McKenzie v Lichter
[2005] VSC 61
•18 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5803 of 2001
| PETER LEONARD McKENZIE | Plaintiff |
| v | |
| DR MAURICE LICHTER | Firstnamed Defendant |
| and | |
| DR COLIN ORCHARD | Secondnamed Defendant |
| and | |
| THE VALLEY PTY LTD (t/as THE VALLEY PRIVATE HOSPITAL) | Thirdnamed Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4, 7, 8, 28 February and 1 March 2005 | |
DATE OF JUDGMENT: | 18 March 2005 | |
CASE MAY BE CITED AS: | McKenzie v Lichter and ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 61 | |
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PERSONAL INJURIES – Nervous shock – Father of stillborn child – Admitted negligence of doctors and hospital staff – Post traumatic stress disorder and depression – Not entitled to damages for grief and distress – Failure to mitigate loss by undergoing treatment – Claim for used sick leave entitlements – Proof of onset of compensable injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Keenan Q.C. with Mr A.D.B. Ingram | Clark & Toop |
| For the Defendants | Mr D.G. Brookes | Gadens Lawyers |
TABLE OF CONTENTS
Parties
Basic Facts
Claim for nervous shock
Facts
Damages
A. Issues and Plaintiff’s Credibility
B. Mitigation of Damages
C. General Damages
D. Medical and like expenses
E. Future medical treatment
F. Sick Pay
Conclusion
HIS HONOUR:
This is a claim by a plaintiff in a proceeding instituted by writ seeking damages for nervous shock suffered as the result of his wife giving birth to a stillborn child due to the negligence of doctors and hospital staff.
Parties
The plaintiff, Peter Leonard McKenzie, was born on 26 May 1951 and is employed as a teacher. He is now aged 53 years and at the time of the negligent conduct was aged 44 years. He is an art teacher, presently employed at Boronia Heights College. He married his wife Tania on 1 January 1994. His wife was born on 29 November 1969, is now aged 35 years, and at the time of the stillbirth was aged 26 years.
There are three defendants, Drs Lichter and Orchard and The Valley Pty Ltd which at the relevant time operated the Valley Private Hospital. The two doctors were at the relevant time specialist gynaecologists and obstetricians. It is unnecessary to say anything more about the defendants as they have admitted liability.
Basic Facts
The plaintiff and his wife met some years prior to their marriage and lived together for a couple of years. Prior to the marriage the wife had a history of endometriosis and uterine fibroids. She had in the past undergone operative treatment to remove growths on her uterus. It was known to both the plaintiff and his wife that there was a risk during pregnancy that she may suffer a uterine abnormality which could result in the detachment of the placenta, and this would be life threatening to the foetus. Indeed, in late 1993, Mrs McKenzie suffered a miscarriage at 10 weeks. During the latter part of 1994 Mrs McKenzie fell pregnant and in March 1995 when she was some 20 weeks pregnant she retained Dr Lichter as her gynaecologist and obstetrician. Some time in early June 1995 Dr Lichter informed Mr and Mrs McKenzie that he was going on a holiday, and in his absence a fellow specialist gynaecologist and obstetrician, Dr Orchard, would attend to her.
On 25 June 1995, in the afternoon, Mrs McKenzie was suffering from abdominal pain and irregular abdominal contractions and she and her husband went to the Valley Private Hospital. She was examined by the staff and sent home. That evening, she returned to the hospital and was admitted as an inpatient. Mrs McKenzie was seen by Dr Orchard on the morning of 26 June. Mr McKenzie rang the hospital and was told that it was unnecessary for him to attend. He went to work. Mr McKenzie returned early in the afternoon to the hospital. By this time a decision had been made that the baby would be delivered by caesarean section that afternoon. Upon Mr McKenzie’s return he observed his wife in a shower, standing up, supported by staff. After the shower it was ascertained that there was no foetal heart beat. Mrs McKenzie was rushed to the operating theatre. Mr McKenzie was told shortly thereafter that the baby boy was dead. He was named Oscar.
Despite her problems, Mrs McKenzie conceived in March the following year and on 9 December 1996 a son, Murphy, was born. The pregnancy was not easy. Murphy turned out to be a handful. He cried continually, and proved a difficult baby over the first few years of his life. Mrs McKenzie found Murphy’s early childhood extremely trying and relied very heavily upon Mr McKenzie for his assistance and more importantly, for his moral support. I have little doubt that this was an extremely trying period for the couple and proved exhausting for Mr McKenzie. More demands were made upon him than is usual in the normal father/mother relationship in the early years of a child’s life, and these placed a heavy burden on Mr McKenzie and diminished his recovery from the emotional consequences of the stillbirth.
On 16 May 2001 the present proceeding was instituted. Defences were delivered on behalf of the three defendants and it was not until February 2004 that the defendants admitted liability. Mr McKenzie stated that the admission of liability was attended by mixed feelings of closure, some anger and relief.
Mr D.G. Brookes of Counsel for the defendants informed the Court at the end of the plaintiff’s opening that the defendants admitted that on 26 June 1995 they owed a duty of care to the plaintiff; that they were negligent in performing their various tasks prior to and on that day; and that the negligence was a cause of a compensable injury of a mental nature suffered by Mr McKenzie; and accordingly they were obliged to pay reasonable compensation to the plaintiff. These admissions avoided what are usually difficult questions in nervous shock cases of causation and whether the mental injury is a recognised psychiatric illness and not merely grief and distress resulting from the event causing shock. Difficulties often arise in cases where the plaintiff is not the person injured or exposed to peril as a result of the negligent conduct. Mr McKenzie was the secondary victim of the negligent conduct.
Claim for nervous shock
In Victorian Railways Commissioners v Coultas[1] the Judicial Committee on an appeal from this Court held that damages for nervous shock or mental injury caused by fright of an impending collision were too remote. In 1932, s.4 of the Wrongs Act was passed and it provided that such damages were recoverable.
[1](1888) 13 App Cas 222.
Section 23 of the Wrongs Act 1958 provides:
“In any action for injury to the person the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.”
Despite the legislative intervention, the courts were reluctant to provide compensation in all cases where injury resulting from nervous shock came about from apprehended danger to others and gradually over the years the ambit of the duty of care has widened. In Pratt & Goldsmith v Pratt[2] the Full Court considered the cases to that time (1975) which recognised a duty of care to avoid causing mental injury to another. The ambit of the scope of the duty has widened from the position where a plaintiff could only recover if he or she actually witnessed the negligent act which caused injury to another. Formerly, if the plaintiff had not seen what had occurred the plaintiff was not entitled to recover damages for nervous shock upon ascertaining the negligent act causing injury to another. See by way of example the early High Court case of Chester v The Council of the Municipality of Waverley[3]. Today the law has progressed. The High Court in Tame v NSW[4] held that the defendant tort feasor owed a duty of care to parents of an employee who died although the victim died many kilometres from where his parents were. The plaintiffs were entitled to recover even though their injury was not caused by any direct perception by them of their son’s death. The majority of the Court held that the common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock or where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath.
[2][1975] VR 378.
[3](1939) 62 CLR 1.
[4](2002) 211 CLR 317.
At the outset it is important to emphasise that “save in exceptional circumstances, the person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness.” – per Gleeson CJ in Tame v NSW.[5] This means that compensation is not payable in the present case because of the grief and upset flowing from the death. I have no doubt that Oscar’s death caused Mr and Mrs McKenzie much grief, distress and upset for many months. Compensation is payable for psychiatric injury due to the consequences of the negligent act and all that flows from that injury, not the grief and sorrow short of psychiatric injury. This sometimes makes the assessment of damages difficult but it is necessary to draw the distinction between grief and psychiatric injury; the former is not compensable, the latter is – see Hinz v Berry;[6] Pham v Lawson;[7] and Luntz – Assessment of Damages for Personal Injury and Death.[8]
[5]Supra at 329.
[6][1970] 2 QB 40, at 42-3 and 45.
[7](1997) 68 SASR 124 at pp.150-153.
[8]4th ed at p.184.
