Metro North Hospital and Health Service v Pierce

[2018] NSWCA 11

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Metro North Hospital and Health Service v Pierce [2018] NSWCA 11
Hearing dates:	29 August 2017; 30 August 2017
Date of orders:	14 February 2018
Decision date:	14 February 2018
Before:	Macfarlan JA at [1]; Payne JA at [2]; White JA at [3]
Decision:	1. Appeal dismissed. 2. Cross-appeal dismissed. 3. Order that the appellant pay 60 per cent of the respondent’s costs of the appeal and cross-appeal.
Catchwords:	TORTS – negligence – apportionment of responsibility and damages – medical negligence – whether pre-existing condition was progressively deteriorating – whether causation was established – whether assessment of damages could be challenged – challenges to findings of fact and damages dismissed
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Civil Liability Act 2003 (Qld), ss 11, 57, 59(2) Workmen’s Compensation Act 1932–1935 (SA)
Cases Cited:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 House v The King (1936) 55 CLR 499; [1936] HCA 40 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559 Purkess v Crittenden (1965) 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Metro North Hospital and Health Service (Appellant) Emily Pierce (Respondent)
Representation:	Counsel: J Glissan ESM SC with D Nagle (Appellant) D E Graham SC with S Maybury (Respondent)   Solicitors: Corrs Chambers Westgarth (Appellant) Edwards Michael Powell Lawyers (Respondent)
File Number(s):	2016/357828
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2016] NSWSC 1559 Date of Decision: 03 November 2016 Before: Campbell J File Number(s): 2012/353698

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent and cross-appellant, Ms Emily Pierce, has suffered from epilepsy since the age of six. In 2010, at the age of 20, Ms Pierce underwent electroencephalographic monitoring, a telemetry testing procedure requiring sleep deprivation and the withdrawal of medication, to induce a seizure so as to determine whether surgery would be suitable to address her epileptic episodes. The testing was held at one of the appellant’s hospitals, the Royal Brisbane and Women’s Hospital. Subsequently, Ms Pierce brought a claim for damages for the harm suffered as a result of the Hospital’s negligence in conducting the telemetry testing. Whilst the existence of a duty of care, and the Hospital’s breach of that duty, was admitted, the appellant submitted that its negligence did not cause or materially contribute to any increase in the burden of Ms Pierce’s epilepsy. The respondent contended and Ms Pierce denied that Ms Pierce’s epilepsy was a progressively deteriorating condition. The primary judge found for Ms Pierce, awarding damages in the sum of $1,672,790.75. In so finding, his Honour discounted damages for past economic loss by 50 per cent, damages for past care and future economic loss by 67 per cent and damages for future care by 75 per cent.

The issues in the appeal were:

(i) whether the primary judge was justified in concluding that Ms Pierce suffered from a progressively deteriorating condition;

(ii) whether the evidence justified the primary judge’s conclusion that the burden of Ms Pierce’s epilepsy worsened following the telemetry event of 5 January 2010;

(iii) whether the primary judge was justified in concluding that the worsening that his Honour found, going beyond a natural deterioration, was caused or materially contributed to by the Hospital’s negligence; and

(iv) the challenge by both parties to the primary judge’s assessment of damages.

The Court held (Per White JA; Macfarlan and Payne JJA agreeing) dismissing the appeal:

In relation to (i)

The cross-appeal was unsuccessful; Ms Pierce’s epilepsy was a progressively deteriorating condition as established on the balance of probabilities: [114]-[115].

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied.

In relation to (ii)

The evidence amply supported the primary judge’s finding that there was a detrimental difference to Ms Pierce’s condition after the telemetry event: [133].

In relation to (iii)

The primary judge’s application of s 11 of the Civil Liability Act 2003 (Qld) was correct. His Honour was correct that “but for” the negligence of the Hospital in conducting the EEG, Ms Pierce would not have suffered an increase in the burden of her epilepsy to the extent she did: [158]-[159].

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29; EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238; Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190; Adelaide Stevedoring Co Ltd v Forst (1940) 64 NSWLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

In relation to (iv)

There was no error in the primary judge’s approach in relation to damages. His Honour had made a finding that was open to him, considering the pre-existing condition and its likely natural deterioration: [186]-[187].

Judgment

1. MACFARLAN JA:   I agree with White JA.

2. PAYNE JA:   I agree with White JA.

3. WHITE JA:   This is an appeal and cross-appeal from orders made in the Common Law Division of the Court (Campbell J) on 3 November 2016. His Honour gave judgment for the plaintiff in the sum of $1,672,790.75 with liberty to apply in respect of interest on past economic loss and ordered that the defendant pay the plaintiff’s costs (Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559).

4. The respondent and cross-appellant, Ms Emily Pierce, suffers from epilepsy. She was born in May 1989. She suffered her first epileptic seizure in 1995 when she was six. She was relatively seizure-free until the onset of puberty when she was about 14. From that time there was an undoubted increase in seizure activity. One of the issues is whether from 2003-2010 Ms Pierce’s condition showed a progressive deterioration, or whether it waxed and waned on a general plateau.

5. Ms Pierce had been treated since she was an infant by a paediatrician, Dr Christopher Ingall. In November 2008, when Ms Pierce was 19, she was referred by Dr Ingall to a neurologist in Brisbane, Dr Cecilie Lander. Ms Pierce asked Dr Lander to refer her to a neurosurgeon, Professor Sam Berkovic, in Victoria, as she wished to explore the option of surgery to cure her epilepsy. Dr Lander advised that before seeing Professor Berkovic Ms Pierce would need to undergo electroencephalographic monitoring of brain activity (“EEG”) to determine whether she was a suitable candidate for surgery. This procedure required the withdrawal of Ms Pierce’s medication and sleep deprivation in order to induce seizures to ascertain where in the brain seizure activity occurred. This procedure took place in the Royal Brisbane and Women’s Hospital on 4 and 5 January 2010.

6. The primary judge recorded that there were various stages of the development of the induced seizure starting from simple partial seizure, to complex partial seizure, and then to a more serious and prolonged period of seizure activity called complex partial status epilepticus (“CPSE”). These seizures lasted for two hours and 44 minutes. They have been called the telemetry event. The primary judge described the telemetry event in some detail. It was recorded on a DVD. His Honour said that what was depicted on the DVD was to some extent distressing. His Honour formed the impression that it was very distressing for Ms Pierce and was of some severity, not just because of its duration, but also due to its intensity, bearing in mind that medical intervention was delayed (at [35]). It is unnecessary in these reasons to refer to the details.

7. The Hospital admitted that it breached its duty of care by not treating Ms Pierce’s seizure event in a timely manner, not properly instructing the staff who were to be monitoring her as to the appropriate care and treatment, by not treating the seizure event appropriately, and by not taking any or any proper steps to terminate Ms Pierce’s seizure within an appropriate time after it was initially commenced (Judgment [6]).

8. The Hospital’s position was that the burden of Ms Pierce’s epilepsy was not made worse by the telemetry event and that the only damage suffered was transient distress in the immediate aftermath of that event. The Hospital contended that if the burden of Ms Pierce’s epilepsy were worse after 5 January 2010 than it was before the administration of the EEG, which it denied, she had not shown that the worsening of her condition was caused by the telemetry event.

9. The Hospital relied upon the evidence of Professor John Dunne to the effect that CPSE that lasted two hours and 44 minutes would not cause any cognitive deterioration. This opinion was based on Professor Dunne’s own personal experience of over 200 patients with CPSE at Royal Perth Hospital over the past 30 years and his review of the scientific literature that he said showed that there was no clinical evidence that CPSE produced brain damage or neuronal injury and enduring cognitive dysfunction in people with epilepsy, except very rarely in patients with prolonged CPSE of at least three days’ duration and usually much longer.

10. The Hospital also contended that a deterioration in Ms Pierce’s condition, and in particular, an increase in the frequency of seizures, would be consistent with the natural history of her condition independent of any neuronal or brain injury arising from her admission to the Royal Brisbane Hospital.

11. Ms Pierce accepted that there had been an increase in seizure activity and a concomitant worsening of her epileptic condition at puberty, but said that while her condition waxed and waned, it had generally plateaued prior to her undergoing prolonged CPSE on her admission on 5 January 2010. Her evidence was that as she went through puberty her seizures became more regular and correlated roughly with her menstrual cycle. She said that she had two to three days of warning prior to a seizure occurring in that her vision became affected by “wriggly lines” and she had other symptoms or signs such as a headache and a sense that she needed to withdraw from people to a safe environment. She said her seizures usually came at night. She said that after 5 January 2010 her condition worsened to, in effect, a different plateau. Seizures were more frequent and not predictable. She denied that her condition after January 2010 could be attributed to a natural progression of her epilepsy.

12. It was common ground that there had been an increase in seizure frequency after January 2010. An expert called by Ms Pierce, Dr Jason Fong, said that there were two possible explanations for that increase: either the prolonged CPSE on 5 January 2010 caused subtle brain damage that led to the increased number of seizures with other associated consequences; or that Ms Pierce’s condition deteriorated according to the natural history of her drug-resistant epilepsy. He preferred the former explanation.

13. These hypotheses were not mutually exclusive. The primary judge accepted Dr Fong’s opinion that the telemetry event on 5 January 2010 caused subtle brain damage that contributed to what his Honour found was a more severe burden of epilepsy than Ms Pierce had before that event. The Hospital challenges that finding.

14. The primary judge also found that Ms Pierce’s pre-existing epilepsy was a progressive disease and that her condition would have worsened in any event (at [165]). Ms Pierce challenges that finding.

15. The primary judge accepted the opinion of Dr Fong that if it were accepted that Ms Pierce’s epilepsy deteriorated naturally, her CPSE in January 2010 contributed about 50 per cent to her worsened condition (at [166]). The Hospital contends that Dr Fong’s opinions were unsupported by any reasoning, were not shown to have been based on his training, study or experience, and should have been rejected.

16. The primary judge’s finding that Ms Pierce’s pre-existing epilepsy was a progressive disease significantly affected his assessment of damages. His Honour discounted damages for past economic loss by 50 per cent (at [194]). He discounted damages for future loss of earnings by 66.7 per cent (at [203]). He rejected the assumptions upon which a joint report of occupational therapists was prepared in quantifying damages for past and future attendant care, substantially on the basis of his finding that Ms Pierce suffered from a progressive disease that would have worsened even in the absence of the telemetry event of 5 January 2010. He discounted their assessment of damages for past care by 66.7 per cent and for future care by 75 per cent.

