented her history in a "matter-of-fact fashion" and that there was no evidence of elaboration or embellishment.
60 Dr Home was also of the view that the plaintiff's hypertension had no causal relationship with the electrocution. No reasoning was provided for this view, although Dr Home said in evidence that 95 per cent of hypertension in patients was unexplained and without apparent cause. Dr Home was further of the view that the plaintiff's sleep pattern was inconsistent with her history of severe daytime fatigue. In evidence he explained that in his experience people reporting constant fatigue also usually reported falling asleep in the daytime, for example at the wheel or while watching television. In his opinion the plaintiff's complaints of fatigue and insomnia might in part relate to a mild depression illness. 61 Dr Home stated in his report that the plaintiff's history was not consistent with a major electric shock likely to cause residual neurological or cardiovascular effects. However, Dr Home said that it was probable that the plaintiff had experienced muscle contraction immediately following upon the electric shock which caused secondary muscle pain in the arms and chest. He said that there was no abnormality on physical examination to explain her symptoms of upper limb discomfort following heavy physical activity and that he could determine no basis for these symptoms three years after the incident. 62 In his view the plaintiff was fit for full-time work of a sedentary, semi-sedentary or light manual nature including her pre-accident duties as a roadhouse manager. He was of the opinion that motivational factors contributed to the presentation of subjective disability and noted that the plaintiff had undergone a period of profound vocational and social adjustment, including a marital separation, immediately after the accident. He said that he disagreed to some extent with the view of Dr Silbert
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expressed in his report of 11 March 1998 that the plaintiff was motivated to return to work. 63 Dr Home asked the plaintiff to complete a Beck Depression Inventory, where she scored 20 points indicating mild depression. He also requested her to complete a Modified Somatic Perception Questionnaire. On this questionnaire the plaintiff entered only one tick in the third and fourth columns. Responses that showed mainly ticks in the third and fourth columns indicated that there was some concern about somatisation, ie, a tendency to manifest psychological complaints with physical symptoms. 64 In giving evidence-in-chief Dr Home was asked whether the plaintiff had told him about experiencing pins and needles in her arms as well as occipital headaches. Dr Home replied that she had not, but that he believed that he had established a rapport with the plaintiff. When it was put to the plaintiff by counsel for the defendant that she had not reported these symptoms to Dr Home, she replied that Dr Home had been rude and arrogant and that she did not want to communicate with him. 65 In Dr Home's view the plaintiff may well have had some muscle contraction as a result of the electric shock, which may have led to a withdrawal response and secondary muscle pain in the arms and chest. In addition she developed a specific anxiety about the use of electrical appliances and handling doorknobs and she had symptoms which were consistent with a diagnosis of mild general anxiety and mild depression. In Dr Home's view the plaintiff's marital separation was likely to be a significant factor in causing the depression and general anxiety as he did not know many people who went through a marital separation and did not experience symptoms of depression as a result. 66 Dr Home agreed in evidence that at the time of his interview of the plaintiff she presented to him as an honest witness who was not exaggerating. However, he said the fact that she obtained a service pension indicated to him that she was not motivated to work. 67 Dr Home gave evidence that he did not consider the plaintiff's muscle pain and fatigue to result from any physical injury and referred to Dr Silbert's report which had said that the shock was of one or two seconds duration. His examinations also led him to conclude that there was no physical basis for the plaintiff's current symptoms. He said that the electrocution was more likely to have been a mental shock. However, he doubted that the plaintiff had experienced a fear of dying during the
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electrocution, as she did not volunteer that information to him and because he thought that someone who had experienced such a fear would completely stop all activity after the electrocution and would not telephone and make enquiries and complaints about what had happened. He stated that someone who had experienced a fear of dying was likely to immediately develop psychological symptoms. In his view the plaintiff did not present with PTSD. He said that he was qualified to comment on the plaintiff's psychiatric injuries, as this was part of his training and experience as an occupational physician.