It is necessary for a plaintiff to prove that the negligent conduct of the defendant was a cause of the injury complained of and that the injury is a recognised psychiatric injury. The admissions made establish proof of these matters. However, a difficult question remains. When did the mental upset progress from grief, the non-compensable stage, to a psychiatric injury which is compensable?
Facts
I have already briefly outlined the basic facts and it is necessary to add further facts.
Prior to their marriage Mr McKenzie and his wife had resided together as man and wife for some two years prior to their marriage. She is presently employed as a curator at the Maroondah Gallery. The plaintiff’s wife also brought a proceeding in this Court against the three defendants and it was compromised some time in 2004. She underwent counselling over a long period and has made a very good recovery from the tragedy as was evident from the way she gave her evidence. She wants to put the past behind her and get on with her life. This contrasts starkly with the apparent attitude of Mr McKenzie.
During the period 1970-80, the plaintiff obtained three diplomas at the Victorian Teachers’ College. They were a Diploma of Art and Design, a Diploma of Education, and a Post Graduate Diploma in Visual Communication. He obtained these diplomas during his twenties, and during this time he obtained employment as an emergency teacher and also conducted a cleaning business. He commenced full time employment with the Education Department in 1980 and was appointed an art teacher at one of the premier state schools in this State, namely, Melbourne High School. He started at that school teaching Forms 3, 4 and 5, mainly in art. By this time, the plaintiff was aged 29 years. He remained at Melbourne High School until the end of 1984.
From about 11 April 1983 to 7 October 1983, whilst employed at Melbourne High School, he travelled overseas with a female companion throughout Europe and Asia looking at art. On his return he took a period of ten days, from 10 October 1983 to 20 October 1983, leave without pay. He left Melbourne High School the following year because of the commuting involved living in Ferntree Gully and because he believed his chances of promotion would be better at a smaller school. These latter facts, together with other facts, reflect adversely upon his assertion that since the incident he has lost all desire to improve his position and standing in the education profession by seeking promotion.
In 1985 he commenced at Boronia High School as an art teacher and remained there until the end of 1991 when the school closed. He commenced the following year at Boronia Heights College and has remained there ever since. He is a senior teacher, but the next step in the teaching profession would be to become a leading teacher and then ultimately a principal. He says now he has no desire to seek promotion and has asserted that he was thinking back in 1995 of pursuing promotion but as a result of the incident, he no longer has the desire. I do not accept his evidence that the stillbirth has affected his attitude to advancement and promotion within the teaching profession.
Records were produced which showed that each year from 1983 to the present, the plaintiff has regularly taken sick leave. During this period he was entitled to take up to ten days sick leave with medical certificates and five days without each year. It will be necessary later to closely analyse the evidence concerning his sick leave. He was an employee who took most, if not all, of his sick leave each year. No explanation was given in evidence explaining why he took so much sick leave in the years prior to 1995. Further, during his period at Melbourne High School he took off some six months leave without pay to travel throughout Europe and Asia. He left Melbourne High because of the time commuting from Ferntree Gully and because he thought that within a large school his chances of promotion were not good. He told the Court that he was aged about 46 years when he lost his desire to seek promotion. His answer to the question from the Court, that one would expect he would be showing a greater desire for promotion prior to that age, was unconvincing. In addition, no claim was made in the Court documents for loss of earning capacity due to his lost desire for promotion. His suggested loss only arose after liability was admitted some eight years after the event. This can be seen by tracing through the histories given by him to the psychologist, Dr Brabin.
Prior to their marriage, the wife was pursuing a university degree in art and it appears that she hoped to complete her degree and work as a teacher in art.
Mrs McKenzie fell pregnant in October 1994 and in March 1995 she retained Dr Lichter as her gynaecologist and obstetrician. She had, going back to her teenage years, a complex gynaecological history consisting of 13 procedures including multiple laparoscopies for endometriosis, and at times her uterus had been punctured by the removal of fibroids. She had suffered a previous miscarriage at 12 weeks in late 1993. In early June 1995, Dr Lichter informed the plaintiff and his wife that he was about to go on holidays and that his partner, Dr Orchard, would look after Mrs McKenzie. On 25 June 1995, Mrs McKenzie was suffering from abdominal pain and irregular contractions. By this time she was some 34 weeks pregnant. She had not previously seen Dr Orchard. It is clear that Dr Lichter was well aware of her history and that good medical practice required close attention to Mrs McKenzie’s condition and steps being taken in anticipation of likely problems. It was known to both Mr and Mrs McKenzie and also Dr Lichter that there was a considerable risk during the pregnancy that something may go wrong and there may be difficulties involved with the birth. She was suffering on the afternoon of 25 June with problems and she and her husband attended at the Valley Private Hospital at Mulgrave. She was examined by hospital staff and sent home. Later that evening she again presented to the hospital suffering the same pain and also pain in her back. She was admitted. During the following morning a decision was made after Dr Orchard had examined her, to deliver the baby by caesarean section that afternoon. The plaintiff rang the hospital and was told there was nothing he could do and the suggestion was made that he go to work. He went to work and returned early in the afternoon to the hospital. He was told that there would be a caesarean operation and was advised to obtain a camera. He did so. On his return he observed his wife having a shower. At this stage she was supported by staff and was having difficulty standing. She was in pain and he observed that her stomach appeared to have dropped dramatically. The monitor was not attached to her at this point. After the shower the monitor was placed on her body and it was then ascertained that the foetal heart had stopped. The placenta had detached. Emergency procedures were put in place and the plaintiff assisted to push his wife on the trolley to the operating theatre. He was given operating clothing but stayed outside. He was then told at about 6.00 pm that evening that the boy child had been born stillborn. The dead child was placed in the plaintiff’s arms and when Mrs McKenzie woke up she was told that the child had died. She was drifting in and out of consciousness. There was some concern over the following 24 hours as to her state of health and a concern that she may die because of loss of blood. Mrs McKenzie remained at the hospital for 11 days. A large single room was provided and the plaintiff was able to stay with his wife. He did so on some nights. It appears that the deceased baby’s body was retained in the room with them for some days. This was evidently on advice. The funeral was arranged and the plaintiff nursed the coffin to Springvale where the child was cremated. The couple keep their son’s ashes and display drawings of him in their bedroom. The couple are comfortable with these arrangements and psychological advice supports their position.
There is no doubt that both Mr and Mrs McKenzie suffered considerably as a result of the tragedy. Mr McKenzie was extremely annoyed with what he thought was a lack of proper treatment and care. He felt guilty that he had not been there in the morning of the day the birth took place and has since been disturbed by the feeling that he should have done more at the time by, for example, demanding more care and attention of the medical and hospital staff. The hospital records graphically demonstrate the sufferings of Mr and Mrs McKenzie during the period from 26 June 1995 until Mrs McKenzie was discharged on the morning of 6 July 1995. It is clear that Mrs McKenzie was physically ill, and was extremely distressed and emotional during most of the time she was in hospital. The notes illustrate the upset and distress suffered by Mr McKenzie. The notes say that he was extremely supportive of his wife. It is also noted by the staff that he was in need of support himself. Fortunately, members of the family visited the couple and provided them with some support. Mr McKenzie spent a substantial amount of time at the hospital and agreed that formal counselling for both of them was a good idea. It was noted that he talked about the baby and the loss that he felt. It is very clear that during this period, Mr McKenzie provided much support for Mrs McKenzie and no doubt concentrated on supporting her rather than overcoming his own grief. I have no difficulty in accepting that during this period Mr McKenzie was extremely upset and distressed by the stillbirth. Common sense tells us that irrespective of any psychiatric injury, both Mr and Mrs McKenzie suffered significant feelings of distress, grief and loss, being the usual reaction to the stillbirth of a child; these are the normal consequences of the bereavement process. Short of psychiatric injury they are not compensable. Dr Brabin, a psychologist, described this early period after Oscar’s stillbirth as a period when Mr McKenzie was distressed and angry at what he perceived as medical mismanagement. He berated himself for not pushing harder to obtain the necessary medical records and was extremely distressed about the loss of the long awaited son. She went on to observe, writing in 1999, that Mr McKenzie was delighted when his wife conceived again and was overjoyed when the son, Murphy, was born. However because of the problems associated with Murphy, his acute fears concerning the baby’s condition deteriorated. It is difficult on the evidence to determine when it was that Mr McKenzie first suffered from symptoms of post-traumatic stress with depression.
