Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital

[2017] NSWDC 372

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital [2017] NSWDC 372
Hearing dates:	15, 16, 17, 18, 19, 22, 23, 24 May 2017 and 23 June 2017Submissions closed: 30 June 2017
Date of orders:	20 December 2017
Decision date:	20 December 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	(a)   judgment for the plaintiff against the first defendant in the sum of $32,167.00; (b)   judgment for the plaintiff against the second defendant in the sum of $64,333.00; (c)   the defendants to pay the plaintiff’s costs proportionately according to their respective share of responsibility; (d)   the cross claims are dismissed with no order as to costs; (e)   liberty to apply within 28 days to vary costs order (c), if necessary; (f)   the Exhibits to be returned after 28 days.
Catchwords:	TORT – medical negligence – liability of hospital – liability of psychiatrist – whether patient ought to have been discharged and permitted to drive her motor vehicle whilst suffering from tiredness and sedation. OBVIOUS RISK – DUTY OF PROFESSIONAL – whether duty of care breached – whether a professional acted in a manner that was widely accepted by peer professional opinion as competent professional practice EVIDENCE – business records – reliability of witnesses EXPERTS – concurrent evidence – rationality of opinion CONTRIBUTORY NEGLIGENCE ASSESSMENT OF DAMAGES – extent of loss suffered – where plaintiff receiving compensation payments prior to subject injury
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; (2009) 260 ALR 628; (2009) 84 ALJR 19; [2009] HCA 48 Albrighton v Royal Prince Alfred Hospital [1990] 2 NSWLR 542 Allen v Chadwick [2015] HCA 47 Biggs v George [2016] NSWCA 113 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Commonwealth of Australia v Elliott [2004] NSWCA 360 Drinkwater v Howarth [2006] NSWCA 222 Glen v Sullivan (2015) 71 MVR 417 Hall v State of NSW [2014] NSWCA 154 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Laoulach v Ibrahim [2011] NSWCA 402 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSW 8 Luxton v Vines (1952) 85 CLR 352 Marien v Gardiner [2013] NSWCA 396 Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 Podrebersek v Australian Iron and Steel [1985] HCA 34; 59 ALR 529 Purkess v Crittenden (1965) 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 The Council of the City of Greater Taree v Wells [2010] NSWCA 147 Tomes v Adams [2003] NSWCA 269 Wallace v Kam [2013] HCA 19 Watts v Rake (1960) 108 CLR 158
Texts Cited:	Wikipedia
Category:	Principal judgment
Parties:	Revalyn Naidoo (Plaintiff) Brisbane Waters Administration Pty Limited trading as Brisbane Waters Private Hospital (First Defendant) Dr Larissa Grund (Second Defendant)
Representation:	Counsel: Mr M Thompson (Plaintiff) Mr R Scruby (First Defendant) Mr G Gemmell (Second Defendant)   Solicitors: Gerard Malouf and Partners (Plaintiff) Kennedys (First Defendant) HWL Ebsworth (Second Defendant)
File Number(s):	2014/00275827
Publication restriction:	None

Judgment

Introduction

The Plaintiff’s case

The first defendant’s case

The Second defendant’s case

chronology re liability

The Evidence

The Plaintiff’s Evidence

Cross-Examination on behalf of First Defendant

Cross-Examination on behalf of the Second Defendant

Re-Examination of Plaintiff

Janet Elizabeth Allan

Annette Marie Easson

Simon Connor

Larissa Grund (the Psychiatrist)

Evidence of the Experts

The Experts’ Reports

Associate Professor Kennedy, Consultant Physician and Clinical Pharmacologist (for the plaintiff)

Matthew James, Nurse Practitioner (for the first defendant)

Professor Matthew Large, Psychiatrist (for the second defendant)

Dr Christie, Pharmacologist (for the second defendant)

Joint Report of Professor Phillips, Dr Teoh, Mr James and Professor Large

Joint Report of Dr Kennedy and Dr Christie (Exhibit B, page 620 and following)

Concurrent Evidence of Experts

Analysis

Application of Civil Liability Act 2002 (CLA) to the Facts

The Accident

Plaintiff’s Submissions on Liability

First Defendant’s Submissions on Liability

Second Defendant’s Submissions on Liability

Apportionment of Liability between the Defendants

Contributory Negligence

Assessment of Damages

The Plaintiff’s Evidence

The Evidence of Terry John McKittrick

The Expert Medical Evidence on Quantum

Analysis of Evidence Regarding Quantum

Actuarial Factors

Heads of Damage

Non-Economic Loss

Past Treatment Expenses

Future Treatment Expenses

Past Economic Loss

Future Economic Loss

Past Domestic Assistance

Future Domestic Assistance and Care

Summary of Assessment of Damages

Disposition

Orders

Judgment

INTRODUCTION

1. The plaintiff claims damages against Brisbane Waters Administration Pty Limited trading as Brisbane Waters Private Hospital (“the Hospital”) and Dr Larissa Grund, Psychiatrist (“the Psychiatrist”) in respect of injuries suffered as a consequence of a motor vehicle accident which occurred following and shortly after the plaintiff’s discharge from the Hospital on 17 January 2012.

2. The essential allegation against the defendants is that, at the time of discharge, the plaintiff was suffering from tiredness, drowsiness and/or sedation and ought not to have been permitted to drive her motor vehicle home from the Hospital at Woy Woy to her home at Wyong, about 50 kms.

3. It is said that it was in the course of that journey that the plaintiff blacked out or fell asleep resulting in a collision which caused the injuries of which she now complains. For reasons given below, I have found that the accident occurred as result of the plaintiff falling asleep.

4. In broad terms, the case concerned the liability of the Hospital, the liability of the Psychiatrist, contributory negligence on the part of the plaintiff, claims for contribution and/or indemnity between the defendants and the assessment of damages.

5. The length of these reasons was made necessary by the volume of material relied upon, particularly the Hospital’s clinical notes which required close examination. There was also a comparatively large number of expert witnesses whose reports, joint reports and concurrent evidence were carefully considered.

The Plaintiff’s case

6. After the hearing had concluded, the plaintiff was granted leave to rely upon a Third Amended Statement of Claim which was filed on 26 June 2017. It is alleged that at the time of her discharge from the Hospital the plaintiff was affected by a “lack of sleep including tiredness, drowsiness, cognitive impairment and sedation” (Third Amended Statement of Claim paragraph 5A). The evidence did not support a claim for cognitive impairment and that was not pressed.

7. The risk to which the plaintiff was exposed by the conduct of the defendants was said to be “the risk to a patient of the hospital taking a range of medications who was driving to Wyong whilst suffering tiredness, drowsiness, cognitive impairment or sedation of losing control of the motor vehicle and crashing and suffering personal injury” (Third Amended Statement of Claim, paragraph 10A).

8. The particulars of negligence alleged jointly against both defendants were:

1. failing to take an adequate history from the plaintiff;

2. failing to consult the plaintiff’s clinical record;

3. failing to observe the effect on the plaintiff of the medication;

4. failing to monitor the plaintiff while taking the medication;

5. failing to observe the plaintiff’s condition before discharging her from its care;

6. failing to ascertain the means whereby the plaintiff was journeying home from the hospital;

7. furnishing the plaintiff’s car keys to her at the time of her discharge from its care;

8. inviting the plaintiff to operate a motor vehicle immediately upon her discharge from its care;

9. failing to warn the plaintiff that potential effects on her of taking the medication were cognitive impairment and sedation;

10. failing to warn the plaintiff that a potential effect on her of taking duloxetine was a seizure;

11. failing to caution the plaintiff not to attempt to operate a motor vehicle while under the effect of the medication;

12. failing to caution the plaintiff not to attempt to drive a motor vehicle from the hospital to Wyong while under the effect of the medication.

The first defendant’s case

9. Whilst the Hospital conceded that it was aware, by its staff members, that the plaintiff would be driving herself from Woy Woy to Wyong it alleged that the scope of the duty owed by the Hospital to the plaintiff was in respect of a provision of Hospital services only. For reasons given below, I do not agree.

10. It claimed that the plaintiff was discharged from Hospital in accordance with the Psychiatrist’s orders. Further, it claimed that any medication provided to the plaintiff were prescribed by the Psychiatrist or other medical practitioners. Whilst those matters may be true, they do not, of themselves, absolve the Hospital of liability.

11. The Hospital’s Defence was amended with leave after the conclusion of the hearing to permit it to allege contributory negligence against the plaintiff in the same terms as had previously been alleged by the Psychiatrist against the plaintiff.

12. The particulars of contributory negligence raised by both defendants were:

1. driving in circumstances where the plaintiff knew or ought to have known that she may be affected by medication;

2. failing to inform the servants or agents of the first defendant that she was not fit to drive;

3. failing to request a taxi or other means of transport to return home; and

4. failing to arrange for a friend or acquaintance to collect her from Hospital.

