Locke v Bova - [2004] NSWSC 534

No judgment structure available for this case.

CITATION: Locke v Bova & Anor [2004] NSWSC 534

HEARING DATE(S): 25/08/03 - 29/08/03
11/09/93 - 12/09/03
16/10/03
20/11/03
9/12/03
26/03/04

JUDGMENT DATE:
24 June 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Kirby J

DECISION: Verdict for the plaintiff with costs; Within 14 days, the parties to confer and agree on calculations reflecting the reasons in this judgment; Upon agreement, judgment will be entered.

CATCHWORDS: Medical Negligence - nervous shock to doctor in hospital witnessing trauma to wife - loss of earning capacity - chance that may have become specialist

CASES CITED: State of NSW v Moss (2000) 54 NSWLR 536
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Norris v Blake (1997) 41 NSWLR 49

PARTIES :
Dr Peter Locke (Plaintiff)
Dr Colin Bova (1st Defendant)
South Western Sydney Area Health Service (2nd Defendant)

FILE NUMBER(S): SC 20259/01

COUNSEL: M B Williams SC (Plaintiff)
I M Wales SC (Defendants)

SOLICITORS: Charlton Shearman (Plaintiff)
David Brown (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Thursday 24 June 2004

20259/01 DR PETER LOCKE v DR COLIN BOVA & ANOR
JUDGMENT

1 KIRBY J: Dr Peter Locke (the plaintiff) claims damages against Dr Colin Bova and the South Western Sydney Area Health Service, which is responsible for the Liverpool Hospital (the defendants). Dr Bova is an obstetrician and gynaecologist. Dr Locke's wife, Carolyn, was his patient. Mrs Locke gave birth to twin boys on 29 January 2000 at the Liverpool Hospital. Through the neglect of the defendants, she suffered serious injuries. Dr Locke witnessed the events which led to those injuries. In doing so, he suffered nervous shock.

2 The defendants have admitted liability. A companion action by Mrs Locke, heard at the same time, has since been settled. However, it remains to assess the damages to be awarded to Dr Locke.

Background.

3 Dr Locke was born on 13 April 1959. He is now aged 45 years. His father was an electrician. His family was not well off. Having obtained the School Certificate, it was decided that he would leave school and begin a trade. He became an apprentice electrician. It was a five year course. He qualified and worked as an electrician for approximately six months.

4 The plaintiff then turned to golf. He took up a golf traineeship for three years, working in a golf course pro-shop. He played a number of tournaments on the professional circuit. He was hoping to make a career in golf. However, he had a congenital problem with his feet (talipes). He underwent an operation to correct that problem. It became plain, however, that he would need to find another career.

5 Dr Locke then turned to nursing. He studied for four years and qualified as a nurse. He then enrolled in medicine as a mature age student at Sydney University in 1987. He was then 27 years old. He completed the degrees of Bachelor of Medicine and Bachelor of Surgery. He was awarded the degrees on 13 April 1993, his 34th birthday. In the meantime he had been registered as a Medical Practitioner on 15 December 1992. In his final year, 1992, he was awarded the Royal Australian College of General Practitioners' Prize for 1991. In the same year he received three other awards, the 1992 Georgouras Dermatology Prize (Lidcombe) and the 1992 Lidcombe Hospital Prize for Proficiency in Medicine. He was also awarded the 1992 Lidcombe Hospital Staff Prize for the outstanding final year student. He received a letter of 24 November 1992 from Dr Givian, his supervisor, notifying him of these awards, adding a postscript in these terms:

"Three out of four Prizes seems a good outcome?! My hearty congratulations to you Peter."

6 In 1993 Dr Locke became an intern at the Westmead and Blacktown Hospitals. In January 1994 he was employed as a Resident Medical Officer (Stage 1) at the Westmead and Mt Druitt Hospitals. He worked in the area of cardiology and emergency medicine. Between September 1994 and June 1999, Dr Locke worked as a Career Medical Officer in the Emergency Department of the Mt Druitt Hospital.

7 It was whilst at the Mt Druitt Hospital that Dr Locke met his wife, Carolyn. She had qualified as a nurse and had trained in midwifery. She was somewhat younger (born 8 February 1963). She had a daughter from a previous marriage, which had been short lived. Her daughter had been born in 1986. Dr Locke and his wife married on 10 November 1996. He had not previously married. He was then 37 years old. They had a daughter, Annalise, born on 15 April 1998.

8 In 1999 Dr Locke and his wife built their "dream home". In November that year they moved in (T45). Unfortunately, as will emerge, it became quite unsuitable for Mrs Locke once she became disabled. It was built on the side of a steep block. It had a number of levels. It was large (425 square metres) with internal and external stairs (about 80 in all) (Ex A: p480 ff).

9 In April 1999 Carolyn Locke again fell pregnant, as it was hoped she would. She was expecting twin boys.

Work at Canterbury Hospital.

10 In June 1999 Dr Locke transferred to the Canterbury Hospital. He was employed as a Career Medical Officer in the Emergency Department. He was there a short time, a matter of seven or eight months, before the events giving rise to the present action. In that short time he made an impression. Dr Marian Lee, an Emergency Physician and Staff Specialist in the Emergency Department of the Canterbury Hospital, described Dr Locke during this period in these terms: (Ex E)

"I found him to be extremely capable both in his assessment and management of the patients in the Emergency Department. He had good clinical and procedural skills. He was enthusiastic and keen to assess and manage the sickest patients. In fact, he saw myself as a resource person in the Department and himself as the person responsible for the care of the sickest."

11 Dr Lee elaborated when she gave evidence. She said this: (T79)

12 The assessment of Dr Sammut, another colleague at the same hospital, was no different. Dr Sammut said this: (T144/145)

"A Dr Locke was a very hard working, very diligent, a very competent career medical officer in Emergency. He was an enthusiastic teacher and supervisor of junior staff. He was the sort of doctor who would not need any prompting to take the initiative in seeing the most seriously ill that presented to the Department.

13 Dr Sammut was a specialist in emergency medicine. He had qualified as a Fellow of the Australian College of Emergency Medicine in 1994. He said this: (T151)

14 He encouraged him to qualify as a specialist. Dr Locke, according to Dr Sammut, was receptive to that suggestion. In cross examination Dr Sammut said this: (T154)

15 Dr Helen Jaegger, the Director of Medical Services at Canterbury Hospital, formed a similar view of Dr Locke (T180). He was a particularly enthusiastic, pro-active emergency medical practitioner, who got satisfaction from treating the critically ill (T180).

16 The plaintiff's own assessment of himself, before he suffered nervous shock, was expressed to Dr Galambos, his treating psychiatrist, in these terms: (Ex A: p497)

"... very determined, independent, self-sufficient, a tendency to think in black and white terms, and confidence in his abilities."

17 Dr Locke described himself to Dr Lisa Brown, a psychiatrist qualified by the defendants, as "a perfectionist". He gave the following evidence: (T102)

18 Apart from medicine, Dr Locke had a number of other interests. He was a black belt in Tai Quan Do and he enjoyed jogging.

Mrs Locke's admission to Liverpool Hospital.

19 Shortly before the babies were due, Mrs Locke was diagnosed with pre-eclampsia. Pre-eclampsia is an acute illness of late pregnancy identified principally by hypertension. It is a serious condition. It affects only a small percentage of pregnant women and can deteriorate into eclampsia. A patient with eclampsia experiences convulsions and is at risk of coma and worse.

20 Having been diagnosed with pre-eclampsia, Mrs Locke was admitted to Liverpool Hospital on 24 January 2000. As her symptoms worsened, arrangements were made for the delivery of her twin boys by caesarean section at 9.00 am on 29 January 2000. The twins were born in good health. An epidural was administered before the birth.

21 After the delivery Mrs Locke felt unwell, complaining of nausea. Dr Locke noticed, having returned from the nursery, that her face appeared "puffier". She had oedema, which later appeared to affect her hands (T70).

22 In the course of the afternoon, Mrs Locke noticed a sudden sharp headache. In her words, "it came from nowhere" (T8). It was quite different from the mild headache which she had been experiencing in the course of the day, which began after the epidural had been administered. She summoned the nurse. Her blood pressure was taken. She was given medication. However, her nausea was such that she could not swallow the tablets. She complained of the light hurting her eyes. Each symptom was reported to the nursing staff. Their response was to give her a blanket.

23 Dr Locke, when he entered the room, noticed that it had been darkened. He learned that his wife had a severe frontal headache and that the light was hurting her eyes. He was told by a Registrar that her blood pressure was severely elevated. The hospital notes record that it was 204/80 and rose to 230/90. Dr Locke told the Registrar that his wife's blood pressure had to be treated. He felt increasing concern.

24 The Registrar spoke to Dr Bova. Dr Bova directed that Mrs Locke be transferred to the birthing unit, and given the drug hydralazine. Mrs Locke remembered her husband saying that it was "about bloody time" that they treated her blood pressure (T8).

25 Dr Locke had also observed that his wife was hyper reflexive, that is, that her reflexes were very brisk. That heightened his concern. It signified an excitation of the nervous system (T72). He knew of the risk of eclampsia, which has a high mortality rate, between 20% and 30%. Dr Locke regarded the treatment of his wife as poor. He felt angry (T72).