17. By her notice of cross-appeal Ms Pierce challenged the primary judge’s finding that her pre-existing epilepsy was a progressive disease and asserted that his Honour erred in his approach to assessing past and future economic loss. Ms Pierce submitted that the discounts applied were excessive even if the primary judge were justified in finding that her pre-existing epilepsy was a progressive disease.

18. For the reasons which follow, I have concluded that the Hospital has not established that the primary judge erred in finding that the burden of Ms Pierce’s epilepsy significantly worsened following the telemetry event of 5 January 2010 and that the Hospital’s negligence in failing to take steps to terminate her seizure within an appropriate time was a significant contributing cause of the worsening of her condition. I have concluded that the primary judge was entitled to accept the evidence of Dr Fong. I have also concluded that Ms Pierce has not established that the primary judge was in error in concluding that her condition of pre-existing epilepsy was a progressive disease. I do not consider that his Honour erred in his assessment of damages.

19. These reasons address the issues in the following order:

1. whether the primary judge was justified in concluding that Ms Pierce suffered from a progressively deteriorating condition;

2. whether the evidence justified the primary judge’s conclusion that the burden of Ms Pierce’s epilepsy worsened following the telemetry event of 5 January 2010;

3. whether the primary judge was justified in concluding that the worsening that his Honour found, going beyond a natural deterioration, was caused or materially contributed to by the Hospital’s negligence; and

4. the challenges by both parties to the primary judge’s assessment of damages.

Ms Pierce’s Pre-Existing Condition

20. Ms Pierce was born in 1989. She was born with a porencephalic cyst in the right frontal lobe of her brain. Since childhood she has experienced some difficulties with power and movement of the muscles of her left arm and left leg. As noted above she suffered her first epileptic seizure in June 1995 at the age of six.

21. It is convenient to repeat the primary judge’s description of the relevant medical terminology. His Honour said:

“[18]   … Various terms were employed by the expert witnesses to classify different progressions of Ms Pierce’s condition, and also the diagnostic and clinical significance of Ms Pierce’s symptoms in the context of determining the nature of the epileptic activity she was experiencing at a particular time. It is therefore relevant to briefly set out the meaning of some of these terms.

[19]Where the epileptic activity is isolated to only a particular part of the brain, this is referred to as “focal” or, more commonly in the evidence, ‘partial’ epileptic activity; where the whole of the brain is involved, it is classified as ‘generalised’ in nature (Exhibit 1.2, p 58). A seizure may commence as ‘partial’ but progress to become ‘generalised’. Where this occurs the seizure is referred to as a ‘secondarily tonic-clonic seizure’

[20]The state of a patient’s consciousness is also relevant to classification. Where the consciousness of the patient is not impaired, the seizure is referred to as ‘simple’; where there is some impairment of consciousness, it is classified as ‘complex’: Exhibit 1.2, p 58; 272:7T (Dr Fong). A generalised tonic-clonic seizure (‘GTCS’) whether ‘secondarily’ or not, is characterised by complete loss of consciousness. ‘Tonic’ and ‘clonic’ refer to body movement or posture. The former consists of ‘unilateral jerks’; the latter to asymmetric posturing, or complex whole body movement. In a simple generalised seizure the patient may suffer no loss of consciousness and yet exhibit tonic or clonic signs.

[21]‘Status epilepticus’ is a series of seizures or a prolonged seizure ‘creating a lasting epileptic state’ of greater than 30 minutes duration. ‘Complex partial status epilepticus’ (‘CPSE’) is a series of partial seizures, or a prolonged partial seizure, creating an epileptic state involving altered consciousness, not complete unconsciousness, and continuing for greater than 30 minutes. EEG is required for definitive diagnosis of CPSE. It can last for days, weeks and months: Exhibit 1.2, p 60; Exhibit L.1, Appendix 1.”

22. “Postictal” refers to the patient’s condition in the aftermath of a seizure.

23. Ms Pierce’s epilepsy was managed by a paediatrician, Dr Christopher Ingall. On the occasion of her first epileptic seizure on 21 June 1995 she was admitted to Lismore Base Hospital. She was discharged on 23 June 1995. Prior to that seizure the plaintiff did not have to take regular medication.

24. On 31 March 1996 Ms Pierce was again admitted to Lismore Base Hospital having suffered a seizure. She was discharged the following day.

25. On 16 July 1996 Ms Pierce was admitted to the Children’s Hospital whilst staying in Sydney with relatives during the school holidays, having had a seizure lasting 20-30 minutes. She recovered rapidly and only stayed in hospital briefly.

26. By 1997 Dr Ingall reported that Ms Pierce complained of “wriggly lines” going across her eyes almost half a dozen times in the previous month. Associated with those episodes was a tendency for her to be vague and a little sleepy, and Dr Ingall wondered whether they might in fact represent seizure activity. On 22 September 1998 Dr Ingall reported that Ms Pierce was having seizures on approximately a monthly basis. None of these required hospitalisation. On 1 February 1999 Dr Ingall reported that Ms Pierce was doing very well indeed. She still had occasional “absent seizures”, usually every one to two weeks, which lasted for only a few seconds at a time in which she did not fall over or lose consciousness, but her eyes glazed over and she became motionless for a few seconds. By 27 August 2002 Dr Ingall was able to report that Ms Pierce had remained virtually seizure-free. Her epilepsy was then well controlled by Lamictal.

27. With the onset of puberty Ms Pierce’s epilepsy deteriorated. From her first seizure in June 1995 Ms Pierce has been prescribed anti-seizure medication. She had a small number of seizures up until about 1999, but was then seizure-free until 21 March 2003 when she was 13. On that day the notes of the Emergency Department of Lismore Base Hospital record that Ms Pierce was found by friends to have the left side of her body twitching followed by a grand mal seizure that was witnessed by a neighbour who was a doctor. She was discharged on 23 March 2003.

28. Ms Pierce was admitted to the Lismore Base Hospital again on 28 June 2003. She was in an altered state of consciousness following an epileptic seizure. The Emergency Department recorded that she had had two seizures at home whilst using a computer. She had ceased fitting but was unresponsive. She had had two focal seizures five minutes apart. She was released the following day.

22. On 8 September 2003 Ms Pierce consulted Dr Ingall. In his letter of 10 September 2003 Dr Ingall noted that she had had four grand mal seizures since April with another two episodes of left sided numbness and stiffness which lasted some minutes. From September 2003 the Pierce family kept a diary of seizure events. It was principally written up by Ms Pierce’s mother, Mrs Glenda Pierce. Ms Pierce told her mother each time she had a seizure. Mrs Pierce said that the family kept what she called a “Kitchen Diary”. Emily’s seizures would be written into that diary and Mrs Pierce would then transcribe the seizure dates into paper diaries that she kept. The purpose of keeping the diaries was to try and find a pattern to the seizures, to work out whether there were any triggers to the seizures or whether there was any relationship between seizure activity and particular anti-seizure medications that Emily was taking.

23. The primary judge summarised the effect of tables prepared by the parties that had been compiled from seizure diaries and Hospital clinical records on the number of complex partial seizures suffered by Ms Pierce in each calendar year from 2002 to the end of October 2015. His Honour said:

“[131]    Ms Pierce and the Hospital provided tables compiled from the seizure diaries and clinical records of the number of complex partial seizures suffered by Ms Pierce in each calendar year. The table below is a compilation of their competing positions. Its format is drawn from Table 1 in Exhibit 1.4, which is Professor Dunne’s report of 9 May 2015. His numbers exclude the visual auras which he in fact regards as simple partial seizures. As I have said already, I favour Dr Fong’s view that one cannot be satisfied even on the probabilities that every visual aura was a seizure. The lawyers for each party provided their analysis of the seizure diaries and the clinical records, also in tabular form of the events they contend should be regarded as seizures. In Professor Dunne’s case this is attached to the letter requesting his report which became L.4 and forms part of the exhibit. In the case of the plaintiff’s lawyers, the tables and schedules were handed up as part of their written submissions.

YEAR   Total Seizure Days   Total Seizure Days   Seizures Where Hospital

Defendant’s Case   Plaintiff’s Case   Admission/Record

2002      0                   0

2003      12         10         4

2004      3         2         1

2005      2         1 [sic 2]      1

2006      8         8         8

2007      5         4         5

2008      8         9         8

2009      16         12         11

2010      22*         23         6*

2011      19         20         3

2012      23         24         2

2013      19         22         1

2014       24   

2015       22 (until end of October)   

* RBH admission not included

[132]    Other than for the 2009 year, there is very little difference between the positions contended for by each party. I am of the view that those differences are really not material. For the 2010 year, Professor Dunne excluded the telemetry event, presumably on the basis that this was an induced seizure and therefore not truly a manifestation of the state of Ms Pierce’s epilepsy. I agree with his approach. Ms Pierce’s numbers include the telemetry event.”

31. As shown in the above table in 2004 and 2005 Ms Pierce was relatively seizure-free. In a letter of 13 July 2004 Dr Ingall reported that she had had no seizures since starting a drug called Topomax two months previously. On 26 November 2004 he reported that Ms Pierce remained fit-free on Topomax. She had other medical conditions. She was underweight and in 2005 had glandular fever.

32. On 3 August 2005 Ms Pierce was admitted to Lismore Base Hospital having had two seizures at home and in the ambulance. She was discharged on 6 August 2005. On 13 September 2005 Dr Ingall wrote that her seizure of 3 August had produced a significant mental slowing for the month following her seizure activity. That letter was written in support of an application that she be given special consideration for her school exams. On the same day in another letter addressed “To whom it may concern” Dr Ingall reported that Ms Pierce had “presently uncontrolled epilepsy”. On Dr Ingall’s advice Ms Pierce did not sit for her school certificate in 2005. He said that it was advisable that she not do so because her medical condition affected her cognition, function, memory and processing of information and the high level of stress “her current medical condition has created”, presumably meaning because of the high level of stress that sitting for her school certificate exams could create.

33. As the above table shows Ms Pierce’s seizure activity deteriorated in 2006.

34. Although the table set out above shows eight admissions to hospital in 2006, the agreed chronology in respect of hospital admissions and presentations provided to this Court stated that there were seven such admissions in 2006, namely, from 30-31 January 2006, 10-13 April 2006, 20 May 2006, 26-27 June 2006, 22 July 2006, 25 August 2006 and 17 December 2006. (Professor Dunne refers to a record of Ballina District Hospital of 17 January 2006 “seizure and ambulance called at 17.46. Mother had administered 3 x 5mg rectal Valium”. No record of that event is included in the exhibit of the Ballina Hospital Records.