The stillbirth occurred just before the school holidays. The plaintiff had a week off, being the last week of term, and then two weeks off during the school holidays.
The plaintiff stated, and I accept, that there are triggers that bring back the incident to him. He identified hearing the name Oscar being an immediate trigger. There was a rainbow visible on 25 June; it was a wet day and rainbows also trigger memories of the incident. He had visited a work experience student on the morning of the tragedy and each time he goes past the service station where the work experience student had been, this triggers memories. If he sees on television or in movies, babies struggling, babies being lost or any panic in an operating theatre scene, those images also trigger memories of the incident. He said he had dreams and recollections of the day’s events, the pushing of the trolley and the helplessness that he felt. Also certain shapes of chairs cause him distress. He has dreams that he has melted into a chair and is an observer. If there is a religious scene, such as a crucifixion scene in any artwork, the pose is reminiscent of his wife being supported by the nurses and this triggers memories. He stated there are lots of things that remind him of the tragedy.
In October 1995, Mr and Mrs McKenzie were introduced to an organisation known as the Stillbirth and Neo Natal Death Support Group (SANDS) and met Dr Penny Brabin, a consulting psychologist and foundation president of SANDS. The organisation is a support group. The plaintiff said that he did not derive much assistance from that group because he found it difficult to talk about the incident. Whilst Mrs McKenzie was able to talk about it, he said it was difficult for him. Thereafter from time to time he consulted with Dr Brabin and it will be necessary to further consider these visits later. It would appear after meeting her in October 1995, he had a consultation in October 1996 and then in the following year on 21 April 1997. Some of the consultations were for treatment.
In about March 1996 Mrs McKenzie again fell pregnant. A son was born on 9 December 1996 and named Murphy. The plaintiff states that he was anxious about the pregnancy because of the prior history. The McKenzies retained Professor Roger Pepperell and due to his treatment and advice, the successful birth occurred in December 1996. The plaintiff stated that it had an effect upon his emotional and psychological condition. He said that he always wanted to have a two child family. There were some complications at birth and it appears Murphy had some breathing difficulties. When he left the hospital he was given a clean bill of health. The plaintiff stated that he was determined that he was going to be the best father. Murphy sometimes adverts to having a brother called Oscar who died. He freely tells people, and this does have an effect upon the plaintiff. Mr and Mrs McKenzie have reached a decision not to have any more children because of the risks to Mrs McKenzie’s health. They were told by Professor Pepperell to think very seriously before embarking on another pregnancy. This decision has been a source of distress to Mr McKenzie. Unfortunately for the couple’s wellbeing, Murphy was a difficult child. Difficulties arose with continual crying, breast feeding and getting the child to sleep. This took its toll on the couple and caused strain in the marriage as Mrs McKenzie found life very difficult and Mr McKenzie was required to give her much attention and support. Mrs McKenzie did not cope during at least, the first 12 months of Murphy’s life. She relied on Mr McKenzie for support during this trying period.
The plaintiff described his relationship with his wife at present as being difficult. Initially after the death of Oscar they bonded and worked hard to have Murphy. He stated that they worked hard but he is now really flat and over the last year or two they have been considering separation. He said, “She feels I am a different person, I’ve lost spark, I’m flat.” He attributes his “flatness” to depression. He says that he now goes through the motions in their relationship, he cannot make decisions and he lets her take over. He is no longer the supportive equal partner. He does not think the age difference has anything to do with it.
He went on to state that he shut himself down from his network of friends. He used to be a very active sportsperson; he used to play competitive table tennis, lift weights and play golf. He said he was very active doing gardening and renovating the house. He was active in the art field. He stated that for a number of years after 1995 he continued the activities but then they just stopped. He thought this was around the year 2000, some five years after the event. He does not think his advancing age was the reason. He says that he has been very lucky with his body and has no injury or health problems. He can bike ride for a day. He accepts that as one gets older other interests take over. He says that his interest in art has not continued and he has a general lacklustre approach. He has lost his libido which affects his relationship with his wife.
On 8 February 2005, on the third day of the proceeding, it was adjourned to the end of the month because of the death of the plaintiff’s father. At that time, the Court raised with Mr Brookes the question of whether it was the contention of the defendants that the plaintiff had failed to mitigate his loss. This came about because of the advice given by all medico-legal experts that Mr McKenzie should undergo treatment for his stress and depression. On the resumption of the hearing, leave was granted to the defendants to plead the defence of failing to mitigate damage. In order to meet these matters, a report from Dr Brabin the psychologist was tendered in evidence. The report was dated 23 February 2005. Dr Brabin was not cross‑examined on her later report. Some of what appears in that report concerning Mr McKenzie’s history is not the subject of evidence by him. To that extent, in so far as Dr Brabin relies upon the history to reach a conclusion, her report cannot be accepted. On the other hand, Mr Brookes submitted, and correctly, that he was entitled to refer to facts in the reports concerning the plaintiff as admissions against interest. What emerged in the report of Dr Brabin was that in 1981 Mr McKenzie was involved in a head‑on motor vehicle collision which was the fault of the other driver. According to Dr Brabin, “He suffered serious whiplash involving soft-tissue damage and strong pain to his upper back, neck and shoulders. His treatment involved frequent physiotherapy sessions often entailing time off work.” Dr Brabin stated that Mr McKenzie is aware that he is still unable to work at the computer or mark papers for long periods because of pain and that he requires massage to relieve his symptoms. These facts were not the subject of any evidence from Mr McKenzie, nor was he asked about them. However, they are clearly relevant to his reduction in sporting and physical‑type activities. The revelation of a prior physical injury which has been longstanding reflects on his credibility. When asked by the Court whether advancing age tends to cause a waning in physical activities, he said: “I don’t think so because I’m able to – if I do decide to dig in the garden for a weekend. I am very lucky with my body. I don’t have any injuries or problems. I can work in the garden for the weekend. I can go on a bike ride for a day and not suffer from it.” (Emphasis added).
Mrs McKenzie gave evidence that her husband suffered from pain in the upper part of his spine. In answer to the criticism that he has not taken the advice of the professionals as to counselling treatment, he said that discussing the events with Dr Brabin was difficult for him. He said he still finds it difficult to talk about it. She is the only person who has given him any treatment for the emotional problems. The treatment has consisted of consultation and discussion. He has not taken any drugs or medication. He met Dr Brabin in October 1995 when he and Mrs McKenzie made contact with SANDS (Vic). There was a consultation on 17 October 1996 involving he and Mrs McKenzie and this was during the pregnancy with Murphy. They returned in October 1997 because Mrs McKenzie was suffering extreme distress resulting from her perceived inability to look after Murphy. The couple returned in 1998 when evidently they were having marital problems. There were three consultations in that year. Again there were problems in early 1999 relating to the marriage. There was a joint consultation on 2 July 1999 but Mr McKenzie did not go back for any counselling for nearly two years, when he attended on 14 June 2001. This was one month after the writ was issued. He did not consult Dr Brabin again for nearly two years, when he returned on 6 February 2003. It is clear that his consultations with Dr Brabin were infrequent, often as a result of marital problems and were inadequate treatment in the circumstances. It will be necessary to further consider this matter later in the context of the defence of failing to mitigate his loss.
The plaintiff is a teacher in the creative arts area and teaches art, photography, graphic communication, air brushing and multi media and animation. He is teaching Years 11 and 12 at the moment.
The plaintiff stated that he believes he is a different person now, his life is different and his relationship with his wife is different. He stated that they had been experiencing difficulty which he put down to his depression influencing his life, that his libido is non-existent and there are problems in the relationship. He is upset because they wanted a family and only have one child.
He made a claim for loss of sick leave taken in the past. The sick leave entitlement is 15 days per year with an obligation to provide a medical certificate in respect of ten days. Sick leave not taken is accumulated and there is no upper limit. He has approximately 20 days’ accumulated leave at the present.
