Ian Johnston v NRMA Insurance Limited
[2006] ACTSC 110
IAN JOHNSTON v NRMA INSURANCE LIMITED
[2006] ACTSC 110 (10 November 2006)
DAMAGES – personal injury – nervous shock – post-traumatic stress disorder – adjustment disorder with depressed and anxious mood – plaintiff’s son suffered brain damage in motor vehicle accident – saw son in serious condition in hospital – cared for son in hospital – subsequent breakdown of marriage and relationship with children – psychological injury caused by initial shock and exacerbated by sequelae of son’s accident
Skea v NRMA Insurance Ltd [2005] ACTCA 9, applied.
No. SC 437 of 2005
Judge: Master Harper
Supreme Court of the ACT
Date: 10 November 2006
IN THE SUPREME COURT OF THE )
) No. SC 437 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:IAN JOHNSTON
Plaintiff
AND:NRMA INSURANCE LTD
Defendant
ORDER
Judge: Master Harper
Date: 10 November 2006
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $127,000.00.
This is a claim for damages for nervous shock consequent upon injuries caused to the son of the plaintiff in a motor vehicle collision on 31 December 1997. The son was a passenger. The defendant was the authorised insurer of the car and is sued in place of the driver, who died of his injuries a few days after the accident. The defendant admits a breach of the driver’s duty of care to the plaintiff, and the hearing is limited to the issue of damages.
The plaintiff was born on 2 April 1945 and is now sixty-one years of age. He was born in Melbourne and attended a technical school to intermediate certificate level. He then went to a technical college and gained a diploma in electrical engineering. He joined the Commonwealth Public Service at sixteen and worked there for thirty-four years, completing executive development and achieving the level of director. He moved to Canberra in 1964. He married briefly and unsuccessfully at age twenty-two. He gained entry to the Australian National University and graduated as a Bachelor of Arts in 1971. He married for the second time at the end of 1972. There were four children of the marriage: Rachel born in 1976, Todd in 1980 and twins Brooke and Chantel in 1983.
The plaintiff injured his back in 1975 playing football, and thereafter from time to time complained of head, neck and upper back pain, and on occasions low back pain, which seems to have been aggravated by his clerical and computer work, at times under considerable pressure. He nevertheless managed to fit in a Bachelor of Economics degree, awarded in 1978. There were some marital difficulties in 1985, which were resolved following a course of counselling.
During 1994 and 1996, the plaintiff was referred by his general practitioner to Dr John Saboisky, psychiatrist, for symptoms of anxiety and mild depression.
At the end of 1996 the plaintiff, after discussions with Dr Saboisky, accepted a redundancy package and left the Public Service. He received a lump sum with which he was able to pay off the mortgage on the family home. He had to wait three and a half years, until age fifty-five, before he was entitled to a Commonwealth superannuation pension.
In mid-1997, the plaintiff, through a company as trustee of a discretionary family trust, entered a joint venture with a colleague. The company which was to be the vehicle for the joint venture was incorporated on 1 December 1997. The plaintiff’s evidence is that he spent most of the second half of 1997 setting himself up for the business.
On New Year’s Eve, 31 December 1997, at about 6.00 pm, the plaintiff and his wife were making preparations for guests for dinner when they received a telephone call from a friend of their son Todd, then seventeen. The friend told them that he had seen a report on television of a car accident a couple of hours earlier and that Todd had been involved. The plaintiff, in a panic, telephoned Calvary Hospital and later the Canberra Hospital, and eventually was able to confirm that Todd had been admitted with a severe head injury. The plaintiff’s evidence was that he became very stressed and anxious immediately upon receiving the telephone call. He has, he said, a tendency to panic. This feeling intensified when he was told during his telephone call to the Canberra Hospital that both occupants of the car were in a serious condition and the parents should come to the hospital immediately. They were told that one of the boys was more seriously injured than the other but they were not told which. The parents drove from their home at Melba to the Canberra Hospital at Garran in a continuing state of panic. On the drive over the plaintiff described himself as horrified and frightened. Thoughts going through his mind that his son might die or emerge a quadriplegic, and he was discussing these possibilities with his wife. When the plaintiff and his wife were brought in to the intensive care unit and first saw their son, they both became very emotional. Todd was motionless with his eyes closed, wearing a neck brace, and clearly on life support. He was attached by tube to a ventilator and attached by other tubes and lines to a number of machines and monitoring devices.