35. The most serious of these admissions was between 10-13 April 2006 when Ms Pierce was admitted to Ballina Hospital and transferred to Lismore Base Hospital where she was admitted into intensive care. Professor Dunne opined that the seizure episode on 10 April 2006 was status epilepticus of at least eight and a half hours’ duration.

36. The Hospital points to the absence of any evidence and any contention that this 2006 seizure event had any lasting effect on Ms Pierce’s cognition in support of its contention that the 2010 telemetry event that involved an induced seizure that progressed to a complex partial status epilepticus, of a duration of two hours and 44 minutes was not causative of any permanent cognitive impairment.

37. The primary judge found that the seizure on 10 April 2006 was not a continuous CPSE event of eight and one half hours’ duration. His Honour found it did not exceed one hour and 25 minutes (at [83]). His Honour found that the earlier seizure which caused her presentation to Ballina Hospital and a later seizure noted around 2.00am by nursing staff were probably isolated complex partial seizures of less than 30 minutes’ duration. This finding was consistent with the Ballina Hospital records in which the paediatric registrar recorded that when Ms Pierce arrived at Ballina Hospital she was postictal and stable. It was consistent with a record of Dr. Ingall’s reported observation on a ward round on the morning of 11 April of seizures for one and a half hours from 10.30pm. Professor Dunne accepted that Ms Pierce’s seizures had ceased by about midnight but contended that she had been in an ongoing seizure state since 5.30pm. Whilst that was possible, the primary judge’s conclusion was supported by the hospital records.

38. The Hospital did not rely only on the seizure on 10 April 2006 as a CPSE event that preceded that of 5 January 2010. It also relied upon the seizures of 21 June 1995 and 3 August 2005. The primary judge found that although Ms Pierce’s seizure on 21 June 1995 was undoubtedly a significant complex partial seizure, it was not an incident of CPSE (at [69]). In reaching this conclusion the primary judge analysed the clinical notes. The primary judge said that Professor Dunne’s opinion that the seizure was consistent with the classification of CPSE of about one hour was, as he agreed, speculative, because the clinical records that had to be interpreted were not clear.

39. In relation to the seizure on 3 August 2005 Professor Dunne opined that the seizure was of at least two hours’ duration and probably longer and was consistent with status epilepticus.

40. As set out at [21] above, status epilepticus is defined as either a prolonged or a current seizure state in the absence of recovery over a period of more than 30 minutes. In cross-examination Professor Dunne ultimately accepted that it was supposition to say that Ms Pierce’s seizure activity on 3 August 2005 was indicative of status epilepticus. The primary judge considered Professor Dunne’s evidence in detail (Judgment [70]-[76]) and concluded that based on what was recorded in the Hospital’s records, the period of seizure activity for each seizure suffered by Ms Pierce on 3 August 2005 did not demonstrate that she had then suffered an episode of CPSE (at [76]).

41. One of the Hospital’s grounds of appeal was that the primary judge erred in finding that Ms Pierce had not suffered any CPSE prior to 5 January 2010. No specific reference was made to his Honour’s findings in relation to the asserted CPSE events of 21 June 1995 or 3 August 2005. The evidence in relation to those events was not addressed in written or oral submissions.

42. The primary judge did not err in his findings on these matters.

43. By April 2006 it was apparent that Ms Pierce was resistant to anti-epileptic drugs. She said that in 2003 Dr Ingall adjusted her anti-seizure medication and this led to a decrease in the frequency of her seizures. On 19 April 2006 Dr Ingall in his letter referring Ms Pierce to a paediatric neurologist, Dr Wallace, said:

“She has finally, after trialling a number of other anti-convulsant treatments, started Keppra, …. I would be grateful for your opinion as to whether we are going down the right road with this medication. For your interest, Emily has trialled Topomax, Lamictal, Eplim, Trileptal, Tegretol, and Sandomigran over the last few years, following her first seizure in March 2003.”

44. On 28 August 2006, Dr Wallace reported to Dr Ingall that Ms Pierce “… clearly had difficult epilepsy which has not responded to anti-convulsants.” He noted that:

“Since puberty however her seizures increased in frequency and intensity and are gradually becoming more frequent. She is now having seizures 30 days apart. … Presently Emily gets some warning before the seizure with some weakness in the left arm and there may be some blurred vision. This can occur 15 seconds prior to a seizure. … Also her mother has noted she tends to be moody prior to her seizures. … The majority of her seizures occur around period time although there is not a constant day.”

45. Clearly this is a report of the history conveyed by Ms Pierce to Dr Wallace. Dr Wallace concluded by suggesting adjustments to Ms Pierce’s medication. He said that he had discussed with Ms Pierce that there might be a potential for surgical intervention, but she would need an appropriate evaluation for that.

46. As can be seen from the table extracted in [30] above, the number of seizure days and hospital admissions was lower in 2007 than in 2006. The last hospital admission in 2007 was on 17 November 2007. On 19 November 2007 Dr Ingall wrote to Ms Pierce’s general practitioner:

“This is just a note to let you know I reviewed Emily, who unfortunately has had a sudden increase in her seizure frequency over the last few months, with two definite prolonged gran mal seizures, and also a blinking episode during which time she needed to be placed prone on the floor. Last weekend she was transferred from Ballina to Lismore Base Hospital as a result of her prolonged seizure, so things are not as good as we would wish.”

47. On 21 December 2007 Mrs Pierce consulted Dr Ingall alone. Dr Ingall recorded Mrs Pierce’s having told him that Emily had had increased stuttering now for a year and still had “absences”. There were no obvious triggers.

48. Dr Ingall described an absent seizure as one involving a very short loss of consciousness where the only motor manifestation might be a blinking movement. The person would have no memory of the episode. Their only recognition of the episode might be that they would say, for example, that “I knew I had one because I missed bits of the conversation”. These were different from what Ms Pierce described as “lines” where her vision became affected by wriggly lines, but she did not lose consciousness.

49. On 12 February 2008 Dr Ingall reported that Ms Pierce’s seizures were “… coming at the unacceptable frequency of every two to three months.” On 22 May 2008, when Ms Pierce was turning 19, he reported that she was “… most concerned today about gaining her independence”. Dr Ingall reported that Ms Pierce continued to have seizures, notwithstanding her medications. As appears from the table extracted at [30] above, in 2008 Ms Pierce’s seizure days and hospital admissions were at the same level as in 2006. Mr Graham SC, who appeared with Mr Maybury for Ms Pierce, contended that this, and the greater frequency of seizures and hospital admissions in 2009, was due to her pushing the boundaries of her lifestyle in an attempt to gain independence from her parents, and to enjoy the lifestyle that a late adolescent might expect to be able to enjoy, including by socialising, consuming alcohol, and having late nights.

50. Ms Pierce deposed, without reference to a specific timeframe, that:

“26.   Sometimes, I would be taken to Lismore or Ballina District Hospital (Ballina) if my seizure were not controlled by the medication I was given or for observation after the seizure.

27.   I had noticed that the longer the period of time between a seizure starting and me getting medication to stop it, the longer and more severe the seizure would ultimately be and the longer I would take to recover from the seizure.

28.   Once I recovered from a seizure, I knew that I would have at least 2 or 3 weeks, sometimes more, before my next seizure, during which time I was able to be quite independent and participate in life. I could plan my life around these seizure-free periods. My mother tended to be overprotective of me and anxious about me being left alone even during these periods.

29.   I would socialise, participate in drama productions, go to work and study at university without the worry of experiencing a seizure. I would go for coffee or lunch after a work shift, or a walk around town or the beach, without my parents or a close friend being with me. Mum would frequently leave me at home. Now, I am not left at home on my own at all, and I very rarely go out without one of my parents or a close friend who knows how to give me my medication.

30.   In addition to the seizures related to my menstrual cycle, I noticed that certain lifestyle activities could provoke a seizure.

31.   If I went out late, didn’t take my medications or didn’t get enough sleep, for example, or consumed alcohol, I would occasionally experience a seizure.

32.   I’m aware that such activities put me at risk of a seizure. Generally these seizures were not accompanied by much in the way of warning, though sometimes I would get at least some feeling about 30 seconds beforehand that something was going to happen.

33.   Some examples of these seizures are:

(a)   On 31 August 2008, I had a seizure after I missed my evening medications;

(b)   On 21 June 2009, I had a seizure after staying up all night and drinking with my best friend; and

(c)   On 5 December 2009, I had a seizure after spending 4 days in Melbourne with my friend wining and dining.

34.   Prior to 5 January 2010, if I took my anti-seizure medications, drank minimal alcohol and had regular hours of sleep, my seizures would occur more or less in sync with my menstrual cycle.

35.   The increased level of seizure activity that developed after puberty settled into something of a rhythm. I did become increasingly unhappy with the effect it was having on my independence as I became a teenager, especially around the age of 18 to 20 and naturally yearned for more independence in my life. It was particularly around this time I was exploring the boundaries of what I could do in terms of late nights, socialising and drinking, which did trigger some seizures. At the time I felt it was important for me to try and establish reasonable limits of what I could and could not do safely.” (Blue 3072-73)

51. Ms Pierce was not cross-examined on this evidence. The Hospital submitted that the frequency of seizures showed that the seizures were not related to a regular four-week menstrual cycle. But there was evidence that because of her medications Ms Pierce’s menstrual cycle was more frequent than the normal.

52. There is some support in the medical records that the higher number of seizures in 2008 and 2009 were attributable to Ms Pierce’s “pushing the boundaries”. She suffered seizures on 4 February, 4 May, 18 May, 25 May, 1 June, 22 July, 31 August, 1 November and 18 November 2008.

53. Neither the notes of Ballina Hospital, nor Dr Ingall’s notes of his consultation on 7 February 2008 contain any reference to an explanatory cause of the seizure on 4 February 2008, such as lack of sleep, consumption of alcohol, or missing a dose of medication.

54. In his report to Dr Guest of 12 February 2008 Dr Ingall reported that Ms Pierce was obviously becoming depressed with her ongoing seizure activity. He said that her seizures were coming at the unacceptable frequency of every two to three months and that much of his consultation with Ms Pierce was spent discussing how she “really does want to step out into life, though cannot do so until her seizures are better controlled”.

55. The reports of the seizure on 4 May 2008 do not refer to any precipitating factor.

56. The seizure diary records a seizure on 18 May 2008 when Ms Pierce was in Brisbane with her father. The family diary contains an entry on 19 May of Ms Pierce’s having a seizure in Brisbane when she was with her father and that she went to hospital. This apparently relates to the same event. There is no record of any precipitating factor.

57. By contrast, the seizure diary kept by Mrs Pierce for 25 May 2008 records a seizure on that day and a note that Ms Pierce had “missed (lost) ½ tablet”.