13. It was also part of the Hospital’s case that, if found liable, then it looked to the Psychiatrist for contribution and/or indemnity. In addition to the negligence pleaded against the Psychiatrist in the Third Amended Statement of Claim, the Cross Claim proceeded on the basis that the Psychiatrist was responsible for the plaintiff’s medical management and had approved the plaintiff to drive her car prior to discharge in circumstances where the Psychiatrist was aware of the medications which had been prescribed to the plaintiff.

The Second defendant’s case

14. The Psychiatrist denies that she was negligent and, in the alternative, alleges contributory negligence against the plaintiff on the same grounds identified above.

15. The Psychiatrist also relies upon s50 of the Civil Liability Act (CLA) and says that she acted in a manner that at the time was widely accepted in Australia by peer professional opinion as competent professional practise. For reasons given below, I do not agree.

16. By Cross Claim against the Hospital, the Psychiatrist sought indemnity and/or contribution from the Hospital on the grounds alleged against the Hospital in the Third Amended Statement of Claim.

17. In addition, the Psychiatrist sought contribution on the basis that the Hospital failed to contact the Psychiatrist at the time of discharging the plaintiff, presumably to advise her of the plaintiff’s condition.

chronology RE liability

18. The clinical notes produced by the defendants were in evidence (Exhibit 1-D1 and elsewhere). They are records, which in the ordinary course, would have been created at a time contemporaneous to the events to which they relate. They were also business records and deserve the special status which such documents ordinarily attract.

19. Counsel for the first defendant, in part, relies upon the clinical notes as evidence of what occurred on the day of the plaintiff’s discharge (First Defendant’s Submissions) (FDS 27 and following).

20. It is submitted on behalf of the first defendant that the clinical records “are, by a large margin, the best evidence the Court has in relation to the events of the period” [FDS 30]. My attention was drawn to the comments made by the majority in Fox v Percy (2003) 214 CRL 118 at [30] to [31] where Gleeson CJ, Gummow and Kirby JJ in reference to a trend on the part of the trial judges and appeal courts to limit their reliance:

… on the appearance of witnesses and to (instead) reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

21. Counsel for the first defendant also referred to the decision of the Court of Appeal in Albrighton v Royal Prince Alfred Hospital [1990] 2 NSWLR 542 at 548 – 549 where Hope JA stated:

Any significant organisation in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of part IIC [of the Evidence Act 1898 (NSW)] … No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, then in the recollection of persons trying to describe what happened at some time in the past. When what is recorded is the activity of the business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth.

22. The first defendant submitted that, the position is the same in relation to the Hospital records in this case (FDS [32]).

23. In the circumstances of this case, where just one treating nurse was called on behalf of the first defendant (Nurse Easson) and just one of the several treating psychiatrist (the Psychiatrist) called in respect of those who provided treatment to the plaintiff, I consider the Hospital notes to provide an invaluable insight into the events which occurred during the plaintiff’s hospitalisation. Of course, given that the business records were not prepared in detail, with a view to litigation, they must be read in conjunction with the oral evidence from those witnesses called by the parties. This is particularly so in instances in which it is apparent that the notes do not provide a full account of all events.

24. Nevertheless, the records permit a number of findings which I believe ought to be made. Extracted below, is a table setting out material events derived from the Hospital notes together with findings which I make relying upon those notes, having regard to their contemporaneity, objectivity and apparent accuracy.

25. The following chronology is based on the documentary evidence (Exhibit 1-D1). Where there is a conflict between the record and other evidence or where witness evidence assists in shedding light on the chronology, comments have been added. Findings are highlighted in bold.