When the plaintiff and his wife saw their son, they both started to cry. The plaintiff asked the nurse questions in a rapid manner. He felt stunned, as though his heart had been torn out. He was crying and felt dizzy. He felt as though his life was out of control. There was nothing he could do to bring Todd back or to help him. A doctor told them that Todd had a fractured skull with bleeding from the brain and paralysis down one side of the body. There was some doubt as to which of the boys had been driving. It was too early to tell how serious the injuries would be in the long term. It was not even certain that Todd would survive. The plaintiff felt very frightened after the exchange with the doctor. He and his wife hugged each other and cried.
On the same night, the plaintiff was given a brown paper bag containing Todd’s shirt, trousers, underpants and socks. The clothing had been cut off and was covered in blood. When the plaintiff saw the clothing he felt shocked and horrified. He described the experience as adding another dimension to what had happened.
He and his wife left the hospital at 1.40 am and went to a hotel in Canberra City where his eldest daughter Rachel was working. The younger twin daughters were also there by this time, and all of the family hugged and cried. They then went home. The plaintiff slept for a couple of hours but was up by 6.00 am. He telephoned the hospital to enquire as to any change, and the parents went back to the hospital between 7.00 and 8.00 am. They were briefed by a social worker who talked to them about the likelihood of post-traumatic amnesia, and the likely course of Todd’s rehabilitation following a neuropsychological assessment. The plaintiff felt very distressed by all of this. He had a discussion with a police officer who told him that the driver had apparently been skylarking and driving dangerously, and would probably be charged with culpable driving causing grievous bodily harm.
The plaintiff and his wife stayed at the hospital for the whole of New Year’s Day, for about eighteen hours, and for about the same time the next day. They were given some hope when told that a nurse had obtained a delayed hand-squeezing response from Todd. The parents stayed at the hospital on the night of 2 January, and tried to sleep on chairs pushed together in the waiting room. They were given a blanket. They slept at the hospital again the next night. On Saturday 3 January they were spoken to by Dr Chandran, neurosurgeon. It was still too early to be sure that Todd would live. He was still on life support. His brain was badly bruised. Injury to the right side of the brain was causing paralysis on the left side of the body.
By the next day, 4 January, Todd was moving. He was restless and attempting to remove his tubes. It seemed that he would survive but the plaintiff was greatly concerned as to what his eventual condition would be. The tubes were removed on 5 January. The plaintiff assisted in the process by holding Todd down. Todd coughed up blood and mucus and began to breathe by himself. The plaintiff was in tears in the witness box as he described his feelings at that time. It seemed to him that Todd was being reborn or coming back to life.
On 6 January Todd’s friend Jamie, who had been driving the vehicle, died. On the same day Todd was transferred from the intensive care unit to the neurosurgery ward at the hospital. He was initially placed in a ward with three other patients, but Todd kept trying to get out of bed and became aggressive, disrupting the other patients. He was moved to a single room. After a time, the bed was removed from the room and mattresses were placed on the floor. Hospital staff were concerned that he might injure himself. He was transferred to a padded room with a stable-type door which was locked from the outside. The plaintiff stayed and slept with him for two nights, at the request of hospital staff. Initially Todd was unable to stand or to talk. He acted irrationally, on occasions banging the locked door aggressively. The plaintiff’s evidence was that during this period he was feeling anxious, distressed and tired. His son appeared to be totally uncoordinated. The plaintiff feared that he would not improve over time. Todd had been a very fit and strong young man.
After two days and nights the plaintiff was exhausted and suffering from headaches and pain in the neck and back. He was incapable of taking Todd to the toilet. Todd did not initially recognise him but after a time he began to speak in a hoarse whisper. After those two nights, the plaintiff and his wife went home each day to sleep but continued to spend ten to twelve hours a day at the hospital.
