McManus v Murrumbidgee Local Area Health Network

[2016] NSWSC 1347

Supreme Court

New South Wales

Medium Neutral Citation:	McManus v Murrumbidgee Local Area Health Network [2016] NSWSC 1347
Hearing dates:	2 and 3 March 2015, 5 and 6 September 2016
Date of orders:	27 September 2016
Decision date:	27 September 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Subject to order (3), verdict for the plaintiff for $1,785,498. (2)    Order the defendant to pay the plaintiff’s costs. (3)    Direct the parties within 14 days to consider these reasons and to indicate whether or not there is agreement that there should be a verdict for the plaintiff in the amount specified in order (1) or some other amount.
Catchwords:	PROFESSIONAL NEGLIGENCE – medical negligence – assessment of damages – psychiatric injury following death of plaintiff’s baby – post-traumatic stress disorder – depression and anxiety – whether plaintiff suffered organic brain damage – prospects of recovery – effect of resolution of court proceedings on recovery
Category:	Principal judgment
Parties:	Sharon McManus (Plaintiff) Murrumbidgee Local Area Health Network (Defendant)
Representation:	Counsel: A J Bartley SC with R Ingram (Plaintiff) M Fordham SC (Defendant)   Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant)
File Number(s):	2011/104245
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Sharon McManus sues for damages for nervous shock following the death of her son. She alleges that the defendant failed properly to monitor her labour or to manage her antenatal period and delivery with the result that her unborn child died soon after birth and in circumstances that could and should have been avoided by an earlier Caesarean intervention.

2. Liability is admitted.

3. Ms McManus and her husband provided statements and also gave oral evidence. They were cross-examined respectfully and appropriately by Mr Fordham of senior counsel for the defendant. The balance of evidence in the proceedings consisted of a statement from Ms McManus’ mother and statements from two of her friends, as well as medical reports from her treating psychiatrist and other qualified medical and related specialists. A conclave of some of these experts produced a series of extremely helpful joint reports to some of the details of which it will be necessary shortly to refer. The defendant relied solely upon the several detailed reports of psychiatrist Dr Lisa Brown. No other evidence was called by the defendant.

4. It is not disputed that Ms McManus is seriously unwell. The cause of her condition is also not in question. The only issues that remain in these proceedings concern her likely prognosis and the related issue of the amenability of her condition to treatment. Upon the answers to these questions depend the usual collateral issues that influence a proper assessment of Ms McManus’ damages in several categories.

Background

5. Ms McManus was born in April 1979. She is 37 years of age. She went to school in Goulburn. She completed Year 10. She then completed an Advanced Certificate in Office Administration at Goulburn TAFE. Ms McManus worked in a variety of positions over the years. These are referred to later in these reasons.

6. Ms McManus met Shaun McManus in September 2008. They commenced living together in December that year. She became pregnant. They married in April 2010.

7. In mid-April 2010, Ms McManus suffered from a severe attack of gastroenteritis. She was required to attend Wagga Wagga Base Hospital every day for a period of three weeks. Daily CTG monitoring of her baby was carried out and an ultrasound was performed every second day. On 14 May 2010, she underwent a series of tests. These included another ultrasound. A doctor told her that she was fine and could go. However, that advice was contradicted by a midwife and Ms McManus observed there to be a dispute between them that continued throughout the morning. She was confused and in tears. Ultimately, at about 4.30pm she was allowed to go home.

8. Ms McManus returned to the hospital the following morning. A CTG trace was taken. She was told to go and have something to eat and come back later. She did so. She returned to the maternity area and a further trace was taken. Dr Jarrell examined her briefly and left. A nurse told her to go and get her things and that a Caesarean would be scheduled for that afternoon. She was told that it could not be done straight away as she had eaten recently.

9. Ms McManus and her husband returned to the hospital about 1pm. An intravenous line was inserted at about 2.30pm. A hospital staff member looked at the CTG and said words to the effect of, “We have to go now”. Suddenly everything appeared to become urgent.

10. An anaesthetist arrived and spoke to her about requiring a general anaesthetic rather than an epidural. This upset her. Ms McManus did not want to have an epidural because of an existing back condition from when she had fractured bones in her spine. This had never previously been an issue and she had made her preference clear at all times.

11. Ms McManus was wheeled into theatre. She observed that all of the medical staff were hurrying around but were calm. Her next recollection is waking up after the delivery. She was in severe pain. A doctor who she had never previously met spoke to her saying, “I’m really sorry but the baby didn’t make it.” She replied, “Are you serious?” The doctor replied, “I am very serious. I will go and get your husband”.

12. Ms McManus was shocked. This was totally unexpected. She cried uncontrollably for days and became angry and depressed. She commenced abusing alcohol. She became totally reliant upon it. Whenever she was awake she was drinking. Ms McManus also increased her reliance on cigarettes. Her pattern of drinking to excess continued until she was admitted to St John of God Hospital following which she received professional help. Ms McManus last had an alcoholic drink in October 2012.

13. Prior to her first admission to St John of God Hospital, Ms McManus noticed the following things. She was socially withdrawn. She did not like crowds or talking to people. She was very edgy, anxious and nervous. Ms McManus was unable to sleep and suffered from nightmares and flashbacks. She became fearful that her husband would leave her.

14. Ms McManus was first admitted to St John of God Hospital as an inpatient between 3 October 2012 and 3 November 2012. She has been admitted to the same hospital as an inpatient for similar treatment on several occasions since then.

15. Since the death of her son, Ms McManus continues to ruminate constantly over the circumstances of his death. She becomes angry about this and has difficulty discussing it. She has become socially withdrawn and her relationship with her husband has deteriorated. She has poor concentration and is forgetful. Ms McManus is terrified of again falling pregnant.

16. Mr McManus confirmed these things. He described his wife as a confident woman who knew what she wanted in life. She was hard working and caring. These characteristics have been eradicated by what has happened to her. When he went to his wife in the delivery room following the birth, she was hysterical and hyperventilating. She was crying uncontrollably, saying “I am sorry, it was my fault”.

17. Mr McManus confirmed his wife’s descent into alcoholism. This was in contrast to her moderate social drinking before her son’s death. She suffered from nightmares and insomnia. She takes a large amount of medication and appears constantly to be in a dazed condition. She no longer attends to work around the home as she had always previously done. The effect upon the marriage has been profound and significant. Mr McManus conceded that their relationship was fragile.

18. Mr McManus said that his wife seldom leaves the house alone. She rarely socialises and does not appear to enjoy the company of others.

19. Mr McManus now attends to most of the household and domestic tasks formerly performed by his wife. These include vacuuming, cleaning, cooking and washing up. Mr McManus originally spent about 14 hours per week doing this work although this has now settled at seven hours per week.