26 Mrs Locke was brought to the birthing unit at about 8.30 pm on 29 January 2000. She was almost delirious (Dr Lisa Brown: 20.11.01 p2). She had lucid intervals but had been "babbling". Once at the unit, a male nurse asked Dr Locke to stand aside whilst he settled Mrs Locke into the unit. Dr Locke described what then happened in these words: (T73)

"A. I actually heard a tapping noise and there was (a) vomit bowl sitting on the bed beside her and I noticed that her right hand was tapping it. When I looked at Carolyn, her face etcetera, I noticed that she was fitting. At this stage I called out: 'She's fitting' and I got a stunned response. I'm sorry."

27 Whilst giving this evidence Dr Locke broke down, as he did on a number of occasions when recounting these events. His evidence continued: (T73)

28 Dr Locke described the state of his wife in these words: (T73)

"... at this stage Carolyn's respiratory rate had slowed and her head had slumped forward and she was making grunting sounds when she breathed, which is a reflex of an obstructed airway which is life threatening and I called them again and said that she's obstructed. Once again people just looked at me."

29 He directed that her bed be moved out from the wall and the bed head be removed, to provide access to her. He asked for high-flow oxygen to prevent hypoxia. He remained with her, maintaining her airway, until the emergency medical team arrived. Dr Locke said this: (T74)

30 The psychiatric evidence from Dr Galambos, the treating psychiatrist, and Dr Lisa Brown, qualified by the defendants, accepted that these events were extremely traumatic for Dr Locke. Apart from the horror of seeing his wife suffer, there were three matters that added to his agony. First, Dr Locke was in a position of conflict. He was there as Carolyn's husband. He was not there as her doctor. Indeed, he said to Dr Brown that he was trying not to be a doctor, and trying not to interfere (Dr Brown: 20.6.01 p2).

31 Secondly, nonetheless, Dr Locke was not an ordinary consumer. He was a doctor. He closely observed events as they unfolded. So alarmed did he become that he was driven to intervene in the way that he described. He now wonders whether he should have intervened earlier. He feels guilty that he did not do so.

32 Thirdly, when things did go wrong, Dr Locke immediately appreciated the implications. He reviewed the findings, including the x-ray findings, as they emerged. Dr Brown said this: (report 20.6.01 p7)

"... that man's medical training and particular interest in emergency medicine is likely to have made him aware of the significance of his wife's fitting and he describes intense fear and anger at what he perceived to be the lack of medical intervention at the time."

The hip fracture.

33 Mrs Locke was transferred to Intensive Care at 10.50 pm on 29 January 2000 (Ex A: p337). Soon after, she had a second seizure. Dr Locke described what occurred as follows: (T76)

34 It was a "violent seizure". She was in "quite a contorted position" (T76). Treatment was administered. Once Mrs Locke was sufficiently stable, arrangements were made for a CT scan. The report of the CT scan was as follows: (Ex A: p69)

"Unenhanced axial images were obtained from base of skull to vault.

There is a focal area of acute intracerebral haemorrhage in the right basal ganglia with associated oedema.

Some hypodensity is also noted in the left basal ganglia region.

Extensive intra-ventricular and sub-arachnoid gas is noted.

There is no ventricular dilatation or mid line shift.

There is some attenuation of the basal CSF cisterns (ambient).

This suggests mild raised intracranial pressure."

35 Dr Corbett, commenting on the scan, described what was shown in these words: (Ex A: p338)

"CT head scanning which demonstrated an area of haemorrhage in the right lateral putamen with surrounding oedema. There is also hypodensity reported in the left basal ganglia. There is prominent intraventricular and subarachnoid air, presumed the consequence of the patient's spinal tap."

36 Dr Locke was with his wife whilst she underwent the scan. He saw the result. He realised that she had had an intracerebral haemorrhage (T74). He said this: (T76)

37 The next morning (30 January 2000) Mrs Locke was described as feeling "slightly confused and strange, but not disorientated" (Ex A: Dr Corbett p338). She also had double vision. However, her torment had not ended. She felt excruciating pain across the pelvis and hips, especially on the left side (T9). Her hand was grossly oedematous, that is, swollen (T9). She was given analgesics. Ice was applied to the hand. She was unable to hold her babies because of the pelvic pain. Indeed, she could not move. At 1.39 pm she underwent an x-ray of her pelvis and left hip. The report was in these terms: (Ex A: p65)

"PELVIS AND LEFT HIP:

There is deformity of the left femoral head suggesting either an old healed fracture or old Perthe's disease.

The right sided vascular line is noted.

No other significant abnormality was detected."

38 A fracture of the pelvis or hip is a recognised complication of fitting due to muscle spasm (T13). Mrs Locke had no pelvic or leg disability before entering hospital. Her complaints of pain followed shortly after her convulsions. She described the pain as "excruciating". She could not move or bear to be touched (T87). Following the x-ray however, she was told there was no fracture, although she may have had a pre-existing hip condition (T87). She was encouraged to get up and move (T11).

39 Dr Locke examined the x-ray. He thought it abnormal (T12; T88). He asked for a review. On 1 February 2000 a CT scan of the head and abdomen was undertaken. It confirmed the cerebral haemorrhage. The report in respect of the abdomen was as follows: (Ex A: p63)

"Mild deformity of the left femoral head is noted suggesting an old healed fracture.

No other abnormality was detected."

40 Dr Locke said that it was terrible to see his wife crying and screaming in pain (T88). He voiced his concern. Ultimately, again as a consequence of his intervention, a further x-ray was undertaken on 2 February 2000. It was reported as follows: (Ex A: p61)

"There is a sub-capital fracture of the left neck of femur.

No joint dislocation is seen.

No other bony or joint abnormality is seen."

41 Dr Locke was angry that the fracture had been missed (T88). He knew that the sooner a hip fracture was fixed in position, the better the outcome (T88). Dr Lisa Brown made the following comment: (Dr Brown: report 20.6.01)

"... his knowledge of the risks of intercerebral haemorrhage and the seeming failure to diagnose his wife's hip fracture (seem) to have compounded his sense of distrust in the hospital environment during the remainder of her stay."

42 On 4 February 2000 Mrs Locke underwent an open reduction and internal fixation of the left hip. The surgeon aspirated the joint and got frank blood out of it (T88). There were risks to Mrs Locke in performing that operation, which she recognised. She said this: (T16)

43 Whilst awaiting his wife's return, Dr Locke heard a call for the Registrar to go to recovery (T88). He was sure that the call concerned his wife and he was right. He later spoke to the anaesthetist, Dr Creighton. He was told that his wife's blood pressure had been elevated throughout the operation. She had suffered another hypertensive crisis (T89). She had been treated with morphine, multiple hypertensives and, as a last resort, Diazoxide, an older type of hypertensive. She was complaining of severe headache (T89). Dr Creighton was not sure whether she had had another cerebral bleed. Dr Locke gave the following evidence: (T89)

44 An EEG of Mrs Locke had been undertaken on 31 January 2000, which was reported as follows: (Ex A: p84)

"This EEG showed (1) moderate bilateral abnormalities which were accentuated over the right posterior head region and (2) right sided epileptic discharges which were maximal over the right posterior temporal region. A follow-up EEG is recommended."

45 A further EEG was performed on 10 February 2000. Following a description of what was found, the following conclusion was stated: (Ex A: p83)

"This is an abnormal EEG due to an excess of slow frequencies over the left more than right anterior to mid temporal regions with left anterior to mid temporal sharp waves."

46 Dr Locke had to tell his wife's oldest daughter (his adopted daughter) what had happened to her mother. He found it "almost too much", even though he had had considerable experience, as a doctor in emergency medicine, in breaking bad news to relatives (T91).

47 Mrs Locke nonetheless recovered sufficiently to begin weight bearing mobilisation following the operation. On 14 February 2000 she was discharged from hospital. However, it was not possible for her to return home. She had difficulty walking and there were simply too many steps. Instead, the family moved to her mother's home for a month or more. Her father moved into the garage to make room. They eventually returned to their own home on about 14 March 2000 (Ex D).

48 On 19 March 2000 there was a further x-ray of Mrs Locke's pelvis and hips. In addition to the fracture to the left femoral head (which had since been fixed in position with screws), it revealed a "pit focal compression in the superolateral aspect of the right femoral head" (Ex D). It, too, was the consequence of the convulsions (Ex D).

Resumption of work.

49 Within a short time of these events, Dr Locke began experiencing symptoms. He had flashbacks where he would see his wife as she began to fit. He would wake up sweating and anxious. He became hyper-vigilant, repeatedly checking on his wife and children to ensure that they were alright.

50 Dr Locke returned to work in the Emergency Department of the Canterbury Hospital at the end of March 2000. On his first day he was confronted by someone fitting. It is a commonplace occurrence in an emergency department. However, he described to a doctor how he reacted in these words: (Ex G)

"A262 To be honest. Froze, completely, couldn't do - couldn't do anything about it, had to ...

51 The symptoms did not improve. Indeed, they got worse. He found it increasingly difficult to deal with patients who were suffering cardiac arrest (Ex G: Q268). He could not intubate patients, something which he had done before "blindfolded" (Ex G: Q268-270). He found his hand shaking as he tried to insert a cannula (Ex G).

52 There were other symptoms. He was sleeping poorly. He would sometimes wake every hour. His memory had deteriorated. His concentration was poor. He felt irritable. He experienced outbursts of temper. His wife acknowledged that she had given him no support. She was busy coping with her own disabilities and the twins, as well as her other children. She wanted her husband strong. She felt quite unreasonably angry as he became more and more ill (T18). Sexual intercourse was painful because of her hip. Dr Locke moved into a separate bedroom. Their relationship deteriorated.