Date	Time (if known)	Event
Wednesday 07.12.11	Consulted Dr Lim, GP, complaining of being suicidal. Referred to Wyong Hospital Emergency Department.
Admitted to the Wyong Hospital Mental Health Unit.
Friday 16.12.11	Transferred from the Wyong Hospital Mental Health Unit to the Hospital under the care of the Psychiatrist. The plaintiff drove herself between Hospitals. On initial assessment variable sleep disturbance was recorded. Although admitted under the Psychiatrist, other medical practitioners were involved in the plaintiff’s care over the initial holiday period. The Psychiatrist first consulted the plaintiff on 6 January 2012 and was the psychiatrist attending to the plaintiff’s care from that date up until discharge. I find that the Hospital was aware that the plaintiff was suffering sleep disturbance from the time of admission to the Hospital on 16 December 2011. Further, as is made clear below, this continued during the plaintiff’s stay at the Hospital.
Saturday 17.12.11	Nursing notes recorded the plaintiff’s concern about sleep and pain during the night. I find that the plaintiff’s sleep disturbance continued after admission and that the Hospital was aware of same.
Monday 19.12.11	Examined by Dr Winter, Psychiatrist, who recorded that the plaintiff was over-sedated. Noted that she wishes there was something to make her less drowsy. Noted that Tramadol ceased due to drowsiness and affecting her kidneys. I find that the treating psychiatrist considered the plaintiff over-sedated and drowsy as at 19 December 2011.
Thursday 22.12.11	Reviewed by Dr Lienert, Psychiatrist, noted ongoing insomnia - still requiring Stilnox most nights. I find that on 22 December 2011, the plaintiff was suffering ongoing insomnia and required medication.
Thursday 22.12.11 – Tuesday 27.12.11	Reviewed by Dr Lienert – sleeping with hypnotic at night.
Thursday 05.01.12	Plaintiff asleep when psychiatrist arrived to review her in the afternoon. He, therefore, reduced her mane dose of OxyContin. By inference, I find that the plaintiff was suffering day time tiredness thought by the attending psychiatrist to be as a result of the medication.
Friday 06.01.12	06:00	Plaintiff did not go to bed until approximately 01:30 hrs (sat at her desk) and states that she can’t go to bed until she is really sleepy … “has appeared to sleep from approx 02:00 hrs”. I find that the plaintiff was suffering from insomnia as at 6 January 2012, two weeks after admission to the Hospital.
First detailed clinical review by the Psychiatrist. Noted “disturbed sleep”. Changes made to medications. Plan for discharge 17th or 19th January. I find that as at 6 January 2012 the plaintiff was continuing to suffer from disturbed sleep and that the Psychiatrist was aware of same. I also find that the Psychiatrist was, or ought to have been aware of the matters recorded in the plaintiff’s clinical notes since admission.
Saturday 07.01.12	Permission given for plaintiff to trial 3 hours leave per day “where she can drive her car as long as she attends groups during the week” at the Hospital. I find that on 7 January 2012, the Psychiatrist gave permission for the plaintiff to drive her motor vehicle without restriction on public roads.
Sunday 08.01.12	06:00	Recorded that plaintiff had been up from 03:20 … has been in lounge room watching TV since 03:30 … slept very little overnight. I find that the plaintiff’s insomnia was continuing and that the plaintiff “slept very little overnight” on 7-8 January 2012.
13:45	Complained of feeling increased tiredness and has spent most of time resting on bed. I find that as at 8 January 2012 the plaintiff was suffering from increased tiredness during the day and that it was necessary for her to spend most of the time resting on her bed.
19:00	Plaintiff spent most of shift in bed, short periods spent in common area. I find that the plaintiff spent most of the day in bed on 8 January 2012 due to tiredness.
Monday 09.01.12	01:30	Diazepam given on request for insomnia/agitation. I find that overnight on 8-9 January 2012 the plaintiff was unable to sleep and required medication to do so.
06:00	Appeared to sleep well from 02:00 hours. I find that the plaintiff was continuing to suffer insomnia.
Missed 09:15 group as was still asleep however attended 11:00 and 13:30 group. I find that, as a result of insomnia, the plaintiff was tired and sleeping during part of the day on 9 January 2012.
18:45	Spent long periods in her room.
21:00	Plaintiff requested and given 20 mg Stilnox and 5 mg Diazepam before retiring to bed.
Tuesday 10.01.12 (7 days prior to discharge)	06:00	Up at 22:00 hours and sat in dining area with fellow clients and chatted until 23:00 hours. Plaintiff then went to her room and sat at her desk writing. Appeared awake intermittently overnight, although nil request for PRN. I find that the plaintiff slept poorly on the night of 9-10 January 2012.
18:30	Plaintiff complained of feeling very tired this afternoon – woken for dinner … ordered take-away for dinner. I find that one week before discharge, the plaintiff was continuing to experience day time tiredness of which the Hospital was aware. She had to be woken for dinner.
Wednesday 11.01.12 (6 days prior to discharge)	06:00	Plaintiff slept until 03:00. Requested Panadol and Diazepam 5 mg given … awake at 05:00. I find that, as at 11 January 2012, the plaintiff has suffered disturbed sleep with an irregular sleep pattern at night.
19:00	Plaintiff drove her car to the local shops.
Thursday 12.01.12 (5 days prior to discharge)	05:50	Plaintiff settled to sleep after 12 midnight with PRN sedation and Valium. Appeared to sleep well but was awake approximately 04:30 hours with back pain and discomfort. Requested and given Panadol and Valium 5 mg at 04:45 hours. I find that, even after taking sedative medication, the plaintiff’s sleep was disturbed during the night of 11-12 January 2012.
11:30	Low mood and activity this shift.
Friday 13.01.12 (4 days prior to discharge)	06:00	Plaintiff settled to sleep well after 10pm routine Panadol and PRN Valium. She has appeared to sleep well overnight.
19:00	Plaintiff rested in bed majority of the afternoon. I find that four days before discharge, the plaintiff was continuing to suffer from day time tiredness of which the Hospital was aware.
Saturday 14.01.12 (3 days prior to discharge)	06:00	Plaintiff watched a movie in dining area till 23:00 hours. Patient then went into her room but didn’t fall asleep till after 01:00 hours and then appeared to sleep well.
Sunday 15.01.12 (2 days prior to discharge)	06:00	Plaintiff settled to sleep after midnight.
18:00	Plaintiff has had continuous pain today and has remained controlled but distressed by same … Legs elevated and mostly resting on the bed early evening and afternoon. (Emphasis added).
23:00	Plaintiff requested and given 20 mg Stilnox and 5 mg Diazepam prior to retiring to bed. Plaintiff reported mood still low and hoping to get a referral to Hunter Pain Clinic.
Monday 16.01.12 (1 day prior to discharge)	06:30	Plaintiff settled in room and appeared to sleep well overnight.
Reviewed by Dr Grund – first long consultation. She has spent most of today in bed. “I was concerned about her going home today in her current mental state but she assures me she is not suicidal but is very worried about falling into that frame of mind again …” Plaintiff agreed to see Dr Grund as an outpatient on Thursday at 3pm. Comment: the plaintiff’s evidence demonstrated that the Psychiatrist’s notes of this consultation were incomplete and omitted important information concerning a conversation between them as to the plaintiff driving home. See the discussion below. I find that, as at 16 January 2012: (a)   that the plaintiff was experiencing elevated day time tiredness; (b)   that the Psychiatrist was aware, or ought to have been aware of (a); (c)   that the Psychiatrist had concerns about the plaintiff’s discharge due to her current mental state; (d)   notwithstanding (c), the Psychiatrist authorised discharge for the next day; (e)   that between the consultation on 16.1.12 and discharge on 17.1.12 at 3pm, the Psychiatrist did not review the plaintiff or make any inquiries as to the plaintiff’s welfare or fitness for discharge.
22:00	PRN Stilnox 20 mg and 5 mg Diazepam given on request to settle.
Tuesday 17.01.12 (Day of discharge)	06:00	Plaintiff appeared to be asleep on hourly checks. She also “talking in her sleep” on later morning checks. Comment: the plaintiff gave evidence that she was woken by staff for breakfast at 8am. She fell asleep over her breakfast. She was then taken back to her room where she slept. Nursing staff tried to wake her on several occasions but she fell back asleep each time. (Evidence of plaintiff at [T46.25-40]). Comment: eventually, the plaintiff had a cold shower to wake up. Others packed her bags and carried them to her car which had been moved from the car park to a position close to the Hospital (Evidence of plaintiff at [T48.18-31]). It is apparent that the Hospital’s clinical notes did not accurately record the plaintiff’s condition on the day of discharge. I accept the plaintiff’s evidence as to these events.
11:30	Plaintiff requested copies of pathology and doctors’ letters stating that the Psychiatrist had approved the release of that information. The Psychiatrist failed to record this in notes. Phone call made by Nurse Easson to the Psychiatrist who gave verbal consent for the release of those documents. Comment: there is no record of any conversation between Nurse Easson and the Psychiatrist about this telephone call. I find that despite contact being made between the Hospital and the Psychiatrist, the Psychiatrist did not enquire as to the condition of the plaintiff and the Hospital did not advise the Psychiatrist of same.
14:00	Risk assessment performed by Nurse Easson “reports tiredness lately – Psych aware” I find that at the time of discharge the Psychiatrist and the Hospital were aware of reports of tiredness lately. HoNOS form completed by Nurse Easson. SA2 (self-assessment) form completed by Nurse Easson on behalf of plaintiff at discharge. In answer to question 3E - “did you have a lot of energy?” - “none of the time” was indicated. In answer to question 3F - “have you felt down?” - “none of the time” was indicated. In answer to question 3G - “did you feel worn out” - “none of the time?” was indicated. In answer to question 3I - “did you feel tired?” - “none of the time”. Those questions related to how much of the time during the past three days that the plaintiff had those feelings. Comment: The answers to these questions are at odds with other evidence about the plaintiff’s presentation, as recorded in the Hospital’s notes and observed by others. The answers given to a number of the questions are also irreconcilably inconsistent. I find that the self-assessment evidence is generally unreliable.
Approx. 15:00	Plaintiff discharged: Comment: After the risk assessment, the plaintiff was given the key and escorted to her vehicle where she was permitted to drive home alone. Mood stable - denies suicidal ideation thoughts or intent. Is driving self home. Left ward at 14:30. Given discharge medication to take at home and copies of documents as above. Nursing entry by Nurse Easson - “Revalyn refused to take OxyContin 10 mg at am as felt she would be too drowsy – states she will take medication when she gets home”. Comment: This entry is contrary to Nurse Easson’s own note on the medication chart that the 8am medication was dispensed and the plaintiff’s evidence that she took the medication at that time. I accept the contemporaneous notes and the evidence of the plaintiff and find that the plaintiff took OxyContin at 8am on the day of discharge. It follows that Nurse Easson’s recollection is flawed.
Approx. 15:10	Accident occurred.
15:18	Ambulance called.
15:27	Ambulance at scene.
16.09	Arrived at Wyong Hospital. Ambulance Report Narrative: Posterior neck pain … driver of a vehicle that struck a sandstone block – the driver’s side front wheel at low speed causing the steering arm to break.
16.10	Admitted to Wyong Hospital. Didn’t make it home on discharge. Plan included re-admission to the Hospital.
21:00	Conversation between the Wyong Hospital Emergency Department and the Psychiatrist. “Would be happy to re-admit under her care but issue with workers comp insurer”.
Wednesday 18.01.12 (1 day after accident)	Called made at 01:17 by female from Wyong Emergency Department to the Mental Health Telephone Access Line in respect of the plaintiff. “Request from Wyong ED for assessment. History of depression and previous suicidal ideation denies currently. Chronic pain issues. Discharged today as insurance would no longer cover her. MVA low impact. Denies suicide attempt”.
Reviewed by the Psychiatrist at the Hospital on re-admission. “She cannot recall what happened just a loud thump then losing control of the car”. “She denies suicidal intent”. “She was 2 minutes away from home when it happened”. “Relates excessive sedation over the last 3-4 days which will require review”. Accepting that clinical note and other evidence (below) I find that, as at 18 January 2012, the plaintiff had suffered excessive sedation over the last three to four days, including in the period immediately prior to discharge. This is from 14 or 15 January 2012 and includes the date of the last consultation with the Psychiatrist.
SA1 form (self-assessment) completed by plaintiff on re-admission to Brisbane Waters Private Hospital in answer to question 3E the plaintiff indicated that during the past two weeks she had felt tired “none of the time”. Given the overwhelming evidence to the contrary, I reject this representation and the suggestion that the plaintiff had not suffered from tiredness in the past two weeks. Again, I find that the self-assessment form completed by the plaintiff on admission to be unreliable evidence.
Friday 20.01.12 (2 days after accident)	Reviewed by the Psychiatrist. “Revalyn still shaken and over-sedated today”.
Letter by fax from the Psychiatrist to the WorkCover Case Manager: “Ms Revalyn Naidoo reports increased sedation over the last week, which succeeded her discharge from hospital. She related that she had 2 falls before she was discharged, of which I was not aware. Staff reports that she has been sleeping much longer than usual since her return to hospital and for the 2 days preceding her discharge. Ms Naidoo reported nocturnal enuresis on 18 January and found herself on the floor having fallen out of bed, she also reports that she has no recollection prior to losing control of the car she was driving when her accident occurred. These could be an indication of nocturnal seizures. Ms Naidoo’s increased sedation may be due to the introduction of OxyContin which was increased to 15 mgs twice a day then decreased to 10 mgs mane and 15 mgs nocte. Lower doses did not control her pain”. (Emphasis added). Letter from the Psychiatrist to Dr Graham, Neurologist: “Recently on driving home from hospital on 17.1.12 she had an MVA which she can’t recall. 3 days prior to this she was excessively sedated and had some semi-falls”. The Psychiatrist requested that an EEG be performed and sought the doctor’s opinion regarding OxyContin “as this is probably the culprit”. (Emphasis added). These letters dated 20 January 2012 contains a number of representations by the Psychiatrist as to factual maters which I accept as accurate and about which I make the following findings: a)   the plaintiff had suffered increased sedation over the past week. That is from about 13 January 2012 (four days prior to discharge); b)   the plaintiff was excessively sedated for the period several days prior to discharge; c)   the plaintiff was excessively sedated on the day of the last consultation with the Psychiatrist, that is, 16.1.12; d)   the Hospital’s staff reported that the plaintiff had been sleeping much longer than usual in the two days prior to discharge; e)   that the Psychiatrist was of the belief that OxyContin may have been the cause of increased sedation; f)   for the three days prior to discharge, the plaintiff was extremely sedated and had some semi-falls.
Wednesday 25.01.12	Plaintiff examined by Dr John Graham, Neurologist on a referral by the Psychiatrist.
Thursday 16.02.12	Plaintiff transferred from the Hospital to Gosford Private Hospital for rehabilitation.
Thursday 01.03.12	Plaintiff discharged from Gosford Private Hospital to home.