20. These difficulties have also had a serious and significant impact upon Ms McManus’ ability to work. Since the birth, she has tried to return to work with limited success. Between October 2010 and January 2011, she worked part-time at a local take away food business in Lake Albert. That was for five hours per day, three days per week. The work involved food preparation and dealing with customers but the latter task made her particularly anxious and afraid. Her drinking was a response to the increased levels of anxiety brought on by this aspect of her work.

21. Ms McManus has also worked at a florist shop in Wagga Wagga on a voluntary basis for a period of about three months. She came under pressure to work in the shop, as opposed to making deliveries, but was unable to do so due to her depression and anxiety. She declined another offer of employment with a friend who owned a food outlet as she was unable to bring herself to commence that employment.

22. In October or November 2013, Ms McManus obtained employment at the bakery at Lake Albert. Her duties included packing orders, slicing bread and customer service. She was only able to maintain that employment for six weeks as she could not cope with her employer or with serving customers. She felt physically sick prior to going to work and would cry every day after work.

23. Before her son’s death, Ms McManus was able to complete jobs that required organisational skills. She no longer has those skills. She has difficulty concentrating and completing a task before turning to another. She often loses track of where she is or why she has done something. Ms McManus does not think that she could manage working more than seven to eight hours per week in any position.

24. Ms McManus has no interest in sexual contact with her husband. This has fuelled her fears that the marriage might end.

Medical opinion

Dr Gordana Jovanova

25. Dr Jovanova reported upon Ms McManus on 22 August 2014. Ms McManus had been under her care as an inpatient at St John of God Hospital. She developed severe symptoms of post-traumatic stress disorder related to her son’s death on 15 May 2010. Her symptoms were unremitting and compounded by the development of alcohol dependency. Ms McManus reported recurrent, involuntary and intrusive distressing memories of the events related to her son’s death. She suffered from poor memory and concentration, depressed mood with fleeting suicidal thoughts, a perpetual feeling of fear and horror as well as feelings of shame and diminished interest in all activities of daily life.

26. Dr Jovanova expressed the following opinion in August 2014:

“It is highly likely that Ms McManus will require on and off treatment regarding her PTSD symptoms for the years to come. The frequency of her follow up appointments with her GP, a psychiatrist and a psychologist will depend on many factors (general physical health, social supports, employment, ability to get pregnant, exposure to other psychological trauma) and at this stage cannot be predicted/estimated with any certainty.

Based on her progress since Cooper’s death in May 2010, it is reasonable to expect that Ms McManus will require long term follow up. It is unlikely that Ms McManus will be cured of PTSD or cured of Alcohol Dependence – the secondary condition that had developed in the context of her severe PTSD.

It is likely that Ms McManus will require long term follow up by a psychiatrist, a psychologist and drug and alcohol counsellors and she might require re-admissions to a psychiatric hospital at times.”

27. On 17 March 2016, Dr Jovanova expressed the opinion that it was “highly unlikely that [Ms McManus] will recover fully from the traumatic experiences in 2010” and that it “is highly unlikely that [she] will return to the level of her pre-morbid general functioning”. She continued:

“Based on her progress since 2010 and her complex issues of trauma, alcoholism and affective symptoms, in my opinion, it is highly likely that Ms McManus will continue to need psychiatric treatment in years to come. It is likely that when Ms McManus’ symptoms are stable, she will require occasional appointments with a psychiatrist and sometimes additional psychologist and/or a counsellor for alcohol related issues. It is also likely that when her symptoms worsen Ms McManus will require further inpatient treatment in a psychiatric hospital for the years to come.”

Dr Robert Gertler

28. Dr Gertler first saw Ms McManus for psychiatric assessment on 15 April 2011. He formed the opinion that she had developed an adjustment disorder with depressed mood. He was of the view that her level of depression was consistent with that of a major depression, chronic in duration. She lacked motivation to attend to domestic and personal chores and her ability to engage in normal social and recreational activities had been affected.

29. By 12 March 2013, Dr Gertler observed that Ms McManus’ symptoms of anxiety and depression had become more apparent since she stopped all alcohol consumption. He considered that she was learning to come to terms with the symptoms of anxiety and to control them in an acceptable therapeutic manner. Nevertheless, Dr Gertler considered that her prognosis remained guarded. She lacked motivation and remained socially withdrawn. She continued to have problems with concentration and all of her symptoms would adversely affect her capacity to return to work. Dr Gertler considered that Ms McManus required “prolonged psychiatric and psychological treatment such that an eventual return to work, most likely through a rehabilitation program, [was] unlikely for at least 12 months”.

30. On 17 March 2014, Dr Gertler reported in these terms:

“Mrs McManus continues to suffer from symptoms of post-traumatic stress disorder and major depression, in partial remission. The alcohol dependence which previously existed is also in remission.

The symptoms of the major depression are also in partial remission. Nevertheless she continues to be withdrawn socially and to have difficulty coping with crowds or, as was evidenced in her brief period of employment last year, with the general public.

Mrs McManus’ symptoms have stabilized. As such, the prognosis for further improvement in her condition is guarded and she will require continuing treatment as she has at present, for up to two years.

Mrs McManus’ capacity for work at the present time is very poor as evidenced by her experiences in late 2013, in an environment which was somewhat threatening but which involved shorter hours and ostensibly stress free work.

As such, her capacity for work in the future, despite what appears to be some motivation on her part, remains guarded.”

31. By 16 June 2015, Dr Gertler considered that Ms McManus would “require further treatment for up to two years”. He expected that treatment gradually to become less intense over that time, “particularly once legal proceedings have been completed”. Concerning her capacity for work, Dr Gertler said this:

“Her capacity for work since 2010 has been minimal. Whilst Mrs McManus has returned to the workforce it is only for several hours a week and then with some apprehension because of a general lack of self confidence and an inability to relate to others, as well as difficulties which she has with concentration and memory. This situation is likely to continue for the foreseeable future.”

Professor Alexander McFarlane

32. Professor McFarlane has provided a series of very long and detailed reports concerning Ms McManus. In his report of 2 February 2015, he expressed the following opinions:

“The death of Ms McManus’ infant occurred in May 2010. It is important to discuss the issue of her prognosis given that 4½ years have elapsed since that time. Despite extensive and ongoing treatment at the specialist programs at St John of God Hospital, Ms McManus continues to suffer from the symptoms of a chronic posttraumatic stress disorder. Her symptoms of a major depressive disorder are in partial remission and she continues to be abstinent from alcohol. Hence, whilst there has been a significant degree of improvement, her adaptation remains significantly compromised. As demonstrated the repeated re-admissions to St John of God Hospital document her sensitivity to environmental stress that lead to an exacerbation of her symptoms.

Despite her ongoing symptoms she has sought to return to the workplace, which she is managing approximately 8 hours per week. She had previously attempted to return to work in November 2013 but only last for 6 weeks. This demonstrates the limitations that remain in her functioning.