58. On 22 May 2008 Dr Ingall reported that:

“Emily was most concerned today about gaining her independence, and much of the consultation was spent discussing this. While I am in a position to try to help her gain her drivers licence (at least by day), it was more difficult to adjudicate on whether she could now live away from home or not. Further discussion about boyfriends was entirely beyond me and I will leave this in her parents’ quarter. …

…

… It will be nice to see Emily driving through the day, as she has not had any seizures whilst awake for some time, and she does have some warning.”

59. In his oral evidence Dr Ingall accepted that he was overoptimistic as to Ms Pierce’s condition when considering whether on medical grounds she could have a learner’s driver permit.

60. The next seizure was on 1 June 2008. Ms Pierce was taken to Ballina Hospital. The Hospital records state that there was no abnormal trigger factor for this seizure. There may have been a trigger factor, unknown to the Hospital. A little over a week later a Dr O’Neill of a medical centre at Lennox Head recorded that Ms Pierce’s seizure had come a day after her first sexual encounter.

61. Ms Pierce had a further seizure at 8.00pm on 22 July 2008 at home. She was taken to the hospital. There are no notes either in the diary or in the records of the Ballina Hospital suggesting any particular precipitating factor.

62. I have referred to the seizure on 31 August 2008 above where Ms Pierce stated that she had not taken her medications that evening.

63. On 10 September 2008 Dr Ingall referred Ms Pierce to Dr Cecilie Lander for a further investigation for her epilepsy.

64. On 1 November 2008 Ms Pierce had another seizure, this time in the morning. Dr Ingall had noted in his letter referred to at [58] above, that the previous pattern of seizures had been that they occurred at night.

65. From the beginning of 2008 Ms Pierce had commenced employment at a pharmacy as a general pharmacy assistant. At the beginning of 2009 she commenced employment as a receptionist at a caravan park in Byron Bay.

59. On 3 November 2008 a doctor at the Lennox Head Medical Centre, Dr Betts, recorded that Ms Pierce was now having seizures every six weeks. On 30 December 2008 Ms Pierce had another seizure and was taken to Ballina Hospital. The seizure was again in the evening at 6.30pm. There is no record of any precipitating factor.

60. At the end of 2008 Ms Pierce was referred by Dr Ingall to Dr Lander. Ms Pierce deposed that once she turned 18 she began to look for a neurologist to manage her epilepsy because Dr Ingall was a paediatrician. She had become aware of Dr Lander through an article about her in a magazine called Epilepsy Action. She first saw Dr Lander on 18 November 2008. She deposed that when she first saw Dr Lander she was having a seizure around every four to six weeks and almost all of those seizures occurred in the evening. Dr Lander ordered a number of investigations and increased the dose of one of her anti-seizure medications, Dilantin. On 18 November 2008 Dr Lander reported to Dr Ingall that Ms Pierce’s epilepsy had been difficult to control. She wrote:

“Her pattern at the moment is that she will have a seizure, often with her menstrual period. Just at present she is on the continuous pill, so she is [having] a seizure about every six weeks. The longest she has gone between seizures is around about nine weeks. A typical seizure pattern will occur in the evening, maybe 8 or 9pm, very occasionally during the day. The seizures are very stereotyped.”

68. She reported that Ms Pierce would “… ideally love to be ‘normal’, to be free of epilepsy to be able to drive and to live a normal life.”

69. The number of seizures increased in 2009. As appears from the schedule set out at [30] of these reasons, in 2009, on the Hospital’s case, Ms Pierce had seizures on 16 days, on her case on 12 days, and there were 11 seizures where she was admitted to hospital.

70. The primary judge concluded that there were 14 seizure days in 2009. His Honour said:

“133   The difference of four seizures for the 2009 year is that the figures adopted by Professor Dunne have included as complex partial seizures four events recorded in the seizure diaries as ‘turns’. The plaintiff’s lawyers have excluded these matters, as I understand it, on the basis that the information is of insufficient precision to be reliable. This may be so, but as I have said already, it seems to me that the plaintiff carries the onus of excluding these matters on the balance of probabilities. To the extent to which there is an onus on the Hospital, Professor Dunne’s approach is attended by sufficient, reasonable precision to discharge that onus.

134   Of those ‘turns’, two are said to have occurred on 17 and 18 April 2009 and are recorded in the history received by Dr Lander on 20 July. It is not apparent that these ‘turns’ required treatment nor is there anything to suggest an altered state of consciousness. The others occurred on 2 September 2009 and 7 October 2009 respectively. They are recorded in the seizure diary as is the fact that medication was given by Mrs Pierce. I am of the view that the first two should be discounted, but the second two should be included. That would bring the number of seizures for 2009 to fourteen. I set out a table of my findings below:

Year	My findings about seizure days
2003	12
2004	3
2005	2
2006	8
2007	5
2008	8
2009	14
2010	22
2011	19
2012	24
2013	22
2014	24
2015	22

71. Ms Pierce challenged the primary judge’s finding that there were 14, rather than 12, seizure days in 2009 on the basis that in final submissions counsel for the Hospital had accepted the correctness of the particulars of seizures contained in the written final submissions of counsel for Ms Pierce.

72. Nothing turns on this question. The primary judge identified the points of difference in the parties’ submissions. The two additional “seizures” that the primary judge included in his assessment were events recorded in the seizure diary as “funny turns”. The seizure diary records that on both occasions Mr Pierce administered “Maz”, that is Midazolam, a benzodiazapene used to treat a seizure. Those two additional events, if not to be categorised as seizures in the same category as other seizures, must nonetheless be recognised for what they were, that is “funny turns” that were treated with Midazolam.

73. Leaving aside the four “turns” referred to at [134] of the primary judge’s reasons quoted above, the other 12 seizures in 2009 occurred on 27 January, 6 March, 27 April, 20 May, 21 June, 27 June, 24 July, 24 July, 10 September, 16 October, 7 November and 5 December.

74. As in 2008, on some occasions there are records indicating that the seizure was precipitated by Ms Pierce’s testing the boundaries.

75. From the beginning of 2009 Ms Pierce had worked full-time as a receptionist at a caravan park in Byron Bay. The notes of Ballina District Hospital for 27 April 2009 that Ms Pierce had stated to her mother that afternoon after work that she was particularly tired. The hospital notes record a provisional diagnosis of “breakthrough seizures likely due to exhaustion”.

76. On 10 March 2009 Dr Lander had written to Dr Ingall:

“With respect to the working 40 hours a week, she is very happy ‘being normal’ but she gets very tired especially around the time leading up to a seizure. In the last three months she has had four major seizure events which have taken her off to hospital but it is a couple of years now since she ended up in Intensive care.

…

I don’t know whether she is going to be able to continue working 40 hours a week – that sounds like rather a lot for her with her burden of illness and I would be supportive if you feel you have to cut her hours down a bit, though I don’t know if her employer will come at that.”

77. The diary for 21 June 2009 recording a seizure in the morning of that day (a Sunday) stated that Ms Pierce had had a “heavy and late night” the previous night. The diary for 27 June 2009 records that she had been on a “girls’ day out to Gold Coast” on the day she suffered seizures and went to hospital.

78. The hospital notes of Ms Pierce’s admission on Sunday, 21 June 2009 following a seizure that morning, recorded that Ms Pierce “went out last night, two to three glasses of alcohol”. The family diary for that day stated that Ms Pierce had had a seizure at 11.00am “after a night out on town with Stella”.

79. The family diary recorded that in respect of the seizure on Saturday, 27 June 2009 that Ms Pierce had “been on girls’ day out to Gold Coast with Marianne”.

80. Dr Lander had increased Ms Pierce’s dose of Dilantin. On 20 July 2009, on a referral of Ms Pierce by Dr Betts of the Lennox Head Medical Centre to her, Dr Lander suggested that the dose of Dilantin should be phased out. Dr Lander noted that it had not helped her seizure control and had had adverse side effects. Dr Lander advised that she would be recommencing the doses of Lamictal to be taken concurrently with Keppra. Dr Lander noted that “Emily is getting a bit desperate and would like to consider surgical options”. She was sceptical, but noted that Ms Pierce was keen to have a consultation with Dr Berkovic to discuss the option of an evaluation as to whether her condition was suitable for surgery made. In her referral of Ms Pierce to Dr Berkovic, Dr Lander noted:

“As always one does not know what triggers it off. Emily remembers the time when she was well controlled on Lamictal alone. Why it now does not work and why it has become more difficult is the perennial question.”

81. Ms Pierce started her tablets of Lamictal on 22 July 2009. On 24 July 2009 she suffered another seizure at about 10.00pm at the Lennox Head pub. The Ballina Hospital records included a note “recently in Brisbane seeing specialist, changing medications, placed back on Lamictal”.

82. She suffered another seizure on 17 August 2009 and was taken to hospital again. The hospital records included a note “… currently changing medication – increasing [scil. decreasing] doses of dilantin and weaning off other anticonvulsants; over past 6/52 – several fits”. Ms Pierce’s next hospital admission was on 10 September 2009. The seizure occurred at about 7.00pm. The hospital records included a note at 8.09pm that “Patient has been changed of meds. Has not taken her meds tonight.” There was no evidence as to whether this was an indication that Ms Pierce had missed taking her medications or whether it was a note for medical staff of the hospital to ensure that she did take her medications that night. In the event, Ms Pierce and her mother signed themselves out of the hospital and returned home.

83. The next hospital admission was on 16 October 2009. The records contain no reference to a potential precipitating factor. The hospital notes include a reference to a long history of epilepsy that was poorly controlled.

84. This was a fairly severe event. The seizure diary records Ms Pierce’s having had four seizures. The first occurred at about 9.00pm. Ms Pierce suffered a second seizure about half an hour later. She suffered a further seizure at 11.45pm and there was further seizure activity at 3.16am on 17 October 2009 in the hospital. She was discharged later that morning.

85. On 26 October 2009 Dr Lander reported to Dr Betts on her consultation with Ms Pierce on that day. Dr Lander reported that Ms Pierce felt better being off Dilantin, but still had seizures that averaged between three and five weeks apart. Dr Lander addressed issues in relation to Ms Pierce’s medications and advised that she had suggested that to identify where in the brain the seizures came from, weekend monitoring should be done at the Hospital to decide whether the epileptic events all came from the same focus. She noted that Professor Berkovic was cautious on the outcome of potential surgery, but did not completely rule out the possibility. She advised that Ms Pierce would gradually increase her dose of Lamictal.