Dr Piirto 68 Dr Piirto, consultant psychiatrist, gave evidence on behalf of the defendant. She saw the plaintiff for a medico-legal report on 3 January 2003. She took a detailed history of the plaintiff and stated in her report that the plaintiff appeared to be a sincere woman who at no time appeared to be deliberately omitting, distorting or exaggerating the facts. 69 Dr Pirrto was of the opinion that the plaintiff presented with some "encapsulated anxiety symptoms", such as her fear of touching electrical equipment and doorknobs, but that this did not cause pervasive distress or impairment as she was "able to do what she had to do". Dr Piirto was of the view that the plaintiff did not meet the independent criteria of PTSD, as most of her psychiatric profile was in fact a reflection of other stressors and disorders. The plaintiff had negligible re-experiencing phenomena. Other parameters indicating PTSD, such as avoidance and symptoms of arousal, were multi-factorial and in Dr Piirto's view related to the plaintiff's other disorders. 70 Dr Piirto was of the opinion that the plaintiff presented with a dysthymic disorder and a non-specific anxiety disorder. She was of the view that the dysthymic disorder had been caused by multiple stressors in the plaintiff's life and her inherent vulnerable personality traits. Dr Piirto described the multiple stressors as the fact that the plaintiff had experienced several difficult years in the mid-90s when she had worked extremely hard with negligible financial or personal reward. Her husband was not supportive and then became physically abusive. The plaintiff's father had been violent for many years. In Dr Piirto's view, the plaintiff had felt isolated, exhausted and resentful at the time of the electrocution. Her husband then sold the business at a loss and within two months she separated from him and felt hurt, alienated and resentful when her family and friends did not appear to be supportive of her. Her house burnt down and limited finances caused variable degrees of stress.
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71 Dr Piirto was also of the opinion that the plaintiff had vulnerable personality traits, including that of avoidance. Dr Piirto explained in evidence that the plaintiff was quite sensitive to criticism and rejection and had been the victim of alleged significant abuse. She said that people like that would avoid potential harm and did not challenge themselves past comfort zones. She was also of the view that the plaintiff was resentful of the lack of support received by her family and friends and angry with the defendant for not having repaired the Roadhouse prior to the accident. These personality traits together with the multiple stressors experienced by the plaintiff prior to the electrocution made her vulnerable to the development of psychiatric disorders.
72 In Dr Piirto's view, the major contributor to the plaintiff's psychiatric disorders was the abuse by her husband and the subsequent break-up of her marriage. Dr Piirto said that she could not understand why the plaintiff was still angry with the defendant but not with her husband and that "somebody who has been physically abusive gets let off the hook". In her view a "normal person" would leave an abusive spouse at the first inkling of abuse. If the person stayed in the marriage relationship, it showed vulnerable personality traits. 73 Dr Pirrto said that the non-specific anxiety disorder which she had diagnosed manifested itself in the plaintiff's avoidance of large and busy shopping centres and her reluctance to deal with unfamiliar places, like driving in the city. In Dr Piirto's view the plaintiff had been predisposed to developing mood and anxiety symptoms by reason of her difficult early life events, positive family psychiatric history and her inherent vulnerable personality traits. In referring to a "positive family psychiatric history" Dr Piirto relied on the fact that the plaintiff's father had an alcohol use disorder which, she said, was in fact a psychiatric disorder. She did not believe that the electrocution contributed to the plaintiff's non-specific anxiety disorder. It had only caused the encapsulated anxiety symptoms in respect of electrical equipment and doorknobs and that these encapsulated symptoms did not cause the plaintiff any problem in her daily life which she could not deal with. 74 In Dr Piirto's view the electrocution did not cause the dysthymic disorder or the non-specific anxiety disorder. It was merely an event which brought to the surface the other difficulties which the plaintiff had experienced and it inadvertently became an opportunistic time for her to face the earlier difficulties. In Dr Piirto's opinion the plaintiff focussed on the electrocution ("the coat hanger") to minimise her acknowledgement and awareness of the other stressors in her life ("the baggage"), although
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this process may have had a subconscious basis. However, Dr Piirto acknowledged in her report that the electrocution contributed to the plaintiff's stressors and conceded in evidence that there was some exacerbation of the plaintiff's "psychiatric concerns" as a result of the electrocution. 75 In Dr Piirto's opinion, the plaintiff may already have had a psychiatric disorder at the time of the electrocution which had not been diagnosed. Dr Piirto said that she believed that the plaintiff already had mood and anxiety symptoms at the time of the electrocution. She did not give examples of such symptoms, but said: "I mean she is being physically abused by her husband, she is working long hours, she is not getting paid". However, she said she could not diagnose in retrospect a past psychiatric disorder. 