After about two weeks Todd was transferred from the neurosurgery ward to an independent rehabilitation live-in unit at the hospital. He attempted on a few occasions to escape from the hospital. On 2 February 1998 he discharged himself, against medical advice, from the rehabilitation unit and returned to the family home to live. According to a report prepared by Dr G McLaren, director of rehabilitation at the hospital, Todd had post-traumatic amnesia for fifteen days. On one occasion he absconded from the unit but returned the next day by bus with a friend. After considerably discussion, a trial was made of weekend leave with the parents. Dr McLaren described this as largely successful but noted that the parents expressed significant concern about their ability to manage the situation at home. Todd had superficial insight into the nature of his cognitive deficits, impaired planning and judgment, poor impulse control and behavioural problems due to frontal lobe impairment. He had a poor psychosocial prognosis.
On 27 January, the plaintiff took Todd to see Dr H Williams, ear, nose and throat surgeon. Dr Williams diagnosed complete deafness in the left ear. He found a dry blood clot on the eardrum. Dr Williams tried to dislodge the clot, whereupon Todd screamed loudly and pulled away. He swore at the doctor, using foul language. This incident had a significant effect on the plaintiff. He became tearful and distressed, as did Todd. He also found that he was very angry.
When Todd moved home, the plaintiff’s wife was working but he was not. The plaintiff took on the responsibility of Todd’s care and management. His evidence was that this became effectively a full-time job for about six months. He found it very demanding. Todd had poor short-term memory. He would become angry and would swear at the plaintiff. The plaintiff used to keep track of him via mobile phone, until Todd lost his mobile telephone while crossing a creek. The plaintiff arranged accommodation for him. Todd lived in an apartment at Melba for about six weeks but was evicted. He also lived for a time in a flat at Belconnen through ACT Housing. After an incident involving some gardeners working on the property, during which Todd was aggressive, abusive and threatening, other residents in the complex signed a petition to have him removed. On one occasion he was armed with a knife and threatened to kill people. He kept a baseball bat in his flat. He caused damage to the flat, for example kicking in doors, which the plaintiff repaired. There was an incident at Belconnen Mall involving a security guard, which was attended by police, in which Todd was injured.
In March 1998 the plaintiff commenced a graduate diploma course in library and information management at the University of Canberra. The following month he reduced the course load by half, so as to complete it over two years instead of one.
In June 1998 the plaintiff’s wife suffered an injury at work, and gave up work. From the middle of that year, the plaintiff began to work in his new business. He had received two contracts which together occupied him for forty hours a week. He ceased to be primarily responsible for Todd’s management.
In October 1998 Todd was charged by police with being drunk and disorderly and in possession of a knife.
In July 1999 the plaintiff sold his interest in the joint venture company to the other partner. He completed his diploma course at the end of 1999, and the following year enrolled in a Master’s degree in the same field. In April 2000 he turned fifty-five and became entitled to draw on his public service pension.
As the years went by, Todd’s behaviour continued to affect the plaintiff. There were further incidents involving police and the mental health crisis team. Todd at different times assaulted each of his three sisters. The plaintiff tried to keep him involved in family activities, but these occasions seemed to turn out disastrously. For example, the plaintiff arranged tickets for the whole family to go to the Olympic Games in Sydney. At the end of the evening there was a long queue for trains, of hundreds of people. Todd became anxious and aggressive at having to wait in a crowd for a long period and behaved aggressively, using offensive language. In December 2000 Todd moved to Wollongong. His behaviour led to drug and other problems. In August 2001 the plaintiff helped to bring him back to Canberra.
In April 2002, following an assault, one of the plaintiff’s daughters obtained a domestic violence order against Todd. Todd’s claim for damages for his injuries was finalised in late 2002. He was awarded a large sum. In the plaintiff’s view he has managed it very poorly. Todd blames his father for the inadequacy of the damages.
During the period since Todd’s accident, the family appears to have become quite dysfunctional. One of the twin daughters left home at fifteen and lived in a series of refuges. The other daughter at about the same age almost poisoned herself with concentrated alcohol. In October 2003 the plaintiff and his wife separated, initially living separately under the same roof. The plaintiff eventually moved out from the family home, and they were divorced in March 2005.