Against this background, it is my opinion that she is likely to have an ongoing chronic and relapsing condition for the foreseeable future.

She will remain vulnerable to ongoing intercurrent stressors, which is likely to lead to an exacerbation of her symptoms at this time. The longer her symptoms remain the lesser the probability that her symptoms will improve, … In essence, the longer an illness remains the lower the probability that it will fully resolve.

As a consequence, Ms McManus is likely to have relatively enduring symptoms for the foreseeable future that will become increasingly exacerbated as a consequence of the disruptive neurobiology that underpins her symptoms of posttraumatic stress disorder and depression.

…

As demonstrated by the history set out in the various reports, Ms McManus’ capacity for work has been significantly compromised by her psychiatric disorder. She has demonstrated that she is motivated to attempt to return to the workforce for at least the next 2 years. It is my opinion that she will only have a capacity for approximately 7-8 hours per shift, as she is currently working. The fragility of her placement was demonstrated by the fact that she only lasted for approximately 6 weeks when she attempted an earlier return to work in November 2013. It may be possible that her capacity could increase to working 2 days per week at some later point in the future. However, she describes how the ongoing stresses and challenges of dealing with members of the public as well as perceived conflict in the workplace, at times destabilises her mental state. Hence, her adjustment in the workplace remains relatively marginal and is not likely to improve substantially in the near future.

Having re-assessed Ms Sharon McManus, I conclude that the opinion I expressed at the joint expert conclave of 13th November under-estimated the ongoing severity of her symptoms and risk of relapse. Having examined the case notes of St John of God Hospital where she has been treated for her alcohol abuse, posttraumatic stress disorder and depression, it is apparent that she remains vulnerable to intercurrent life stresses leading to an exacerbation of her symptoms.

It is probable that her course in the foreseeable future will be similar to that of the past 12 months. In this setting, she has a limited capacity for work of 8 hours per week for the next 2 years. She requires the ongoing care of a psychiatrist. Her current medication plays an important role in lessening her symptoms and decreasing the probability of relapse.”

33. Professor McFarlane has continued to maintain his opinion that Ms McManus will be unable to work for more than eight hours per week.

Dr Pauline Langeluddecke

34. Dr Langeluddecke is a psychologist. She conducted a neuropsychological assessment of Ms McManus on 25 November 2015. She formed the view that her test results were a valid measure of Ms McManus’ cognitive abilities with no evidence of inadequate effort or concerns regarding practice effects.

35. Dr Langeluddecke agreed that Ms McManus suffered from a chronic post-traumatic stress disorder and possibly also a major depressive disorder. She thought that Ms McManus was unlikely to prove capable of resuming employment in a managerial role similar to that held prior to the loss of her son given the chronicity of her anxiety and depressive symptoms and cognitive resources/impairment evident on formal testing. Her conclusions were as follows:

“Cognitive testing indicates a decline in Ms McManus’ general intellectual capacity from Average to Low Average for age. Consolidated verbal knowledge, basic attentional functions, and immediate recall of contextual verbal information are relatively preserved at an Average level for age. Higher order verbal abilities, visuospatial planning/organisational and reasoning abilities, processing speed, ability to learn complex or unstructured verbal information, immediate visuospatial memory, working memory capacity, and a range of executive functions (including initiation and cognitive flexibility) are below expected levels. Ms McManus’ cognitive profile in testing suggests impairment in keeping with a history of alcohol abuse/dependence. However, interpretation of her cognitive test results is complicated by the confounding effects of emotional factors on her performance. Questionnaire findings indicate ongoing symptoms in keeping with a Post-Traumatic Stress Disorder, high levels of depression and concerns regarding health-related issues.”

Dr Lisa Brown

36. Dr Brown is a consultant psychiatrist. She prepared a series of reports between November 2011 and June 2016. Her 27 June 2016 report summarises her final conclusions in the following terms:

“2. Causation

The causation of Mrs McManus’ conjoint psychiatric conditions remains grief-related, in response to the death of son Cooper during 2010. Mrs McManus’s various psychological symptoms are unlikely to be explained by other life stressors, including her father’s chronic ill health or her own experience of chronic low back pain. However, she acknowledged the role of the legal proceedings as having a particular exacerbating effect.

3. Prognosis and Treatment Recommendations

Mrs McManus has received some settling of anxiety and improved sleep patterns with higher doses of sedative medications at night and the addition of a second antidepressant medication, which has a particularly sedating effect. She has also continued to make use of a medication designed to reduce urges to drink alcohol. With the alteration in her medication regime, Mrs McManus is probably receiving maximal and appropriate doses of treatments from each of these various categories.

She has continued to make effective use of attending monthly sessions with a treating psychiatrist but no longer attends a local counsellor. Mrs McManus has also achieved at least temporarily benefit from a further admission to hospital over the past year.

Professor McFarlane (report dated 9 February 2016) considers that Mrs McManus will experience ongoing cognitive difficulties and impaired functioning despite any psychologically settling effects from resolution of the litigation. In exploring this issue with Mrs McManus she expressed reservations that she would be able to return to full time work or make a full psychological recovery. However, she acknowledged a sense of hopefulness that she will be able to achieve a better settling of her emotional state.

Although unlikely to undergo a full remission on the basis of resolution of the proceedings alone, Mrs McManus has been considered likely to achieve a better long term outcome, if she chooses to undergo desensitisation exposure type therapy and which she has not felt ready to attempt to date.

If she were to successfully complete treatment of this type, Mrs McManus may well undergo an improvement in both depression and anxiety and a consequent improvement in her cognitive functioning. She has not been considered to have developed permanent cognitive deficits.

Whilst Dr Jovanova offers a negative prognosis for any more full recovery in the future, Dr Langeluddecke concedes that Mrs McManus was, at the time of assessment, able to work up to sixteen hours weekly. She is unlikely to return to full time work within at least the next few years.

Mrs McManus has maintained supportive relationships with her husband, family members and a couple of friends, the latter at least on an intermittent basis. She is involved in limited recreational activities and also has a reduced level of involvement in domestic activities. She has maintained personal care and is able to travel independently, albeit with her having self-imposed restrictions in driving to unfamiliar locations.

Mrs McManus continues to exhibit between mild to moderate severity impairments in most arenas of daily functioning. Although the extent to which she can make a more full recovery remains uncertain, the potential for benefits from desensitisation/exposure treatment suggest that she could ultimately achieve a reduction from moderately severe to milder symptoms overall. If Mrs McManus were willing to consider more intensive therapy of this type she would be recommended to undertake up to fifteen such sessions with a psychologist experienced in dealing with trauma reactions. She might choose to be hospitalised at this time to provide her with additional support.”

37. Dr Brown did not consider that Ms McManus was suffering from any form of mild neurocognitive disorder. Dr Brown, alike with her colleagues, agreed that Ms McManus would require ongoing inpatient and outpatient psychiatric admissions. She considered that Ms McManus should attempt to undergo up to 15 sessions with a psychologist experienced in dealing with trauma reactions for desensitisation/exposure treatment.