THE EVIDENCE

The Plaintiff’s Evidence

26. The plaintiff’s evidence commenced with information contained in Exhibit B, the plaintiff’s Chronology. Most of the events prior to the plaintiff’s admission to the Hospital were not controversial. There are some aspects of the plaintiff’s history which bear upon her claim for damages and will be dealt with in that context, below. For example, the plaintiff was not working at the time of the accident due to pre-existing conditions of a physical and psychiatric nature.

27. Prior to the admission to the Hospital, the plaintiff had begun to experience back pain and was terminated by her employer, Medibank Private, in October 2011 [T39.20]. She had consulted medical professionals in respect of her low back condition and also a psychiatrist, Dr Murray, for pain management and depression [T39.24]. The loss of her job made her very depressed [T39.39].

28. The plaintiff was feeling suicidal and consulted Dr Lim, GP, who arranged for her admission to the Wyong Hospital Mental Health Unit where she remained for about four weeks [T40.5].

29. On or about 16 December 2011, the plaintiff was transferred from the Wyong Hospital Mental Health Unit to Brisbane Waters Private Hospital. She described her feelings as at that time as being “feeling very low, feeling depressed, exhausted, tired” [T40.23]. This is consistent with the Hospital notes and the findings made above.

30. At the time of admission to the Hospital, the plaintiff was taking Cymbalta, Gabapentin, Diabex, Bical and Micardis.

31. The plaintiff’s medical management was assigned to the Psychiatrist. The plaintiff did not see the Psychiatrist, however, until 6 January 2012 and had been treated by other psychiatrists at the Hospital prior to that time. In fact, prior to coming under the exclusive care of the Psychiatrist, the plaintiff had been treated by three other psychiatrists connected with the Hospital. They were not called to give evidence.

32. After admission, the plaintiff had experienced improvement in her suicidal ideation but had developed other symptoms. She described “I had trouble sleeping so I went in as well because I couldn’t sleep, I was exhausted. I was tired and – but the pain, I couldn’t settle” [T42.15]. This evidence is consistent with and supports the findings made in the Chronology above regarding disturbed sleep, tiredness and insomnia.

33. She further stated “the actual sleep problem that I had was that I couldn’t fall asleep at night. And during the day it was at a certain time in towards the afternoon that I couldn’t stay awake” [T42.25 – emphasis added]. This evidence is borne out by the medical records and by observations made by Ms Allan (see below).

34. The plaintiff told the Court how she would walk the corridors of the Hospital at night, unable to sleep and would on occasions be observed by Hospital staff doing so. Most nights were spent walking around the Hospital or sitting in the TV room. This evidence is corroborated by the Hospital notes and the evidence of Ms Allan who occupied the room next to the plaintiff.

35. Eventually, the plaintiff was prescribed Stilnox to assist in sleeping. She stated, however, it didn’t really make her sleep, it made her more hyper, caused bizarre behaviour and what happens [T43.26]. The Hospital notes record a number of occasions of continued sleep disturbance after Stilnox being administered.

36. The plaintiff recalled how she first consulted the Psychiatrist on 6 January 2012 at night [T44].

37. The plaintiff also related a conversation which she had with the Psychiatrist the day before discharge on 16 January 2012:

There was a question that I asked Dr Grund when she saw me the afternoon before my discharge. I asked would I be able to drive and how will I get home and she said it would be fine for me to drive and I said, “But I still feel drowsy and how will I manage that?” and her response was “You’ve been on these medications for over a month, your body would have adjusted to it and you should be fine to drive”.

[T44.34-41 – emphasis added].

38. Whilst this conversation was not recorded by the Psychiatrist in the Hospital’s notes, the complaint of drowsiness is consistent with that record and the Psychiatrist’s reference to over-sedation in her letter dated 20 January 2012. I accept the evidence from the plaintiff that this conversation with the Psychiatrist took place and accordingly, find that the day before discharge the plaintiff expressed concern about driving due to drowsiness to which the Psychiatrist responded “you should be fine to drive”.

39. The plaintiff said that she was authorised to drive her vehicle prior to discharge:

Because I would be asleep in the afternoon, there was a structured program where we attended through the day and in the afternoon was the time when we had free time and that was the time that we could drive if we wanted to and I used to fall asleep, I was drowsy and I used to go to sleep so the nursing staff used to come and wake me up and ask me to get up and go for a drive.

[T45.30-35 – emphasis added].

40. In the period prior to discharge, the plaintiff drove on two occasions. One trip was around the block and on another occasion to the nearby shops, just two blocks away [T45.47]. Both trips occurred in the afternoon, as said by the plaintiff.

41. The plaintiff explained the process leading to the driving of the motor vehicle:

The nursing staff had the car keys with them so we had to get their permission and get the keys off the nursing staff in order to take the car.

[T46.5].

42. Upon returning, the keys would be handed back to the nursing staff who would lock them up [T49.9]. It was, therefore, not possible for a patient to drive without the co-operation of the staff of the Hospital.

43. On the two occasions on which the plaintiff drove her vehicle locally, she did so without incident.

44. On the day of the accident, 17 January 2012, the plaintiff was scheduled to leave the Hospital at 10am but did not leave until about 2.30 or 3.00pm:

Because I was very sleepy and drowsy and the nursing staff woke me up about four times and each time they woke me up I kept falling asleep.

[T46.27].

45. The staff woke the plaintiff up for breakfast about 8 o’clock in the morning. She stated:

I fell asleep over my breakfast. I was taken back to my room and since then was the period of the nursing staff keep coming to wake me up and I kept falling asleep again.

[T46.38].

46. I accept the plaintiff’s uncontradicted evidence above and find that on the day of discharge:

1. the plaintiff was very sleepy and drowsy;

2. the nursing staff work her up about four times;

3. that each time they woke her up she kept falling asleep;

4. that she fell asleep over breakfast;

5. she was taken from breakfast back to her room where she fell asleep;

47. The plaintiff was then asked about the day before the accident, 16 January 2012. She said that she was the same on that day. This is supported by the Psychiatrist’s note of increased or excessive sedation in that period. She attended the activities in the morning and then went to sleep [T47.1]. She stated:

The activities start from the morning but I fell asleep at the in-service (should read dinner service) that I attended and there was another patient that actually tried waking me up from the in-service (dinner service).

[T47.5].

48. The plaintiff described how on 16 January 2012 she fell asleep during a group activity in the presence of nursing staff:

I don’t – I just slept and the next thing when I woke up I found – I found two of the nurses around me and they were putting a blood pressure cuff on my arm checking my blood pressure and I asked is something wrong and they said, no so I just thought I had fallen asleep.

[T47.30].

49. I accept the plaintiff’s evidence in this regard and find that the day prior to discharge she fell asleep while at dinner and on another occasion whilst seated in a group therapy session. Again, such behaviour is consistent with the note of sedation made by the Psychiatrist after the accident but referrable to the period prior to it. I prefer this corroborated evidence to that of Nurse Easson (see below).

50. The plaintiff gave evidence about the drug regime she was under whilst in Hospital. She took OxyContin every morning for “break through pain” and most evenings [T48.1-16].

51. The plaintiff was asked about the events leading to her discharge on 17 January 2012. She said:

I did not pack my bags, in fact when I was woken up at lunchtime the nurse said, “She’s not leaving until I get up from bed and get into the shower”. They needed the bed for another patient so while I was in the shower and got out, the bed was stripped and cleaned down. All my bags were packed, my car was brought to the door, closer to the hospital, and all my stuff was packed into my car.

