Jones v Freeman
[2002] TASSC 40
•2 July 2002
[2002] TASSC 40
CITATION: Jones v Freeman [2002] TASSC 40
PARTIES: JONES, Barbara
v
FREEMAN, Wayne
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1249/1992
DELIVERED ON: 2 July 2002
DELIVERED AT: Hobart
HEARING DATES: 14 August 2001 and 24 June 2002
JUDGMENT OF: Master Holt
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: R J Blissenden
Defendant: No appearance
Solicitors:
Plaintiff: Avery Partners
Defendant: S C Chopping
Judgment Number: [2002] TASSC 40
Number of Paragraphs: 11
Serial No 40/2002
File No 1249/1992
BARBARA JONES v WAYNE FREEMAN
REASONS FOR JUDGMENT MASTER HOLT
2 JULY 2002
This is an assessment of damages. By her statement of claim the plaintiff alleged that on 17 May 1992 she suffered personal injury whilst aboard a vessel anchored in the Derwent River which was struck by a runabout negligently driven by the defendant. Particulars of injury specifying psychological harm as a major feature were delivered in December 1998. The defendant did not assert that the psychological harm was not compensable. The plaintiff applied for summary judgment for damages to be assessed in April 2000. Judgment was given, unopposed, on 16 May 2000. The defendant, although notified of the assessment of damages, did not attend to participate in it.
The plaintiff is 71 years of age. At the time of the accident she was 61 years of age. She is originally from England, but left that country about 35 years ago. She lived and worked in the Middle East for some time before moving to Australia a little over 30 years ago. She has no family in Australia and lives alone. She has a complicated health history described by her doctor on 29 January 1996, as follows:
"Looking back over the notes, Barbara has never been problem free and we have found this with her - one thing resolves and another comes up. I do believe she exhibits some chronic pain behaviour on a background of quite a few genuine pathologies including gall stones, renal cysts, diverticular disease and back pain.
She is very complicated medically and there is quite a bit of dissent amongst many of the specialists she has seen over what diseases she does or does not have."
To a similar effect psychiatrist, Dr Ian Sale, said in his report of 16 September 1997:
"She has a complex health history. She suffered rheumatic fever as a child and as a result has some degree of aortic incompetence. She also suffers from Von Willebrand's Disease an inherited bleeding disorder. Other health problems have included a thyroid cyst, an early hysterectomy, arachnoiditis resulting from a myelogram, gynaecological problems and gall bladder problems."
Before the boating accident in 1991, the plaintiff was taking the antidepressant medication Deptran for a short time, associated with worries she was having concerning her health. After the accident, but unrelated to it, a degenerative spinal disease from which the plaintiff suffered became symptomatic and she was taking up to eight Panadeine Forte a day for backache, despite cautioning about its addictive properties. Also, unrelated to the accident, the plaintiff takes Losec for reflux oesphagitis and Thyroxine, for her thyroid.
The plaintiff, at the time of the accident, was enjoying a social outing on the boat with a group of friends. A picnic lunch was being laid out when the plaintiff saw the runabout moments before the impact. The boat was struck on the port side by the runabout and the plaintiff was knocked over, hitting her head and bruising her left elbow, left leg and suffering a minor abrasion on her left buttock. The boat was damaged and started to take water. There was a period of confusion. The plaintiff, a non-swimmer, was fearful that the boat would sink. She was transported from the boat by marine police to the shore from where she was transferred to the Department of Emergency Medicine at the Royal Hobart Hospital. She had very minor physical injuries, but was noted to have been particularly distressed and tearful, requiring much reassurance. Because of her history of heart disease and her blood disorder, she was placed under observation for about an hour before being discharged.
Significant psychological problems followed. These are set out in the report from Dr Sale of 16 September 1997 as follows:
"From the psychological point of view, she experienced almost immediately sleep disturbance, attacks of anxiety and episodes of giddiness and vertigo. She became bothered by vivid memories of the impending collision, and this anxiety generalised so as to cause her to be fearful of travelling in motor vehicles. She suffered frequent nightmares but these have now reduced in frequency. Nightmares tend to be reactivated if she is placed under pressure.
She has become security and safety conscious. This causes her to repeatedly check taps and locks, and to be cautious both for herself and for others. She had become withdrawn and lost interest in former activities and she has also become somewhat prickly and irritable. Her mood has been depressed and she finds it difficult to gain any enjoyment from life."
Dr Sale went on to comment:
"It appears to me that Ms Jones has been significantly anxious and depressed since the 1992 accident. I suspect there may have been some underlying vulnerabilities which have caused her reaction to be severe. I note for example Dr Galligan's comments concerning Ms Jones' tendency to be worried about health issues.