86. Ms Pierce had another seizure on 7 November 2009. An ambulance was called but she did not go to hospital. She had three further seizures on the evening of 5 December 2009. The hospital consultation notes include:

“Background of spending the last four days in Melbourne ‘wining and dining and shopping’ with a friend, denies any history of drug intake, came home yesterday, went to work today, when at home at end of work day mother describes behaviour as being more ‘flighty’ than usual, but no illness. …”

87. The hospital triage records record Ms Pierce or her mother reporting that she had worked that day and had had a busy day, but had otherwise been well. She was discharged on the following day.

88. These were the last seizures suffered before Ms Pierce’s admission to Brisbane Hospital on 4 January 2010.

89. Ms Pierce submitted that prior to the telemetry event of 5 January 2010 her epilepsy waxed and waned on a certain plateau, and after that telemetry event, it waxed and waned, but on a higher plateau, that materially increased the burden of her epilepsy.

90. The primary judge observed (at [87]) that with changes of medication in some sense it could be said of Ms Pierce’s suffering of significant seizures:

“There did seem to be something of an increase in significant seizure activity during 2009. This may have been related to a number of different factors including as she matured and Ms Pierce sought greater independence, her social activities away from the watchful eye of Mrs Pierce were provocative of further seizures.”

91. His Honour also made the following finding (at [115]):

“As it is necessary for me in assessing whether there has been a detrimental difference caused by the negligence of the Hospital to compare the outcome obtained with that which would have been but for that negligence, it is relevant to consider what her prospects were for succeeding in her endeavours in the future, adjudged from the date of the telemetry event. In my judgment it is unlikely that Ms Pierce would have managed to do better in the future. I say this because of the intractable nature of her disease. There is simply no evidence that her condition was likely to improve but for the hospital’s negligence. Rather the expert evidence suggests that at best her condition would have continued to wax and wane, probably deteriorating slowly over the years. It is at least highly possible that Professor Dunne’s more pessimistic prognosis is correct. That is to say that Ms Pierce’s condition, given its resistance to medical treatment was, and would continue, progressively worsening.”

92. The primary judge went on to find that Professor Dunne was correct in his conclusion that independently of the telemetry event of 5 January 2010 it was likely that Ms Pierce’s condition would continue to worsen progressively. In context it is clear that the primary judge’s statement that “In my judgment it is unlikely that Ms Pierce would have managed to do better in the future” meant that in his Honour’s opinion it was unlikely that Ms Pierce would have managed to do better than she was then doing, not that it was unlikely that she would have managed to do better in the future than she actually did after 5 January 2010.

93. The primary judge accepted that some of the extra seizures in 2009 were consistent with Ms Pierce’s engaging in unusual provocative activities as she sought to push her previous boundaries (at [135]), but also found that:

“But part of increased numbers may well be due to a deterioration, especially given the treatment resistant nature of her epilepsy.” (At [135])

94. Ultimately, his Honour made the following findings:

“[165]   … I accept that generally her pre-existing epilepsy was a progressive disease. I accept that absent the telemetry event it would have been worse now than it had been at the end of 2009 in any event. Making the comparison called for in the judgment of Hayne and Bell JJ in Tabet v Gett, I am satisfied that there is a detrimental difference even comparing her condition now to “the state of affairs that would have existed had the negligent act or omission [of the Hospital] not occurred’.

[166]   The difference is difficult to quantify. Rather it seems it can be best described only by reference to the concept of the burden of her epilepsy. Perhaps Dr Fong’s general assessment that the telemetry event has contributed about 50 per cent to her worsened condition is about as accurate as one can be. Even on that score, accepting Ms Pierce would have been worse now than then, the detrimental difference remains very significant.”

95. Ms Pierce challenged the finding that her epilepsy would probably have worsened with time independently of the telemetry event of 5 January 2010. She submitted that the evidence only established that it was probable that her condition would wax and wane in the future as it had done in the past. She submitted that the increased number of seizures in 2009 was partly due to her “pushing the boundaries” and partly due to the effects of changes in her medication while a best combination of anti-epileptic drugs and dosages was being sought.

96. Mr Graham SC, who appeared with Mr Maybury for Ms Pierce, relied on Watts v Rake (1960) 108 CLR 158 at 163-164 and Purkess v Crittenden (1965) 114 CLR 164 at 168 in submitting that there was no cogent evidence that allowed a finding that it was more likely than not that Ms Pierce’s condition would deteriorate, or when it would do so, the onus of establishing that being upon the hospital. Mr Graham submitted that at best the possibility of progression was one factor that the primary judge was entitled to weigh up in making an assessment of damages on the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, but the evidence did not justify the reductions in damages that the primary judge made.

97. There was clearly a deterioration in the burden of Ms Pierce’s epilepsy in 2008 and 2009.

98. It does not follow that because in some cases a potential trigger such as alcohol consumption, or a late night, or change of medication, was identified, that this was a trigger for Ms Pierce’s seizures. Professor Dunne said that:

“… the terrible burden of epilepsy is its unpredictability. No-one with epilepsy knows when their next seizure is going to happen. It doesn’t matter whether they avoid triggers, it doesn’t matter whether they avoid staying out late, and I might add that one of the terrible burdens that people with epilepsy have is because of those constraints in a young person growing up they are asked ‘Don’t have a late night, don’t do this’ and they have a miserable life because of a potential trigger that may or may not have triggered a seizure, and so seizure triggers are in fact not the cause of the majority of seizures in virtually everyone with epilepsy.”

99. Dr Fong did not give evidence to the contrary.

100. The primary judge’s finding that Ms Pierce’s epilepsy was likely to deteriorate independently of the telemetry event on 5 January 2010 was supported by the evidence of Professor Dunne who said that Ms Pierce’s seizures had become increasingly frequent and severe and disabling in the years before January 2010 and that a further increase in seizures would have been consistent with the natural history of her illness independently of any alleged neuronal/brain injury from her admission to the Hospital in January 2010. It was common ground that Ms Pierce had had drug-resistant epilepsy since 2005. Professor Dunne said that:

“The Plaintiff’s young age at seizure onset, known structural cause of the epilepsy, focal seizures (simple or complex partial seizures), neurodevelopmental delay, epileptic EEG abnormalities seen on her first EEG in 1995, and failure of initial AEDs are all predictive of seizure intractability.”

101. In a later report he said:

“Patients with drug-resistant (medically refractory) epilepsy, like the Plaintiff, commonly have periods of exacerbation and remission, as well as clusters of seizures … This is consistent with the natural history of drug-resistant epilepsy, and in addition sometimes medication changes can temporarily moderate seizures.

The Plaintiff has had major fluctuations in annual seizure frequency that were without predictability, but with an overall trend to increasing seizures over many years.”

102. Professor Dunne was not shaken in cross-examination in respect of his opinion that Ms Pierce’s epilepsy was naturally progressive. He was challenged on his view that changes to the burden of Ms Pierce’s epilepsy after 5 January 2010 were explained by the natural history and progression of her underlying epilepsy. In the course of that cross-examination he repeated his evidence that in a fair proportion of people with epilepsy the natural history of the condition was that in the absence of specific triggers an inexplicable increase in intensity and frequency of seizures over years, including doubling or tripling of seizures without a specific trigger or explanation was very common.

103. Dr Fong said that patients with drug-resistant epilepsies would usually demonstrate a gradual increase in seizure frequency over a number of years. He distinguished that from the abrupt change that happened in Ms Pierce’s case.

104. In his report of 18 December 2014 Dr Fong referred to a twofold increase in the frequency of seizures suffered by Ms Pierce between 2008 and 2009 on the one hand, and 2010 to 2011 on the other. He said:

“There are two possible explanations for her seizure exacerbation following her video-EEG testing in early 2010.

A.   Her prolonged CPSE has caused a subtle brain damage including synaptic reorganizations, enhanced excitability and loss of normal seizure inhibitory mechanisms especially affecting her right hippocampus. As such, she has experienced a doubling in her motor seizure frequency with other associated consequences.

B.   It is apparent that the plaintiff has drug resistant epilepsy and previous episodes of CPSE, which may escalate in seizure frequency as continued abnormal electrical firing causes further excitotoxic damage to surrounding neurons i.e. her seizure severity deteriorates according to the natural history of drug resistant epilepsy.

In my opinion, I am in favor of hypothesis A which is consistent with her abrupt change in seizure frequency from 2009 to 2010 and after. However, if we accept that her epilepsy deteriorates naturally at about the same time, it would then be difficult to differentiate how much is contributed by her CPSE in early 2010 and the accumulative effect of her previous seizures. My estimation would be her CPSE in early 2010 would have been responsible for at least 50% of such deterioration.”

105. Dr Fong did not reject Professor Dunne’s opinion that Ms Pearce’s seizure severity was likely to deteriorate according to the natural history of drug-resistant epilepsy. Rather, he did not consider that that explained the sudden change in seizure frequency experienced before and after January 2010.

106. Mr Graham submitted that Professor Dunne’s opinion that Ms Pierce suffered from a progressive disease was based upon a selected extract of the medical records, in particular on his view that Ms Pierce had suffered a number of status epilepticus episodes before January 2010. Mr Graham submitted that that part of his opinion was undermined during cross-examination and that all that remained was a possible explanation for the increase in seizure events after January 2010, being natural progression.

107. Whilst it is true that Professor Dunne’s opinion was supported by his view that Ms Pierce had suffered a number of possible CPSE events prior to January 2010, including but not limited to the three referred to above, that was not the sole basis of his opinion. He observed by reference to extensive literature that he cited that:

“The Plaintiff’s young age at seizure onset, known structural cause of the epilepsy, focal seizures (simple or complex partial seizures), neurodevelopmental delay, epileptic EEG abnormalities seen on her first EEG in 1995, and failure of initial AEDs are all predictive of seizure intractability.

The Plaintiff’s structural lesions (porencephalic cyst and hippocampal sclerosis) strongly predicted drug-resistant epilepsy. …

…

Patients with drug-resistant epilepsy have increased risks of premature death, injuries psychosocial dysfunction, and a reduced quality of life. Anxiety, depression, and cognitive and memory disturbances are common. Prevalence rates for depression and anxiety in those with drug-resistant focal epilepsy are 44-88%. This may be [sic] particularly affect people with mesial temporal sclerosis.

…

Continued seizures themselves may cause progressive cognitive decline. Common cognitive deficits in people with epilepsy are intellectual decline, reduced information processing speed, reduced reaction time, memory impairments (prevalence of 20-50%) and attentional deficits.” (Blue 7/3162-63)

108. As noted above Dr Fong was also of the opinion that in the absence of the telemetry event it was probable that Ms Pierce’s epilepsy would progressively deteriorate over the long term.