53 Dr Locke, however, continued to work. He approached his supervisors. He told them of his difficulties. His colleagues had already recognised the changes in him. Dr Lee, the Staff Specialist , said that she had observed with dismay his performance decline after the birth of the twins. He was no longer able to deal with the critically ill. Dr Lee arranged for him to be given adequate support (Ex E).

54 Dr Sammut, the Senior Emergency Physician at the Canterbury Hospital, also noticed the change in Dr Locke. It will be remembered that it was Dr Sammut who recommended that Dr Locke undertake the specialist qualification in emergency medicine (supra para 13). However, after Dr Locke's resumption of work, Dr Sammut described the changes in him in these words: (T144)

55 Dr Locke's colleagues thought that he had Post Traumatic Stress Disorder. They recommended that he see Dr Ian Chung, a General Practitioner whose special interest was that disorder. Dr Chung confirmed the diagnosis. Dr Locke said this as to his reaction: (T95)

56 Dr Locke was taught relaxation techniques. He also underwent rapid eye movement desensitisation (EMDR). His colleagues sheltered him in the workplace from the seriously ill and patients requiring resuscitation (T95) (Ex A: p495).

57 Dr Locke continued to see Dr Chung. He achieved a partial remission of symptoms. The flashbacks became less intrusive. He performed better at work (Dr Galambos: 20.11.01 p2; Ex A: p495). Even so, his colleagues continued to deflect patients from him who required resuscitation, or were critically ill. In other aspects of his life, Dr Locke experienced "amotivation". He had no interest in pursuing things which had previously given him pleasure, such as Tai Quan Do or jogging.

58 However, the improvement could not be sustained. Dr Locke suffered a severe relapse (Ex A: Dr Galambos p495). On 15 August 2001 Dr Locke saw Dr Galambos, a psychiatrist with a special interest in the mental health of doctors (T155). At that point he described how he was feeling in these words: (T97)

"A. I'd become very anxious. At times I'd be hyperventilating to the point where I had tingling around my lips and in my fingers. I'd feel a - an oppressive feeling around me. At times I'd be stuck in the position where I was, fearful."

Treatment by Dr Galambos.

59 Dr Locke described his symptoms to Dr Galambos. His anxiety was triggered by noises or images that reminded him of what Dr Galambos described as "the horror of seeing his wife lose consciousness and her body begin to shake violently as occurs during a grande mal fit" (Ex A: p498). The emergency phone ringing in the Department or a patient needing resuscitation were the sorts of things that would provoke such anxiety. He had become shaky when performing procedures such as the insertion of a cannula (Ex A: p495). His memory and concentration were impaired. People would repeat things to him, or ask whether he was listening to them. He felt he was "losing it". He doubted his ability to get through the day without doing something wrong. He had no energy. His sleep was seriously disturbed. He had a nightmare that his wife had died. He was also extremely angry that this had all come about through the neglect of a high level obstetric hospital. He felt betrayed by the medical staff and the system (Ex A: p496).

60 Dr Galambos described the way in which he presented at this time in these words: (Ex A: p497)

He appeared agitated and depressed and close to an overwhelmed state.

61 Dr Galambos confirmed the diagnosis of Post Traumatic Stress Disorder. It was also evident within a short time that Dr Locke was suffering from a Major Depressive Disorder. Dr Galambos strongly recommended that he cease work. Dr Locke resisted doing so (Ex A: p497). However, he was ultimately persuaded that he must do so. He stopped work on 21 September 2001. He continued to see Dr Galambos thereafter on a weekly basis.

62 Dr Galambos provided a report of 20 November 2001 (Ex A: p494). By that time Dr Locke had been experiencing symptoms for 21 months. There was the additional complication of the secondary major depressive symptom. Dr Galambos identified the issues which had inhibited recovery: (Ex A: p499)

diagnosis of

severe

PTSD

contributed to his unrelenting, chronic illness course.

His exposure to stressful triggers on a weekly basis at his workplace may also have been fuelling his persistent and, in fact, increasingly severe symptoms.

It is difficult for Dr Locke to accept that his wife may have been let down by the system and profession that he is a part of

another factor in his development of a severe, chronic PTSD.

63 Dr Galambos identified the difficulty in Dr Locke returning to the same sort of work: (Ex A: p500)

environment is so saturated with triggers that cause anxiety symptoms and propagate his PTSD

64 Dr Locke's symptoms at this point had persisted for almost two years. Because of their chronic nature, Dr Galambos had misgivings about Dr Locke's ability to resume his career in emergency medicine. That, nonetheless, was Dr Locke's wish. Dr Galambos ultimately supported Dr Locke in pursuing that wish, for the reasons he explained in the following passage: (Ex A: p514)

as he was highly motivated to attempt to return to full time work

65 Dr Galambos recommended that Dr Locke undertake the Adult Trauma Programme at the St John of God Hospital. It was an eleven week course conducted by a clinical psychologist, designed to assist in reintegration into the workplace. It required daily attendance.

66 Dr Locke undertook the programme between March and June 2002. Indeed, he paid the substantial fees for the course out of his own pocket. When seen by Dr Galambos on 30 April 2002, he was in remission in respect of the Major Depressive Disorder and partial remission of the Post Traumatic Stress Disorder. Dr Galambos, in consultation with Dr Jagger, the Director of the Canterbury Hospital, devised a programme for Dr Locke's graduated return to work.

67 Dr Locke recommenced work at the Canterbury Hospital in July 2002. He was pleased to be back at work. He assisted with the discharge of patients, which was work usually done by a very junior doctor. He completed the discharge summary, followed up tests, and otherwise tied loose ends. He worked half a day a week, gradually increasing his hours to two days a week. The work was not stressful, apart from the fact that it was performed within a hospital environment. Indeed, Dr Locke found the work boring. He saw the job as a means to an end, the end being his return to the Emergency Department.

68 Dr Jagger was rather more enthusiastic about Dr Locke's performance. She made these comments, which the defendants point to in the context of the plaintiff's loss of earning capacity: (T174/175)

69 Dr Locke disputed these assertions. The so-called "innovations" were other people's ideas which he revived (T230).

70 Ultimately, in September 2002, it was decided to reintroduce Dr Locke to work in the Emergency Department. He had not done such work for over a year. His return was to be gradual. He was given the work of an intern (Ex F), with a low level of responsibility, undertaking two shifts a week.

71 Dr Galambos immediately observed a return of symptoms. He became more tense. His sleep was disturbed following the first shift (Ex A: p513). The Staff Specialist, Dr Marian Lee, commented upon his performance in these terms: (Ex E)

"In late 2002, Dr Locke returned to the Emergency Department. He worked during periods where a more senior doctor was present. He was unable to undertake the level of responsibilities that was possible prior to the birth of his twins. In short, he was unable to reinstate his previous level of competency in the assessment and management of the patients. And he would often be distressed that he cannot perform as well as before.

Hence the return to the Emergency Department for Dr Locke was a difficult one both emotionally and clinically. It is with regret that I saw him deteriorate in his professional performance."

72 He appeared to have what Dr Lee described as "a crisis of confidence". He would not know what to do. He appeared unable to make decisions (T84). The loss of confidence was pervasive. Dr Locke gave the following evidence in cross examination: (T106/7)

"Q. Now, it would be fair to say, would it not, that, in your own mind, the reasons why your mental state is as you've described is the way it is because of a complicated set of factors?

73 Dr Galambos saw Dr Locke on 5 February 2003. There was clear evidence of a symptomatic relapse of his Post Traumatic Stress Disorder. He said this: (Ex A: p513)

"At that time, Dr Locke complained of the re-emergence of unsettling insomnia, with waking in the middle of the night associated with the experience of visualising a traumatic image (flashback), occurring about three times per week. He also described intrusive thoughts about his wife's past medical crisis, whilst at work. He described anticipatory anxiety, nervousness, reduced confidence, reduced ability to focus and less enthusiasm and motivation for emergency work. Dr Locke was feeling doubtful about his capacity to perform the work optimally, especially in a crisis, and was feeling doubtful about his ability to cope with more than two or three days per week conducting emergency work or even working full-time in medicine."

74 Dr Locke exhibited anger at the hospital because he was under pressure to increase his workload. Dr Galambos expressed the following view: (Ex A: p514)

"... his increased exposure to his workplace setting was reigniting some of the psychological conflicts that had contributed to the previous chronicity of his PTSD."

75 Matters were made worse by an unresolved pay dispute with the hospital. It was initially claimed that Dr Locke had been overpaid, and owed the hospital money. Dr Jagger acknowledged that it ultimately emerged that the reverse was true. Dr Locke asked that the error be corrected and his Group Certificate recalculated. The Pay Office could not or would not do so. Dr Locke resigned on 10 March 2003. His letter of resignation made it clear that his difficulty was with the payroll office and not his colleagues, whom he warmly thanked (Ex 2). He left the hospital on 25 March 2003.

76 Dr Locke was immediately approached by the Sutherland Hospital, Department of Emergency Medicine. He was offered a position. The doctor who made the approach was aware of his difficulties following the birth of the twins. He explained to Dr Locke the staffing levels at Sutherland and the availability of back-up. Dr Locke accepted the position. He began work at Sutherland shortly after leaving Canterbury Hospital. He worked two shifts a week, one of eight hours and the other of ten hours. That remained the position at the time of hearing (August/September 2003). I assume it is still the position.