Within a couple of weeks of the accident, the plaintiff saw his general practitioner, Dr Choong at Kaleen. Dr Choong had been the family doctor for many years. He referred the plaintiff to Dr Saboisky, the psychiatrist who had seen the plaintiff in earlier years, initially in 1994. He also referred him to Mr Maher, a physiotherapist, for treatment of his head, neck and shoulder pain, which had been present before the accident, but had been aggravated in Dr Choong’s view by mental stress caused by Todd’s accident.
The whole family was referred by Dr Saboisky to a clinical psychologist, Dr Arnstein, who in June 1998 diagnosed the plaintiff as suffering post-traumatic stress disorder. I accept the diagnosis as correct at that time.
Dr Saboisky noted in a 1996 report to Dr Choong that the plaintiff had an obsessive personality style and was prone to anger and frustration. The plaintiff felt very guilty and was quite tearful for much of the consultation.
Dr Saboisky saw the plaintiff in January 1998 and again in March of that year. The plaintiff’s tension had led to a major verbal outburst towards his daughters. The plaintiff was mortified by his behaviour. His daughters had refused to have anything more to do with him. Dr Saboisky said that Todd’s accident and subsequent behaviour had been very difficult for the plaintiff to cope with. The plaintiff was very obsessive, and only psychologically comfortable when his world was under control and satisfactorily organised. Todd’s injuries had challenged him to the point where he had lost his emotional equilibrium and become irrationally aggressive towards his family. He was very anguished during the March consultation. Dr Saboisky said that it was obvious to him that the plaintiff had been traumatised by the accident and his son’s subsequent behaviour, causing a profound impact on the plaintiff’s relationship with his wife and daughters. His life had been irretrievably changed and he had developed significant psychological symptoms. He was intensely worried and concerned. He was mortified by his out-of-control rage. He was frequently depressed and had difficulty sleeping. He ground his teeth. His symptoms were consistent with an adjustment disorder with depressed and anxious mood, and Dr Saboisky did not disagree with a psychologist’s diagnosis (see below) of mild major depressive disorder. The plaintiff was predisposed to such a reaction by his son’s accident, having been a very obsessional man who tended to think catastrophically about many issues. Obsessional individuals needed to feel in control. When they did not they often had feelings of helplessness, catastrophic preoccupation and over-reaction. Dr Saboisky regarded the plaintiff as genuine and rejected any suggestion that he might be deliberately distorting reality for personal gain. He had seen the plaintiff six times before the accident and, by the hearing, thirty-one times since.
Dr Knox, another psychiatrist, saw the plaintiff in September 2003 at the request of his solicitors. He diagnosed the plaintiff as suffering from a long-standing obsessive compulsive personality disorder, severely aggravated by the loss of control, worry and depression arising out of Todd’s injuries. He agreed with Dr Saboisky’s diagnosis of adjustment disorder with mixed anxiety and depressed mood. The plaintiff had been traumatised and chronically stressed by the consequences of Todd’s accident. There had been a major impact on the plaintiff, causing chronic psychiatric impairment and disrupting his marriage and family life. His working capacity was partially impaired by anxiety and depression, in conjunction with the aggravation to his pre-existing obsessive compulsive condition. His psychiatric impairment and disability were significant and likely to continue indefinitely.
The defendant sent the plaintiff to Dr Jillian Fleming, a forensic and clinical psychologist, in August 1999. Dr Fleming did not give oral evidence but produced a lengthy report, concluding that the plaintiff at that time was suffering from a mild major depressive disorder. She found no evidence of post-traumatic stress disorder. She thought that the depression had been evident prior to the accident and could not be solely or even largely attributable to the accident. Nevertheless she found that the plaintiff’s presentation was extremely distressed and emotional. He cried through most of the interview. He reported acute stress and depression, causing relationship problems. He appeared to blame all his psychological and family difficulties on his son’s accident. Dr Fleming noted the plaintiff’s personality style as one of rigidity and control, such that unexpected events were likely to generate great stress. She thought that the plaintiff had little insight into his behaviour and its effect on others and that he was defensive about his personal shortcomings. The accident had undoubtedly caused him stress and anxiety. His reaction to it had exacerbated pre-existing family and marital problems. She thought that he required treatment in the form of antidepressant medication, cognitive behaviour therapy, or both. She recommended twenty sessions of treatment by a psychologist or psychiatrist.
