JACK and MCFARLANE

[2005] QSC 101

[2005] QSC 101

SUPREME COURT OF QUEENSLAND

AMANDA LEE-ANNE JACK	Plaintiff
and
JEAN FERGUS MCFARLANE	Defendant
BRISBANE ..DATE 18/04/2005

CIVIL JURISDICTION

de JERSEY CJ

No 2189 of 2002

JUDGMENT professional negligence of the defendant, who was a medical practitioner at relevant times. The defendant has not appeared at the trial.	1
The claim arises out of a consultation which occurred	10
in August 1998, which led to the defendant prescribing a
regime of medication for the plaintiff comprising Kalma, one
milligram five times a day; Normison, 20 milligrams at night;
Diazepam, one to three tablets per day; Anafranil, two tablets
three times a day; and Avomine, 25 milligrams per day. The	20
plaintiff's diagnosed condition was Epstein-Barr Virus and Herpes 1.
The evidence of Dr Douglas satisfies me that the defendant was
negligent in three respects: first, in prescribing an	30
excessive quantity of medication, in particular benzodiazepine
derivatives; second, in prescribing medication which was
inappropriate for the condition suffered by the plaintiff;
and, third, in failing to advise the plaintiff that the
medications which were prescribed were addictive. I rely on	40
Dr Douglas' report of the 12th of April 2005 and Dr Matthews' affidavit sworn the 14th April 2005.
Now, as soon as the plaintiff started taking these drugs she
noticed an immediate change in her disposition. She came to	50

spend most of the day in bed. She was like a "zombie", as she
puts it, unable to make decisions, unable to continue working
around the house, leading to the need for her husband to
assist her even in showering, toileting and dressing. 2 JUDGMENT 60

1

A pharmacist gave her some advice in the period after August
1998 that she should attempt to withdraw from the medication.
She initially withdrew from Diazepam and attempted to withdraw

from Anafranil and Avomine. She continued to take Normison	10
and Kalma and Anafranil for an extended period of time.
In April 2000, a Dr Cole advised her that Kalma was highly
addictive. He gave her advice as to withdrawal. She tried to
follow his advice but experienced severe chest pain and	20
faintings.
Indeed, in May 2001 she collapsed down the front stairs of her
house and attended then upon a Dr Bromeley. He advised
admission to a drug withdrawal facility at the Holy Spirit	30
Hospital called the Damascus Unit, but the plaintiff had by then become too suspicious of doctors to follow that through.
She continued in her attempts to wean herself off the
medication. Then in December 2000, she again collapsed and	40
that led to her admission to the Holy Spirit. She continued to attempt withdrawal unsuccessfully.
In 2001, in February, a Dr Summers advised her to seek
admission to the Damascus Unit and she accepted that advice.	50
She spent four weeks there. It was an extremely difficult
time withdrawing from the Kalma. She suffered nausea,
vomiting, diarrhoea, headaches, chest pain, irritability,

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sensitivity to bright lights, disturbance of sound perception,

1

unsteadiness on her feet, sensation of items moving around
her, out of body experiences and tearfulness. She was
released from that, as I have said, after four weeks and over
the next six months continued with great difficulty in her

withdrawal attempts. Over that period she experienced	10
heightened sensitivity to light, sound and noise.
Between September and October 2001, she was cared for in a
clinic in Sydney by a Dr Burton. She spent six months as a
resident of that clinic while continuing in her withdrawals	20
from Kalma. Over that period she suffered depression and panic attacks, together with impaired sleep, loss of energy, loss of interest in activities, feelings of guilt, a loss of concentration and impaired short-term memory.
30
Even now she continues to suffer sensitivity to light, sound
and noise. She sleeps with earplugs. She experiences
emotional fragility. She becomes tired, needing several hours
sleep per day. That sleep is disturbed. She feels socially
withdrawn. She does not like going out by herself. She lacks	40
confidence and has to rely upon her husband a lot more than prior to August 1998. She is socially more withdrawn. Prior to that time she was an active and outgoing person who engaged in physical activities, this has changed.
50
Also as a result of the effects of the medication, matrimonial
difficulties arose between the plaintiff and her husband.

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I am satisfied that these symptoms I have indicated were

1

causally related to the defendant's negligence. I refer to
Dr Matthews' report of the 2nd of December 2003. He says that
the plaintiff underwent a protracted and complex withdrawal
from the medications in February and March 2001. He confirms

significant withdrawal symptoms, including nausea, vomiting,	10
diarrhoea, headaches, chest pain, irritability, sensitivity to
light, disturbance of sound perception, unsteadiness of gait,
sensation of things moving around her, out of body experiences
and tearfulness. When those symptoms from the withdrawal
settled, the plaintiff developed prominent anxiety and	20
depressive symptoms. That doctor confirms she suffered a major depressive disorder with co-morbid panic disorder.
Now, Dr Matthews also confirms that prior to the plaintiff's
attendance upon Dr McFarlane in August 1998, there was no	30
evidence she was suffering from any depressive disorder or panic disorder, major or otherwise, and the symptoms he confirms became apparent only after she experienced the protracted and disabling withdrawal from medication.
40
There is also before me a report from Mr Stoker, a
psychologist, dated 4th of June 2004, in which he expresses
the view that the plaintiff should continue with psychiatric
counselling for a further two to three years and that even
after that time she will suffer significant psychological	50

impairment. He considers she will suffer periods of anxiety
throughout her life. The psychologist assesses her
psychological impairment in the range 15 per cent to
17 per cent. 5 JUDGMENT 60