77 The symptoms nonetheless, remained, even though there were senior people on hand to deal with the critically ill. Dr Locke said this: (T110)

78 Elsewhere, Dr Locke said this: (T250)

79 Dr Locke said he may seek assistance once or twice a week. However, whilst at work he remained apprehensive. Different things would trigger anxiety. He gave the following illustration: (T102)

80 Dr Locke provided a further illustration: (T103)

"A. A man was brought in with ventricular tachycardia, cardiac arrest with an arrhythmia, to give him some - he needed to have some medication, as well as being defibrillated, and I couldn't remember the actual - the now common medication to give him for it. I'd actually forgot the older style medication which Dr Raftos instituted and it went on.

81 Dr Raftos recalled that incident. It was Dr Raftos, in fact, who had interviewed Dr Locke when he applied for a position at the Sutherland Hospital. He was impressed by his "fairly deep understanding of emergency medicine" (T123). He appeared to be very competent. Referring to the incident, Dr Raftos said this: (T124)

82 Dr Galambos, in a report of 23 May 2003, explained the process: (Ex A: p515)

Unfortunately, Dr Locke's nervous system appears to have been significantly

sensitised

by the traumatic experience

Lifestyle choice?

83 It is convenient at this point to address a number of issues raised by the defendants. They are ultimately relevant to the plaintiff's claim for past wage loss. When Dr Locke resumed work in the Emergency Department of the Canterbury Hospital in September 2002 he worked two shifts a week. After his transfer to the Sutherland Hospital in March 2003, he continued to work two shifts a week. At Sutherland he was required to work the Monday evening shift (8 hours), finishing at 10.00 pm, and the Tuesday day shift (10 hours), commencing at 8.00 am. In between, he stayed at home. He assisted his wife, and looked after the children, which he enjoyed (T128). Dr Locke, according to Dr Galambos, felt a deep sense of obligation to his wife because of the guilt he felt arising from the circumstances of her injury (T162). He wanted to help her as much as he could. Mrs Locke arranged to work as a midwife on the days her husband was not working (T58). She had made similar arrangements before the birth of the twins.

84 Against that background, the defendants asked whether Dr Locke had worked to the limit of his capacity. Had he, rather, made a lifestyle choice? In the defendant's submission, certain evidence was capable of providing insight into that question. Dr Locke was in receipt of benefits from income protection insurance with the Tower Insurance Company. Whilst the policy was irrelevant to the computation of damages, it was, according to the defendants, relevant to an appreciation of the efforts made by Dr Locke to return to work. Dr Locke had no financial incentive to increase his hours. Every dollar he earned was a dollar less that he was paid under the policy. The defendants made the following submission:

"9. The defendants submit that the present arrangements between the plaintiff and his wife are the result of decisions for which the defendants should not bear the financial responsibility."

85 The strategy devised by Dr Galambos to enable Dr Locke to return to his career in emergency medicine involved a graduated return to work in that area. The objective was full time work by the gradual exposure of Dr Locke to what Dr Galambos described as the "trigger laden environment" within the department. Regrettably, the symptoms recurred. Dr Locke, perhaps because he is so determined, did not give up. He gave the following evidence in cross examination: (T115/116)

86 The defendants acknowledged in submissions that, at least until August 2003, it was reasonable that Dr Locke should pursue his ambition to return to emergency medicine (T12; 26.3.04). But was he capable of doing more work than he in fact undertook? Dr Locke denied that the reason he was only doing two shifts a week was because he wanted to be at home as much as possible (T109). He said this: (T104)

87 He agreed that it would have been more therapeutic had his shifts been spread through the week, instead of being crowded into the beginning of the week (T251). However, the shifts had been allocated to him by medical administration (T252).

88 In respect to the payments by the Tower Insurance Company, Dr Locke said this: (T229)

89 In cross examination Dr Locke provided the following answer: (T254)

90 Dr Locke said the insurance payment did not determine the work he did (T260). He had not refrained from working because of the benefits payable under the policy. He was doing as much as he could, attempting to recover in between times. He said he found the two shifts very stressful. He was relieved to finish. He then settled down to a degree (T104). He acknowledged nonetheless that were it not for the insurance payment, he would have needed to augment his income (T261), or to have "downsized his overheads" (T262).

91 The medical evidence supported Dr Locke's assessment of his own capacity. In early 2003 the Canterbury Hospital had endeavoured to increase his workload. Soon after Dr Locke relapsed (supra para 73). Dr Galambos provided the following advice to him: (Ex A: p515)

"On 05/02/03, I advised Dr Locke that in view of his partial symptomatic relapse, he would need to accept that he was only capable of part-time work at present, as it was clear that increased work hours would be psychologically harmful."

92 Dr Galambos acknowledged (Report 23.5.03) that the strategy devised to enable Dr Locke to work full time in the Emergency Department had only been partially effective in reducing symptoms (Ex A: p517). He said this: (Ex A: p518)

"There appears to be a threshold beyond which Dr Locke's symptoms become detonated. I believe there is adequate evidence to indicate that he will be capable of working in a part-time clinical position without significant activation of PTSD symptoms."

93 At that stage (23.5.03) Dr Galambos had determined a time-frame for Dr Locke returning to full time work (September 2003). If that could not be achieved, he would have to think of non-clinical work where he redefined his limitations through trial and error (Ex A: p518).

94 Dr Galambos gave evidence on 28 August 2003. He said this: (T157)

95 The issue of the income protection insurance was explored in cross examination. Dr Galambos gave the following evidence: (T163)

"A. I certainly think that he needed the financial assistance and I certainly think that he perceived it as being of assistance, but I think that he was in two minds as to whether it was a crutch. I think it was partly a crutch but it was also something that he was resentful regarding as well, so I am not sure if that answers the question.

My impression throughout treating Dr Locke is that he has been a very determined character to get back to work to his previous working capacity.

96 In treating Dr Locke, Dr Galambos had been required periodically to revise the timetable for his return to full time work. When he gave evidence at the end of August 2003, Dr Galambos said this: (T165)

97 The defendants qualified two psychiatrists, Dr Lee and Dr Lisa Brown. Dr Lee's reports were not served. He was not called. I assume that he would not have added materially to the picture which emerged from the reports of Dr Brown (Ex 1: Reports 20.6.01; 31.7.03 and 11.8.03). Dr Brown did not give evidence. In her report of 31 July 2003 she gave her impression of Dr Locke in these words: (p6)

"He did not impress as being prone to exaggerate symptoms, with him readily acknowledging relevant negatives and areas of improvement."

98 Dr Brown believed that Dr Locke was very motivated to return to full time work (Report 31.7.03 p8). Her reports do not suggest that Dr Locke could have undertaken more shifts in the Emergency Department than he was working, or that he had made a lifestyle choice. Her most recent report does say that there are areas of medicine which he might usefully pursue, were he inclined to do so. I will deal with these suggestions in the context of the plaintiff's claim for loss of future earning capacity.

99 When Dr Locke gave evidence he appeared completely genuine. It was not suggested in cross examination that he was not genuine, or that he was exaggerating. I accept his evidence. I also accept the opinion of Dr Galambos. Specifically I accept that Dr Locke has doggedly pursued his goal of a return to emergency medicine, working to the limit of his capacity. It was reasonable that he should have pursued that objective. I do not accept that his hours of work represent a lifestyle choice. Rather they reflected his reduced capacity. Nor do I believe he has worked less than he was able because of his insurance cover. It was plain that the plaintiff would love nothing more than to be able to return to full time work.

100 It was apparent that, in September 2003, at the time of the hearing, the plaintiff was at the crossroads. I will, later in this judgment, review the evidence as to the paths which the plaintiff may pursue in the future, and the effect upon his earning capacity.

General Damages.

101 What, then, emerges from this history, relevant to the assessment of general damages? There is no issue as to diagnosis or causation. Dr Locke, having witnessed the trauma to his wife following the birth of the twins, suffered post traumatic stress disorder. Dr Galambos, whose evidence I accept, characterised the disorder as "severe and chronic" (supra para 62). Dr Locke's recovery was complicated by the onset of a major depression. Dr Lisa Brown, qualified by the defendants, acknowledged each of these conditions (Ex 1).

102 There has been some improvement. The post traumatic stress disorder is in partial remission. The major depression has substantially lifted, although Dr Locke remains subdued. Nonetheless, significant symptoms remain and are disabling. Dr Locke is anxious. He still suffers from flashbacks, which may occur during the day or night. His sleep is disturbed. He has lost his confidence. He is irritable. His memory and concentration are poor. He is given to tears. He lacks interest in things that once gave him pleasure, such as Tai Quan Do, jogging, or in seeing friends.

103 These are the outward manifestations of a deeper malaise. He is angry, and his anger is fuelled by the "trigger laden" environment in which he lives and works. Dr Galambos said this: (Ex A: p694)

"He felt extremely angry that the situation had occurred in a high-level obstetric hospital, feeling betrayed by the medical staff and medical system there. He was angry that the couple needed to sell their house as his wife was a 'prisoner' in their home as a result of her reduced mobility due to complications following the hip surgery. He expressed anger regarding the cognitive impairments that Carolyn had been left with, such as memory problems and coordination difficulties. He was upset that his wife had lost the opportunity to bond with the twins following their birth. He also noted that his wife's injuries had severely affected the couple's sex life. Dr Locke was also angry with himself for being ill, for losing his confidence to work in an emergency department, which was in total contrast to his previous functioning."