Dr Fleming subjected the plaintiff to a number of tests. The results of one of the tests were consistent with exaggeration. She thought it possible that the plaintiff was malingering, though an alternative explanation was that the test results reflected a cry for help, or an extreme or exaggerated negative evaluation of himself and his life. She said that further testing would be required to confirm or exclude exaggeration or malingering. Dr Fleming saw the plaintiff on only the one occasion, though it was an extremely thorough assessment, taking some two and a half hours.
The solicitors for the defendant sent the plaintiff to Sydney for assessment by Dr Doron Samuell in November 2004. Dr Samuell prepared reports and gave evidence by telephone. He practises as a clinical and forensic psychiatrist under the business name Professional Opinions – Medico-legal. There is no evidence as to his experience or as to whether he is in clinical practice. Dr Samuell found the plaintiff evasive and not forthcoming. He found the plaintiff highly obsessional and lacking in insight as to the extent of his anger. He said that the plaintiff was in denial about his personality characteristics and had a tendency to shift the blame to others. The plaintiff minimised any problems he had before the accident, including problems between himself and Todd. It was unclear to Dr Samuell whether this was deliberate or subconscious. It was apparent to him that Todd had been a significant management problem to his parents immediately before the accident: he had threatened to give up his job as a trainee manager with Pizza Hut, he had been caught drinking under age and he was spending part of his time living with “street kids”. Dr Samuell records that the parents had sought professional counselling about Todd before the accident. This seems to have been a misunderstanding on his part, and to have been a factor in his arriving at the opinion that Todd was likely to have been having a significant emotional impact on the plaintiff prior to the accident.
Dr Samuell diagnosed obsessive compulsive personality disorder. He described the plaintiff as a constitutionally highly anxious individual, angry, rigid and controlling in his manner. These factors predated Todd’s injury and in Dr Samuell’s view would have had a considerable impact on his relationship with his wife and children. Dr Samuell made the point that highly obsessional individuals usually progress well in the early stages of their career, but generally fail as they are given more responsibility and authority. It was thus consistent that the plaintiff had had a long and reasonably successful career in the lower levels of the Public Service, but had had difficulties once promoted to more senior positions.
Dr Samuell concluded that there was no “significant evidence of a post-traumatic stress disorder or nervous shock”. A more likely explanation was that the plaintiff “behaved in a regressed and decompensated manner as a result of the accident.” This was typical of individuals with obsessive compulsive personality disorder and would probably have been provoked by other life events. Dr Samuell found the plaintiff fully fit from a psychological perspective to work in an unrestricted capacity. Perhaps inconsistently, he said that the prognosis was guarded because of the nature of his personality disorder.
Dr Samuell seems to me to have approached his task in a negative and suspicious manner. He saw the plaintiff only once. I have had the opportunity of seeing the plaintiff in the witness box over an extended period, and I accept him as honest and genuine. It is fortunate that the Court has the benefit of evidence from Dr Choong and Dr Saboisky, both of whom treated the plaintiff before as well as after Todd’s accident. Both have many years of experience: Dr Saboisky has been in practice in Canberra for twenty-three years. He first saw the plaintiff twelve years ago. I accept his opinion, and I also accept that of Dr Knox, an equally experienced practising psychiatrist.
I find that the plaintiff suffers from a recognised psychiatric illness, and that the principal cause of the onset of the illness was the impact of learning of Todd’s injuries and seeing him in the intensive care unit at the hospital. Prior to the accident, the plaintiff was coping with life. Stresses from time to time had caused him anxiety and a degree of depression, which had manifested themselves in physical symptoms of headaches and neck and back pain. However, he was able to manage these. It is likely that they would have recurred in the future if the accident had not happened, as the plaintiff was subjected from time to time to stressful experiences.