[T48.23-28].

52. When asked how she felt when she began to leave the Hospital that day, the plaintiff replied “I know that I was feeling tired and drowsy” [T48.35]. When asked whether she told anybody that, she replied “I felt that the fact that I couldn’t get up that staff already knew how I was feeling” [T48.37]. I infer and find that the plaintiff did not tell the staff that she was tired and drowsy as she thought it was obvious from the circumstances. Further, I find that it ought have been obvious from the circumstances, the findings above and elsewhere in these reasons (see the evidence of Ms Allan).

53. At the time of discharge, the plaintiff was given OxyContin by Anna, a registered nurse [49.10]. The following evidence was given:

Q:   What did you say?

A:   I said to her “I’m already drowsy, this is going to make me more drowsy, can you please, if you don’t mind, I am going to put this in my bag instead of taking it. I’ll take it when I get home”.

Q:   Do you recall as to whether on the 17 January 2012 you had taken OxyContin that morning?

A:   I definitely took it that day.

[T49.17-24].

54. I have already made a finding in this regard. On this question there is a direct conflict between the evidence of the plaintiff which is supported by the contemporaneous notes made by Nurse Easson, on the one hand, and the evidence of Nurse Easson in Court. As stated, I prefer the former. Nurse Easson’s attempt to administer OxyContin at the time of discharge was, to say the least, irresponsible.

55. The plaintiff was then given her keys by Anna and she proceeded to drive her car from the Hospital [T49.40-47].

56. The plaintiff’s 40 minute trip home [T49.35] was interrupted by an accident when she was close to home.

Q:   Do you recall any event occurring in the journey?

A:   I remember turning into a street that runs parallel to my home and after I turned the corner I don’t recall what happened because I blacked out.

Q:   What’s the first thing you can recall after, as you describe it, blacking out?

A:   I remember waking up to my head hitting the roof and the car being airborne and I black [sic] out again. The next thing was when the ambulance was there scooping up the teeth – my broken teeth from my mouth.

[T50.11-14 – emphasis added]

57. Following the accident, the plaintiff was taken to Wyong Hospital where she remained until the following day. She was treated for pain in her neck, head, right shoulder, lower back and left leg [T41.6]. A number of teeth were also damaged [T51.30].

58. The day after the accident, the plaintiff was transferred from the Wyong Hospital back to the Hospital where she again was placed under the care of the Psychiatrist [T51.52]. She recalled that she remained at the Hospital until about mid-February before being transferred to the Gosford Private Hospital for two weeks prior to discharge home [T52.49].

Cross-Examination on behalf of First Defendant

59. The plaintiff was initially cross-examined about versions of the accident provided to the Psychiatrist. The plaintiff could not recall telling the Psychiatrist that she was shocked to find out that she ran off the road and drove into a wall. At that time (on re-admission to the Hospital) the plaintiff did not remember that had happened:

I remembered my head hitting the roof and I remembered the ambulance and that’s as much as I remembered.

[T72.10].

60. The plaintiff was told by police and the Psychiatrist that she had driven off the road and into a wall.

61. The plaintiff asked about a consultation with the Psychiatrist on 23 January 2012 in which the plaintiff apparently said that she did not remember feeling tired or drowsy when driving. She had no recollection of saying that [T72.26]. When asked whether it was true, however, that she was not feeling tired or drowsy when driving home on 17 January 2012, the plaintiff replied:

I do remember feeling tired, I know I was tired. I was already drowsy and I had a cold shower trying to wake myself up so to me I felt that, you know, I’d be fine, I’d been given my keys, I’m definitely in a state to go and I am discharged and I wasn’t at the time able to make a decision so I trusted my carers at the time and I left.

[T72.30-34 – emphasis added].

62. Given the overwhelming evidence in support (including from the Psychiatrist, the Hospital, the contemporaneous notes leading to discharge, the observations of an independent witness and the notes/letters created after the accident), I find that the plaintiff was tired, drowsy and sedated at the time of discharge on 17 January 2012. I find that she was not in a fit state to make a decision about her capacity to drive and find that she relied upon her carers to advise as to whether or not it was safe for her to drive herself home and warn her of the risks of drowsiness.

63. She was then again asked questions about the conversation with Dr Grund on 23 January 2012 in which the plaintiff apparently stated that if she had become aware of being tired she would normally pull over but that she was very close to home [T73.15]. In the circumstances, this is not unreasonable.

64. The plaintiff had a poor memory for events upon her initial re-admission to the Hospital.

65. The plaintiff was then questioned about her consultations with Dr Graham, Neurologist. It was put to her that she told him that she could recall feeling drowsy on drugs for pain and depression, prior to discharge. She agreed [T77.40]. A discussion then took place with Dr Graham about whether it was drowsiness that might have caused the accident to which the plaintiff replied that she did not believe so as she was not all that sleepy at the time:

Q:   That was true, wasn’t it, you weren’t all that sleepy at the time of the accident?

A:   At the time of the accident, I didn’t think I was asleep because I’m somebody that’s a light sleeper, so I thought I would have awoken if I had fallen asleep at the time of the accident, I would have called (should be re-called) something, but I couldn’t recall anything except when I came to and found the car airborne. I couldn’t recall prior to that how I became airborne or what happened.

[T77.45-49 – emphasis added].

66. The reasoning underlying that answer is unsound. First, it would take just a momentary lapse or micro sleep to lose control of the motor vehicle. Secondly, it is not uncommon for people involved in motor vehicle accidents to have a period of lapsed memory. Thirdly, the fact that the plaintiff said “when I came to” makes it clear that she did fall asleep or otherwise lose consciousness. Whilst she may have said that she did not think she was sleepy, that is contradicted by the preponderance of the evidence.

67. The plaintiff agreed that she told Dr Graham that she had suffered a sudden loss of consciousness [T78.5]. She agreed that she did not think that she had slowly fallen asleep. One minute she was fine and the next minute the accident had occurred. It was put to the plaintiff that it was not sleepiness that made her black out on that day to which she replied “I wouldn’t think so” [T78.21]. She said “I didn’t think I had dosed off” [T81.26]. The cross–examiner sought to draw an artificial distinction between a sudden loss of consciousness and falling asleep slowly. I do not consider that distinction (if it exists) is material. The plaintiff suddenly woke up on impact. It follows that immediately prior to that time she was asleep.

68. I also note the evidence provided in response to questions from the Court [T69.30-43]. That is, that it was a “daily routine” for the plaintiff to sleep in the afternoon around 4 o’clock. I note that this is approximately the time at which the accident occurred on 17 January 2012. Also, whether the plaintiff believed it was sleepiness, dozing off or something else that caused a loss of consciousness is immaterial. The fact is that there was a short period where the plaintiff’s consciousness was compromised and, given her recent history leading to the accident and the records kept by the Hospital as to tiredness and the Psychiatrist as to sedation, I find the most likely cause was falling asleep due to tiredness, fatigue or excessive sedation. This finding is reasoned in more legalistic terms below.

69. The plaintiff was then shown an application which she completed for the purpose of applying for a sleep study recommended by Dr Graham (Exhibit 1-D1, page 473). It contained a self-assessment of situations in which the plaintiff may experience drowsiness. Her attention was drawn to a situation of dosing off in a car whilst stopping for a few minutes in traffic. The plaintiff indicated that such a chance to be “zero”. She accepted that that meant that she just never dosed off in that situation. She agreed when it was put to her that she did not think that she had dosed off on the day of the accident [T81]. I repeat my comments above and place no weight on the plaintiff’s belief in this regard. The plaintiff’s evidence establishes a sequence of events as follows:

1. she was driving;

2. she “blacked out”;

3. she lost control of her vehicle;

4. she hit her head on the roof;

5. she woke up when she hit her head; and

6. the car was air borne.

70. In view of the recorded history of insomnia, tiredness and sedation I find that the most probable cause of the plaintiff blacking out and losing control of her vehicle was that she fell asleep.

71. The following challenge occurred in cross-examination:

Q:   Isn’t this the position, you did have trouble falling asleep at night during this first admission, that’s true, isn’t it?

A:   I did have trouble falling asleep, yes.

Q:   You often asked for medication to assist you in falling asleep?

A:   I wouldn’t say often asked. I have – I did ask on occasion if there was something to help me to sleep, but it wasn’t something that I did on a regular occasion or regularly.

Q:   Although you had trouble falling asleep, you didn’t usually fall asleep in the afternoon, did you?

A:   I did.

[T84.37-48]

72. The plaintiff denied that she was exaggerating her evidence. I accept the plaintiff as a reliable, truthful witness. In fact, some aspects of her evidence were against interest which further added weight to the acceptance of her as a witness of truth.