76 In her view the electrocution was a contributing factor to the plaintiff's development of the psychiatric disorders, but that the triggering event was the plaintiff's marriage break down which started with the onset of the abuse in 1996. Dr Piirto agreed that it was difficult to tease out the contribution that the electrocution incident had made to the plaintiff's disorders and to what degree it had contributed to her deterioration, mood and functioning. 77 Dr Piirto was of the view that the plaintiff did not suffer from PTSD and that there was no global anxiety stemming from the electrocution which permeated into other areas of the plaintiff's life. Dr Piirto explained that the plaintiff's wariness of power points was understandable, as the memory would always recall the incident when faced with a power point. This was similar to a person who had been involved in a car accident at an intersection being cautious in approaching intersections. This did not mean that the plaintiff was hyper vigilant, ie being tense and expecting to be victimised. Dr Piirto said that the plaintiff did not have visions of orange flashes when she was reaching for a power point. She had managed to "compartmentalise the problems" by replacing the carpets in the house with linoleum. The plaintiff was also not distressed or upset when she talked about the electrocution incident and did not avoid talking about it. In Dr Piirto's view, people with PTSD experienced a lot of psychological distress upon being exposed to triggers relating to the event. The plaintiff was not tearful when she talked about the electrocution but spoke about it calmly and matter-of-factly. She thought that it was significant that the plaintiff did not have a problem with all roadhouses, but only roadhouses operated by the defendant. Dr Piirto also understood that the plaintiff only thought after the electrocution incident that she
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could have died and not while it was occurring. She thought that this was important in making the diagnosis that there was no PTSD. 78 Dr Piirto said that the plaintiff did not have symptoms of panic disorder and that the physiological symptoms that she would have expected to see in a case of panic disorder were increased heart rate, tremor, shortness of breath, excess perspiration and de-personalisation, with indiscreet episodes on a frequent enough basis. She said that such symptoms were not described to her. In her view the plaintiff did not describe being debilitated by profound anxiety and depression. The plaintiff came across as indignant, angry and resentful. 79 Dr Piirto was of the view that the plaintiff did not require any intensive psychological intervention to deal with the electrocution incident. In her view, the plaintiff would continue to present with mild encapsulated phenomena related to the electrocution, but this would not be pervasive or significant. The plaintiff would benefit from cognitive behavioural therapy, individual psychotherapy and supportive counselling to deal with her psychiatric disorders. 80 In Dr Piirto's view, the plaintiff was able to work full-time in any capacity for which she was appropriately trained. In Dr Piirto's opinion, the plaintiff should only have been incapacitated from working for a maximum of one month on the basis of the psychological sequelae following the electrocution incident. Dr Piirto was of the understanding that the plaintiff had been interested in returning to work part-time at the time when she saw her, but had not in fact started to work. In fact, the plaintiff had been working part-time as a night filler for approximately one year at the time when she saw Dr Piirto. Dr Piirto denied that the fact that the plaintiff had started to work part-time of her own accord had any effect on her diagnosis of the plaintiff. In Dr Piirto's view, it was only a question of credibility as to why the plaintiff had not told her that she was already working part-time. 81 Dr Piirto also noted in her report that the plaintiff "did not describe significant lethargy" and said in evidence that the plaintiff had told her that her pain had ceased. This is contrary to the plaintiff's evidence at the trial and her account to the various other medical practitioners. Dr Piirto further stated in her report that the plaintiff "did not describe significant deficits with attention, concentration or with distractibility or recall". She said that the plaintiff did not lose things and was able to remember important things. Again, this is contrary to the plaintiff's evidence at the
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trial. Dr Piirto was asked to consult her notes which said that the plaintiff was "occasionally forgetful but remembers important things". 82 Dr Piirto stated in her report that the plaintiff denied having nightmares or suicidal ideation. In evidence the plaintiff said that she had experienced thoughts of suicide from about August/September 1997 onwards and had on one occasion driven to the weir in the middle of the night. 83 Dr Piirto said that she was of the impression that the plaintiff had misused alcohol while working at the Roadhouse. She said that she had based that understanding not on what the plaintiff had told her but what she had read in some other reports. She referred to a GGT reading in a report by Dr Tropiano and what Dr Edwards-Smith had stated in her report in this regard. The plaintiff denied in evidence that she had misused alcohol while working at the Roadhouse and said that you cannot balance the tills if you have had too much alcohol. 84 Dr Piirto also recorded that the plaintiff had told her that she had felt that she had not lost any significant weight. In fact, the plaintiff gave evidence that she had fallen from a size 14 to a size 10 or 8 in dress size and that she no longer enjoyed eating like she used to do.