However, the effect of Todd’s accident on the plaintiff is, it seems to me, of quite a different order to the usual stressful experiences of life. I accept that it has had a devastating effect on the plaintiff and that his reactions to the nervous shock he suffered at the time have been aggravated in something of a vicious circle by the continuing impact of Todd’s behaviour on him, causing him in turn to behave unreasonably. This has been a large part of the reason for the breakdown of his relationships with his wife and children. There were difficulties in the marriage before the accident, but I accept Dr Saboisky’s evidence that about one-third of marriages are potentially unstable and that most of these survive. The plaintiff’s divorce is, it seems to me, an indirect effect of his nervous shock.
He seems to be coping better with day-to-day life now that he is living alone, though his vulnerability to future stresses is much greater than the vulnerability he had at the time of the accident.
As Crispin P explained in Skea v NRMA Insurance Ltd [2005] ACTCA 9, at para 2:
…the distinction drawn in Jaensch v Coffey (1984) 155 CLR 549, between psychiatric illness caused by nervous shock and psychiatric illness caused in other ways, does not require the concept of damage caused by nervous shock to be artificially confined to the initial psychiatric illness caused by the nervous shock without regard for any subsequent deterioration or aggravation. The decisive question of whether such a deterioration or aggravation is properly attributable to the shock of the accident must be answered by reference to the normal principles of causation.
His Honour went on to say at para 4:
When subsequent stresses have led to an aggravation of a psychiatric illness, the aggravation may well be attributable to the psychological vulnerability arising from the initial illness and hence the very kind of thing that was likely to occur as a result of the defendant’s negligence.
In that case, Crispin P concluded that it was foreseeable that the injury caused to the plaintiff by the immediate shock of the accident would be aggravated by the stresses of caring for injured family members. Such later stresses were not a novus actus interveniens but were relevantly caused by the initial shock.
In the same case, Lander J said:
116. Where a plaintiff suffers both a recognised psychiatric illness and also grief and sorrow there is an obligation on the Court, in assessing that plaintiff’s damages, to separate and ignore the aspects of grief and sorrow…
117. If the appellant were to be suffering from a psychiatric illness which was caused by her caring and concern for the injured members of her family, the appellant would not be entitled to recover damages.
118. However, this case is not the same as those cases where the plaintiff has suffered both a recognised psychiatric illness and grief and sorrow, and where the Court is called upon to separate out from the damages awarded the non-compensable grief and sorrow.
119. In this case, the appellant is suffering from the one psychiatric illness which has been caused by the shock and by her caring and concern for the injured members of her family.
120. There is no suggestion that there are two psychiatric illnesses and that the two separate causes, namely, the nervous shock caused by the aftermath and the caring for the appellant’s family can be identified as the sole cause of each of those two psychiatric illnesses.
121. In this case, there is only one psychiatric illness which, on the trial judge’s own findings, was caused by the initial nervous shock but has been aggravated and exacerbated by the subsequent caring for her family.
122. Nor is there any suggestion that the later events act as a novus actus interveniens. The initial chain of causation remains unbroken and, in those circumstances, the appellant would be entitled to recover damages in relation to the consequences of the initial injury including any subsequent aggravation…
123. In my opinion, the aggravation and exacerbation caused by caring for her family was a foreseeable event and the appellant is entitled to be compensated for the whole of her psychiatric injury.
It seems to me that the present case is in the same category. It is unnecessary for me to embark upon an attempt to separate the damages flowing from the initial shock and those attributable to later aggravations and exacerbations, even if it were possible to do so.
Counsel for the plaintiff submitted that an appropriate range for general damages in this case would be $60,000 to $80,000. Counsel for the defendant declined an invitation to put a range, but submitted that the $80,000 awarded in Skea was too high as the disabilities in that case were much more severe. That is not a comparison I can readily make, not having heard or read the transcript of the evidence in Skea. In any event, the assessment of general damages for pain and suffering and loss of amenties is a discretionary exercise and an award in one case is not necessarily of much relevance to another. In the present case, it seems to me that an appropriate sum for general damages is $60,000, of which I apportion $40,000 to the past and $20,000 to the future. The past component attracts interest which I allow at $8,000.