He has reached the top position as a teacher and if he was to gain promotion it would be to leading teacher and then principal. He stated he lost motivation to gain promotion and this was due to his mental state resulting from the stillbirth. He said that at ages 41 to 43 he should have been in his prime looking to move to the next level. He told the Court that he lost his motivation when aged about 46 or 47, that is, a few years after the stillbirth. He did not accept the proposition that he may have been too old at 45 or 46 to go further. He did say that the closure of some schools in the area made it difficult. He stated he chose to leave Melbourne High School, which is one of the two most prestigious state schools in this State employing the best teachers. He chose to leave because he was living in Ferntree Gully and the commute was some 10 to 12 hours a week. The second reason was that the school was very large. He said he made the decision because he would have more chance of promotion at a smaller school.
He stated that he does have the right to retire at 54 years and 11 months but he is undecided. He said he had to talk over the situation with his wife before he made any decisions. I do not accept that he is undecided as to his future. If he retires, he has access to superannuation. He can also return to teaching by entering into a contract with the Education Department for a fixed period. Also the evidence revealed that he is contemplating moving to Lismore in Northern New South Wales with his family and would continue teaching there. An analysis of his sick leave over the period from when he commenced employment in 1980 with the Education Department to the present and more particularly the time taken over the past two years away from his employment shows a man who has no real desire to continue teaching with the Education Department. Taking into account the 12 weeks’ holidays each year, Mr McKenzie has taken absences from his employment in the last two years made up of the 12 weeks holidays, an average of six weeks’ sick leave and four weeks’ long service leave. I do not accept that the stillbirth had any effect upon his attitude to promotion within the Education Department. His history prior to 1995 showed a man who took all or close to his full complement of sick leave, left Melbourne High School at a time when, if he was thinking of promotion he would not have left, took six months off during this period but more importantly did not take any step prior to 1995 to seek promotion. That conclusion is reinforced by the facts first, the suggestion only emerged after liability was admitted and secondly, that at no point in the proceeding has any claim been made in the pleadings or particulars of loss for damages for lost earning capacity due to failure to gain promotion.
He obtained sick leave certificates since 1995 from Dr Cashmore and Dr Mackay. Dr Cashmore is a gynaecologist, who was aware of the difficulties and was very supportive. The plaintiff stated if he was unable to attend at school Dr Cashmore would provide him with a medical certificate. He stated that some of the days he took off were because of stress. However, the evidence revealed he took sick leave for reasons other than his state of health, for example, to take Murphy to a medical appointment and to see his lawyers. Dr Mackay, a general practitioner, also provided sick leave certificates.
At the beginning of the trial, a claim was made for sick pay as a special damage totalling $21,600. It was put that the plaintiff had taken sick leave because of the psychiatric injury resulting from the stillbirth, and although he had been paid for these days, nevertheless he was entitled to receive the daily sum in respect of the days taken. Dates were given, but in addition he also claimed 15 days’ leave during the years 1999-2002 (inclusive), being 60 days at an average of “$135 net per day equals $8,180” as a general overall claim. However, early in the plaintiff’s evidence, the Court raised the question whether he was entitled to recover any amounts if at the end of his employment he was not entitled to “cash in” the accumulated sick pay. It became very apparent as the trial progressed that the plaintiff was not entitled to recover the amount. Whilst the claim may have been misunderstood by his lawyers, the fact was that he was providing the information and in particular the days said to be due to stress. The making of the claim for alleged lost income which turned out to be of no substance reflects upon his credibility, as does his evidence that he lost his desire for promotion as a result of the consequences of the stillbirth. Further, he compiled a summary of the days he took sick leave which he said were attributed to the effects of the stillbirth. However, cross‑examination revealed that he claimed days which could not be attributed to the psychiatric injury resulting from the stillbirth. This also reflects upon his credibility.
Damages
Before discussing the heads of damage and determining the amount of compensation, it is necessary to make a number of general observations of law.
First, and it is a trite observation, the plaintiff must establish his case on the balance of probabilities, which includes the effects of the injuries suffered. The injury pleaded was nervous shock, anxiety and depression. The plaintiff bears the burden of persuading the Court as to nature and effect of the injuries for the past and in the future.
Secondly, what the plaintiff tells a doctor is not evidence of the fact. It is evidence of complaints. But in so far as the doctor relies upon the factual matters to ground an opinion, it is necessary that the facts be proven. The plaintiff and his wife were the only two witnesses who gave evidence of the injuries and their effects.
Thirdly, other than irregular, spasmodic and unsatisfactory counselling treatment from a psychologist, the plaintiff has not, despite professional advice from three medico-legal witnesses, pursued full treatment and it is the opinion of the specialists that he would benefit from treatment comprising intense counselling over a period of time, and failing recovery, antidepressant drugs.
Mr Brookes of Counsel for the defendants relied upon this failure by the plaintiff to undergo appropriate and proper treatment. He put it on two bases. First, the lack of meaningful treatment demonstrated that the depression was at the lower end of the scale of severity and secondly, that the plaintiff was acting unreasonably in failing to mitigate his loss. It is necessary to plead mitigation of loss. The defendants did not plead mitigation of loss and were granted leave to amend their defence. The defendants carry the legal burden of establishing mitigation. See Munce v Vinidex Tubemakers Pty Ltd;[9] Karabotsos v Plastex Industries Pty Ltd[10] and Glavonjic v Foster.[11] The plaintiff asserted that the reason why he did not undergo the treatment on an intense basis or seek some form of medical treatment was due to the fact that he felt counselling did not help him, that he was reluctant to discuss the stillbirth and aftermath and was not prepared to take medication.
[9][1974] 2 NSWLR 235.
[10][1981] VR 675.
[11][1979] VR 536.
Fourthly, Mr McKenzie is not entitled to recover damages for the distress, sorrow, upset, anxiety and annoyance resulting from the birth of the stillborn child. The grief that flows from the event is not compensable. There is no doubt that he suffered grief, distress, upset and annoyance because of the death of Oscar. The Court, in determining damages, must divide up the effects of the stillbirth between grief et cetera and a recognised psychiatric illness, in this case being post traumatic stress with depression. It is not an easy exercise. I refer to Pham v Lawson.[12] In that case a mother sued for the mental injury resulting from the death of her young daughter in a car collision. The trial judge noted that the grief was significant and went on to say, approaching the task “using a broad axe”, that it would be reasonable to reduce the award for general damages by one‑third “to account for the non‑compensable consequences”.
[12](1997) 68 SASR 124 at pp.150-3.
Fifthly, Mr McKenzie must prove that his mental injury was attributable to the negligent act. To establish causation he has to prove that the negligent act was a cause. But when it comes to a question of quantification, it is necessary for him to establish a causal link between the negligent act and the alleged effects of the injuries. His complaints are that he suffers from depression, coupled with post traumatic stress syndrome; but the severity of the symptoms can be affected by other stress events in his life. He is not entitled to be compensated for those additional stress events causing aggravation of his conditions if it is clear that irrespective of the negligent act he would have suffered some degree of stress and depression from those stressful events. Mr Brookes in his final address made reference to a number of factors, especially in the years 1996 to 2000, which in themselves brought considerable stress, strain and depression to Mr McKenzie and which could not be attributed to the stillbirth. These were identified as the stresses of the following pregnancy resulting from Mrs McKenzie’s physical condition, the problems resulting from Murphy’s difficulties, Mrs McKenzie’s inability to cope with Murphy resulting in Mr McKenzie being required to provide both physical and moral support, and the marital problems.