“Neurobiological underpinnings”

38. At large in these proceedings are the issues of how long Ms McManus’ disabling psychiatric conditions will continue and whether or not they are likely to diminish over time. The defendant contends that her condition will improve and that it is amenable to psychiatric, psychological and pharmacological, as well as therapeutic and cognitive behaviour, regimes that will have that effect. That is because Ms McManus’ condition is a psychiatric condition and not one that derives from some form of irreversible structural pathology.

39. Ms McManus’ position is that her condition will not improve over time and that it is not amenable to treatment. That is for at least one of two reasons. First, her condition is so severe that she will never fully recover. It is a psychiatric condition of such duration and intensity that, based upon her limited progress so far, she can expect to be afflicted with her condition permanently. Secondly, and alternatively, Ms McManus has sustained alterations to her neural pathways secondary to her post-traumatic stress that are irreversible and that will entirely delimit the prospect of any further recovery. Treatments are therefore of limited assistance for any purpose other than the temporary amelioration of symptoms.

40. The genesis of this latest alternative is Professor McFarlane’s report dated 9 February 2016. Professor McFarlane would appear to have been influenced by the cognitive disturbances identified by the formal testing of Ms McManus carried out by Dr Langeluddecke, which Professor McFarlane agreed pointed to “underlying neurobiological contributions to [her] condition”. In that report, for the first time in this litigation, Professor McFarlane said this:

“…there are a variety of dimension [sic] of the neurobiology of posttraumatic stress disorder that are indicative of a long-term dysregulation of neural function that cannot be reversed. This underpins the probability of the chronicity of Ms McManus’ condition.”

41. Perhaps unsurprisingly, Ms McManus’ solicitor thereafter asked Professor McFarlane in effect to elaborate on his reference to neurobiological underpinnings, in the related context of Ms McManus’ likely response to the resolution of this litigation. Professor McFarlane proceeded at some length to do so in his 29 August 2016 report as follows:

“In considering the changing treatment responses of Ms McManus’ posttraumatic stress disorder with the passage of time, it is necessary to further examine this question from the perspective of mechanism of chronicity. The underlying neurobiological abnormalities involved in posttraumatic stress disorder are likely to be significantly worsened by continued experience of symptoms. This is based on a significant body of knowledge about the relationship between posttraumatic stress disorder and the neurobiological abnormalities that underpin its pathophysiology, (Liberzon and Sripada, The functional neuroanatomy of PTSD: A critical review, Progress in Brain Research, 2008; 167:151-169). This body of research highlights the multiple neural circuits involved in the aetiology of posttraumatic stress disorder include habituation, extinction and cortical modulation of the HPA axis. In essence, these systems are liable to becoming increasingly disrupted the ongoing reactivation of the symptoms that increasingly become entrenched, (McFarlane et al, Biologic models of traumatic memories and post-traumatic stress disorder: The role of neural networks, Psychiatric Clinics of North America, 2002; 25:253-270).

There is a significant body of work that highlighted the roles of stress sensitisation, fear conditioning and the failure of extinction in posttraumatic stress disorder, (Charney et al, Psychobiological mechanisms of posttraumatic stress disorder, Archives of General Psychiatry, 1993; 50:295-305). The impact of ongoing symptoms on stress systems has been shown to cause greater dysregulation, (McEwen, Stress, adaptation and disease, allostasis and allostatic load, Annals of New York Academy of Science, 1998; 840:34-44). Hence, there is a substantial body of underlying knowledge derived by both clinical observation and neuroscience to indicate the decreased probability of further treatment gains in Ms McManus. This impact of symptoms relates to the loss of total brain volume. A meta-analysis of premorbid brain volume estimates compared with the actual brain volume in adults with posttraumatic stress disorder and concluded that there was a significant loss of neural tissue with PTSD, (Hedges & Woon, Premorbid brain volume estimates and reduced total brain volume in adults exposed to trauma with or without posttraumatic stress disorder: a meta-analysis, Cognitive and Behavioural Neurology, 2010;23:124-129), (Shucard et al, Symptoms of posttraumatic stress disorder and exposure to traumatic stressors are related to brain structural volumes and behavioural measures of affective stimulus processing in police officers, Psychiatric Research, Neuroimaging, 2012;204:25-31).

There is also evidence that brain volume predicts brain treatment responsivity. For example, individuals with current posttraumatic stress disorder have significantly smaller brain volumes compared with those who have recovered with treatment. This provides some evidence to support that smaller brain volumes impede recovery, (Chao et al, Regional cerebral volumes in veterans with a current versus remitted posttraumatic stress disorder, Psychiatric Research, Neuroimaging, 2013;03.002). Hence, Ms McManus’ condition is likely to be underpinned by a similar change in her brain structure and function that impact on the probability of her gaining benefit from treatment.

It is important to highlight that one of the conditions suffered by Ms McManus has been major depressive disorder. There is substantial evidence highlighting that the shorter the duration of untreated illness, the better the treatment response as well as the remission rates. This conclusion arises from a summary of the literature using meta analytic techniques, (Ghio et al, Duration of untreated illness and outcomes in unipolar depression: a systematic review and meta-analysis, Journal of Affective Disorders, 2013;152:45-51). This paper also refers to other literature that, ‘… confirmed the importance of reducing delays in treatment of depression in order to prevent the risk of worse outcomes and chronicity, particularly in patients presenting with the first episodes of illness’.

In summary, the chronicity of Ms McManus’ symptoms and the neurobiological underpinnings, on the balance of probabilities, indicate that she is unlikely to have any significant further treatment gains. Rather, her treatment is about stabilisation and assisting in the management of acute exacerbations of her distress.”

42. The defendant took exception to this evidence, upon the basis that it came late in the day and on the eve of the final conclave of experts. The defendant objected to its reception because Dr Brown would not have been able at short notice to deal with it. I expressed doubt that Dr Brown would not have been able to deal with the issue but postponed consideration of the objection until I received the final Joint Conference Report dated 30 August 2016.