109. In my view the primary judge did not err in concluding that if the telemetry event of 5 January 2010 had not occurred, it was still probable that the burden of Ms Pierce’s epilepsy would have progressively deteriorated.

110. The primary judge accepted that the Hospital’s negligence materially contributed to an increased burden of Ms Pierce’s epilepsy. Ms Pierce submitted that accordingly the Hospital had the onus of adducing evidence that the worsened burden of her incapacity was partly the result of her pre-existing condition. In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168):

“… where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.” (emphasis added)

111. This was said in the context of a personal injury case arising from a motor vehicle accident. The plaintiff experienced severe and disabling pain in her cervical region. There was evidence that before the accident she suffered from degenerative changes in the spine which were most marked in the cervical region. It was asserted for the defendant that it was probable that at some unspecified time she would have become similarly disabled even if she had not been injured in the motor vehicle accident. The High Court held that the medical evidence upon which the defendant relied, that was accepted by the trial judge, did not establish with any reasonable degree of precision the extent of the plaintiff’s pre-existing condition or its likely future effects (at 169).

112. In the present case the Hospital discharged its evidentiary onus of establishing that Ms Pierce’s pre-existing condition was one of likely progressive deterioration. She had the legal burden of establishing the extent to which the Hospital’s negligence damaged her. No reasonable precision was possible either of the likely progression of her epilepsy in the absence of the telemetry event, nor of the extent to which the defendant’s negligence worsened her existing condition. The defendant’s negligence in the present case was in the treatment of an existing condition that is factually remote from the circumstances in Watts v Rake and Purkess v Crittenden.

113. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1, Ipp JA, with whom Mason P agreed, said in relation to Malec v J C Hutton Pty Ltd:

“103    Therefore, according to Malec:

(a)    In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b)    The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c)    The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d)    These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

104    What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.”

114. The fact that Ms Pierce suffered epilepsy that was likely to deteriorate progressively was to be determined on the probabilities. The likely extent of the progression of her condition was an issue to which the principles in Malec v J C Hutton Pty Ltd applied. The fact that Ms Pierce’s epilepsy was a progressively deteriorating condition was established on the balance of probabilities.

115. For these reasons I reject Ms Pierce’s challenge to the primary judge’s finding that her epilepsy condition as it existed before the telemetry event of 5 January 2010 was likely to deteriorate progressively.

Burden of Ms Pierce’s Epilepsy Worsened After 5 January 2010 Telemetry Event

116. The primary judge found that the burden of Ms Pierce’s epilepsy worsened after 5 January 2010 and that worsening was materially contributed to by the Hospital’s negligence on 5 January 2010. The Hospital denied both that Ms Pierce’s condition had worsened and, if there were any such worsening, that such worsening was contributed to by the lengthening of her induced seizures on 5 June 2010 to a state of complex partial status epilepticus.

117. On the first question, of whether or not the burden of Ms Pierce’s epilepsy was worse after 5 January 2010 than it had been before, it was common ground that the frequency of her seizures increased substantially. As the table referred to at [30] above shows, the frequency of Ms Pierce’s seizures approximately doubled in the years after 5 January 2010. However, her admissions to hospital substantially reduced. One reason for that reduction was that from May 2011 Mrs Pierce was trained and was able to provide intramuscular Midazolam medication that formerly had only been provided by ambulance officers.

118. This did not explain the reduction in hospital admission between January 2010 and May 2011. Professor Dunne said that the reason for the dramatic reduction in Ms Pierce’s acute seizures requiring emergency centre treatment from January 2010 to May 2011 was because from January 2010 she was prescribed an anti-epileptic drug called Clobazam that had a duration of action of at least 20 hours and provided an enduring protection from seizures. Professor Dunne said that oral Clobazam and intramuscular Midazolam were acute treatment of seizures as an outside rescue medicine that was to be separated from day-to-day treatment of a person’s epilepsy.

119. Ms Pierce suffered a marked increase in frequency of seizures after 5 January 2010 that was not explained by the natural progression of her condition. She had a seizure on 15 January 2010, but did not go to hospital. She had another seizure on 23 January for which she was admitted to Ballina Hospital. She had another seizure on 24 January for which she was admitted to Ballina Hospital. The Hospital notes for the admission on 24 January record a contemporaneous observation (presumably by Ms Pierce or Mrs Pierce) that “since the January test the pattern of her seizures has changed – they are more frequent (every 2-3 weeks), less warning.”

120. Ms Pierce had another seizure on 12 February 2010 and again on 2 March 2010 when she was in Sydney and again on 21 March, 5 April, 13 April, 13 April and 29 April 2010.

121. Notwithstanding that Ms Pierce had turned 18, Dr Ingall saw her on two further occasions in 2010, again on 12 May 2011 and also on 4 October 2012. On 30 May 2013 he provided a report on Ms Pierce’s seizures that included the following:

“Emily’s seizures prior to her video telemetry status epilepticus were much less frequent, more predictable in their timing and generally less severe. eg, on going through my notes I could see in 2006 that she had not had a major seizure between August 2005 and April 2006. When I last saw her before her Video Telemetry on the 31st March 2009 she was having right sided focal seizures every four to six weeks. On reviewing her on the 15th April 2010 she had suffered an increase in seizure frequency to almost weekly and indeed had suffered two seizures in the week prior to that particular appointment. Emily also reported that she was not always aware of when a seizure was coming on …”

122. On 27 November 2014 Dr Ingall stated:

“By my reckoning Emily’s major seizures doubled in frequency following her video telemetry event. I do not include her ‘lines’ in this calculation as I believe these were more related to her minor seizures and perhaps migrainous events, which place a significantly lower burden on Emily compared to her major fits. Her major seizures became more severe and unpredictable as well, which gave an added impact on her ability to socialise, learn and of course gave an added burden to the adults around her who needed to be with her at all times.”

123. This evidence was unshaken in cross-examination. The primary judge accepted Dr Ingall as a thoughtful and impressive witness (at [164]). When it was put to Dr Ingall that Ms Pierce’s increased burden of epilepsy might be better explained by the natural progress of her epileptic disease he said:

“That’s possible. That is possible. The reason I guess to answer that that I have come down on the negative to that one is that the nature of the seizures has changed, not the minor ones, they have remained pretty steady. On the times I have spoken to her on the nature of the seizures, that seems to be much more intrusive and to have a much longer time for her to recover from them which you wouldn’t expect. People do run their course with epilepsy generally. You have clusters and then you have times when you are not but over a five or ten year period you will see the trajectory. That usually runs reasonably true. Here it just seemed like to have there has been a jump in frequency and also the nature, the severity of the seizure and therefore the burden.”

124. In his statement of 4 November 2015 Mr Pierce gave evidence that Ms Pierce seemed different from 5 January 2010. She seemed more muddled and less capable. He said that her time management, information processing and memory all seemed to have faded and she needed more help with tasks in organising her life, such as making sure her uniform was ironed and that she was ready for her job. He noticed that after 5 January 2010 Ms Pierce got very little notice when a seizure was coming and that her seizures were occurring a lot more frequently than they used to. He said that her short-term memory was worse and that she was more fatigued. Ms Pierce had started an Arts degree before 5 January 2010. Mr Pierce, who was a retired school teacher, said that after 5 January 2010 he noticed that she had substantially more difficulty with her studies and he had to provide substantially more help. He was not cross-examined on that evidence.

125. Ms Pierce said that after her induced seizure at the Hospital on 4-5 January 2010 she felt exhausted “with pressure in my head like it was going to explode and it wouldn’t wind down”. She had a further seizure on 15 January 2010. She said she had constant headaches and a very intense pressure in her head that lasted until a few days after the seizure on 15 January. She then had another seizure on 23 January less than a week after she felt she had recovered from the seizures on 5 and 15 January. She said that since the seizure on 5 January her seizures had changed in terms of their frequency, the time of day she got them and their relationship to her menstrual periods and the presence of any warning before the seizures. She said they had become totally unpredictable. Previously, the seizures were generally late in the afternoon or at night, mostly the latter. There was the odd seizure during the day if she were tired. She said that after 5 January 2010 she suffered a seizure every one to two weeks, instead of every four to six weeks. She said that where as previously she would have a two to three day warning before she suffered a seizure, now the seizures came on with very little warning or no warning at all. She said the seizures were no longer related to her menstrual cycle. She felt that she needed someone with her at all times to administer medication when a seizure commenced. She said that she had lost all her independence, and was depressed and angry. She was unshaken in cross-examination.

126. Ms Pierce also said that since 5 January 2010 it took her longer to recover from a seizure. She now felt tired and sick for five to seven days, rather than two to three days. Her headaches after a seizure were more severe. The weakness in her left arm and leg was more severe after a seizure than it had been prior to 5 January 2010. She said that it took her longer to complete tasks after 5 January 2010 than it had done before. She was more forgetful. She had to write down a lot more reminders to herself that she formerly had done. Her left-sided weakness was worse. She said that since 5 January 2010 if she was not treated aggressively and quickly following a seizure she tended to have worse seizures and would take several days to recover from them during which time she was quite unwell. For this reason she was now rarely alone, but was usually with her mother. When she was at work there was always someone with her. Prior to 5 January 2010 when she was working as a receptionist at the caravan park in Byron Bay, she would frequently start a shift starting at 7.00am. Her mother would drive her to work, but then leave. If she started later she would often catch the bus. After 5 January 2010 her mother would usually stay with her until other staff arrived.

127. Ms Pierce said that before 5 January 2010 she actively participated in household chores, including cooking the family meal three or four times a week, cleaning, doing her own laundry, and grocery shopping. After 5 January 2010 she found that by the time she got home from work she was so fatigued that it was difficult to attend anything requiring thought or physical effort and she subsequently rarely prepared a whole meal or finished assisting with the preparation of a meal. She does not have the energy to do the other tasks as frequently or thoroughly as she previously had done. She did not go out after work because she felt she could not be left alone. She needed much more rest. She goes out with friends less frequently, she rarely visits the family farm that is two hours’ drive away. She is now more isolated. She is much more dependent on her mother. She completed a bachelor of Arts Degree, but she is often tired and constantly worried about when her next seizure might occur. She is isolated and depressed. Ms Pierce was not cross-examined on this evidence.

128. Mrs Pierce gave evidence to similar effect. She was particularly attentive to her daughter’s condition. She said that before 5 January 2010 she noticed in the days leading up to a seizure Ms Pierce’s behaviour would start to change and she would become more withdrawn, less active, would complain of headaches and would stick very close to her and remain at home. She said that Ms Pierce’s seizures would mainly occur at night and a couple of days after warning signs started. After 5 January 2010 Ms Pierce suffered more seizures than she had done previously and the seizures were unpredictable. They came on very quickly without warning. She said:

“I have been sitting right next to Emily when she has said, ‘Mum, quick,’’ and by the time I get the medication from within the same room she will be in a full blown seizure. This did not happen before 5 January 2010.”