A. Issues and Plaintiff’s Credibility
As a result of the admissions by the defendants Mr McKenzie does not have to establish that they were negligent and that their negligent conduct resulted in a traumatic event causing him nervous shock, resulting in a compensable mental injury. I have already set out the pleaded injuries, namely, depression, stress and anxiety. The evidence of Dr Brabin and the other medical witnesses establishes that the mental injury was post-traumatic stress disorder with depression. The incident occurred in June 1995, and the report of Dr Brabin dated 15 February 1999 opines that Mr McKenzie “has symptoms of post-traumatic stress disorder, less severe than Tania’s experience” and that he does suffer “on-going depression currently in the serious range”. It is very difficult to determine from the evidence when these injuries arose. By 1999 Mr McKenzie was suffering from them. Dr Brabin has seen Mr McKenzie at least 23 times since 1995 for periods ranging from 1.5 hours to 2 hours per session, and no doubt has a very good knowledge and understanding of Mr McKenzie, his wife and their relationship. On the other hand, as she frankly admitted, her diagnoses and opinions rest very heavily upon what Mr McKenzie told her. I do accept, however, that as a consulting psychologist she was in a position to make observations about Mr McKenzie’s behaviour and credibility. Professor Lorraine Dennerstein is a highly qualified psychiatrist who was retained by the plaintiff’s lawyers purely for medico‑legal purposes and has seen him on two occasions, namely, July 2001 and February 2004, for periods of up to two hours. Her evidence is similarly based on what Mr McKenzie told her. Mr McKenzie was seen by Dr Sandra Hacker, also a highly qualified psychiatrist, on behalf of the defendants on two occasions in May 2002 and January this year. She was called by the plaintiff. She also relies on what Mr McKenzie told her. It is clear, therefore, that Mr McKenzie’s credibility looms large in the assessment of damages. It is very easy to assert stress and depression and attribute it to an event. It is very difficult for a defendant to disprove such allegations, but in the end the plaintiff must prove his case. Mrs McKenzie, who was an impressive witness, provides some support for Mr McKenzie’s evidence. However, no other witness was called. In particular, Dr Cashmore, who has supplied many of the medical certificates for sick leave, and Dr McKay, a general practitioner who also supplied medical certificates, could have given some evidence as to observations made at the time the certificates were given. The evidence revealed that Dr Cashmore and Dr McKay saw Mr McKenzie prior to giving the certificates. The explanation for Dr Cashmore not attending was, according to Mr McKenzie, because he was overseas or interstate. This explanation was unconvincing and I have some doubts about it. Mr McKenzie said that they had been unable to contact him. He stated he did not think Dr McKay was going to give evidence. Be that as it may, no witness other than Mrs McKenzie was called to give evidence as to observations made of Mr McKenzie over the past ten years. In particular, no work colleague or close friend was called. Evidence was given that the family, with friends, travels to Byron Bay for holidays. In personal injury cases, as a general rule lay witnesses are called as to observations made of the plaintiff in respect to injuries and their effects. The failure to call any witnesses other than his wife requires the Court to scrutinise with considerable care all that Mr McKenzie has said. There are other reasons why the Court must closely scrutinise his evidence. There are matters which reflect upon his credibility.
Relying upon common sense, general knowledge and experience of life, the tribunal of fact does not make the assessment in a vacuum. Human experience shows that at some point in the life of most members of the community, depression can intrude and stress is experienced whether it be the result of some trauma or the pressures and burden of every day living. It cannot be gain said that “life is not a bowl of cherries”. Mr McKenzie is entitled to compensation for his stress and depression which is attributable to the traumatic event. He is not entitled to damages for the grief, upset and distress flowing from the stillbirth. He is not entitled to compensation for events which cause him stress and depression which are not caused by the traumatic event and its aftermath. However, he is entitled to compensation in so far as events experienced in life which could be a cause of stress and/or depression are made more difficult by the fact that he has suffered stress and depression from the stillbirth. To unravel these is not an easy task. Nevertheless, the Court, in determining what is reasonable compensation, must do its best in the circumstances.
Mr McKenzie, as a plaintiff seeking compensation, has a financial interest in the outcome of this proceeding and a motive to attribute all his problems over the years to the negligent event. This is especially so after liability was admitted in early 2004. The Court must carefully scrutinise his evidence before accepting it. Further, the evidence given by experts in this case is based on what Mr McKenzie told them. Dr Brabin is a psychologist and falls into the category of a treating/expert witness. She has treated Mr McKenzie on and off over the years and has intensely and successfully treated his wife. I accept that she has had more experience of the plaintiff and is in a better position to make some assessment of him than the other two witnesses. I do give weight to her evidence based upon her observations of the plaintiff. The other two witnesses are highly qualified psychiatrists. But they saw Mr McKenzie only twice for short periods for the purpose of providing medico-legal reports and to give evidence in accordance with their reports.
Mr Brookes referred to a number of matters which raise a substantial question mark against Mr McKenzie’s credibility and whether he should be accepted as an honest and accurate witness. Mr Brookes first of all traced through the claims for lost sick leave. Until final address, the claim was put on the basis that ever since the traumatic event, Mr McKenzie has taken most, if not all, of his sick leave entitlements and he is entitled to be reimbursed a substantial sum for the lost sick leave entitlements based upon his net daily pay at the relevant time. It is apparent, and this was accepted in final address by his counsel, that there was no basis for such a claim. He is entitled, at most, to general damages for the lost chance - see Luntz.[13] He is entitled to 15 days’ sick leave per year. The entitlement does accumulate but on cessation of employment cannot be “cashed in”. The accumulated entitlement has no financial value. Mr McKenzie stated that most teachers in his position retired early, with the retirement date being based on the number of accumulated sick days to which they were entitled, and accordingly they were in effect paid for a holiday break based upon the period of accumulated sick leave. Whilst that may or may not be the practice in the State education system, this Court could not condone the practice. One is only entitled to sick leave upon proof that one is sick. The proof is based upon a genuine medical certificate from a medical practitioner. By genuine I mean one that truly reflects that the employee is sick. I would not be prepared to draw any adverse inference against Mr McKenzie because he sought to claim money for each sick day lost. This is a mixed question of law and fact. However, the actual number of days attributable to stress and emotional upset resulting from the traumatic event was a matter that he had to address. This ever increasing claim reflects on his credibility. Mr Brookes first of all referred to the claim made on 29 April 2003. There was a claim for 19 days sick leave at a modest total of $2,545.00. The list was delivered before liability was admitted. However, when it came to 3 February 2005, by which time the case was damages only, the list of special damages had a claim of 160 days which resulted in an overall claim of $21,600. Mr McKenzie produced his diaries, called “Teachers Journals”, which showed that on some days he put a capital “S” meaning “stress“ against the sick leave day. But not all days were so marked. On some days claimed he was not sick. The evidence revealed that Mr McKenzie is an employee who did take most of his sick leave entitlement each year. In the years from 1984 to 1995 he took many days sick leave. No attempt was made to explain the nature of his ill health. He took 19, 17, 14, 15½, 16 and 12 days sick leave in the years 1984, 1985, 1986, 1988, 1990 and 1993, respectively. Mr McKenzie falls into the category of a person who takes sick leave often and is not one who accumulates.
[13]Supra at para 3.3.4.
His ever increasing inflated claim and attempt to attribute all sick leave after 1995 to stress and depression reflect upon his credibility.
The next point made by Mr Brookes is that not one treating doctor, other than the psychologist, has been called as a witness. Mr McKenzie told the Court that a Dr Cashmore and Dr McKay were two medical practitioners who signed Mr McKenzie’s medical certificates. Neither doctor was called. As stated, Mr McKenzie gave some vague evidence that he believed Dr Cashmore may have been interstate or overseas. In a sense, the necessity to call these witnesses dissipated when it was appreciated by the plaintiff’s advisors that they could not claim the sick pay as a monetary sum and that the only basis for compensation was a lost chance situation. That is, from now to the end of his working life as a teacher he may not have sufficient sick pay accumulated to meet any contingency that may occur in the future. But on the other hand, as Mr Brookes points out, their evidence would have been relevant to the nature, extent and the severity of the plaintiff’s depression and post-traumatic stress syndrome as well as providing some evidence of the onset of the symptoms. Dr Cashmore, as the practitioner responsible for the medical certificates between 1995 and 2000, would be in a position to give evidence of his observations of Mr McKenzie’s mental condition. It is a fair point.