1

I turn to the assessment of damages. In terms of damages for
pain and suffering, I have been referred to Arnold, a decision
of Cullinane J of the 7th of April 1998 and Gallagher, a

decision of Jones J.	10
I set general damages in respect of pain and suffering and
loss of amenities at $60,000. I allow interest on $30,000 at
2 per cent per annum in respect of the period of 347 weeks;
that is, $4,004.	20
The plaintiff's special damages are as follows:
(1) Health Insurance Commission - as per

Exhibit 8 in her affidavit; $16,587.00 30

(2) Expenses incurred as per Exhibit B to

her affidavit; $14,914.28

(3) Medibank Private - as per Exhibit C to 40

her affidavit $19,651.40

Past special damages total $51,152.68. I allow interest at five per cent on $14,914.28 for 347 weeks, yielding $4,976.

50

As to future special damages, her ongoing medication costs are

as follows:

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(1) Mersyndol - two tablets per day, 20 tablets per packet,

1

costing approximately $8 per packet, which suggests an

amount of $5.60 per week being required;

(2) Laxettes costing approximately $8 per bottle, lasting two

weeks, that is $4 per week. 10

Total medication costs per week amount to $9.60. I allow

$9.60 per week for 10 years at 5 per cent, totalling $3,965.

In Mr Stoker's opinion, the plaintiff will require ongoing	20
psychiatric treatment, involving 60 to 70 sessions, costing
$172 over the next two to three years. I allow for 65
sessions over two and a half years; that is, one session every
two weeks. That will cost $86 per week over two and a half
years; in other words, $10,561.	30
Now, the plaintiff had not attended upon Dr Matthews since the
20th of April 2004 and, therefore, I discount that sum of
$10,561 by one-third, leaving $7,040.67. I allow $500 for
travel expenses. Future special damages total, therefore,	40
$11,505.67.
I turn to the Griffiths v. Kerkemeyer assessment in respect of
the past. In her affidavit the plaintiff has set out details
of this claim. In summary, the additional assistance which	50
her husband has provided has been as follows:
(1) 26 hours per week for six months after August 1998;

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that is, 676 hours;

1

(2) 18 hours per week over the next six months; that is,

468 hours;

(3) between November 1999 and March 2001, 69 weeks at 11 10

hours per week, totalling 759 hours;

(4) over the six months following the discharge from the

Damascus Unit, 26 hours per week; that is, 676 hours;

20

(5) since approximately October 2001, six and a half hours

per week over 184 weeks; that is, 1,196 hours;

The total amount of hours of assistance since August 1998,

therefore, adds up to 3,775 hours. I allow $15 per hour, see	30
McChesney v. Singh, QSC 311, and on appeal 2003 QCA 498, which yields a total of $56,625. I allow interest on that sum at 5 per cent over 347 weeks, totalling $18,893.
As to the future component under Griffiths v. Kerkemeyer, on	40
the evidence before me, particularly that of Mr Stoker, the assistance required of her husband is likely to continue into the future and may increase if the plaintiff has a family. Conservatively, I allow $15,000 in this regard.
50
As to past economic loss, I note that the plaintiff was born

on the 3rd of September 1969 and is 35 years of age. Prior to her treatment by the defendant she had been engaged in several forms of employment. She worked for two and a half years for 8 JUDGMENT 60

1

an interior decorating and design company; she ran a jewellery
shop owned by her father for several years; she spent two to
two and a half years working for Prouds; she worked as a bank
teller for St George for about two years and also in its

lending department.	10
Between 1996 and August 1998, leading up to the consultation,
she ran with another a small business making chutneys, jellies
and jams. She and Ms Campbell, her partner, had leased a
commercial kitchen where they manufactured, packed and sold	20
the products. That business ran for about 18 months until 7th August 1999. The plaintiff says that the business was improving and profits were being channelled back into it. She
was confident it would succeed.
30
The plaintiff is to be compensated for having lost the
opportunity of succeeding in that business. Even if the
business had not been successful, she would have been able to
gain employment similar to that in which she had previously
been engaged. I allow past economic loss over 347 weeks at	40
$172.91 per week, yielding $60,000. Interest on that at 5 per cent for 347 weeks amounts to $20,019, which I will also allow.
As to future economic loss, Mr Stoker's firm view is that the	50
plaintiff is presently unable to work because her levels of
anxiety preclude her concentrating, rendering her commercially
unemployable. She is 35 years of age. It is reasonable to

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look at economic loss over a period of 30 years. In the

1

updated Statement of Loss and Damage, a claim of $100,000 is
made, plus $9,000 for loss of superannuation benefits. I
think really that is an appropriately conservative claim in
the circumstances. It has to be dealt with on a global or

broad basis. There can be no certainty in the calculation,	10
but all in all I think that claim is sustainable. I,
therefore, allow $100,000 in respect of future economic loss
at 9 per cent, $9,000 for future loss of superannuation
entitlements. As Mr Kimmins who appears as counsel for the
plaintiff points out, that represents a loss of about $125 per	20
week over 30 years at 5 per cent, which I think is reasonable.
The sum total of all of those components is $411,175.35. I
give judgment for the plaintiff against the defendant in that
sum, together with her costs of and incidental to the	30
proceeding to be assessed.
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