129. She corroborated Ms Pierce’s evidence that it took longer for her daughter to recover from a seizure than it had done prior to 5 January 2010 and that Ms Pierce seemed tired and sick for about five to seven days after a seizure. She said that Ms Pierce complained of more severe weakness in the left side of her body after a seizure than she had previously done. She seemed depressed, was slower at doing things around the house and her memory did not appear to be as good. This evidence was unchallenged.

1. the expert medical opinion that the induced CPSE on 5 January 2010 was capable of causing neuronal damage and this was a possible explanation for the increased frequency and greater burden of seizures; and

2. the inference to be drawn from the fact that the increase in the frequency and burden of Ms Pierce’s epilepsy arose suddenly and not by slow progression.

151. The Hospital submitted that essential to the primary judge’s reasoning was his Honour’s acceptance of Dr Fong’s evidence that if it were accepted that Ms Pierce had naturally deteriorating epilepsy, then in his estimation her CPSE in early 2010 would have been responsible for at least 50 per cent of such deterioration. The Hospital submitted that this was a mere ipse dixet that was unsupported by any reasoning and was not shown to have been an opinion wholly or substantially based upon Dr Fong’s training, study or experience (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37] and [42]).

152. I do not accept either aspect of this submission. For the reasons above, the primary judge’s reasoning on causation was not wholly dependent upon Dr Fong’s opinion that if Ms Pierce’s seizure severity was deteriorating according to the natural history of drug-resistant epilepsy, nonetheless, the effect of her CPSE in January 2010 would have been responsible for at least 50 per cent of the greater deterioration after January 2010. I accept the submission of counsel for Ms Pierce that:

“49.   The real difference between the experts on the issue of causation related to matters of high-level scientific proof. In the absence of scientific data to prove a causal link categorically, Prof Dunne was not prepared to accept one. Dr Fong was of the view that scientific possibility and a temporal link were a more likely explanation than natural progression, coincidentally at a time of serious insult to the Respondent’s brain. Having found there was a change linked in time to the telemetry event, it was entirely proper for the Primary Judge to then infer that the more likely explanation was neuronal damage caused by the CPSE, which was the hypothesis preferred by Dr Fong.”

153. Nor do I accept the Hospital’s characterisation of Dr Fong’s evidence as a mere ipse dixet, that is, as a statement with no foundation except for the fact that Dr Fong said it. Dr Fong gave his reasons for that opinion. In part they were based upon his analysis of the medical literature and animal studies that indicated that neuronal damage following a CPSE event of the duration suffered by Ms Pierce on 5 January 2010 could cause neuronal damage.

154. Dr Fong then applied the common sense view of causation that because there were no candidates as to the cause of Ms Pierce’s increased burden of epilepsy, except the telemetry event of 5 January 2010 or the natural progression of her disease, and because the latter was contra-indicated by the abruptness of the change in that burden, then, in his opinion, the telemetry event was more important than all her previous seizures in worsening the burden of her epilepsy. In his report quoted at [102] above he attributed the telemetry event in January 2010 to have been responsible for at least 50 per cent of that increased burden.

155. That opinion was substantially based upon Dr Fong’s specialised knowledge based on his training, study and experience. It also incorporated elements that a lay person would use as a matter of common sense or intuition. That did not make it inadmissible. (No question of admissibility of Dr Fong’s opinion arose because there was no objection to any part of his reports, nor to his oral evidence.) Nor did it require rejection of his opinion. An expert can use common sense in reaching his or her opinion, provided that the opinion is substantially based on study, training or experience which may well include elements of common sense.

156. Had the precise contribution of the telemetry event of 5 January 2010 to the added burden of Ms Pierce’s CPSE been a material issue, then further evidence would have been required to establish such a precise contribution. That was the case in Dasreef Pty Ltd v Hawchar. In this case, Dr Fong’s opinion was that the contribution was at least 50 per cent. That was inexact, but more than sufficient for the contribution to be material. Exactness was not required (just as it was not required in Dasreef Pty Ltd v Hawchar (at [49]).)

157. It was common ground that the law of Queensland applied to Ms Pierce’s claim for damages. Section 11 of the Civil Liability Act 2003 (Qld) is in materially the same terms as s 5D of the Civil Liability Act 2002 (NSW). Section 11 of the Civil Liability Act 2003 (Qld) relevantly provides:

“11 GENERAL PRINCIPLES

(1)    A decision that a breach of duty caused particular harm comprises the following elements—

(a)    the breach of duty was a necessary condition of the occurrence of the harm ("factual causation" );

(b)    it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ("scope of liability" ).

…

(3)    If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a)    the matter is to be decided subjectively in the light of all relevant circumstances …”

158. It was common ground that s 11 is a statement of the “but for” test of causation, namely, in the present case, whether it can be said that but for the negligence of the Hospital in conducting the EEG, Ms Pierce would not have suffered an increase in the burden of her epilepsy referred to above. That is, the question is whether it is more probable than not that Ms Pierce would not have suffered the increased burden of her epilepsy to the same extent as she has done and is likely to do in the future, if the Hospital had not been negligent in its handling of Ms Pierce’s induced seizures on 5 January 2010.

159. The primary judge was correct in concluding that the Hospital’s negligence materially contributed to the increased burden of Ms Pierce’s epilepsy, notwithstanding that her epilepsy was a progressively deteriorating disease.

Damages

160. This conclusion meant that the primary judge had a very difficult task in assessing in monetary terms how the materially increased contribution to the burden of Ms Pierce’s epilepsy arising from the telemetry event of 5 January 2010 should be quantified in damages when it was likely that there would in any event have been an increase in the burden of that epilepsy, although not of the same kind.

161. The Hospital’s written submissions on damages were as follows:

“72   No case for an award for damages for care or for economic loss was made out in the Respondent’s case. The unchallenged evidence was that she continued to work, at the same rate and for the same or very similar hours as she had prior to the incident, which had already been described in the unchallenged evidence of Dr Landers as being too much for her, pre-morbidly (‘I don’t know whether she is going to [be] able to continue working 40 hours a week – that sounds like rather a lot for her with the burden of her illness’ [Blue: 4:1478]). Moreover her lifestyle and independence had, if anything, improved after January 2010, as was revealed by the overall material tendered by the Respondent herself.

73   After that date Dr Ingall continued to certify that her epilepsy was sufficiently controlled to permit her to hold a drivers licence, at least by day [Blue 7:3084I: Blue 3:1399-1400], as he had done before the admission to the Appellant’s hospital [Blue 7:3084D], she had travelled overseas with her boyfriend without suffering any epileptic episodes [Blue 4:1665-1666] and she had commenced to live away from her mother during this latter period [Blue: 7:3082I-W]. IN the circumstances, where no real deterioration was objectively described, and where no alteration to the pre-injury level of care was established on the unchallenged evidence, no award of the kind made by his Honour can be defended.

74   The Respondent was not entitled to an award of damages beyond the period immediately associated with the January 2010 Investigation, limited to a short closed period of pain and suffering. No award for either economic loss or care was justified.”

162. No additional submissions were advanced in oral argument.

163. The award of damages of $1,672,790.75 had the following components:

General Damages	$70,580.00
Out of pocket expenses	$27,500.00
Past economic loss	$20,125.00
Past employer superannuation contributions	$2,213.75
Future economic loss	$255,051.00
Past care	$190,890.00
Future care	$1,106,431.00
TOTAL DAMAGES	$1,672,790.75

164. The Hospital’s submission that Ms Pierce was not entitled to an award of damages beyond the period immediately associated with the administration of the EEG in January 2010, limited to a short closed period of pain and suffering, assumed that it should be found that the Hospital’s negligence did not materially contribute to an increased burden of epilepsy beyond that attributable to a natural progression of the disease.

165. Damages for past and future economic loss were required to be assessed in accordance with s 57 of the Civil Liability Act 2003 (Qld). The Hospital does not submit that the primary judge erred in his application of those provisions. Rather, the Hospital contends that his Honour erred in concluding that there was any significant impairment to Ms Pierce’s earning capacity that was materially contributed to by the telemetry event. Particular reference was made to Dr Landers’ opinion of 10 March 2009 that working 40 hours per week seemed to be too heavy a workload for Ms Pierce.

166. The primary judge found that Ms Pierce continued to work full time until she suffered a seizure at work on 16 August 2004. He calculated lost earnings from 16 August 2004 (at [190] and [194]). Ms Pierce worked in the Byron Bay Holiday Park, but was on reduced hours of 20 hours per week from that date. The primary judge found that if that work came to an end it was very unlikely that she would be able to find any similar work (at [192]). The primary judge approached the assessment of damages for economic loss, both in the past and the future, based upon the principles in Malec v J C Hutton Pty Ltd (No 2), Seltsam Pty Ltd v Ghaleb at [103]-[107] and Ridolfi v Hammond [2012] NSWCA 3 at [86]-[88]. Neither party submitted that this was erroneous. His Honour found:

“193 There are difficulties in assessing damages under this head as seizures, often requiring hospitalisation, were a feature of Ms Pierce’s pre-existing condition and notwithstanding what I have found to be the material aggravation of her condition, her epilepsy would have worsened, in any event, again according to the findings I have already made. I am satisfied however, that the aggravation by the telemetry event has materially contributed, to a significant degree, to the impairment of her earning capacity; and I am satisfied that she has suffered, and will in the future suffer, financial loss, having regard to the matters set out in s 55(2) CLA. …

194   Ms Pierce’s pre-existing condition and its natural deterioration are possible ‘causes entirely unrelated to the defendant’s negligent act [which] might have contributed’ not only to her ultimate condition but also to the losses she has suffered which otherwise sound in damages. ‘Appropriate allowances must be made for these contingencies’: Seltsam v Galeb at [106] – [108]. Given these principles, and my findings, it is not appropriate for me to award the arithmetical difference between Ms Pierce probable earnings after 16 August 2014 and her actual earnings since then to calculate the amount appropriate for past economic loss. An adjustment has to be made to that difference to take account of the contingencies I have identified. In my view, the appropriate discount is 50 per cent.”

167. Although the primary judge did not specifically refer to Dr Landers’ evidence referred to above, he did take into account the features of Ms Pierce’s condition before 5 January 2010 as well as his findings that her epilepsy would have worsened in any event. Allowance for the prospect that irrespective of the telemetry event of 5 January 2010 Ms Pierce would probably not have been able to continue working full time indefinitely was made by the 50 per cent discount applied to the loss of past earnings for the period from 16 August 2014 to the date of judgment and the discount of 66.7 per cent for future loss of earnings.