43. In my opinion Ms McManus should not be permitted to propound any such case. There are at least two reasons for this.

44. First, Professor McFarlane’s opinion embraces what he referred to as “a substantial body of scientific evidence from structural neuroimaging studies, functional and neuroimaging studies, and studies of electrical activity on the brain that demonstrate substantial underlying pathology”. In the present case, Ms McManus has simply not been the subject of any such imaging or examination. Professor McFarlane contends, however, tautologically in my opinion, that on the balance of probabilities, in the light of the severity of her symptoms, their chronicity and her associated neurocognitive impairment, that Ms McManus is in fact likely to have significant volumetric changes in the regions of her brain involved in executive functioning and memory. Part of what he said at the joint conference was as follows:

“Mrs McManus is also likely to have functionally significant different patterns of connectivity between the regions of the brain that are involved in fear processing. Working memory and the executive functions have significant biological underpinnings that can be demonstrated in neuroimaging studies. Particularly the dorsal lateral prefrontal cortex on the left side is vulnerable to disconnection in these tasks and is likely to be abnormal in Mrs McManus. These abnormalities are underpinned by changes in neurohormonal transmission and neurochemical processes.” (Emphasis added)

45. It will be apparent that the ultimate demonstration of the presence or absence of any relevant volumetric changes relies upon the structural neuroimaging studies to which Professor McFarlane refers and which, logically, he utilises to confirm his diagnoses. To that extent Professor McFarlane approbates the importance of such studies. In their absence in the present case, however, Professor McFarlane resorted to the adoption of a position that in effect requires me to take him on trust. In my view that amounts to a reprobation of the importance of the studies simply because they have not been performed on Ms McManus. That seems to me to be a totally untenable position for an expert to adopt. It is more significantly procedurally unfair to the defendant. Simply stated, it cannot be assumed, as Ms McManus asks me to assume, that the neuroimaging studies will necessarily confirm Professor McFarlane’s pessimistic opinion. The defendant should have been given at least the opportunity to examine Ms McManus in this respect. Conversely, if she wished to rely upon the existence of an organic cause for her condition, she bears the onus of establishing it.

46. Secondly, the views of Professor McFarlane come late in the day, in the sense that, if the suggestion that Ms McManus had structural changes to her brain was as clear and obvious as Professor McFarlane wishes now to assert, it is surprising to say the least that this idea was not referred to with corresponding emphasis in one or other of his several earlier reports. It is not correct to say, as Professor McFarlane appeared to suggest in his evidence, that he did not mention it earlier because he was not asked to do so. The first mention of neurobiological underpinnings appears apparently unsolicited in Professor McFarlane’s 9 February 2016 report in answer to a suggestion that resolution of these proceedings will lead to an improvement in Ms McManus’ condition.

47. I am in any event not satisfied that Ms McManus has established this type of pathology. The neuroimaging that all practitioners appear to accept is capable of establishing the condition has not been undertaken. Opinions about so-called neurobiological underpinnings in this case therefore rise no higher than informed speculation.

48. Dr Brown has seen Ms McManus on several occasions. She has indicated in clear terms that Ms McManus did not appear to her to be cognitively impaired, having regard to her responses to questions upon examination. In addition to not having undergone the type of neuroimaging that might detect possible neurobiological pathology, Ms McManus has had neuropsychological testing which, although comprehensive, could be explained in terms of the deficits that were detected as being due to significant anxiety and depressive symptoms. Dr Brown has indicated that on each occasion that she has assessed Ms McManus, she has been able to provide a complete history and has not displayed the type of cognitive deficits in clinical presentation that are consistent with neurobiological pathology. Specifically, Dr Brown was of the opinion that there is insufficient evidence to support any long term dysregulation of neural functioning. Dr Brown was of the opinion that if Ms McManus had the type of permanent neurobiological pathology and significant cognitive deficits attributable to organic brain changes, she would probably not be able to work even the eight hours per week that she has recently been able to achieve.

49. It is also significant in my opinion that nowhere in the voluminous material assembled in the form of hospital and clinical notes from the St John of God Hospital is there any material that I have been able to find, or to which my attention has been drawn, that lends support to the existence of an organic pathology of the type under consideration. Having regard to the accepted relationship between alcohol abuse, for which Ms McManus was being treated, and organically based cognitive impairments, it is remarkable that the existence of demonstrable cognitive deficits in her case is neither discussed nor documented.

50. Finally, I have myself had the opportunity on two occasions to observe Ms McManus giving evidence under cross-examination in court. Allowing for the fact that there are limitations associated with observations of that kind, mine did not suggest that Ms McManus was labouring under any cognitive difficulties.

Resolution of litigation

51. One of the matters, if not in fact the only significant matter, to which the defendant points suggesting that Ms McManus’ condition and prognosis are likely to improve is the likely beneficial effect of the resolution or completion of these very proceedings. Such a suggestion is not novel in litigation of this type, and it has received general support from the specialists who have treated or examined Ms McManus. For example, Professor McFarlane referred to this issue on a number of occasions. In his 8 August 2012 report he commented that the “failure of resolution of her ongoing legal issues … has compounded her difficulties”. In his 9 February 2016 report he referred to the issue as follows:

“It is important to emphasise that the resolution of compensation proceedings does little to modify the impairments and disabilities associated with posttraumatic stress disorder. Equally, litigation is an adversarial process and can serve to sustain stress related with an injury and impact adversely on adjustment…

In Ms McManus’ case, the delay in her litigation is a matter that has caused her significant distress. The resolution of that litigation will significantly assist in allowing her to focus on the future and progress her life within the limits of her impairments. The report of Dr Langeluddecke highlights the ongoing difficulties with information processing, attention and concentration that Ms McManus experiences. These impairments will remain despite the resolution of litigation. Hence, her functional impairment will not significantly change, however her level of continuing distress will be lessened if the litigation could be concluded.

The mechanisms for continued distress relate to the fact that with posttraumaic stress disorder, one dimension of the symptoms is the triggered psychological distress on exposure to reminders. The litigation is one such origin of triggered distress for Ms McManus. However, the removal of those triggers would represent only one aspect of the multiple factors in her environment…”

52. Dr Gertler had also referred to this issue in his 16 June 2015 report. He expected Ms McManus’ “treatment to gradually become less intense over … time, particularly once legal proceedings have been completed”.

53. Dr Brown also referred to the resolution of legal proceedings in the context of Ms McManus’ prognosis. In her 24 July 2015 report, Dr Brown said this:

“Mrs McManus acknowledged the exacerbating effect of her involvement in the legal proceedings and which because of its drawn out nature has led to repeated anticipatory anxiety and subsequent feelings of disappointment when the matter has been adjourned.

…

Rather than assuming that she will remain indefinitely as she now presents, both the ultimate conclusion of the legal claim and a more focussed therapeutic effect from treating trauma and panic/agoraphobic type complaints still have the potential to assist Ms McManus to better process her grief reaction and to return to a closer semblance of the life she previously lived.”

54. Dr Brown’s opinion was echoed by her at the conclave on 30 August 2016. She agreed that Ms McManus has a chronic pathological condition that has not remitted fully over time. However, she considered that the ending of the legal process and the undertaking of treatment should lead to significant improvements being achieved, or at least a reduction in symptoms. Dr Brown based that opinion upon Ms McManus’ acknowledgement that at the time of contact with legal hearings, such as at mediation or in anticipation of the trial, she has considered re-hospitalisation. Without this particular stressor, Dr Brown considered that Ms McManus was likely to experience a significant settling of her symptoms within six months to a year following conclusion.