73. Counsel for the first defendant then challenged the plaintiff’s evidence concerning the events of 16 January 2012. The effect of the cross-examination was that the plaintiff maintained that she had fallen asleep during a group session in a conference room. Another patient had tried to wake her up unsuccessfully. She woke up to find members of the nursing staff applying the arm band to check her blood pressure. Apparently, the other patient called for nursing staff after his attempts to wake the plaintiff were unsuccessful [T85.4-23]. I accept the plaintiff’s evidence that this occurred and find that this ought to have put a reasonable person in the position of the Hospital and the Psychiatrist on notice of the risk which led to the accident.

74. Questions were then asked about the use of the plaintiff’s car after permission to drive had been provided by the Psychiatrist. The plaintiff maintained that she was “pressured by the nursing staff to drive” [T87.19]. When asked whether that annoyed her, she stated that “what annoyed me was that I couldn’t stay awake and I was falling asleep instead of trying to meet their expectations” [T87.49 – emphasis added].

72. Referring to nursing staff, the plaintiff stated:

Well, what they told me was that was the protocol of the hospital that this is what they normally do and I have to – they’ll give me my keys when I’m ready to drive and I must drive around as much as I can. It will give me my confidence when I am ready to leave. That’s how they put it to me.

[T89.30].

76. Notwithstanding that encouragement, the plaintiff only drove her car on two occasions over short distances prior to her discharge from the Hospital.

77. After driving on those two occasions, the plaintiff returned to the Hospital and went to sleep [T90.46]. She stated:

I remember giving in my keys and I remember signing for it because we had to sign out when we were given the keys and when we returned and went to my room, yes, and I went to sleep.

[T90.48 – emphasis added].

78. The Hospital’s protocol in this regard, endorsed by the Psychiatrist, combined with the plaintiff’s level of fatigue after driving even short distances, provide the most likely explanation for the occurrence of the accident.

79. The plaintiff gave evidence about her understanding of the medications which she was prescribed. In, fact, it was put to her that she knew some of the drugs she was taking were drugs that made her drowsy. She agreed [T92.33].

80. The plaintiff was asked about the medication taken on the day of the accident. She stated that she took OxyContin at some time in the morning [T93.2]. The following exchange then occurred:

Q:   You didn’t take it because you didn’t want to feel drowsy?

A:   No. That’s not true.

Q:   You knew that OxyContin could make you feel drowsy?

A:   Yes.

Q:   You knew that you were going to drive home on this day?

A:   Yes.

Q:   You wanted to make sure that you were sufficiently alert to drive home?

A:   Yes.

Q:   For that purpose you decided not to take your OxyContin?

A:   No. That’s not true because the afternoon before when I asked Dr Grund about would it be safe for me to drive given that I’m on these medications and her response was I’d been taking it for over a month in the hospital and my body would have adopted or get used to the medication, so it would be fine. So for me I trusted that and I didn’t think that I was going to have an accident or decline the medication in the morning. It was only the 2 o’clock as I was walking out that I didn’t decline.

[T93 – emphasis added].

81. The fact that the plaintiff took the OxyContin, as prescribed, in the morning of her accident is supported by the medications chart included in Exhibit 1-D1. I have already dealt with the conflict in the evidence involving the recollection of Nurse Easson. I prefer the chart and the evidence of the plaintiff. In view of that evidence, it is extraordinary that the plaintiff was even challenged as to that matter.

82. The evening dose of OxyContin was presented to the plaintiff around the time of discharge. It was put to her that she was given some medication to take home. She agreed. She further agreed that included her evening dose of OxyContin [T93.45]. It was suggested to the plaintiff that OxyContin was given to her at that time to take home. She responded:

No. It was put in a medicine cup and it was given to me to take with a water. I took the tablet out of the cup and I said, “This will just make me feel more drowsy. I’m already drowsy. This will make it worse. I promise I will take it when I get home”. That is what I said to Anna.

[T94.2-5].

83. Further, the plaintiff stated:

I said (to Anna) I was already drowsy, I didn’t want to be more drowsy and that’s the reason I didn’t want to take it, “I’ll take it when I get home”.

(Emphasis added).

84. I accept the plaintiff’s evidence as to these events and that conversation which further supports the finding that the plaintiff was drowsy upon discharge and casts doubt over the reliability of the evidence of Nurse Easson as to her recollection of the circumstances surrounding the plaintiff’s discharge. Frankly, it also casts doubt over the professionalism of the nurse.

85. The following evidence was then given in answer to questions posed by the Court:

Q:   When you left the hospital on the day of discharge and entered your vehicle, did you feel drowsy?

A:   I did feel slightly drowsy. Not as drowsy as I was earlier in the morning because I had just showered and gotten up and trying to keep myself awake.

Q:   What other alternatives were there for you to get home rather than drive yourself?

A:   If I was told I couldn’t drive, I had transport that could have come and pick me up. I had a friend that used to come and visit me. He could have come, his sister could have come, friends could have come and picked me up, I could have taken a taxi.

Q:   Given your experience as a nurse, did you make an assessment yourself as to whether you were capable of driving or whether you were too drowsy to drive?

A:   I thought about that myself and wondered why didn’t I think about this, but I wasn’t in the state of mind to make that decision.

[T94.13-29 – emphasis added].

86. I accept this evidence and find that if the plaintiff had been told that she should not drive or was warned of the dangers of doing so then she would have made other arrangements to get home. I also find the plaintiff’s evidence that she was not in a state to assess her own fitness to drive and relied upon the defendants in that regard.

87. The plaintiff was further cross-examined by counsel for the first defendant as to her conversation with Nurse Easson prior to discharge:

Q:   What do you say you said to Anna Easson?

A:   I told her that I wasn’t going to take the tablet immediately because she had the water and the tablet cup all ready, the tablet for me, and I said I will – I promised I would take it when got home because I was already drowsy. I didn’t want to feel more drowsy taking the tablet.

Q:   There was no question of you taking OxyContin in the afternoon, was there, because you weren’t prescribed OxyContin in the afternoon?

A:   That’s true and at the same time I thought she was giving it to me because I was prescribed it because I was leaving the hospital for pain to go home, and I didn’t think that this is going to impair my judgment while I’m driving, so it was trying to do the best I can under the circumstances, and at the same time I wasn’t fully mentally able to make that judgment call for myself, because I had all those drugs on board.

[T95.18-31 – emphasis added].

88. Again, I prefer the plaintiff’s evidence over that of Nurse Easson.

89. The plaintiff went on to describe again how she had her breakfast on the morning of discharge and “fell asleep over breakfast” [T96.12]. It was put to the plaintiff that she did not have to be woken up on multiple times on the morning of discharge. She replied:

I did have to be woken up several times and I kept falling asleep and when the nurse came to me and said to me “Discharge time is 10 o’clock. It’s now lunchtime. You need to get up and get going. We need to get the bed washed and cleaned for the next patient” so I got up to have a cold shower to try and wake myself up.

[T96.25-30].

90. The Hospital did not call any member of nursing staff to contradict this event. I accept the plaintiff’s evidence and, accordingly, find:

1. that on the day of discharge, the plaintiff had to be woken up several times prior to lunch time;

2. that a nurse told the plaintiff that she had to get up and get going as they needed the room for the next patient;

3. that the plaintiff had a cold shower to try to wake herself up.

91. The plaintiff was then cross-examined about various documents completed around the time of her discharge, perhaps the night before. It was suggested to her that at the time of discharge she was very conscious about how she felt. She stated:

I wasn’t very conscious of how I felt on the day of my discharge. I wasn’t very alert mentally, I wasn’t very awake enough to make that decision, but the night before I was. I was clear-minded and I was able to fill out the forms.

[T99-100 – emphasis added].

92. Further, the following exchange occurred:

Q:   At the time you were discharged, you must have asked yourself the question “Am I okay to drive”?

A:   I wasn’t in a mental state to make that decision at the time I was leaving.

Q:   You definitely felt fine to drive, didn’t you?

A:   I thought I was fine.

Q:   Because if there had been any problem in your mind about driving, you would have said so, wouldn’t you?

A:   If I was aware of it and if I wasn’t drugged up, I would have said so.

[T100.8-17 – emphasis added].

93. Upon being asked further questions about the final moments of discharge, the plaintiff stated:

On that day I was mentally not in a position to decision make for myself. I wasn’t clear minded, that is true.

[T102.39 – emphasis added].

94. Despite repeated and careful cross-examination the plaintiff, time and time again, maintained that she was not in any condition to assess her ability to drive a motor vehicle.