Dr Edwards-Smith 85 Dr Edwards-Smith, consultant psychiatrist, gave evidence on behalf of the defendant. She saw the plaintiff for a medico-legal report on 26 April 2005. In taking the plaintiff's history Dr Edwards-Smith noted that the plaintiff had reported pain in both arms immediately subsequent to the electrocution and that the plaintiff developed fatigue. Her daughters carried out most of the work at the Roadhouse because the plaintiff was not well enough by reason of her pain and fatigue. She noted that the plaintiff had said that her pain was most severe after the accident but improved for a period thereafter until it had stabilised. However she still rated her pain as 7-8 out of 10 in severity at the time of her interview with Dr Edwards-Smith. 86 Dr Edwards-Smith diagnosed the plaintiff with dysthymic disorder. The symptoms of this disorder were depressed mood, insomnia and fatigue. In Dr Edwards-Smith's view the cause of the plaintiff's dysthymic disorder was multiple stressors experienced by the plaintiff throughout her life together with the plaintiff's personality traits. As regards the multiple stressors, Dr Edwards-Smith was of the view that the violence to which the plaintiff was exposed in childhood was a significant trauma for her
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and caused a significant predisposition to the development of a psychiatric condition in adult life. It also contributed to the development of the plaintiff's avoidant personality traits, namely the plaintiff's inability to face up to the emotional issues caused by the stressors in her life and her tendency to repress and avoid any reminder of these stressors. Dr Edwards-Smith said that the plaintiff further experienced considerable stressors while working at the Roadhouse in the 1990s, both financial and due to the long hours she worked. She noted in her report that during this time the plaintiff reported that she was drinking alcohol to excess. In evidence Dr Edwards-Smith conceded that her statement that the plaintiff was drinking "to excess" had been an inference made by her on the basis that the plaintiff said she used to drink with customers at the Roadhouse. Dr Edwards-Smith conceded that the plaintiff's alcohol consumption may not have been "to excess". 87 In Dr Edwards-Smith's view the most significant contributing factor to the development of the plaintiff's psychological symptoms was her husband's violent behaviour to her. She said in evidence that the plaintiff had told her that the abusive behaviour started in 1995 and that the marriage was in the process of breaking down for approximately 18 months prior to the plaintiff leaving her husband at the end of August 1997. 88 In the opinion of Dr Edwards-Smith the plaintiff's dysthymia was not attributable to the electrocution incident. She explained that in assessing a person's mental condition and the factors causing this, she would have regard to predisposing, precipitating and subsequently contributing factors. In her view the electrical shock may have precipitated the plaintiff's psychiatric disorder, but she was already predisposed to developing symptoms of dysthymia. 89 Dr Edwards-Smith thought that the plaintiff's problems with concentration, energy and motivation were attributable to her complex symptoms, including the dysthymia and avoidance. The plaintiff's fatigue was also a symptom of her chronic dysthymia and her avoidant personality. The plaintiff's avoidant personality caused her to have a limited range of interpersonal, social and recreational activities which in turn was likely to impact adversely upon her fatigue. 90 In giving evidence Dr Edwards-Smith said that she should also have diagnosed the plaintiff with an anxiety disorder not otherwise specified. This diagnosis was based on the plaintiff's avoidance of shopping centres and social activities which was not adequately explained by the dysthymic
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disorder. She did not agree with Dr Skerritt that the plaintiff had a panic disorder with agoraphobia. She said she did not get a history from the plaintiff of specific panic attacks. Dr Edwards-Smith was of the view that the plaintiff's non-specific anxiety disorder was also not related to the electrocution. In her view the plaintiff would have suffered from ongoing symptoms of depression and anxiety regardless of the electric shock incident. 91 Dr Edwards-Smith said that she had felt that the plaintiff's pain had a psychological basis and that the pain was not a precipitant of her psychiatric disorders. However, she acknowledged that if the plaintiff experienced chronic pain resulting from a physical cause, this could be a stressor which contributed to the onset of her psychiatric condition. However, in the plaintiff's case Dr Edwards-Smith did not see the pain as a significant factor, but regarded the multiple traumas experienced by the plaintiff as more significant. Dr Edwards-Smith said that she had formed the opinion that the move back to Waroona, the violence, bruising, choking, financial concerns and the plaintiff's separation from her husband had been distressing to her. Dr Edward-Smith agreed that she did not obtain a history from the plaintiff that she had made a conscious decision to separate from her husband and that after the separation the relationship with her husband improved. 92 Dr Edwards-Smith said that she had obtained a history of "long-standing" mood and anxiety symptoms which she felt could reasonably be attributed to the multiple traumas experienced by the plaintiff in her life. Dr Edwards-Smith did not say whether any of these symptoms pre-dated the electrocution and, if so, what the pre-accident symptoms were. Asked when she thought the plaintiff had developed her psychiatric condition, Dr Edwards-Smith said the plaintiff had described the onset of symptoms of distress and sleep disturbance in the days after the electric shock incident. The plaintiff was not specific about the other symptoms, but Dr Edwards-Smith formed the impression that the other symptoms gradually developed and worsened and were at their maximum in 1998 and 1999. 93 In Dr Edwards-Smith's view the plaintiff was not malingering. She had consistently presented with psychological and physical symptoms. Dr Edwards-Smith said that she would leave it to better-qualified practitioners to comment on the physical symptoms, but in her view the plaintiff's psychological symptoms were genuine and attributable to a complex array of causes. The plaintiff might unconsciously attribute all her symptoms to the electrocution, whereas, in Dr Edwards-Smith's view,