The next point made by Mr Brookes is that no witnesses were called other than the plaintiff’s wife to show to the Court the change in Mr McKenzie. It is said by Mr McKenzie and his wife, and repeated in what he told the expert witnesses, that he is a changed man. He is flat, listless and lethargic and cannot cope. On the other hand, no witness has been called, whether a colleague at school or a friend, to support this change.
The next point made by Mr Brookes is that the objective evidence supports the conclusion that the stress and depression are not severe. He submitted that Mr McKenzie handles the pressures of life with little difficulty. He is an art teacher who has in the past few years been given the job of setting the VCE exam paper; no mean feat. He has been the head of photography at the school since 1995, is involved in the Board of Studies review role in his field in addition to his membership of the VCE Examination Panel, and since the year 2000 has accepted responsibility as the school’s magazine co-ordinator. He is also the person who, over the last few years, has organised the school speech night; again, no mean feat. These are all matters emphasised to suggest that Mr McKenzie’s allegations that life is just not the same anymore and he is struggling with depression are not to be accepted at face value. It is asserted that he is holding his job and is performing reasonably well. No teaching colleague attended Court to attest otherwise.
The next matter is that Mr McKenzie faintly suggested in evidence and to Dr Brabin that as a result of the stillbirth and its effect upon him, his desire for promotion within the education system had dissipated. I do not accept his evidence for the reasons stated. A perusal of the medico-legal reports shows that the topic was first raised after liability was admitted. In her report dated 31 January 2005, Dr Brabin noted that Mr McKenzie recently recognised “That in his struggle to survive he has paid little attention to advancing his career in teaching and is facing his retirement without promotion”. This is the first time mention is made of it. In her conclusions, Dr Brabin noted that Mr McKenzie suffers from longstanding self-blame and ignored possibilities for career promotion. I do not accept that his attitude to promotion can in any way be attributed to the stillbirth incident. His history in the education system reveals a man who was not looking for promotion. He did not follow any course of conduct which would lead to the conclusion that if the stillbirth had not occurred he would have obtained promotion to a leading teacher or principal.
There is no doubt that Mr McKenzie has been unhappy on occasions over the last five or six years. Mr Brookes emphasised that Mr McKenzie is 20 years older than his wife, who appears to have overcome her problems and wishes to get on with her life. She has been critical of him and the marriage is at a low ebb. Mrs McKenzie has undertaken intensive counselling, her claim has been compromised and she has made a fairly good recovery from the traumatic incident. She has been frustrated by Mr McKenzie’s failure to commit to a sequence of therapy to address his depressive symptoms. She has from time to time thought about leaving him. Mr McKenzie appears to take substantial periods away from school. He was less than frank about his future. He did concede that he was entitled to retire at the age of 54 years and 11 months if he so desired. This would give him an opportunity to have access to his superannuation, which would give him the option of taking some or all of the amount and if taking some, re-investing the balance. It would also mean that if he so wished, he could enter into a contract with the Education Department to provide teaching services. However, his conduct over the last two or three years shows a man who is less than interested in his work. When the Court asked him what his future held for him, he said he was undecided. I had difficulty in accepting that as an honest answer. He made mention of retiring at age 54 years and 11 months and going to Lismore with the family. Evidently, his wife wishes to move house. I think it most likely that he will retire at 54 years and 11 months of age and consider options other than teaching in this State. The last few years show a man who works 32 weeks of the year and on top of the annual 12 weeks’ holiday takes somewhere between five and six weeks sick leave and four weeks’ long service leave each year. His heart does not appear to be in the job any more. That is not surprising. His present attitude to his employment would be another stress factor in his life.
Another matter of some importance is his attitude to treatment. The period from June 1995 up to February 1999 was stressful for the plaintiff due to a number of events, including the stillbirth, the anxiety of the second pregnancy, the difficulties associated with the first few years of Murphy’s existence, difficulties involved with Mrs McKenzie’s inability to cope with the child, and marital problems. During this period Mrs McKenzie was undergoing treatment in the form of intense counselling and she was also on antidepressant medication. The McKenzies attended during this period for a number of consultations with Dr Brabin about their marital relationship. It is also clear that in this period Mr McKenzie was carrying the responsibility of running the family. During this period Mrs McKenzie was very critical of the state of their incomplete house. Mr McKenzie was involved in much of the building himself. In this period, Mr McKenzie saw Dr Brabin on six occasions, three of them apparently at the instigation of Mrs McKenzie, with respect to marital problems. Dr Brabin stated in her report of February 1999 that Mr McKenzie required specialised counselling integrating “marital and personal issues with understanding of the traumatic impact of the loss of the baby”. She stated that assistance with strategies to alleviate his depression and symptoms of post traumatic stress “will reduce the impact on his functioning from the trauma he has suffered and provide him with better resources to manage future parenting. The availability of, at least, some ten sessions is recommended.” I find that the plaintiff was well aware of this recommendation, and was aware that counselling and medication had substantially assisted Mrs McKenzie. Mr McKenzie saw Professor Dennerstein for medico-legal purposes in July 2001 and she also told him that he should have counselling to resolve his persistent flat and lowered mood. She said that that may involve ten to 15 sessions. By this time the proceeding had been instituted and the alleged injury was depression and anxiety. I do not accept his evidence given late in the trial that he only appreciated he had depression last year when Dr Brabin mentioned it. Mr McKenzie was the moving force behind the litigation of his wife and himself. His claim was compensation for depression.
Between February 1999 and September 2001, Mr McKenzie saw Dr Brabin on two occasions in 1999 with Mrs McKenzie, and once on 14 June 2001. She opined in September 2001 that:
“Peter could benefit immediately if he chose to address the depressive symptoms he has suffered over the last six years. Ten sessions of cognitive effective therapy addressing both the symptoms of trauma and depression may be sufficient if followed by the availability of a further ten sessions over the next few years should further issues arise that trigger aspects of his experience he has learnt to bury over the last six years. ($4,500)”
She repeated the recommendation in February 2004. Professor Dennerstein encouraged Mr McKenzie to return to Dr Brabin, and also raised the question of medication. Dr Brabin repeated in May 2004 the recommendation that Mr McKenzie required “a full ten sessions of cognitive effective therapy addressing both the symptoms of trauma and depression”. She repeated the same advice in January this year. Despite the advice coming from a treating psychologist who had a very good knowledge and understanding of the emotional problems of Mr and Mrs McKenzie, and the advice of a highly qualified psychiatrist, Professor Dennerstein, Mr McKenzie has chosen to ignore that advice. He has from time to time consulted with Dr Brabin and more so in the last year, but the fact is that he has not followed the advice given. Mr Brookes submitted that this shows that Mr McKenzie’s depressive state is not as bad as he makes out. This was met by a submission from plaintiff’s counsel that men are loathe to undergo treatment and that explains why he has not followed the advice of the professional experts. I am prepared to accept that men do have a tendency not to seek treatment and to bottle things up. However, this is not a situation of Mr McKenzie having to find a suitable expert to assist him. Dr Brabin has been there for the family for the whole period. When he thought it appropriate, Mr McKenzie has sought her advice and help. This has usually come about at the insistence of his wife and when there has been a threat to their marital relationship. He has chosen, when he wishes, to seek treatment. He has chosen to seek counselling treatment when he feels the necessity to do so, which appears to be related to the marital problems. I do not accept that his attitude to treatment is reasonable and justifiable.
Mr McKenzie as a witness, in my view, is prone to exaggerate and seeks to attribute all his emotional problems to the traumatic events of the stillbirth. I do not accept that all his problems can be so attributed. He is a man at the end of his professional career. It is fairly apparent that he wants a change of employment. He has run his course in the Education Department. He needs a change. There are marital problems. His wife wants to get on with her life. There is a gap of 20 years’ difference in their ages. All these factors bring pressures. He chooses not to undergo treatment which, on the basis of the experts’ evidence, would be beneficial to him. His statement that he is physically incapable of carrying out certain activities and lacks energy was undermined when at a late stage in the trial it was revealed that he had been involved in a head-on motor vehicle collision in 1981 which has left him with residual disabilities in the joints of his neck and back.