95. The plaintiff described how her bags were packed by Eddie Lau who although the plaintiff did not witness Mr Lau packing the bags as “I was in the shower when it was being done. When I came out, everything was in the car and he told me (that he) had me packed up” [T103.11].

96. It was suggested to the plaintiff that Mr Lau did not pack or take her bags to the car and that Simon Connor helped her carry her bags [T103]. The plaintiff denied those suggestions, relying upon what had been said to her by Mr Lau. I note that Mr Lau was not called to give evidence, allowing the Court to comfortably accept the plaintiff’s evidence as to these events.

97. In respect of the plaintiff’s evidence concerning whether she could assess for herself whether she was fit to drive upon discharge, I find:

1. that the plaintiff did not have sufficient awareness of herself to make that decision;

2. that she was not mentally alert;

3. that, in her words, she was not “awake enough to make that decision”; and

4. whilst she may have thought she was fine to drive, she was not in a mental state to make that decision.

98. The plaintiff was again cross-examined about the earlier driving journeys whilst at the Hospital. She stated that she was on a different regime of medication at that time which did not make her drowsy [T105]. This was not further explored.

99. She was then again asked whether she assessed her own fitness to drive prior to leaving the Hospital following discharge. She replied:

I was uncertain about it and that’s why I asked. I was uncertain about the driving because off [sic] the medications but then I was reassured that I have been on it for a while in hospital, which was true, and I had been taking it, my body should have adjusted. As to why I was still feeling drowsy and feeling as if I wasn’t clear minded, I can’t explain why I felt like that the next day.

[T106.15-19 – emphasis added].

100. And:

Q:    You felt fine when you drove away from hospital, didn’t you, on the 17th?

A:   When I started off, yes.

Q:   That didn’t change, did it, during your journey home or towards your home? You felt fine during that journey?

A:   Basically I felt fine to drive. Because I’ve just felt that, yeah, I can trust the nurse, my carers.

Q:   You trusted your own feelings too, didn’t you?

A:   Well I was in a state of where I needed to rely on my carers to help me make those judgment calls because of the depression at the time. And of course with my condition at the time it didn’t – I wasn’t making a judgment call and thinking clearly. I was relying on my carers to do that for me.

[T106.21-34 – emphasis added].

101. These series of questions and answers makes it plain that the plaintiff’s belief that she was “fine to drive” was based on the fact that the defendants permitted and allowed her to do so. She did not believe that she was in a condition to make that decision herself. I note my findings above in that regard. The plaintiff was in a vulnerable position and reliant upon the defendants by reason of the nature of her relationship with the Hospital and the Psychiatrist.

102. I further find that the plaintiff believed that she was fit to drive and that she was led into that belief by the conduct of the defendants. That is, by the defendants’ failure to prevent the Plaintiff from driving or warn her of the risk of doing so.

103. In an attempt to explain the sequence of events leading to the accident, the plaintiff stated:

One moment I was driving and then the next moment I woke up with the car being airborne, so I really don’t know how it happened, what happened. I can’t recall any of what happened prior to that. I don’t know how I had the accident. All I know is I blacked out, I couldn’t remember and when I got up I thought I was going to die when my car was coming down and I passed out again. Then the next time when I woke up I was in the ambulance and the ambulance guys were saying I mustn’t fight, they were putting a collar on my neck. And I said, “There’s stones in my mouth”, and he scooped out my teeth. The broken teeth”.

[T107.15-24 – emphasis added].

104. That sequence of events makes it clear that the first occurrence was the plaintiff blacking out or falling asleep before losing control of the vehicle. I find that the plaintiff suffered injuries as a result of an accident caused by her falling asleep whilst driving and losing control of the car in circumstances where, by reason of her sedation, she ought not to have been driving a motor vehicle.

Cross-Examination on behalf of the Second Defendant

105. The plaintiff was asked questions about her attendances on Dr Murray, Psychiatrist from about June to October 2011. Dr Murray noted that the plaintiff told him that she had stopped taking Stilnox. Her reason was that “it was making me very drowsy and I didn’t think that I would be able to work with it” [T140.33].

106. Dr Murray told the plaintiff that she was suffering from hypersomnia [T140.36]. It would seem, although the evidence is a little unclear, that the plaintiff did not tell the Psychiatrist or other psychiatrists at the Hospital about the hypersomnia during her first admission. In any event, difficulties sleeping at night were known or ought to have been apparent to Hospital staff who would have observed the plaintiff at night. The observation charts confirm that the plaintiff’s night time sleeping was, at best, irregular. This was also a matter known to the Psychiatrist who, on her first review of the plaintiff noted, “disturbed sleep”. It would seem that she told the Psychiatrist about the circadian rhythm problem on her second admission, resulting in the prescription of the Valdoxan [T141.12].

107. The second defendant tendered a consultation note by Dr Murray dated 2 August 2011 together with a letter from Dr Murray to the plaintiff of the same date (Exhibit 3-D2). Apparently, when the plaintiff saw Dr Murray on 3 August 2011 she told him that she fell asleep on the phone and that she had stopped Diazepam (also known as Valium) [T150.4-15]. The plaintiff’s problem of spontaneously sleeping existed prior to her admission to the Hospital and continued during it.

108. It was put to the plaintiff and she denied that the variable sleep disturbance issue was brought under control after a few days in her first admission with the Hospital. Such a proposition is also inconsistent with the observation charts and notes made by the Psychiatrist regarding “disturbed sleep”. In a confusing section of the cross-examination which commences at page 163 of the transcript, the plaintiff was asked a number of questions about conversations with the Psychiatrist on either 6 or 7 January 2012. It was suggested to the plaintiff that the Psychiatrist asked her how she managed driving as she was in pain and taking medication. The plaintiff denied that that was discussed at that stage. The plaintiff stated:

She didn’t really ask me about that, how would I manage driving. I asked her how would I manage driving with the medications. I was more concerned about the medications than my pain at the time.

[T165.32-34].

109. It is unclear whether the plaintiff was referring to 6 or 16 January 2012.

110. Generally in relation to driving, the plaintiff stated:

…. but in terms of the driving I didn’t ask to drive, I didn’t discuss the driving, when could I drive with her or when could I take my car. I didn’t initiate the driving. Dr Grund did not ask me how will I drive with my back pain, but I know at my initial consultation I did discuss with her that there were times that I wasn’t able to drive because of the medications and when I took certain medications, I knew that it makes me very drowsy and I shouldn’t be on the drug, and with my pain medications I knew which ones made me feel more alert and I was able to drive, and I discussed that with her at my initial consultation.

[T166.10-19].

111. Further, as to discussions between the plaintiff and the Psychiatrist regarding driving, the following exchange occurred:

Q:   I want to suggest to you that your recollection about the conversation about driving with Dr Grund occurring on 16 January is incorrect given that you drove your car on 11 January and 14 January, that’s right, isn’t it?

A:   If I was given permission, I would have driven immediately.

Q:   I am suggesting to you, ma’am, that there was discussion with Dr Grund on 7 January and Dr Grund indicated to you after discussion with you that you could trial three hours leave per day where you could drive your car?

A:   I recall the leave being given to me, I do not recall the driving of my car being discussed with Dr Grund. I do recall the driving of my car being discussed with the nursing staff telling me about it.

Q:   I want to suggest to you ma’am, that Dr Grund suggested to you on 7 January she advised you that if you were in pain not to drive, do you agree or disagree?

A:   I disagree.

Q:   Do you say that that conversation never took place with Dr Grund?

A:   I don’t recall that conversation, no.

Q:   I want to suggest to you that on 7 January she also advised you not to drive if you were tired?

A:   No, I don’t recall that.

Q:   I want to suggest to you that on 7 January you were quite emphatic with Dr Grund that you had been driving for a long time, do you agree or disagree?

A:   I disagree with that.

Q:   And that (you) were emphatic that you wanted to drive?

A:   I disagree with that.

Q:   Also on 7 January, Dr Grund advised you that if you took PRN medication or extra night time medication, not to drive immediately?

A:   I disagree with that.

Q:   She advised you not to drive first thing in the morning?

A:   I disagree with that.

[T169.5-40]

112. The Psychiatrist failed to make any note whatsoever of the details of this conversation. The clinical note itself is ambiguous as to whether any conversation took place on 7 January 2012 with the plaintiff or with staff. I prefer the plaintiff’s evidence in instances where it conflicts with the evidence of the Psychiatrist, particularly as, in most cases, what was allegedly said by or to the Psychiatrist, was not the subject of a record or notation made by the Psychiatrist.

113. There are a number of curious features to the Psychiatrist’s note for 7 January 2012. First, it commences with the words “(with staff)” (Exhibit 1-D1, page 169). That would suggest that it was a record of a conversation the Psychiatrist had with staff of the Hospital or that staff were present when the Psychiatrist consulted with the plaintiff. There was no evidence from the Psychiatrist or any other person that a staff member was present.