104 In Dr Locke's view there had been gross negligence. Someone should be held accountable (T249). He gave the following evidence, which is relevant in the context of his likely future in medicine: (T99)

105 When giving this evidence Dr Locke broke down.

106 As well as anger, there is guilt. Intellectually, Dr Locke well understands that, but for his intervention, the outcome for his wife may have been significantly worse. However, emotionally, he still feels guilty. His guilt has two sources. First, he wishes that he had intervened sooner. He deliberately held himself back. He did not want to interfere. Secondly, his wife was let down by the system of which he is part. Dr Galambos said this: (Ex A: p499)

"His strong identification with the perceived perpetrators (through neglect and inaction) of his wife's medical crisis and resultant injuries, as a result of his connection through his profession, is likely to be another factor in his development of a severe, chronic PTSD."

107 The effect of these disabilities upon Dr Locke has been profound. In Dr Galambos' view his nervous system has been significantly sensitised to traumatic experience (supra para 82). He has not been able to progress beyond the plateau of two shifts a week in the Emergency Department. That has been a severe blow to him (T160). He is a perfectionist. He is a person used to achieving his objective through an effort of will. He was a person who defined himself through his work. His determination to resume his career, and his persistent failure to achieve that objective, was judged to be the cause of his major depression. He must now look to other areas of medicine, or work outside medicine. Dr Galambos said this: (Ex A: p518)

"In my opinion, Dr Locke's PTSD can be considered a permanent injury - a psychological scar that can heal but is vulnerable to being re-opened with triggers of much less potency than the original precipitant."

108 Dr Lisa Brown, the defendants' specialist, did not differ from that assessment (Ex 1). In her report of 31 July 2003, she said this: (p8)

"I would therefore also concur with Dr Galambos' suggestion that this gent may have difficulty in returning to full-time clinical work as a medical practitioner but would also agree that he is likely to seek full-time work in the longer term, possibly with him gaining some form of non-medical work."

109 It has taken some time for Dr Locke to accept this limitation. Emergency medicine had been his passion (supra para 85). He was plainly good at it. He had the respect of his colleagues and self respect. He had every reason to expect even greater success in the future within his area of interest. Now, he is a rudderless ship. He has been robbed of his self confidence and his confidence in the system. He has abandoned his ambition to become a specialist in emergency medicine. He is considering the abandonment of medicine itself.

110 The plaintiff's wife made the contrast between her husband before the birth of the twins and after. Before they had a wonderful relationship. They were partners in life (T18). She described her husband in these terms: (T35)

111 Mrs Locke offered the following description of her husband at the present time: (T36)

112 Dr Locke's perception of himself was no different. Before these events he said his relationship with his wife was "of the highest quality", including their sex life (T90). That has changed. As mentioned, at one point they occupied separate bedrooms. Although their relationship has improved, it has not recovered (T91). Dr Locke did not believe it would (T91). In describing himself he said this: (T95/96)

113 What is likely to be the future? Dr Locke, as mentioned, has been sensitised to certain triggers which are to be found in the workplace as well as at home. That is likely to remain the position. It is inevitable that he will be confronted by reminders of the original trauma, including his wife's disablement, the quality of his relationship with her, the home which replaces their dream home, and his new work away from emergency medicine.

114 Nonetheless, some improvement can be expected. First, although Dr Galambos did not regard this litigation as a big factor in Dr Locke's symptoms (T161), its termination will help. Litigation inevitably requires a degree of self absorption, the removal of which is likely to aid recovery (cf T248).

115 Secondly, in Dr Galambos' view, the plaintiff's unremitting anger towards the medical and nursing professions is likely to subside with time. As it dissipates, so will the "severity and flammability" of his post traumatic stress symptoms.

116 Nonetheless, to a significant degree, the changes which are now apparent will remain. Those changes have now been evident for almost five years. Dr Locke will need to learn to live within his limitations (cf Dr Galambos Ex A: p500, 518). Those limitations include a vulnerability to depression. Dr Locke is still on antidepressant medication. Dr Galambos said this: (T156)

117 The views of the defendants' expert, Dr Lisa Brown, were not remarkably different from those of Dr Galambos. Indeed, Dr Brown, reviewing the reports of Dr Galambos, expressed herself to be in agreement with him. Her final view was expressed in these terms (Ex 1, report 31.7.03: p9)

"I would concur with the alleged injuries of chronic post traumatic stress disorder based on a nervous shock aetiology and also major depressive disorder. The chronic PTSD has been of a moderate to severe nature but with an overall pattern of improvement and a continuing level of mild chronic symptomatology. The major depressive disorder has been of a somewhat less severe intensity, with mild to moderate symptoms initially and milder residual symptoms to date."

118 The profound effect of these disabilities upon Dr Locke in the past, and the likely effect in the future, call in my view for significant general damages. Although Dr Locke is able bodied, he is a different man. His life, including his relationship with his wife and family, is a different life, without the promise that it once held. I believe the appropriate sum is $225,000.

Interest on General Damages.

119 The defendants acknowledge the plaintiff is entitled to interest on past general damages. The plaintiff's verdict should include interest at the rate of 2 percent on past general damages being 50 percent of the amount awarded.

Past medicals.

120 Past medicals have been agreed as follows:

HIC payback $4,219.45

Pharmaceutical expenses:

Mirtazepine (each month since Sept 2001) $584.40

Total $10,349.35

Past wage loss.

121 This case demonstrates the need for the parties, in advance of the hearing, to define their position in respect of damages, by the exchange of schedules identifying each head of damage. That discipline will aid settlement negotiations, and will assist the Court in identifying issues.

122 However that was not done. As a consequence, there has been limited agreement and, on the issues not agreed, the evidence is not entirely satisfactory. The Court, in such circumstances, must do the best it can (State of New South Wales v Moss (2000) 54 NSWLR 536, per Heydon JA at 559).

123 The amount to be awarded for past loss is, of course, the difference between the amount that Dr Locke would have earned but for his injury, and the amount he has earned, or (if there is a difference) the amount which he was capable of earning.

124 The first issue (what he would have earned but for injury) itself involves a number of subsidiary issues. Some guidance is provided by the earnings of Dr Locke in the past. However, the projection of Dr Locke's past earnings may require adjustment to take account of the likely path his career would have taken, had disablement not intervened.

125 Dr Locke's past earnings ought to have been a simple matter, in respect of which one would hope for some agreement. Unfortunately, however, there was no agreement. Taxation returns were tendered (Ex A). The picture, however, is confused by deductions relating to a wine growing venture, which was ultimately disallowed, and by the fact that the 1997 assessment was available, but not the return. The defendants submitted that in the absence of the return, the 1997 assessment should be disregarded. The source of the income is necessarily uncertain. The gross taxable income (according to a schedule based upon Ex A accompanying the plaintiff's submissions of 23 April 2004) was as follows:

Year ended 30.6.97 $116,961.60

Year ended 30.6.98 $141,176.00

126 The net earnings (as set out in that schedule) require adjustment, first, because there were penalties and interest in the 1998 financial year associated with the deduction which was disallowed, and secondly, because in 1999 the plaintiff's earnings included a small amount derived from a company (a non-hospital source). Making these adjustments, the net earnings of Dr Locke for these financial years were as follows:

Year ended 30.6.97 $69,399.00

Year ended 30.6.99 $90,000.00

127 The 1997 figures do not, on their face, suggest a source of income other than the hospital. I believe it reasonable to include that figure as part of the material indicating Dr Locke's earnings before the onset of symptoms. His taxable income for the year ended 30 June 2000 was assessed at $124,551.00 (Ex A: p585). However, that figure has not been dissected to identify earnings prior to 29 January 2000 and earnings after.

128 Subject to two qualifications, the net earnings of Dr Locke set out above, are likely to provide some insight into the amount Dr Locke would have earned, but for his disablement. The first qualification concerns a significant overtime component before January 2000. In that period Dr Locke, on average, worked 48 hours a week, his shifts being arranged in the way described in the following evidence: (T122)

"Q. How typically, that is in how many shifts of how many hours duration, did you perform those 48 hours of work in the couple of years before January 2000?
A. I worked six shifts comprising of 8 hours a shift throughout three days.

Q. Throughout three days. So you were working three double shifts, in effect?
A. Yes.

129 For how long is it likely that he would have maintained that pattern of work? Would it have persisted to the present time? It was submitted by the defendants that there was no evidence from the plaintiff that he intended to maintain such shifts indefinitely. His loss, therefore, should be calculated by reference to the award rates The award rates (gross) were as follows:

January 2000 $85,500.00

January 2001 $87,210.00

January 2002 $87,210.00

130 An understanding of the likely pattern of the plaintiff's earnings (supra para 128) is provided, I believe, by what I term the second qualification, which is the career path that Dr Locke would probably have taken, had he not been injured. Dr Locke said this: (T98)

131 This is, of course, an issue of especial relevance to the calculation of Dr Locke's loss of future earning capacity. However, it is also relevant in the context of his past wage loss. Were he to pursue his ambition to become a specialist in emergency medicine, he would need to juggle his work, his study, and his family commitments (which include his wife's commitment to pursuing her own career as a midwife). Dr Sammut, a specialist in emergency medicine, described what was involved in obtaining that qualification. He said this: (T150/151)

There are stipulations in what areas of medicine you have to train along the way, that includes posts in things like paediatrics, anaesthesia and intensive care. You also have to, before being admitted as a Fellow of the College, have to publish in a recognized journal or present at a scientific meeting that meets the College's satisfaction, a piece of research you have conducted, relevant to the specialty of Emergency Medicine."