55. Ms McManus was briefly cross-examined on this topic as follows:

“Q. The adjournment of this case on the last occasion caused you considerable distress?

A. Yes.

Q. One of the things you complained about at St John of God was that you felt humiliated and invalidated by the Court process?

A. Yes.

Q. You were upset by being cross examined by me?

A. Yes.

Q. When asked to list what it was that was upsetting you when you last attended St John of God Hospital, the Court case was front and centre?

A. Last year?

Q. Yes.

A. Yes.

Q. It remains the case, doesn’t it, that you want this case finished?

A. Yes.

…

Q. Part of the obstacles in you finally addressing what happened with Cooper has been this Court case, hasn’t it?

A. Yes.

Q. For that reason, you want this Court case to end?

A. Yes.

…

Q. The adjournment of this case was a major disappointment to you?

A. Yes.

Q. The lead up to this case has caused you enormous amounts of stress?

A. Yes.

Q. What I am suggesting to you is that the completion of these proceedings will be a significant relief to you?

A. Yes, but I don’t think it’s going to make a difference.

Q. It will take a significant stressor out of your life, won’t it?

A. Yes.”

56. This topic also arose in the course of the concurrent evidence of the experts as follows:

“BARTLEY: In terms of the resolution of the litigation does it go, without saying, tell me if that is not the cause of her underlying problem?

WITNESS BROWN: No, it’s not the cause of her underlying problem.

BARTLEY: Has your clinical experience extended to treating patients who have conditions similar to that in terms of severity and length of time to Mrs McManus’s

WITNESS BROWN: Yes, I have.

BARTLEY: who have not recovered after litigation?

WITNESS BROWN: I think that in my experience treating both in private practice and in prison population patients with post-traumatic stress disorder there’s a variable response. The reason why I believe that Mrs McManus will have a positive response is that she’s mentioned on a number of occasions that in the lead up to mediation or anticipating trial she has developed some of the warning signs of relapse for herself, she’s had herself admitted to hospital at those times. So for her there’s been a particularly high level of stress associated with the legal proceedings.

BARTLEY: You know that she’s had eight admissions as an inpatient to St John of God.

WITNESS BROWN: I would accept that figure.

BARTLEY: How many of those can you identify as having any connection temporarily with the litigation?

WITNESS BROWN: I think off the top of my head she told me that the one earlier this year, I think it was around March/April and that she was anticipating possibly going into hospital with the trial in September now.

BARTLEY: She’s not gone into hospital this time so that the other seven occasions have not been related to the litigation?

WITNESS BROWN: I’d have to look back through my reports but I’m aware in general that this is an issue that does bring up exacerbations of symptoms quite acutely for this particular person.

…

WITNESS GERTLER: With a resolution of litigation the nature of the illness is such that it does have a fluctuating cause. Symptoms can be triggered or exacerbated by various factors, situations, triggers, if you like, and the ending of litigation certainly will relieve one level of anxiety or one possible trigger there’ll certainly be others that will occur over time and I would expect there would be a clinical response to those triggers when they occur.

BARTLEY: Dr Langeluddecke, is this in your territory?

WITNESS LANGELUDDECKE: No, I’ll leave this to the psychiatrist.

BARTLEY: Yes. Professor McFarlane?

WITNESS MCFARLANE: Firstly, in relation to the ending of the litigation I think Mrs McManus has definitely found litigation a stressful and difficult process but I don’t believe that has been the major factor determining the course of her disorder and as you pointed out she has had one admission in the circumstances of litigation. So I don’t believe there’s going to be a substantial change in her state of mind once the litigation in completed...

…

BARTLEY: And Professor McFarlane have you had extended experience in dealing with patients in a clinical setting, many years after litigation has been resolved?

WITNESS MCFARLANE: Yes, I’ve had many patients who I’ve continued to treat after litigation has been ended and my experience is that it actually doesn’t substantially change the clinical course and there’s now a well-documented literature of studies that have followed populations that would suggest that whilst the Court cases may be related to a temporary increase in distress, that in fact those longitudinal studies don’t actually demonstrate any substantial remission on the termination of litigation.”

57. Once again I note that, to my limited and necessarily incomplete observation, Ms McManus did not appear to be unduly concerned when giving evidence before me. I am unable to determine if she was inwardly distressed but even if she had been that did not appear to interfere with her ability to engage with counsel or to answer questions appropriately.

58. My observations, together with the medical opinions that have been offered on the topic, lead me to conclude that these proceedings are but one factor in the cause of Ms McManus’ current distressing medical condition. It is not the only factor and is not in my opinion even the most significant factor. So much is apparent from an examination of the underlying causes of Ms McManus’ continuing post-traumatic stress disorder, her anxiety and her depression. The resolution of these proceedings will undoubtedly be beneficial to Ms McManus but that will not make a significant difference to her suffering in my opinion. In particular, it will neither shorten the duration of her condition nor significantly alter its intensity. The part to be played in ameliorating Ms McManus’ otherwise unfortunate prognosis by conclusion of her case will be minimal.

Treatment

59. Dr Brown has indicated that Ms McManus would be likely to benefit from some cognitive therapy, such as desensitisation sessions with an experienced psychologist. She and her colleagues answered some questions about this as the following transcript reveals:

“BARTLEY: Your Honour, I’d invite, with your Honour’s permission, to comment on this after I ask the next question. The other areas, the desensitisation exposure therapy, that’s been an issue that you’ve been raising in this case for some time; isn’t it?

WITNESS BROWN: Yes, I have.

BARTLEY: When you first raised it were you aware that she’d already gone that unsuccessfully?

WITNESS BROWN: No, because that wasn’t the history that I received. I’ve only understood that since reading one of Mrs McManus’s recent statements in August 2016.

BARTLEY: You had the St John of God hospital notes; didn’t you?

WITNESS BROWN: I’ve had some of them but I’m not aware of the specifics of the therapy that she described in her statement.

BARTLEY: Would the fact that she was offered this treatment some years ago, underwent it for four sessions and it was discontinued be relevant to whether it’s likely to work in the future?

WITNESS BROWN: If it was some time ago it may be relevant to try again, particularly once the legal claim is concluded and that is no long exacerbating her symptoms acutely.

BARTLEY: One last matter, your Honour, before I ask the others what they think about this, Dr Brown, would you not agree that the length of time after the original trauma when desensitisation exposure therapy is undertaken is a very negative indicator as to whether it’s going to work?

WITNESS BROWN: It’s a negative indicator but it doesn’t mean that it isn’t worth trying in an individual patient.

BARTLEY: Do you see any hazards in it?

WITNESS BROWN: I think the potential hazard is acute exacerbations of symptoms at the time and that’s why I recommended that a course of treatment like that would be best undertaken in the hospital setting with appropriate backing.

HIS HONOUR: But there is a risk of regression?

WITNESS BROWN: Temporary regression with the aim of a more permanent resolution or improvement of symptoms.