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they were more likely to have arisen from the plaintiff's history of witnessing her father abuse her mother and her own abuse by her husband. 94 Dr Edwards-Smith expressed the view that the plaintiff was fit for part-time work, but her long-standing psychological symptoms, particularly the dysthymia, avoidance and fatigue, prevented her from working full-time. However, she did not believe that these symptoms were attributable to the electrocution. 95 Dr Edwards-Smith stated in her report that the plaintiff had retained certain encapsulated symptoms of anxiety relating to doorhandles and power points. These encapsulated symptoms arose from the electrocution incident, but were not consistent with a diagnosis of PTSD. Although the plaintiff did describe experiencing nightmares of the electrocution, the nightmares had resolved over the 12 months prior to her interview with the plaintiff. Dr Edwards-Smith also thought that the plaintiff's symptoms of general avoidance of social occasions and crowds were more complex in origin and not part of a specific disorder of PTSD. She said that these symptoms were more consistent with the plaintiff's personality traits, specifically that of avoidance. As a result of these encapsulated anxiety symptoms and because the plaintiff would have been angry and upset, she believed that the plaintiff had been unfit for a work for a period of 1 month after the accident, however thereafter the plaintiff would not have been incapacitated to work as a result of the electrocution.
Findings 96 I accept the essence of the plaintiff's evidence. The plaintiff gave evidence in a forthright manner and I detected no embellishment of her symptoms or reluctance to answer any questions. The plaintiff is clearly a person who tends to answer questions in a brief and matter-of-fact manner without elaboration. She did not appear to me to display anger or resentment, as suggested by Dr Edwards-Smith. Rather, her attitude appeared to me to be that of a stoical person who acknowledges the traumas in her life but in a pragmatic and matter-of-fact manner rather than in a self-pitying manner. 97 Counsel for the defendant submitted that I should find that the plaintiff's evidence was not credible or reliable. The main point made in this regard was that when asked in cross-examination whether she was trying to sell the Roadhouse business, she replied "no". When asked whether she was actively soliciting purchasers for that business, she denied this, but said that her husband may have been, as he was in Waroona and she was at the Roadhouse. She said she did not want to sell
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the business, as she wanted to get some money behind her. Counsel for the defendant then put the statutory declaration to her which she had signed on 29 July 1997. In that declaration she had stated the following: "We have been trying to sell the lease on the Roadhouse for 2 years". When this statement was put to the plaintiff she said that she had understood the initial questions as relating to the time of the electrocution, and that the attempt to sell the lease had been at an earlier time, before her husband had started his physical abuse. At that time she and her husband wanted to sell the Roadhouse and move back to Waroona. However, after the abuse started she had changed her mind and decided to stay at the Roadhouse to earn enough money to live on her own. I accept the plaintiff's explanation in this regard, particularly because she said that her husband had been in Waroona when he may have solicited purchasers, which indicates that she was thinking of the time of the electrocution. 98 The other matters on which counsel for the defendant relied as indicating the untruthfulness or unreliability of the plaintiff's evidence were statements recorded in the report of the various medical practitioners who gave evidence and which were contradicted to some extent by the plaintiff's own evidence or in other medical reports. I have considered each of the matters raised by counsel for the defendant, but I am not persuaded that these matters indicate that the plaintiff either purposefully gave incorrect information to either the medical practitioners or in evidence or that her evidence is unreliable. The deviations are relatively small and I have some concern in placing too much reliance on the exact words used in a medical report. There is no doubt that the words so recorded often depend on the question asked by each individual medical expert, the impression gained by the expert and what the plaintiff regarded important at that time in responding. For example, I do not see any material discrepancy indicating unreliability on the part of the plaintiff by reason of the report of Dr Silbert which noted that the plaintiff had said that the shock lasted one to two seconds and that she had no hand spasm, whereas the report by Dr Salmon states that the plaintiff had recounted that the shock was three to five seconds and that she had been stuck to the door. |