132 Were Dr Locke to have pursued his ambition, the pattern of his work after January 2000 would probably have changed. Probably it would not have been feasible for him to have worked double shifts, whilst completing his training and accommodating the other demands upon his time. The issue arises, therefore, whether it was likely that Dr Locke would have undertaken (and successfully completed) the specialist training in emergency medicine. The plaintiff made the following submission in respect of that issue: (Submissions 27.2.04 p28)

"Submitted that Dr Locke would have begun studying for his specialist training in the year following the birth of the twins, 2001.

As he would have been able to obtain credits in some subjects, he would prospectively have completed his training in 2006.

Submitted the loss of chance ought realistically be valued at 50%."

133 The defendants submitted that, at best, the chance should be assessed at 20 percent. Dr Locke, at the end of 1994, had the qualifications necessary to undertake the specialty in emergency medicine. Yet he allowed five years to slip by without doing anything about it.

134 Two issues arise. First, had Dr Locke embarked upon the course, did he have the capacity to complete it? Secondly, if so, why had he done nothing about pursuing that ambition before January 2001?

135 Dealing with the first of these issues, it may be assumed that a specialty in medicine is exacting and that there is an attrition rate. However, there is every reason to believe that Dr Locke would have survived that process. He had a good academic record. He was determined. He was well regarded by his colleagues. Dr Sammut, a person who had the specialist qualification, believed he had the requisite ability and had encouraged him to undertake the course (supra para 13).

136 The second issue, concerning delay, was unfortunately not the subject of evidence from Dr Locke himself. There is, nonetheless, a reasonable explanation for his delay. Dr Locke was a latecomer to medicine. He was also a latecomer to marriage. He met his wife when an intern at the Mt Druitt Hospital. They married on 10 November 1996 when he was 37 years old (supra para 7). They then set about having a family. Their daughter was born on 15 April 1998. The twins were born on 29 January 2000. Between those times they were building their "dream home", which was completed in 1999 (supra para 8). Dr Locke provided the following history to the defendants' doctor, Dr Lisa Brown (Ex 1: report 20.6.01 p6)

"His current position has been held over a four year period and once his family commitments are lessened, he is hoping to specialise in either emergency medicine or anaesthetics."

137 Dr Locke, as mentioned, was passionate about emergency medicine. In the six months before the birth of the twins Dr Sammut had encouraged him to specialise (supra para 13). Dr Locke had made enquiries concerning the course and the textbooks necessary (supra para 14).

138 In my view it is probable that, but for his disablement, Dr Locke would have undertaken and completed the specialty in emergency medicine. Indeed I would go further. I would regard it as highly likely. The plaintiff's characterisation of the probabilities as being a 50 percent chance is, I believe, far too low. I would conservatively assess the probability of Dr Locke becoming a specialist in emergency medicine as 75 percent. I believe that, but for his disablement, he would probably have begun study in January 2001. He would have completed the course by the end of 2005.

139 The top line of the calculation of past wage loss (that is, what he would have earned but for his injury) should be approached applying the following principles:

· First, it is acknowledged that, following the birth of the twins, Dr Locke would have taken "a few weeks" off. The calculation of his wage loss should begin from 23 February 2000.

· Secondly, during the year 2000, it is likely that the plaintiff would have continued to earn at the rate he had been earning before January 2000 (using the twelve months before as the basis of calculation) (including overtime and shift allowances etc).

· Thirdly, from January 2001 to the end of 2005, I believe it likely that Dr Locke would have moderated his pattern of work. I think it nonetheless likely that he would have still worked some overtime. It is, in my view, quite unrealistic to assume that he would only have received the basic award without overtime. He worked in a hospital system which was notoriously short staffed (cf T177; 252), in Emergency Departments which operated 24 hours a day. For instance, Hospital Administration at Sutherland, when assigning two shifts to Dr Locke, allocated only one day shift, because it would have been unfair to give him two (T252). I infer that inevitably he would have been called upon to undertake shift work and overtime. I think it reasonable to approach his earnings during that period upon the basis of the award (with appropriate progression through the grades) plus 20 percent.

140 One then comes to the second line in the equation, namely, the amount Dr Locke has earned since 23 February 2000, or, if there is a difference, the amount he was capable of earning after that date.

141 Dr Locke's actual earnings until 25 August 2003 (the date of the hearing) were the subject of agreement. They were as follows:

Financial Year	Gross Earnings	Net Earnings
From 23 February 2000 to 30 June 2000	$41,525.00	$10,259.00
Year ending 30 June 2001	$107,097.00	$67,775.00
Year ending 30 June 2002	$50,986.00	$38,427.00
Year ending 30 June 2003	$92,420.00	$60,216.00
From 1 July 2003 to 25 August 2003	$8,007.00	$6,799.00
Total	$300,035.00	$183,476.00

142 The defendants contended that these earnings did not represent the true level of Dr Locke's capacity. He had made lifestyle choices and had refrained from working to the full level of his capacity. I have dealt with that issue (supra para 99), and rejected that submission. I believe that Dr Locke's verdict should include the difference between the amount calculated, applying the principles I have identified (supra para 139), and the amount actually earned to 25 August 2003. Dr Locke's reduced working hours were designed to enable him to recover his strength and equilibrium, so that he could return to emergency medicine full time.

143 However, in August 2003, when Dr Locke gave evidence, he was at the crossroads, as I have remarked (supra para 100). It had become increasingly evident that he could not expect to resume his career in emergency medicine full time. He would need to find an alternative.

144 Unfortunately the completion of the trial was delayed. It was necessary that both parties be given an opportunity to provide and test certain evidence relevant to future earning capacity. The evidence was not completed until 9 December 2003. A timetable was then fixed for written submissions. Counsel spoke to those submissions on 26 March 2004, when judgment was reserved.

145 That delay regrettably creates a difficulty. Dr Galambos gave the following evidence on 28 August 2003: (T164/165)

146 Should the loss of earnings calculated after 25 August 2003 be discounted to reflect that additional capacity? I am satisfied (as I have said) that before that date no such discount should be applied. It was reasonable (as the defendants have acknowledged) that the plaintiff should have pursued a strategy designed to enable him to resume a full time career in emergency medicine. That strategy involved part time work. However, by the time of the hearing in August 2003, there was a consensus that the strategy had not worked, and a recognition by Dr Locke that he needed to look elsewhere.

147 On the other hand, the case obviously represents a watershed for the plaintiff. He has (as I will discuss below) important decisions to make concerning his future career, including whether he remains in medicine. Emotionally, one can well understand why he may choose to await this judgment before confronting that issue.

148 In the latter part of 2003 there was the hope that the case may settle, as indeed occurred in respect of Mrs Locke. Moreover, Dr Galambos contemplated a period of six months or more of trial and error where Dr Locke determined his limitations and his interests in respect of future work (supra para 96).

149 Balancing these matters, and assuming Dr Locke has continued to work two shifts a week, I think it reasonable that, in the period between 25 August 2003 and the date of judgment, Dr Locke should recover the difference between the amount he would have earned, calculated in accordance with para 139, and what he in fact has earned, subtracting 10 percent. The discount represents additional capacity that he has not exploited.

150 The plaintiff is entitled to interest. The parties should calculate the interest, as foreshadowed in their written submissions.

Future medicals.

151 Future medical expenses have been agreed between the parties as follows:

Monthly psychiatric treatment for the next 12 months - Dr Galambos	$1,957.31
3 monthly review thereafter for 24 months	$990.00
Buffer for future psychiatric treatment	$2,000.00
Total	$4,947.31

152 In addition, future pharmaceutical expenses have been agreed at $2,292.20 to cover the cost of the antidepressant, Mirtazepine (which the plaintiff takes). These sums should be included in the plaintiff's verdict.

Loss of future earning capacity.

153 In determining the damages to be awarded for loss of earning capacity, a comparison must be made between the amount which the plaintiff would probably have earned but for injury, and the amount he is now capable of earning.

154 In addressing the top line of the calculation (what he probably would have earned, but for injury) Dr Locke, at worst, would have remained a career medical officer, working in a hospital emergency department. He would have progressed through the grades under the award. Although he may not have continued to do multiple double shifts (as before the birth of the twins), he probably would have undertaken shift work and overtime, so that his earnings would have been the award plus 20 percent (supra para 139).

155 However, for the reasons stated (supra paras 134 to 138), I think it unlikely that Dr Locke would have remained a career medical officer. I believe he would have qualified as a specialist in emergency medicine (conservatively a 75 percent chance).