BARTLEY: Perhaps I could ask Dr Gertler what your view is about, first of all, resolution of the Court proceedings and, second, whether it’s at all appropriate now to embark upon desensitisation exposure therapy.

WITNESS GERTLER: If I could answer the second question first. It’s been my experience and I’ve certainly been aware of instances where people have undergone that type of desensitisation and then made serious attempts on their own lives. So I would be very hesitant indeed at this point in time in subjecting Mrs McManus to a further intensive, if you like, desensitisation or apprehension type experience.

…

WITNESS MCFARLANE: … In regards to further cognitive behaviour therapy my opinion has changed to a degree following the reports of Dr Langeluddecke because, I think, a psychological intervention depends in part on the capacity of somebody to hold information on line and in a sense to operate on the internal schemers that are involved with the traumatic memory and the degree of her cognitive impairment means that I think she’s going to, Mrs McManus would find that particularly difficult and also the severity of her symptoms if anything has been increasing with time, so that I don’t believe it’s probable that, particularly in the light of the fact that she hadn’t attempted cognitive behavioural intervention during her admission of 5 August 2013, that this would offer any significant probability of improvement.

…

HIS HONOUR: Dr Brown just from my point of view would you accept that in the clinical position presented by Ms McManus it would be not unreasonable if she chose to refuse to engage in that type of desensitising therapy?

WITNESS BROWN: Yes, I could quite understand that if she’s had a difficult experience with it before. But, but I think if she was in a hospital setting again, she didn’t have the acute stress of the legal claim and she was in a, she’s in a trusting relationship with her treating psychiatrist, I think it could be attempted in a reasonable fashion and it would be I think a great shame for her not to have the opportunity to undergo treatment which may make a significant difference to her outcome in the longer term.

HIS HONOUR: No, I understand your view about its likely or probable success, I just wondered if having regard to your detailed knowledge of her whether it would be reasonable for her if she so chose having regard to the initiating stressors … to decline that and I understand you would accept that as a patient response?

WITNESS BROWN: Yes, I would and I think that that’s where it is important to spend time with the patient, talking to them and explaining, yes.”

60. Ms McManus was not directly examined on this topic. She was only cross-examined generally about treatment as follows:

“Q. You are going to continue to work with your treating psychiatrist?

A. Yes.

Q. As best you can, you will adopt whatever treatments she recommends in order to try and, as best you can, improve?

A. Yes.”

61. It should be noted that Ms McManus gave her evidence about this before the issue was discussed in the concurrent evidence of the specialists. It should also be noted that revisiting areas of potential sensitivity for Ms McManus in the witness box made the cross-examiner’s task particularly difficult in this case. It is my understanding that the desensitisation therapy being contemplated would require Ms McManus herself to revisit the death of her son in a gradual but ultimately quite intense and confronting manner with a view to reducing and hopefully eliminating its continuing significance as a prime source of her psychiatric difficulties.

62. At the conclave of experts on 30 August 2016, Professor McFarlane expressed the view that it was “improbable” that Ms McManus would be able to undergo desensitisation or exposure-based therapies as indicated by her intolerance to such treatment attempted to date. He noted that 30 percent of patients are unable to tolerate it and he considered that Ms McManus has had an adequate trial already without success.

63. Doing the best I can it seems to me that it is unlikely that Ms McManus will venture to engage in the type of therapy concerned. I am not qualified to comment upon the likelihood of whether it would or would not be successful if it were undertaken. It is clear to me that Ms McManus is well motivated. However, having regard to her history and to the severity of the presenting cause of her illness I suspect that it is improbable that she will be able to manage the difficulties with the type of therapy concerned. I also consider that it would not be unreasonable for her to refuse to submit to desensitisation treatment in the circumstances.

Damages - calculation

64. The following integers are used in the calculations of future losses:

1. Date of injury – 15 May 2010

2. Date of birth – April 1979

3. Life expectancy – 51.34 years

4. Multiplier for life – 980.6

5. Work life multiplier – 855.7

Non-economic loss

65. Ms McManus is seriously ill. There is no significant challenge to the nature or extent of her psychiatric condition. Her post-traumatic stress disorder and depressed and anxious state render her disabled on an ongoing and unrelenting basis from enjoying or participating in a wide range of fundamental activities of daily life. This situation is likely in my view to continue for the whole of Ms McManus’ life, with little real or tangible prospect of improvement.

66. Dr Jovanova has indicated that Ms McManus’ symptoms will become stable. That is not to be confused with a statement that they will improve or disappear. The prospect for Ms McManus is permanent psychiatric illness, even if some of the acute exacerbations caused by such things as involvement with litigation are obviously going to recede. No discernible improvement of a significant kind has yet emerged. Control of Ms McManus’ alcohol dependence has been a major step but her underlying psychiatric pathology endures unabated.

67. In my opinion, Ms McManus is entitled to damages for her non-economic loss assessed as 60 percent of a most extreme case. That sum is $356,500.

Past out of pocket expenses

68. There is agreement to the extent of $112,155 under this head. The defendant disputes $3,628.35 of the amount claimed for Medicare and $4,131.40 for the cost of travel for treatment. There is also a dispute about the sum of $4,078.70 claimed by Ms McManus as the unrecoverable gap for psychiatric treatment. The total of the amounts in dispute is $11,838.45.

69. Despite the provision at my request of an updated schedule of damages and supporting documentation or evidentiary references, I have been given no guidance upon how to resolve this difference and no material explaining the competing contentions. I propose to allow the amount that is presently agreed and invite the parties to inform me what is proposed by them for the resolution of the deadlock.

Future psychiatric consultations

70. There is no dispute that Ms McManus will require, and that she is entitled to damages covering the cost of, psychiatric consultations into the future. Dr Brown is of the view that Ms McManus’ condition will settle over the course of not more than two years. She is, however, alone in that view. The balance of medical opinion is that Ms McManus will require such consultations effectively for the remainder of her life.

71. There is agreement that the present cost of an appropriate psychiatric consultation is $250. Ms McManus claims the cost of such consultations for the remainder of her life on a monthly basis. The total amount calculated for life at the agreed rate is $56,571.

Future counsellor consultation

72. Ms McManus currently sees her psychologist for weekly consultations. The agreed rate for one of these consultations is $120. It is not agreed that Ms McManus will require this treatment for the whole of the remainder of her life.

73. As far back as 2 March 2015 Ms McManus agreed with Mr Fordham that she would benefit from continuing to “concentrate on working with” her treating psychologist. It was not then suggested that she did not need to see her psychologist weekly or that she may not need to continue with such consultations as frequently as years went by. When Ms McManus was cross-examined briefly in September 2016, the issue of the need for psychological counselling sessions did not arise at all.