She now has a number of symptoms including sleep disturbance, various avoidance behaviours, some mild obsessive/compulsive symptoms, mood disturbance and anxiety, particularly anxiety which in some way relates to the circumstances of the accident. The symptoms are sufficiently severe to warrant a diagnosis of post-traumatic stress disorder, a direct consequence of the accident and its immediate aftermath."
Prior to the accident the plaintiff suffered from occasional hypertension for which she received medication for the period October 1990 until mid-1991. Since the accident elevated blood pressure has been a continuing problem. Professor Boyd, in his report dated 11 April 1997, said:
"… it seems reasonable to believe that her underlying predisposition to hypertension has been aggravated by the boating accident, particularly as she perceives so much stress, which is known in some patients to contribute to the level of blood pressure. …
It seems clear that Miss Jones does not have a permanent elevation of blood pressure, but a fairly sustained elevation during her waking hours which can be attributed to the stress she perceives. This, in turn, she relates to the boating accident, and I have no reason to doubt that."
The plaintiff continues to suffer from stress and anxiety, with the result that her blood pressure, has been labile and difficult to control. She has had retinal haemorrhages, attributable to high blood pressure, including an event in June 2000 when she suffered a sudden loss of vision in her right eye occasioning laser treatment from an eye specialist. For blood pressure the plaintiff takes Atenolol once a day and Enalapril twice a day. She also takes the anti-anxiety agent Kalma three times a day. These are in addition to the pharmaceuticals which she takes for conditions unrelated to the boating accident. The plaintiff does not use alcohol, but since the accident she has taken up smoking, consuming about 40 cigarettes per day.
The plaintiff's psychological problems are chronic. They have had a significant impact upon her quality of life causing her to become withdrawn with obsessive behavioural traits. In 1999 she was seen at the Royal Hobart Hospital on several occasions for panic attacks. It has now been ten years since the accident. It is reasonable to assume that things will continue in the future in much the same way as they have in the past. In particular, that the plaintiff will continue to be dependent on antidepressant medication and blood pressure medication in the foreseeable future. Professor Boyd, in a report dated 8 April 2002 has said, however, that whilst the plaintiff's blood pressure is being managed with medication there is no significantly increased risk of consequential health problems such as heart attack or stroke. Life expectancy has not been reduced.
The plaintiff's underlying vulnerabilities resulted in her reaction to the accident being extreme. The plaintiff, before the accident, was a person frequently worried by health issues, but these did not have a debilitating affect. She used to, but does not now, participate in social activities such as line dancing and attending concert and theatre performances. The accident has resulted in a great diminution in the plaintiff's quality of life. She has to take blood pressure medication daily and she has had retinal haemorrhages in the past and there is a possibility that these could occur in the future. She continues to suffer from sleep disturbance; she suffers from panic attacks; she avoids travelling in motor vehicles and so has lost some independence and has become withdrawn. She has mild obsessive/compulsive symptoms and suffers from mood disturbance and anxiety. In addition, I think it is reasonable to infer that some of these factors were a material contributor to the plaintiff taking up her heavy smoking habit. I take into account also the immediate trauma of the incident and the physical injuries sustained, albeit that they were relatively minor. I assess general damages in the sum of $20,000.
The balance of the plaintiff's claim is confined to past expenses and future pharmaceutical costs. Particulars of past expenses total about $2,000. These include the cost of prescription medicines; the cost of attendances on a general practitioner and some travelling expenses. Although all the items claimed may not be specifically attributable to the accident, I accept the claim in substance bearing in mind that antidepressant and blood pressure medication has been taken on a daily basis since shortly after the accident.
It appears from the evidence that the plaintiff's attendances on her general practitioner are now always for a variety of reasons, many of which are unrelated to the accident and her doctor bulk bills under the Medicare system. I infer that this is why the plaintiff does not specifically claim an allowance for future medical attendances. So far as pharmaceuticals are concerned, the plaintiff said that the cost to her between October 1998 and June 2001 was $207.70. This seems very low and I assume that the plaintiff is entitled to a significant discount, as the evidence is that the ordinary cost to a patient for the medications which the plaintiff is taking for blood pressure and depression is in the order of $11 per week. So far as the future is concerned, according to the tables, the plaintiff has a life expectancy of about 15 years. Her consumption of tobacco may have an adverse effect on this. It has been noted by Dr Sale that antidepressant medications have been prescribed on a symptomatic basis. He said that this is "not optimal" and that "she could probably do better than this". It may be that with other intervention the current pharmaceutical regime can be reduced, but in its place there would be other treatment costs. Because of the plaintiff's predisposition to worry it may be that regardless of the accident, from time-to-time she would have required the medication claimed. The assessment of damages for future needs must of necessity be a matter of judgment and not mathematical calculation. I will allow the same for the future as has been claimed for the past, giving a global award for past and future expenses of $4,000.
There will be final judgment for the plaintiff against the defendant for $24,000 for damages plus costs to be taxed.
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