156 The calculation of the plaintiff's loss, in these circumstances, should reflect the principle stated in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, per Deane and Gaudron and McHugh JJ at 642-3; and Norris v Blake (1997) 41 NSWLR 49. Luntz, "Assessment of Damages for Personal Injury and Death" (4th Ed) stated the principles in these terms (omitting references): (at 322-333)

calculations should be made on the basis of earnings in the most probable one and adjustments made upwards or downwards according to the chances of the alternative yields of earnings

157 The earnings of a specialist in emergency medicine were stated by Dr Sammut to be $180,000 per annum gross (T151). Dr Raftos, who practised as a specialist, provided his taxation returns. For the year ended 30 June 2003 his gross earnings were $258,550. The plaintiff submitted that the figure suggested by Dr Sammut and the earnings of Dr Raftos should be averaged. However, Dr Raftos is a senior and experienced specialist. His earnings reflect that seniority. Nonetheless, the award (Ex M) suggested progression through grades and seniority. Indeed, the upper limit may exceed the current earnings of Dr Raftos. I think it reasonable to assume that, had Dr Locke qualified as a specialist, and worked in that capacity until the age of 65, he would have earned about $200,000 per annum gross throughout.

158 In respect of what I have called the top line of the calculation, therefore, the following principles should be applied:

· First, the earnings as a specialist would not begin until 1 January 2006. Before that date Dr Locke's earnings should be calculated by reference to his earnings as a career medical officer, as set out above.

· Secondly, for the same reasons, the calculation of the likely earnings to age 65 at the higher rate must reflect the postponement.

· Thirdly, the comparison is between Dr Locke's probable earnings as a specialist (averaging $200,000 per annum gross to the age of 65 as a broad brush figure), and the earnings he would have achieved as a career medical officer (including overtime). On my estimate he had a 75 percent chance of reaching the higher figure. That difference represents the top line of the calculation, that is, what he would have earned but for injury. I am conscious of the fact that the $200,000 estimate to some extent incorporates increases which would have accrued during his time as a specialist, as he became more senior. Comparing that sum to his present earnings as a career medical officer to some degree inflates the difference. Nonetheless, the figures stated are conservative and, given the nature of the estimate, the calculation upon that basis is, I believe, reasonable.

159 What is Dr Locke now capable of earning? It was common ground between experts, and ultimately accepted by Dr Locke himself (T249), that he should leave emergency medicine. Dr Locke also appeared to accept that he would ultimately return to work full time in some capacity. The issue is what work is within his capacity.

160 There were broadly two possible career paths, and alternatives within each. One possibility was to remain in medicine, in which case Dr Locke may pursue clinical or non-clinical alternatives (or a combination of the two). The clinical alternatives involve dealing with patients face to face, and managing their problems. The other broad possibility was that Dr Locke would leave medicine, in which case he may choose many different paths.

161 Before considering the likelihood of these alternatives, it is perhaps helpful to set out the conclusions offered by various doctors as to his likely work future. Dr Galambos, the treating psychiatrist, said this: (Report 23.5.03 Ex A: p518)

"The current timeframe for his return to full-time work is September 2003. I believe Dr Locke is attempting to identify alternative work to conduct, in addition to the part-time emergency department shifts, that will bring his hours up to full-time that will be less likely to cause PTSD symptom exacerbation.

In my opinion, Dr Locke will be capable of finding a work regime that will suit him - that will trigger minimal symptoms. This will likely involve his working full-time in a non-clinical role or a combination of part-time clinical and part time non-clinical duties.

I do not think he will need to limit himself to part-time non-clinical duties. Dr Locke has in the past been attracted to high-pressured medical work, but he will need to adjust to his redefined limitations, which he is identifying through trial and error."

162 Dr Lisa Brown, the psychiatrist qualified by the defendants, said this: (Report 31.7.03: Ex 1)

"I would therefore also concur with Dr Galambos' suggestion that this gent may have difficulty in returning to full-time clinical work as a medical practitioner but would also agree that he is likely to seek full-time work in the longer term, possibly with him gaining some form of non-medical work. Dr Locke suggested teaching as one possible option and there may be other arenas which are less clinically based and which he will be able to adapt to over time. His willingness to seek out rehabilitation options for transferring his skills and the importance of work in this man's self-esteem suggest that he will ultimately return to some form of full-time work. There is a possibility that he will not return to full-time clinical work, particularly given that he does not appear to have any personal interest in medical areas which might be less threatening to him."

163 The solicitors for the defendants sought clarification of that view. Dr Brown provided a further report of 11 August 2003, in which she said this:

"However, as to the comment contained within this report that Dr Locke is likely to have an ongoing permanent impairment in return to fulltime clinical work, this comment would refer to him having limitations in returning to accident and emergency type work only. However, such a difficulty would not impair this gent from returning to fulltime clinical work, if he were willing to work in areas where there was less likelihood of him being required to perform resuscitation techniques. For example, there are a number of sub-specialties in which such a situation is unlikely and although Dr Locke was expressed a lack of interest in such options, his condition would not preclude him from working in these capacities. Moreover, he would also be able to work in non-clinical areas such as teaching, administration, medico-legal work and other allied settings such as occupational health and safety.

I would therefore alter comments made in the prior report of Dr Locke having an ongoing impairment to return to fulltime clinical work, excepting that he is likely to have such an impairment if he continues to work in his current role."

164 Plainly a number of areas of clinical work are now unsuitable because they periodically and regularly give rise to situations of emergency, which are likely to trigger or exacerbate symptoms. Surgery, cardiology, anaesthetics and intensive care are examples.

165 The defendants suggested, nonetheless, that there were many areas which were well within Dr Locke's capacity. He could, for instance, perform ward work in a hospital or, alternatively, could pursue specialist qualifications in some other area. They suggested radiology or dermatology, psychiatry or rehabilitation. At the very least Dr Locke could, according to the defendants, enter general practice. Dr Locke dismissed each of these alternatives. He characterised many as boring or mundane. They were areas of medicine in which he had no interest.

166 The defendants submitted that I should be unimpressed by such an attitude. Regrettably, as I have remarked, the hearing of this matter coincided with Dr Locke's realisation that he was no longer suited to emergency medicine. He had not yet had the opportunity to think deeply about alternatives. I have no doubt that his rejection of each alternative in cross examination was an honest reaction to each suggestion as it was made. However, that reaction is not determinative, even taking account of Dr Locke's fragility, and his vulnerability to depression should he not find a path to his liking. Dr Galambos said this: (T158)

167 Although work outside emergency medicine may strike Dr Locke as boring at this point, that may change. Dr Locke gave the following evidence: (T257/258)

168 Ward work may be within Dr Locke's capacity. Managing a ward is less stressful than working in an emergency department. Much of the work is routine. It may fairly be described as "boring". However, patients in a ward are there because they are sick or have a problem. They may deteriorate rapidly, such that the doctor in charge must intervene. They may, for instance, suffer cardiac arrest and require resuscitation. They may become critically ill. They may suffer a fit. It may take some time for the emergency team to arrive (T104). Dr Galambos expressed the following opinion about the suitability of such work for Dr Locke: (T158)

Q. I'm asking more about the quantum of work he could do there, would it in reality be likely that he could work more shifts than he is doing now or not?

169 Ward work must be viewed therefore as a possible but unlikely alternative.

170 The defendants suggested that there were a number of alternative specialties which Dr Locke could pursue. He had, after all, won the prize in dermatology. Surely, it was argued, that was a speciality open to him, where patients were unlikely to be in crisis. He could earn the same, or more, than he would have earned had he successfully completed his specialist qualification in emergency medicine. The defendants tendered a number of letters prepared by practitioners in each area of speciality. They identified the qualifications required, and the work performed. They also indicated the salaries which they earned which, in every case, were comparable to those earned by Drs Sammut and Raftos (Exs 4, 5 and 6).

171 I do not believe, however, that any of these specialities offer a realistic career path for someone in Dr Locke's position. First, Dr Locke now finds it difficult to concentrate. He has problems with his memory. He doubts his ability to undertake the study required to obtain post graduate qualifications (T99; 243). I accept that it would be difficult.

172 Secondly, Dr Locke is now 45 years old. Each suggested alternative involved an area of medicine in which he has not practiced and in which he presently has no interest. Whilst he may develop an interest, that is likely to take time. Each course involved at least five years study and training. Some required experience before undertaking the course. Whilst Dr Locke would have been a latecomer to emergency medicine, there is a world of difference between the situation he faced in the year 2000, when he contemplated that specialty, and the situation he now faces. In 2000 he had experience and a passion for his area of interest. Four and a half years on, he is fragile and has neither experience nor interest in the areas suggested.

173 Two other alternatives were suggested which cannot so easily be dismissed. The first was administration. Dr Locke, according to Dr Jagger, demonstrated some flair for administration when he undertook discharge work at the Canterbury Hospital (supra para 68).

174 Dr Locke, however, did not believe that he had any aptitude in administration (T237). He had no wish to be a public servant or a hospital administrator (T231). Hospital administration would require a Masters Degree in Health Management, which is a two year course full time, although typically studied part time over six years (Ex 6). Members of the Royal Australasian College of Medical Administrators require a minimum of three clinical years and three years in a position appropriate to the specialty of medical administration (Ex 6). Dr Locke doubted his ability to complete the study necessary to obtain a Masters Degree (T238). His expressed lack of interest in administration had some basis in experience. Given his age, the study, and his lack of interest, it appears an unlikely although possible career path.

175 The other alternative was general practice. Dr Locke already has the qualifications to undertake work as a general practitioner. He could, if he wished, embark upon further study to become a Fellow of the Royal Australasian College of General Practitioners. Were he to do so, he would receive a higher Medicare rebate for consultations he undertook. There is a shortage of general practitioners. Dr Locke acknowledged that he would have no difficulty in finding work in that area (T140). A general practitioner typically earns between $80,000 and $120,000 per annum gross (after payment of all overheads) (T210). They may earn more, especially if they are prepared to practice what was termed "revolving door" medicine, involving a large number of short consultations.