74. It seems to have been accepted on both sides that psychological therapy has been of assistance to Ms McManus, that it will continue to be helpful and that having regard for her mental state, that she has an identified need for it. Save to the extent that Dr Brown posits a significant improvement in Ms McManus’ condition after about two years, the balance of medical opinion is that her post-traumatic stress disorder is a chronic condition with lifelong expectations. I consider that that view is well supported. It follows that Ms McManus should be entitled to the cost of psychological treatment at the specified rate for her lifetime. The amount calculated by reference to the appropriate multiplier is $117,672.

Future St John of God Hospital inpatient expenses

75. The costs of inpatient stays at St John of God Hospital are claimed upon the basis of two such admissions per year. That conforms roughly to Ms McManus’ history of such admissions since 2010, with eight admissions between October 2012 and March 2016.

76. A careful analysis of the wealth of clinical notes referable to these visits paints a fairly bleak picture. Ms McManus develops severe problems with anxiety and depression, with worsening mood often related to triggers such as relevant anniversaries related to the death of her son, and associated re-emergence of alcohol cravings for which she has been treated at the hospital. This documentary material bears witness to the cycle of relapse and recovery with which the hospital admissions have primarily had to deal. These patterns develop and repeat themselves notwithstanding outpatient consultations with Ms McManus’ psychiatrist and psychologist.

75. It would be hoped that some diminution in the intensity and frequency of these relapses into psychiatric crises would have appeared by now or would develop over time. There is, however, no sign of that anywhere. I say so once again having regard to the optimistically dissenting opinion of Dr Brown. Indeed, the material produced by St John of God, when examined closely, does not inspire the slightest hope of permanent reduction of Ms McManus’ symptoms or in the prospect of some enduring partial remission.

76. It seems to me that Ms McManus will unfortunately require semi-annual admissions to a hospital for psychiatric treatment for the rest of her life. The difference between the cost for these visits as claimed by Ms McManus and the amount with which the defendant is prepared to agree is of no significance. The costs as claimed amount to $195,500 and Ms McManus is entitled to recover that amount.

Future travel expenses

79. The amount of $133,560 claimed by Ms McManus for travel expenses incurred in visits to medical specialists and hospitals does not seem to me to be reasonable. The weekly rate of expenditure on this item in the six years since May 2010 to date, recognising the dispute concerning the amount claimed referred to earlier, is approximately $45 per week. In my opinion that amount should inform the calculation of future travel costs. Applying the relevant multiplier the weekly sum of $45 produces $44,127. Accepting that arithmetical precision in such calculations is illusory, I consider that the sum of $50,000 should be allowed for this item.

Future medication

80. I have not been provided with evidence that would support rational findings by me about the rate of consumption of a series of nominated medications referred to in Ms McManus’ schedule of damages. In general terms the defendant does not contest Ms McManus’ need for these pharmaceuticals but is in doubt about the cost on a periodic basis in the absence of prescription recommendations, dosages and the like. In addition, Ms McManus has made no specific or identifiable claim for the cost of medication in the past from which any predictions could in general terms be offered.

81. The total amount claimed for all medications at the relevant multiplier for the rest of Ms McManus’ lifetime is approximately $66,000. To the limited extent that I am able to assess the issue, those costs do not seem to me to be particularly excessive. In particular, they appear to me to be reasonable. In the circumstances I am prepared to allow the assessed amount of $55,000 for the cost of future medication, but on the strictly limited or conditional basis that if the defendant wished to revisit the issue and put Ms McManus to strict proof of this aspect of her claim, it should be entitled to do so.

82. It is to be hoped that such a course will not prove to be necessary.

Vocational assessment and supportive counselling

83. The amount of $5,000 claimed for this item is not challenged.

Exercise and weight management

84. The amount of $4,443 claimed for this item is disputed. There is not in my assessment sufficient evidence to support this claim. Ms McManus has, since the date of the report recommending it, had gastric banding surgery. There is no current evidence to support this claim.

Past domestic assistance

85. Ms McManus claims 14 hours per week for 21 weeks between 15 May 2010 and 15 October 2010 at $24.74 per hour ($7,275) and thereafter seven hours per week for 307 weeks between 16 October 2010 and 5 September 2016 at $26.89 per hour ($57,785) producing a total sum of $65,060. That sum is not contested by the defendant.

Future domestic assistance (paid)

86. Ms McManus claims future domestic assistance at the commercial rate of $40 per hour for seven hours per week. There is ample evidence to support the provision of this level of domestic assistance to Ms McManus by her husband in the past and there is no suggestion that he would not continue to provide that level of assistance in the future. The defendant does not contest the existence of a continuing need for this assistance but does contest the claim for compensation upon the basis of commercial or paid care rates.

87. It seems to me, considering the nature of the tasks with which Ms McManus requires assistance, such as cooking and cleaning and washing, together with the associated limited amount of assistance needed to meet her requirements, that it is quite unrealistic to assess the value or cost of this component on anything other than a semi-commercial basis at best. The defendant has conceded a combined hourly rate under this head of $28 as a combination of commercial and gratuitous care. That seems to me to be more than a sensible way to evaluate Ms McManus’ loss in this category.

88. Accordingly, $196 per week at the lifetime multiplier of 980.6 produces a total amount for future domestic assistance of $192,200. This amount should be allowed.

Past economic loss

89. It is not contested that Ms McManus’ ability to earn income has been severely compromised by her medical condition. Despite it, she has attempted to work in several different settings at tasks commensurate with her experience and pre-morbid work history. Taking into account the average one day per week that Ms McManus has been able to work over the period since April 2010, her weekly net loss calculated as $639 less $136 amounts to $503. That weekly loss for the period of 303 weeks produces $152,410.

Lost superannuation (past)

90. Superannuation at nine percent on Ms McManus’ gross pre-injury weekly earnings of $800 less her average post-injury weekly earnings of $136 for 303 weeks amounts to $18,100.

Future economic loss

91. I am satisfied that Ms McManus’ economic potential will not improve from its present level. Her current lost net weekly earning capacity is $503. Having regard to the defendant’s latest proposed schedule of damages, that amount does not appear to be in contest. At the applicable work life multiplier, Ms McManus’ future economic loss is $430,420. Deducting 15 percent for vicissitudes, the proper sum to compensate for that loss is $365,860.

Lost superannuation (future)

92. Superannuation at nine percent on Ms McManus’ gross pre-injury weekly earnings of $800 less her average post-injury weekly earnings of $136 at the applicable work life multiplier, less 15 percent for vicissitudes, amounts to $43,470.

Conclusion and orders

93. It follows that, subject to any further argument about some of the items to which I have specifically referred, Ms McManus is entitled to damages in the total sum of $1,785,498. The defendant should also pay Ms McManus’ costs.

94. I will allow the parties a reasonable period to consider these reasons and to indicate thereafter whether or not there is agreement that Ms McManus should receive a verdict for the total amount that I have indicated.

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Decision last updated: 27 September 2016