He failed to call witnesses who could have provided some evidence to support his claim of a change in attitude, mood and life’s activities. His evidence has to be very closely scrutinised in this proceeding.
B. Mitigation of Damages
The defendants amended their defence during the hearing to assert that Mr McKenzie had failed to mitigate his damages. The defendants carry the burden of proving the defence. The principles were discussed in the two decisions of this court in Glavonjic v Foster[14] and Karabotsos v Plastex Industries Pty Ltd[15]. The principles were also considered by the High Court in Fazlic v Milingimbi Community Inc[16]. These three cases were concerned with the refusal by a plaintiff to undergo surgical treatment with the object of alleviating the disability suffered. In Glavonjic v Foster, Gobbo J held that the defendant had to prove that a reasonable man in circumstances which existed for the plaintiff would not have refused treatment. In Karabotsos v Plastex Industries, supra, Kaye J said:[17]
“It is apparent, therefore, from the cases referred to that the authorities have developed away from the application of a wholly objective test towards one requiring consideration of matters personal to the plaintiff. A more realistic and humane appraisal ought to be reached by judging the reasonableness of a plaintiff’s refusal to undergo medical treatment by taking into account matters and factors peculiar to the plaintiff and relating to his condition, what advice was given to him, his ability to understand the advice given, and what he understood by the advice.”
[14][1979] VR 536.
[15][1981] VR 675.
[16](1982) 38 ALR 424.
[17]At p.683
Much the same was said by the High Court in Fazlic. The cases establish that there is an obligation upon an injured person to take reasonable steps to mitigate damage. What is reasonable will depend upon all the facts. The High Court said in Fazlic:[18]
“Any assessment of the reasonableness or otherwise of a worker’s refusal of treatment must depend upon the worker’s state of knowledge at the relevant time. This accords both with good sense and with authority. A worker’s choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. And in the case of complex medical or surgical procedures he will know little except what he is told. In the present case he was told very little indeed.”
[18]At p.427.
I am satisfied that the defendant has proven that Mr McKenzie’s refusal to be treated is unreasonable in the circumstances. The plaintiff’s counsel made the following submissions with respect to the question of reasonableness. First, it was said that the plaintiff lacked insight and/or knowledge as to the effects of the psychiatric condition upon him. I do not accept the submission. The evidence leads clearly to the conclusion that he was fully aware of the benefits of counselling and the nature of his condition. First of all his wife’s course of treatment showed the benefits of counselling. Secondly, when he thought it appropriate, he attended for counselling, especially in relation to his marital affairs. Thirdly, he knew what his claim was for. I reject his evidence that he only realised he was suffering from depression last year. I previously stated my reasons. He instituted the proceeding nearly six years after the event, claiming damages for nervous shock. He saw Dr Brabin and Professor Dennerstein at the time for medico-legal reports. Next, it was put that psychological counselling was the only treatment suggested to him and he did attend such counselling. Whilst I accept that only psychological counselling was suggested to him, I do not accept that he attended such counselling in accordance with the advice. But having said that, I am satisfied that he was aware that medication can be used for depression. His wife was on medication in the latter years of the 1990s. The third point was that men are known to be less receptive to psychological counselling. I accept that that is so and I also accept that men are loathe to undergo psychological treatment. But having said that, Mr McKenzie did not follow through the course of intensive counselling to determine the effect it would have upon him. Indeed, last year, from February 2004, he was aware that liability was admitted, that to pursue intensive counselling would be at the cost of the defendants, and yet he chose not to participate in intensive counselling. The number of visits last year did increase but to nowhere near the extent recommended by the experts. Indeed, in the last calendar year, he was absent from school for some 22 weeks, made up of 12 weeks’ holiday, five and a half weeks of sick leave, and a month of long service leave. The family went away in the mid year holidays to Byron Bay and on their return, Mr McKenzie took a month’s long service leave. His wife was unable to inform the Court as to what he did during this period. It is not as if he has not had time to pursue counselling. He informed the Court that he arrived at school at about 8.30 or 8.45 am and left school just after 4.00 pm. He was an experienced teacher and one would have expected he had more than sufficient time to undertake the counselling. It was also put that there were cost ramifications. That is correct. But that was no excuse, especially after liability was admitted. It is also put that his primary concern was for his wife. That would appear to be so in the years 1995 up to the year 2000 but I do not accept that it was so thereafter. It was also said that his family and teaching commitments were heavy responsibilities, suggesting that he would not have been able to undertake the treatment. I do not accept that for one moment. In my view, taking into account all matters that he knew, his refusal to undergo intensive counselling, despite being advised from as early as 1999, was unreasonable in the circumstances and in my view the defendant has established that the plaintiff has failed to take reasonable steps to mitigate his loss. Based upon the evidence I find that if he had taken proper steps in the years 1999-2000, that on the balance of probabilities he would have made a fairly good recovery by the end of 2001 from the post traumatic stress syndrome and depression caused by the traumatic stillbirth incident. In reaching that conclusion, I rely upon the opinion expressed by Dr Brabin. In referring to the trauma resulting from the death of Oscar and the ongoing implications she stated –
“This degree of trauma (ie Mr McKenzie’s) is not consistent with the typical course of grief after loss of a first born baby which suggests that the general recovery occurs within four to six years.”
Mr McKenzie has complained about physical tiredness, but in my view the advancing years and his physical disabilities due to his motor car accident 1981 play a significant part in his physical tiredness. I am satisfied that if he had undergone the course of treatment recommended on many occasions, he would have made a fairly good recovery from his problems within the time span 1999 to the end of 2001.
C. General Damages
In determining the quantum of general damages for injury, pain and suffering, and loss of enjoyment of life, the starting point is the nature of the injury. One takes into account the pain and suffering experienced in the past, any experienced at the present and expected in the future. One also takes into account loss of enjoyment of life past, present and future. One has to be careful not to award double compensation because of the possibility of the heads of damage overlapping. For example, it is inevitable that a person suffering from pain, has a reduced enjoyment of life. That is relevant in the present matter because the stress syndrome and depression have an effect upon Mr McKenzie’s enjoyment of life.
General damages are incapable of mathematical calculation and the Court must apply its common sense to determine what is fair, reasonable and adequate compensation. There is no yardstick or scale to guide the Court. The exercise requires elements of judgment and assessment and, to a degree, intuition. That is not to say, of course, that one should guess what the future may hold. The Court must do its best to approach the assessment and arrive at one which is reasonable and fair to both sides based upon the evidence. The Court must also, so far as damages for the future are concerned, take into account the contingencies and vicissitudes of life. There is a degree of guesswork involved in seeking to forecast the future and the Court looks to the matters proven to form the basis for attempting to determine what the future would hold for a plaintiff.
In accordance with modern practice, it is open to counsel for the parties to put a range of figures to the Court. This has been the practice now for many years in this State, although going back to the 1960s and early 1970s it was not permissible. It is that change which in my view entitles the Court to look at awards of damages for similar injuries but always bearing in mind that no case is exactly the same and that awards in other cases can only give a rough guide to the range of damages which would be reasonable in the circumstances. Mr Keenan QC on behalf of the plaintiff submitted that the Court should award general damages in the sum of $125,000. Mr Brookes on behalf of the defendant submitted that the figure was closer to $25,000-$30,000 and not to exceed the sum of $50,000.
In assessing the general damages, I take into account my assessment of Mr McKenzie with respect to his accuracy and reliability as a witness. Whilst Mrs McKenzie provided some support for his evidence in certain respects, the questions whether or not he has suffered from depression, and its severity since 1995, and whether it can be attributed to the traumatic event, are matters which depend very much upon the evidence of Mr McKenzie and his credibility. I note that no other witness has been called. I also take into account the criticisms that I have mentioned in these reasons. I also take into account that he has acted unreasonably in refusing to undergo intensive treatment. I accept the evidence of Dr Brabin that in the normal course of events one would expect the plaintiff to have recovered in four to six years after the event. In this case that means somewhere between 1999 and the end of 2001. I also note the evidence of Dr Hacker. She accepts, based upon what she has observed and been told by Mr McKenzie, that he has continued to suffer from chronic post traumatic stress disorder of mild severity and chronic major depressive disorder of moderate severity. She opines that he would benefit significantly from treatment.