176 Dr Locke was less than enthusiastic about general practice as a career. Indeed he said this: (T142)

177 Dr Locke had a number of objections to the suggestion of general practice. First, as a general practitioner he believed it likely he would be confronted by emergencies of the type that he had found himself incapable of dealing with in the emergency department. He said this: (T137)

"... what comes through the emergency department or comes through a GP's door; people with heart attacks, people who have chest pain, fluid on their lungs. That walks through a GP's office the same as it does walk through the door in an emergency department."

178 Indeed, because of delay in emergency departments, some patients with life threatening problems chose to present at the surgery of a general practitioner rather than a hospital (T137). Secondly, general practice involves the running of a small business, with the stress that involves. Dr Locke had never worked as a general practitioner. He did not want the stress of running a business (T137).

179 Thirdly, Dr Locke said that if he were to become a general practitioner, he could not operate the sort of practice described by Dr Walsh, a general practitioner called by the defendants. Dr Walsh did not work after hours. He referred his patients to an after hours service. Dr Locke said this: (T241)

"A. Certainly I - I don't think that I would practise the way Dr Walsh does.

180 Dr Walsh was a sole practitioner. He had a family practice at North Annandale which he had operated for 14 years. He gave the following evidence: (T209)

181 The plaintiff, responding to Dr Walsh, tendered a letter prepared by Dr Eric Fisher. Dr Fisher was a general practitioner of long standing and a Fellow of the Royal Australasian College of General Practitioners. He had been appointed a representative on the New South Wales Medical Board Tribunal and to the Professional Standards Committee. Commenting upon Dr Walsh's evidence, he said this: (Ex K)

"In over some 53 years I have never worked in a general practice either as a locum or a principal where an emergency has never presented."

182 The explanation for the difference between the experience of Dr Walsh and that of Dr Fisher lies, in part, in the definition of an emergency. Dr Fisher, referring to chest pains, drew attention to the following passage from a book, "General Practice" by Murtagh 1998 (2nd Ed): (p337)

"The presenting problem of chest pain is common yet very threatening to both patient and doctor because the underlying cause in many instances is potentially lethal."

183 On balance I believe that, with adjustments, Dr Locke probably could undertake the work of a general practitioner. He would need to practise with others, so that there was some back-up in the event of an emergency. It is likely that he would be employed rather than in partnership, which may limit his potential and his earnings. In respect of after hours work, he may need to compromise. He would ordinarily receive from the patient or their relative a description of the problem. He would need to recognise his limitations. Depending upon his assessment, he may choose to deal with the problem himself or summons an ambulance or suggest an alternative service. Operating within these limitations would still involve the risk of relapse. However, Dr Locke's present work in the emergency department, even with back-up, still carries risk. The risk, nonetheless, is thought to be manageable and by and large has proved to be such. Similarly, it seems to me that general practice along the lines described could be carried out without undue risk.

184 The defendants also suggested a sub-specialty of either orthopaedic medicine or general practice, namely, sports medicine. However, a practitioner from that specialty was not called, nor other material tendered which would enable a realistic appraisal of Dr Locke's potential to pursue it. Little can be said beyond the fact that it coincided with Dr Locke's interest in sport and fitness, and presumably the patients would be relatively fit and young, and unlikely to present as an emergency. However, I am not able to say whether such a specialty really is open to Dr Locke and, if so, what he would earn were he to pursue it. Like teaching and research, it is a possible career path within medicine. On the information available, it appears to be a remote possibility.

185 One then comes to the second broad alternative, which is that Dr Locke may leave medicine. The plaintiff's counsel, in written submissions, suggested that it was a real possibility. It was said that, outside medicine, Dr Locke could only hope to earn average weekly earnings for males working in New South Wales (Plaintiff's Submissions 27.2.04: p27). The defendants rejected that suggestion, making the following submission: (Defendants' Submissions 2.3.04: p7)

"The suggestion that the plaintiff might work completely outside the medical field is a proposition that took flight only during the case itself: see, eg, T246.25ff and cannot, it is submitted, be treated seriously."

186 It is not accurate to suggest that the possibility of leaving medicine only arose during the hearing. Dr Lisa Brown, the psychiatrist qualified by the defendants, adverted to the possibility in her report of 31 July 2003 in the passage already set out (supra para 162) which, for convenience, I repeat:

possibly with him gaining some form of non-medical work

187 When cross examined, Dr Locke gave the following evidence: (T246)

188 Counsel then explored possibilities within medicine, other than emergency medicine. Dr Locke agreed that he had invested "an awful lot of time and energy" in obtaining his medical qualifications. He suggested that perhaps he would use that knowledge and those skills in some new endeavour, yet to be identified. Nonetheless, during cross examination the plaintiff responded as follows: (T255)

189 For the reasons already stated, at the time of the cross examination (and partly as a result of the process) Dr Locke had only just accepted that he would not return to emergency medicine, so that his response, although honest, is not necessarily the final word. He has yet to examine in depth the alternatives.

190 Greater insight is provided by the evidence of Dr Galambos. He drew attention to the loss of trust by Dr Locke in the medical profession and the "system" (T99, supra para 104). Dr Galambos gave the following evidence, being the perspective of someone who had been treating Dr Locke as his psychiatrist for a number of years: (T168/9)

191 There is a high chance, falling short of a probability, that Dr Locke will leave medicine. He is plainly a man of intelligence, with significant qualifications and experience in a number of areas. Doing the best I can, in an area of great uncertainty, I believe the plaintiff now has the capacity to earn $80,000 per annum gross, taking account of his probable earnings, were he to remain in medicine, or his likely earnings were he to work outside.

192 That figure takes account of the possibility of periods of incapacity, where periodically his post traumatic stress symptoms may flare and become disabling, or he may suffer from depression.

193 The calculation of the amount to be awarded to the plaintiff for his loss of earning capacity should reflect these reasons. I have expressed figures as gross figures because I do not have available the corresponding net amount. The gross figures should, of course, be converted to net figures in order to calculate the appropriate difference. The amount to be awarded should also reflect the following findings and principles:

· First, that Dr Locke would, but for injury, have worked to age 65.

· Secondly, he should have the present value of the difference between what he probably would have earned, calculated by reference to para 139 above, and what he is now capable of earning, calculated by reference to para 191 above, applying the 3 percent tables.

· Thirdly, there should be an allowance for vicissitudes of 15 percent.

194 The parties should, within 14 days of this judgment, confer and agree, if possible, upon those amounts which I have not calculated, in respect of which I have endeavoured to make appropriate findings and identify the guiding principles.

Loss of superannuation.

195 The plaintiff would, but for injury, have accrued superannuation entitlements. The written submissions by the parties contemplated that they would meet and agree upon the plaintiff's superannuation entitlement in the light of the findings now made.

Order

196 I therefore make the following orders:

1. There should be a verdict for the plaintiff, with costs.

2. The verdict should reflect these reasons, including the following amounts:

General damages	$225,000.00
Interest on general damages (at 2%)	To be agreed
Past medicals	$10,349.35
Past wage loss From 1.7.03 to 25.8.03 From 26.8.03 to date of judgment	To be agreed To be agreed
Interest on past wage loss	To be agreed
Future medicals	$4,947.31
Future pharmaceuticals	$2,292.20
Loss of future earning capacity	To be agreed
Superannuation entitlement	To be agreed

3. In respect of those matters which require calculation, the parties should confer and agree upon the amount in each case. If agreed, a note of that agreement should be sent to my Associate within 14 days, and judgment will be entered for the appropriate sum, plus costs.

4. In the absence of agreement, the parties should exchange written submissions within 21 days, and thereafter, within a further 7 days, approach my Associate to re-list the matter.

**********

Last Modified: 06/25/2004

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Citations

Locke v Bova [2004] NSWSC 534

Most Recent Citation

Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767

Cases Citing This Decision

4

Bova v Locke [2005] NSWCA 226

Locke v Bova [No 2] [2005] NSWSC 799

Morina v Northern Territory [2008] NTMC 39

Cases Cited

4

Statutory Material Cited

0

John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290

State of New South Wales v Moss [2000] NSWCA 133

Malec v JC Hutton Pty Ltd [1990] HCA 20

CITATION:	Locke v Bova & Anor [2004] NSWSC 534
HEARING DATE(S):	25/08/03 - 29/08/03 11/09/93 - 12/09/03 16/10/03 20/11/03 9/12/03 26/03/04
JUDGMENT DATE:	24 June 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	Verdict for the plaintiff with costs; Within 14 days, the parties to confer and agree on calculations reflecting the reasons in this judgment; Upon agreement, judgment will be entered.
CATCHWORDS:	Medical Negligence - nervous shock to doctor in hospital witnessing trauma to wife - loss of earning capacity - chance that may have become specialist
CASES CITED:	State of NSW v Moss (2000) 54 NSWLR 536 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Norris v Blake (1997) 41 NSWLR 49
PARTIES :	Dr Peter Locke (Plaintiff) Dr Colin Bova (1st Defendant) South Western Sydney Area Health Service (2nd Defendant)
FILE NUMBER(S):	SC 20259/01
COUNSEL:	M B Williams SC (Plaintiff) I M Wales SC (Defendants)
SOLICITORS:	Charlton Shearman (Plaintiff) David Brown (Defendants)