For past treatment expenses, the plaintiff claims the following:
T Maher, physotherapist $4,628 General practitioners $1,039 Dr Saboisky $7,691 Dr Fridgant $185 Dentist $315 Total $13,858
It is submitted on behalf of the defendant that the amount claimed for physiotherapy is excessive. I am satisfied that all of the treatment charged for was provided, and was regarded by both the plaintiff and the physiotherapist as necessary. I am satisfied that it was causally related to the plaintiff’s symptoms which were themselves caused by his nervous shock. I am satisfied that the plaintiff paid for this treatment as it proceeded, so that he is entitled to interest. I propose to discount the amount allowed to a limited extent to take account of the prospect that if the accident had not happened, stresses would have arisen in the plaintiff’s life which would have required treatment of the same kind.
In relation to the amount claimed for general practitioner attendances, I accept that the attendances took place, and I am satisfied on the balance of probabilities that they were for treatment for the same symptoms. The plaintiff has gone to some trouble to separate out from a Medicare-generated schedule of all of his treatment since his son’s accident those which he says are accident-related. He is, as I have said, a meticulous man and I accept that the amount claimed is accurate. It appears from the material in evidence that only about $150.00 of the total has been paid by the plaintiff himself, most of it being paid by Medicare. Again, some discount is appropriate, for the same reason as in relation to physiotherapy.
In relation to the amount claimed for psychiatric treatment, it is submitted on behalf of the defendant that the amount in respect of Dr Saboisky is excessive and that an appropriate allowance would be of the order of $2,500.00. I am satisfied that the treatment took place and that the amount charged by Dr Saboisky is reasonable. It appears from other material in evidence that about half of the fees were paid by Medicare. There are no receipts in evidence and I take it that Dr Saboisky has been prepared to await the outcome of proceedings for payment of the balance, so that no interest would be recoverable.
It is submitted on behalf of the defendant that there is no evidence to justify any allowance for dental treatment, and that there is evidence that the plaintiff had a problem with clenching of teeth before the accident. Again, I am satisfied that the plaintiff has been honest in his identification of the amount in respect of dental treatment which relates to grinding of the teeth after the accident, and I am satisfied that the fees should be allowed, subject again to a reduction for the likelihood that some treatment would probably have been necessary through other causes, in the absence of the plaintiff’s son’s accident.
Of the amount claimed for treatment expenses, I allow $11,000.00, plus interest which I allow, without any pretence of mathematical precision, at $1,000.00.
The only recent expenses are those in respect of Dr Saboisky. The plaintiff saw Dr Saboisky, in recent years, five times in 2004, six times in 2005 and three times thus far in 2006. The current rate per consultation is $190. I am satisfied that this treatment will continue at about the present rate for a few more years. I allow $5,000 for future treatment expenses.
As to loss of earning capacity, the evidence does not permit me to arrive at a figure with any mathematical precision. The first half of 1998 was a period when the plaintiff was fully occupied with the care and management of Todd. His unavailability for paid work during that period arose from Todd’s injuries, not the plaintiff’s nervous shock.
Thereafter, the plaintiff generally seems to have worked as work was available for his business, and wound down once he became entitled to his pension. There is no evidence from which I can assess the financial success of the joint venture in the hands of his original partner. At best, it seems to me that I must find that the plaintiff’s psychiatric condition has had an impact on his earning capacity which is likely to have been reflected in reduced earnings over the period from mid-1998, and is likely to continue to have that impact. This is because the plaintiff’s concentration and general efficiency have been affected. I allow $25,000 for past loss, and $10,000 for the future. The past component attracts interest at commercial rates which I allow at $7,000.
The individual components of the award are thus:
General damages $60,000.00 Interest thereon $8,000.00 Past treatment expenses $11,000.00 Interest thereon $1,000.00 Future treatment $5,000.00 Past economic loss $25,000.00 Interest thereon $7,000.00 Future economic loss $10,000.00 Total $127,000.00
That sum on consideration appears to me to represent a proper reflection of the plaintiff’s losses. There will be judgment for the plaintiff for $127,000.00. I shall hear the parties as to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 10 November 2006
Counsel for the plaintiff: Mr F J Purnell SC
Solicitors for the plaintiff: KJB Law
Counsel for the defendant: Mr A J Black
Solicitors for the defendant: Sparke Helmore
Date of hearing: 21, 22, 23 August 2006
Date of judgment: 10 November 2006
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