168. Loss of past superannuation followed the assessment of a past economic loss. In my view there was no error in his Honour’s assessment of those damages.

169. The primary judge found that there was a very high degree of probability that Ms Pierce would lose her current job, would be unable to find other suitable work because of the totality of her current impairment due to her epilepsy resulting from all causes. Aggravation by the telemetry event was one concurrent cause (at [197]). It was not a ground of appeal that the primary judge erred in finding that there was a very high degree of probability that Ms Pierce would lose her current job and be unable to find other suitable work. Nor was there a challenge to the primary judge’s finding that it was reasonable to assume a remaining working life of 40 years as a starting point. His Honour calculated that the maximum damages that could be awarded if Ms Pierce were totally incapacitated from that day with no prospect of finding other work and without the usual discount for the vicissitudes and on the finding that the incapacity was solely caused by the Hospital’s negligence that compensation for future loss of earnings was $732,150. The integers of that calculation were not challenged. The primary judge discounted that figure by 66.7 per cent to take into account the various imponderables, including that Ms Pierce’s epilepsy would continue to deteriorate into the future.

170. In my view there was no error in that approach. Ms Pierce challenged the amount of the discount, but the basis for that challenge, as articulated in her written submissions, was her challenge to the primary judge’s finding that her underlying epilepsy would continue to deteriorate into the future, irrespective of the effect of the telemetry event. In oral submissions counsel for Ms Pierce submitted that even if the primary judge’s finding as to natural progression of Ms Pierce’s epilepsy were correct, still the discount was too high and only the standard 15 per cent discount for vicissitudes was warranted. I do not agree. Clearly on the primary judge’s finding this is not a case for the application of a standard discount of 15 per cent for vicissitudes. The primary judge did not make an error of principle. He did not rely on irrelevant matters or fail to take account of relevant matters. He did not mistake the facts. His Honour was called on to make an evaluative judgment in which there is room for reasonable differences of opinion. The principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 apply to appellate review of that judgment (Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 at 518-519 (per Mason and Deane JJ), 535 (per Wilson and Dawson JJ). Having regard to the deterioration of Ms Pierce’s condition before 5 January 2010, which cannot be attributed to behaviour which pushed the boundaries, and having regard to the common position of Dr Fong and Professor Dunne that further deterioration was to be expected, a two-thirds discount applied to a projection of future earnings over 40 years is not plainly unreasonable or unjust.

171. The Hospital sought leave to lead additional evidence on appeal. In making the finding referred to at [169] above the primary judge said (at [198]):

“In making this finding I have borne in mind her evidence that she has an ambition to be a writer either as a freelance journalist or as a novelist (57.10T). Notwithstanding her cognitive difficulties, Ms Pierce struck me as a very intelligent young woman. Her drive, I think, speaks for itself. Notwithstanding these obvious attributes, I also bear in mind that the wonderful achievement of her BA was obtained at a measured pace with the assistance of her father. It will not be easy for her to obtain work as a freelance journalist at a sufficient level to support herself and, at least proverbially, there are very, very many more novelists who go unpublished than published; of those who are published, the great majority struggle financially.”

172. The Hospital sought to rely upon an affidavit of the Hospital’s solicitor that attached four online articles written by Ms Pierce for the Byron Echo in April and May 2016, that is, after the trial, but before judgment. The Hospital contended that the articles showed that Ms Pierce was in a position to pursue a career in journalism. Ms Pierce’s solicitors said that the articles were written as part of an unpaid internship which did not lead to a paid position and that as at 4 January 2017 Ms Pierce was in fact unemployed.

173. Counsel for the Hospital said that they did not have instructions, nor any basis of thinking, that this was incorrect. The further evidence was rejected. My reason for joining in that order was that the evidence proposed to be read could not materially affect the basis upon which the primary judge proceeded, in the absence of any basis for the Hospital to assert that Ms Pierce had indeed obtained paid employment as a journalist.

174. No other specific submissions were made by the Hospital to challenge the primary judge’s assessment of damages for past and future care.

175. The primary judge allowed $190,890 as damages for past gratuitous care provided by Mr and Mrs Pierce. The primary judge referred to s 59(2) of the Civil Liability Act 2003 (Qld) that provides that:

“(2)    Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.”

176. The primary judge held that this was not an absolute prohibition against the award of damages for gratuitous services if there were an increased need for services of the same kind, which increment arose solely out of the injury in relation to which damages are awarded (at [205]). The Hospital did not challenge this conclusion.

177. The primary judge found that additional services were necessary solely because of the consequences of the telemetry event and that those additional services had been provided and would be provided for at least six hours per week and for at least six months. This satisfied the requirements of s 59(1).

178. The primary judge recorded that the joint report of occupational therapists who had been engaged as expert witnesses by the parties recorded that they had agreed that for the past, there was a need for an additional 63 hours of gratuitous care per week, and that for the future there was an additional need for care of 73.5 hours per week. This was based upon detailed assumptions that the experts were asked to make that reflected the evidence of Ms Pierce and her parents as to the nature of Ms Pierce’s seizures before and after 4 January 2010, the recovery times from those seizures, Ms Pierce’s ability to participate in household chores and activities, and to be left alone. The assumptions reflected the evidence given by Ms Pierce and Mrs Pierce. They did not include any assumption as to the likely deterioration in Ms Pierce’s condition independently of the telemetry event.

179. The primary judge found (at [210]) that he was not satisfied that the assumptions accorded sufficiently with the findings his Honour made about the change in Ms Pierce’s condition due to the aggravation of the telemetry event alone. His Honour rejected the views of both witnesses that the amount of care they contemplated would be required for Ms Pierce in the future would be solely due to the degree of aggravation caused by the telemetry event. His Honour was satisfied that the conditions of s 59 had been satisfied, but said that in assessing damages for past and future attendant care it was necessary to make appropriate allowance for Ms Pierce’s pre-existing condition and its likely natural deterioration.

176. In assessing damages for past care the primary judge said:

“214   … Given the seriousness of the pre-existing condition giving rise to a significant need for care, and bearing in mind the natural deterioration, for the past, I think it appropriate to allow one-third of the 63 additional hours agreed at the agreed rate of $30 per hour. That is an amount of about 21 hours per week on average at $30 per hour. I am conscious that I have accepted that motor seizure activity has about doubled since the telemetry event, but as I have said repeatedly, not all of that worsening is due to the Hospital’s negligence.

215   It is approximately 303 weeks since 5 January 2010. At 21 hours per week, this is 6,363 hours. Allowing $30 per hour, I allow $190,890.”

181. In assessing damages for future care the primary judge said (at [217]):

“So far as future care is required, it is very important to bear in mind that Ms Pierce’s epilepsy is a naturally deteriorating condition. The likelihood that she would need care at this level in the future even in the absence of the negligence of the Hospital increases as time goes by. This being so, I think it appropriate to discount the agreed rate of 73.5 hours by 75 per cent in calculating for future loss. As I have said, Ms Pierce’s life expectancy according to the median life tables is 61 years. The 5 per cent multiplier for that period is 1,014.9. 73.5 hours by $59.33 produces a weekly rate of $4,360.75. Application of the multiplier produces a total of $4,425,725.18. Applying the discount of 75 per cent, the net figure (discarding cents) is $1,106,431.”

182. I have rejected Ms Pierce’s challenge to the primary judge’s finding that the burden of her existing epilepsy was likely to deteriorate even if the telemetry event had not occurred. Ms Pierce’s challenge to the extent of the discounts applied by the primary judge (66.7 per cent and 75 per cent) depended upon that challenge being upheld.

183. There was no error in the primary judge’s conclusion that the assumptions made in the joint report of the occupational therapists did not accord with the facts as found by him. Those assumptions did not include an assumption as to the likely deterioration of Ms Pierce’s condition, even if the telemetry event had not occurred. Moreover, the assessed care needs reflected Ms Pierce’s condition, and not the increased burden of her condition following the telemetry event.

184. In oral submissions counsel for Ms Pierce submitted that there was a discrepancy between the primary judge’s finding that the Hospital’s negligence very significantly contributed to the increased burden of her epilepsy and his 75 per cent discount of damages for future care. That was an advocate’s flourish. The issues of material contribution to a worsened condition, and the issue of the extent to which allowance should be made for her existing condition and for the extent to which it would have worsened in the absence of the telemetry event, are distinct.

185. Mr Graham submitted that if the Court were to accept that natural progression made some contribution to Ms Pierce’s requirements for future care it would be a minor contribution to which the normal discount of 15 per cent for vicissitudes would be apt. I do not accept that submission. The 75 per cent discount for future care related to Ms Pierce’s care needs over four decades. The effect of the primary judge’s conclusion, soundly based on the evidence, was that having regard to her deteriorating condition there would be some unknown point in the future where the progression of the underlying condition would subsume the effects of the telemetry event.

186. In my view the primary judge’s findings as to damages were open to him. They required an assessment that was not capable of explication as to whether one particular discount, or some other discount, should be adopted. His Honour had the advantage of seeing the witnesses. His Honour’s assessment required an evaluative, holistic judgment that has not been shown to be in error.

187. Accordingly, I reject the challenge by both parties to the primary judge’s assessment of damages.

188. It follows that the appeal and cross-appeal should both be dismissed. Prima facie the Hospital should pay Ms Pierce’s costs of the appeal and she should pay the Hospital’s costs of the cross-appeal, with the costs payable by one party to be set off against the costs payable by the other. That would be a difficult and expensive exercise. It would require both parties’ costs to be assessed. A costs assessor would have the unenviable task of determining what costs should be allocated to the appeal, and what costs to the cross-appeal when it is very likely that for most of the costs incurred, any such division would be arbitrary. This is a case of the parties’ having had mixed success. The better course is for the Court to make its own evaluative and necessarily impressionistic assessment of where the costs were incurred and then apply a notional set-off. The costs of preparation of the appeal books were necessary for both the appeal and the cross-appeal. My impression is that the bulk of the costs of written and oral submissions were directed to the appeal, rather than the cross-appeal. Applying a notional set-off I would order that the Hospital pay 60 per cent of Ms Pierce’s costs.

Conclusion and Orders

189. For these reasons I propose the following orders:

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. Order that the appellant pay 60 per cent of the respondent’s costs of the appeal and cross-appeal.

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Amendments

16 February 2018 - para [141] "... arising out of in the course of his employment" amended to "... arising out of and in the course of his employment"

Decision last updated: 16 February 2018