Reference was made by plaintiff’s counsel to the New South Wales decision at first instance and on appeal of Strelec v Nelson (unreported). In a judgment delivered 13 February 1997, Smart J of the New South Wales Supreme Court awarded the sum of $130,000 general damages to the mother of a child who died within a few weeks of the birth due to injuries suffered at birth. That award of damages was used as a guide by Dowd J in Marchlewski v Hunter Area Health Service.[19] In that case, which also involved the death of a child a short period after birth, the learned judge awarded general damages to the father of the child for nervous shock, the sum of $180,000. He awarded the mother the sum of $200,000 damages also for nervous shock. On appeal it was noted what was said by the High Court in Planet Fisheries Pty Ltd v La Rosa[20] concerning referring to other cases to determine a quantum of damages. The High Court said the practice was wrong. Things have moved on since then. In particular, the practice in this Court is for counsel to inform the tribunal of fact as to the range of damages. I accept that it is now appropriate to refer to previous cases but as I have already said, it is indeed a rare case where the facts are similar and one would have to apply the views expressed in any other case with extreme caution and care. On appeal in Marchlewski, the Court refused to interfere with the awards of general damages, although the amount of aggravated damages was set aside. Mr Brookes countered the reference to these cases by referring to judgments in the County Court, one after a jury verdict and another by a judge sitting alone in nervous shock cases. The jury verdict was some $15,000 in a similar‑type case which was heard somewhere between five and ten years ago. In the other decision given last year, damages of $20,000 were awarded to woman who had seen her father badly burned. I note that in 1996 the damages in Pham v. Lawson[21] were assessed at $13,700, and were reduced on appeal to $9,590.
[19][1998] NSWSC 771.
[20](1968) 119 CLR 118.
[21]Supra.
I note the observations of counsel, but I derive little assistance from the cases. It is a matter for me to determine what I consider is reasonable compensation in all the circumstances.
In assessing the damages, it is necessary to determine when it was, that Mr McKenzie commenced to suffer from the stress syndrome and depression. It is difficult to say on the evidence when the grief, hurt, distress and annoyance resulting from the stillbirth moved to an established injury in the form of post traumatic stress disorder and depression, that is, the non-compensable stage to the compensable stage. The absence of any real evidence of when this occurred, and by that I mean evidence from Mr and Mrs McKenzie and witnesses such as Dr Cashmore and work colleagues, make the issue a difficult one. The evidence established, and I find that by early 1999 Mr McKenzie was suffering from the compensable injuries and I find that in all the circumstances if he had sought and obtained the appropriate treatment he would have made a fairly good recovery by the end of 2000 and at the latest by the end of 2001. The difficulty is when did the compensable injury stage commence. Relying on Dr Brabin’s report of 1999 and the evidence of Mrs McKenzie, I find that the probabilities lead to the conclusion that it was some time in late 1998 that he commenced to suffer from the stress and depressive disorders. Tracing the events from 1995 through the anxiety of the next pregnancy, the stresses involved in the birth and the first few years of Murphy’s life, the difficulties that Mrs McKenzie experienced in the latter period, and the demands made upon Mr McKenzie lead to the conclusion that by late 1998 Mr McKenzie was suffering from the symptoms of stress disorder and the depressive disorder. Dr Brabin in her report of February 1999 reported that he currently had symptoms of distress disorder which were less severe than his wife’s and that he suffered from ongoing depression “currently in the serious range”. In her report dated September 2001 she noted that in March/April 1998, and this accords with the evidence, Mr and Mrs McKenzie saw her on four occasions to deal with marital issues, that in late 1998/early January 1999 she saw both of them together and separately for some nine sessions and to provide some therapy. Consistent with her earlier report, Dr Brabin observed that Mr McKenzie was suffering from the disorders. I find that by the end of 1998 he was suffering from the disorders and although other stressful events played their part, I am satisfied that a substantial proportion of his disorders were due to the stillbirth of 1995. However, I am also satisfied that if he had applied himself to proper treatment, he would have made a fairly good recovery by the end of 2001 and that by marking time over the last number of years, he has not assisted his rehabilitation.
Given that Mr McKenzie suffered post traumatic stress and depression as a result of the stillbirth, taking into account my assessment of him as a witness and his complaints, some of which I accept and some of which I do not, taking into account the fact that he has failed to undergo intense counselling and further, that some of the stress factors could not be attributed to the original incident, doing the best I can on the evidence in my view a reasonable amount of damages for injury, pain and suffering, and loss of enjoyment of life is $30,000. In reaching that amount I have borne in mind questions of slight overlap between the injury and its effects and loss of enjoyment of life. I do not propose to discount for contingencies or vicissitudes of life because in my view realistically the damages are for the injuries and their effects in the past. A course of intense counselling and at last resort some medication will relieve Mr McKenzie of any real problems he is dealing with. I note throughout Dr Brabin’s reports the concern of Mr McKenzie and Mrs McKenzie over this litigation and I also take into account that once this is behind the family there should be some improvement in his mental state. I have also excluded the grief, distress and anxiety arising from the death of Oscar which is not compensable.
D. Medical and like expenses
I allow the sum of $3,463 for the treatment given by Dr Brabin. This amount is agreed.
E. Future medical treatment
Various estimates were made of the likely amount for future treatment and the estimate given by Dr Brabin is $4,000 for counselling. Mr Brookes submitted that this was on the high side and that ten sessions should be allowed based upon the average consultation fee which he said was $258 per session and he suggested a sum of $2,580. Strictly, since this relates to a future payment, the Court should make a discount for present payment. I raised this with Mr Brookes and indicated that if he wished the Court to mathematically calculate the sum he should assist the Court by doing a calculation based on the discount tables. I stated I would allow a small discount rather than worry about mathematically calculating the sum. Mr Brookes agreed with that approach. I think in the circumstances that I should accept the evidence of Dr Brabin of $4,000 for treatment which would be ten sessions over a few years. I will reduce the amount to $3,750 for present payment.
F. Sick Pay
Although the claim was originally put on the basis of determining the number of days taken for sick leave for the mental injuries and multiplying the number of days over the years at the net daily income, the fact was that the plaintiff did not lose any money in the past. He has lost the benefit of accumulating sick days to meet any risk of illness resulting in a prolonged period of absence from work. He has given evidence that he has 20 days’ accumulated sick leave. He is entitled to 15 days each year. The probabilities are that he will cease employment with the Education Department in April next year when he attains the age of 54 years and 11 months. Already he has earmarked a period of long service leave for this year. Taking into account his work regime, the substantial holidays given to teachers to restore their energy, and their working hours, coupled with his illnesses in the past, realistically, in my view, he will not suffer any loss because of the lack of accumulated sick days in the past. This claim is for damages for lost sick pay entitlements to cover him for a period of something in the order of 14 months. Mr McKenzie told the Court that if he retired and was re‑engaged by the Department he could take his accumulated entitlements into the new arrangement. However, the evidence is so vague as to the future I am not prepared to find that he would adopt that course. I am not persuaded by the plaintiff that he has proven he is entitled to any amount. I reject his claim for a general sum of damages for lost sick pay entitlements. However I am prepared to allow him a small sum for the possibility that he may suffer a serious injury in the next 13 months which may result in sick leave exceeding his entitlements. In accordance with the principles stated in Victorian Stevedoring Pty Ltd v Farlow,[22] I would allow the sum of $1,000 for the remote possibility that he may suffer a serious injury or illness in the next 13 months which would result in him not being covered for the whole period of his absence.
[22][1963] VR 594.
Conclusion
It follows that in my opinion the plaintiff is entitled to recover damages as follows:
General damages -
$30,000
Medical and like expenses for the past -
$ 3,463
Medical and like expenses for the future
$ 3,750
Lost sick pay entitlements -
$ 1,000
TOTAL
$38,213
Subject to any submissions by counsel I will enter judgment for a total sum of damages of $38,213.
I will hear the parties on the questions of interest and costs.
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