114. Secondly, the event is not referred to as a “review” consultation as the two other attendances upon the plaintiff were described (that is, on 6 and 16 January 2012).

115. Thirdly, the note does not refer to anything said to or by the plaintiff. The note starts with the words “Discussed Revalyn”, suggesting that the discussion was with a third person.

116. Fourthly, the note does not contain any reference to the detail of the conversation which the Psychiatrist said, in evidence, had occurred.

117. Fifthly, the note includes that “she settled well after debriefing with nursing staff”. There is no suggestion that the Psychiatrist was involved in that or any other discussion with the plaintiff that day.

Future Economic Loss

591. The plaintiff has 15 years before retirement at age 67. The claim advanced on behalf of the plaintiff is in the sum of $322,050.00 (MFI 1). That is equivalent to approximately $680.00 net per week (inclusive of superannuation benefits) for the remainder of the plaintiff’s working life. The basis for that calculation was not explained. It certainly is not representative of the plaintiff’s pre-accident condition.

592. Whilst the plaintiff did suffer a fresh injury to her neck and right shoulder in the subject accident and an aggravation of her back condition, it is difficult to determine whether any loss flows from those incapacities and what the value of such loss might be. I note my reasoning above in relation to impairment of earning capacity to date.

593. I also note the opinion of Dr Dalton at page 5 of the Joint Report that the plaintiff’s injuries would not prevent her from working in a part-time sedentary or semi-sedentary role. He also considered that there were significant incapacities unrelated to the accident which would significantly reduce the prospects of the plaintiff returning to full time employment.

594. Again, in my view, given the severity of the plaintiff’s medical conditions such as they existed prior to the accident, she was unlikely ever to return to full time employment. She may well have returned to part time employment but, as I note, in the opinion of Dr Dalton, she is fit for same in any event.

595. I am also mindful of the fact that the plaintiff is continuing to receive weekly payments from Xchanging in excess of $800.00 per week which must be taken into account in determining her loss flowing from the accident (see Kempsey District Hospital v Thackham (1995) 36 NSWLR 492). Although the facts are not identical, there is no reason to believe that after 16 years the insurer for the 2001 accident will cease making weekly payments.

596. In my opinion, the plaintiff’s claim for future economic loss ought to be treated by way of buffer. There are too many contingencies and variables to approach the claim on a mathematical or more precise basis. There should, however, be some recognition of the fact that the plaintiff suffered some limited fresh injures which may, at some time over the next 15 years, become productive of loss.

597. In my view, a buffer in the sum of $25,000.00 (inclusive of superannuation) represents a reasonable allowance in the circumstances.

Past Domestic Assistance

598. The plaintiff claims the sum of $72,800.00 for past domestic assistance. Adopting the cost of attendant care services referred to in the plaintiff’s Damages Schedule (MFI 1) of $29.93, and the time since the accident of about five years, that is equivalent to a claim of approximately 9.35 hours per week.

599. There is no doubt that the plaintiff needs attendant care services as defined in s15(1) of the CLA. I am not, however, satisfied that the plaintiff has satisfied the conditions for an award for past gratuitous assistance in s15(2) and (3):

15   Damages for gratuitous attendant care services: general

(1)  In this section:

attendant care services means any of the following:

(a)  services of a domestic nature,

(b)  services relating to nursing,

(c)  services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services:

(a)  that have been or are to be provided by another person to a claimant, and

(b)  for which the claimant has not paid or is not liable to pay.

(2)     No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a)     there is (or was) a reasonable need for the services to be provided, and

(b)     the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)     the services would not be (or would not have been) provided to the claimant but for the injury.

(3)     Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a)  for at least 6 hours per week, and

(b)  for a period of at least 6 consecutive months.

600. I am not satisfied that the plaintiff has made out sufficiently her claim for past domestic assistance. First, it is put on a gratuitous basis and, therefore, must meet the thresholds under the CLA s15(3). Secondly, the evidence about the provision of assistance is confused. It seems that some assistance was provided early on by members of the local church who were not called to give evidence and since 2014 by Mr McKittrick. Mr McKittrick met the plaintiff through an internet church dating site and, apparently, since 2014 has visited the plaintiff once or twice a week. Whilst evidence was given about the number of hours that was spent by Mr McKittrick with the plaintiff on those occasions, it was plain that at least part of that time was for social reasons rather than to meet a need for assistance generated by an incapacity caused by the accident.

601. The third complicating factor in relation to coming to any reliable assessment for past gratuitous assistance is that Xchanging has since May 2012 (until at least April 2016 (see Exhibit 6-D1)) paid for domestic assistance and lawn mowing, from time to time. It is impossible to reconcile the summary of records from Xchanging with the plaintiff’s evidence and the evidence of Mr McKittrick. Contrary to my understanding of the evidence of Mr McKittrick, since he met the plaintiff in 2014, Xchanging has, from time to time, paid for domestic assistance, including lawn mowing.

602. The other difficulty with the plaintiff's claim in this regard is the poor quality of the evidence offered through Ms Henry, the Occupational Therapist. I refer to my comments above in relation to her report which I found of little or no use.

603. In order to make any award for past domestic assistance it is necessary to disentangle the need which pre-existed the accident and that which was caused by the accident. It is also necessary to have regard to the principles in Watts (supra) and Purkess (supra). The plaintiff’s low back condition was clearly worsening and would have created an increasing need for assistance. In the circumstances, this required the Court to engage in an exercise of conjecture which ought not to be done.

604. Although mindful of what the Court of Appeal said in Boral Bricks (supra), I also pause to note the recommendations by Dr Dalton of 2.5 hours per week assistance and Dr Giblin of 3.5 hours per week. Estimating the number of hours required for assistance is not the kind of expertise which is normally attributed to their specialities.

605. Having regard to all of those factors I am not satisfied that the plaintiff has discharged her onus of proving that since the accident occurred she has satisfied the statutory threshold provided under the CLA such that an award of damages for past domestic assistance ought to be made. A claim on a commercial basis was not advanced and would, in any event, seem unlikely.

606. I find that the plaintiff’s needs, such as they exist, fall below the thresholds required under the Act. Accordingly, no allowance is made for past domestic assistance.

Future Domestic Assistance and Care

607. Under this head of damage, the plaintiff claims the sum of $141,600.00 which represents an allowance of approximately $160.00 per week. Again, the starting point is an attempt to disentangle the needs created by the accident with those which plainly existed before it. This cannot be done with any precision.

608. Next, it is necessary to determine whether the assistance which is required would be provided gratuitously or through a commercial service. I am not satisfied on the evidence that the plaintiff would obtain domestic assistance through commercial services (other than that already paid for by the insurer) and would rather rely upon the kindness and support of family and friends.

609. That being the case, it is necessary for the plaintiff to demonstrate that the thresholds which apply under s15(3) of the Act have been made out. For the reasons given in relation to the claim for past domestic assistance, I am not satisfied that the plaintiff has discharged her onus of proof in relation to the matters necessary under s15(2) and (3) of the CLA. In addition, I find that the plaintiff has failed to discharge her onus in relation to causation in respect of any such need, given her pre-existing requirement for same. Accordingly, no allowance is made.

Summary of Assessment of Damages

(a)	Non-economic loss (27% MEC)	$61,500.00
(b)	Past Treatment Expenses	$Nil
(c)	Future Treatment Expenses	$10,000.00
(d)	Past Economic Loss	$Nil
(e)	Future Economic Loss	$25,000.00
(f)	Past Domestic Assistance	$Nil
(g)	Future Domestic Assistance	$Nil
Total	$96,500.00

Disposition

610. For the reasons provided above, I find that the plaintiff is entitled to a judgment against both defendants. I also find that such judgment is not to be reduced on account of contributory negligence and that it is to be apportioned between the defendants on the basis that the Hospital is one third responsible and the Psychiatrist two thirds responsible.

611. Accordingly, the first and second defendants’ liability to the plaintiff after apportionment is $32,167.00 and $64,333.00, respectively.

612. As apportionment has been determined between the defendants the cross claims will be dismissed with no order as to costs.

orders

613. I make the following orders:

1. judgment for the plaintiff against the first defendant in the sum of $32,167.00;

2. judgment for the plaintiff against the second defendant in the sum of $64,333.00;

3. the defendants to pay the plaintiff’s costs proportionately according to their respective share of responsibility;

4. the cross claims are dismissed with no order as to costs;

5. liberty to apply within 28 days to vary order (c), if necessary;

6. the Exhibits to be returned after 28 days.

**********

Amendments

22 December 2017 - changed "25%" to "27%" in Summary of Assessment of Damages table

Decision last updated: 22 December 2017