Nunn v University of Adelaide and Anor No. DCCIV-99-272

[2001] SADC 42

NUNN v UNIVERSITY OF ADELAIDE and ANOR
[2001] SADC 42

Judge Lowrie
Civil

PLEADINGS

1. The plaintiff alleges that on 28 February 1996 he attended at the campus of the University of Adelaide. He further alleges that he was sitting on a chair on the lawns to the east of the Union Building of the University completing forms when a wooden partition measuring approximately 2.5 metres by 2.0 metres fell and struck him on the head. The plaintiff claims damages from the defendants for the personal injuries and loss which, he alleges, result from this incident.

2. The plaintiff said that immediately after the accident he was conveyed to the Royal Adelaide Hospital. There he was examined by a doctor and xrays were taken of his skull and cervical spine. He had suffered a wound to the back of his head.

3. The plaintiff said that he sustained a musculo-ligamentous injury to his cervical and thoracic spine, as well as a penetrating injury to the back of his scalp. He claims that by reason of those injuries he has suffered a post-traumatic stress disorder and a depressive illness.

HISTORY OF ACTION

1. The litigation history of this action is regrettable. The matter first came on for hearing on 18 April 2000 and was not heard. I assume other matters took priority. It was re-listed on 4 September 2000, but unfortunately the designated judge disqualified himself from proceeding with the hearing. I started to hear the action on 8 January 2001 when procedural issues were raised. The trial eventually commenced on 5 March 2001.

LIABILITY

1. The defendants initially denied the relevant allegations of negligence. However, on 5 March 2001 counsel for both defendants advised me that liability was admitted.

2. Accordingly, judgment was entered in favour of the plaintiff for damages to be assessed. It is on this basis that the matter has proceeded before me.

EVIDENCE

1. The plaintiff gave evidence and called his treating general practitioner, Dr Louis, orthopaedic surgeon, Mr Sweeney, treating psychiatrists, Dr Page and Dr Kulbach, and finally, a friend, Mr Reynolds.

2. The defendants called consultant physician, Dr Champion, who had examined the plaintiff in July 1999 and psychiatrist, Dr Ewer, who had examined the plaintiff in late 1999 for medico/legal purposes.

Plaintiff’s Evidence

1. The plaintiff was born in May 1960. The plaintiff was adopted as an infant and reared by his adoptive parents. He attended Westbourne Park Primary School and Daws Road High School, first matriculating in 1977. He considered that he could improve on these results and undertook further matriculation studies at Panorama and Brighton Colleges. Although he sat for further exams he viewed these results as disappointing.

2. In about 1979 he commenced a Bachelor of Arts degree in biology at the Flinders University, but ceased these studies after completing his first year. He commenced working for Telecom and in 1982 moved to Melbourne. He returned to Adelaide in 1984. Although he enrolled in some subjects at the University of Adelaide in the period 1985 to 1987, he withdrew from such studies.

3. The plaintiff said that in this time he had developed an interest in photography and applied himself to that pursuit. In 1989 he commenced a fine arts degree at the University of South Australia. He completed that course in 1993, having obtained a Bachelor of Arts (Visual Arts) degree.

4. In 1994, the plaintiff commenced part-time studies in law at Deakin University at Geelong. It was always his intention to, in time, continue such studies at Adelaide. Subsequently, he was accepted into the law degree at the University of Adelaide. Indeed, he was enrolling on the date of this unfortunate accident.

5. The plaintiff, in dealing with his early years, outlined that his adoptive father was a stonemason by trade, but subsequently became a contract delivery driver. From time to time over the years he assisted his father with these activities. During the photography phase of his life he received some money working as a professional photographer. Clearly, however, his income has been minimal to date.

6. The plaintiff said he has had a number of relationships over the years. In particular, he became involved with a young woman called Lana. This friendship commenced in the mid-1980s and they began dating in the early 1990s. However, her psychiatric condition deteriorated over time. This has caused him much distress and he often assumed a caring role. From this and his evidence generally, it is evident that the plaintiff is a caring person who has been preoccupied with helping and caring for Lana, among others. This has negatively impacted on his ability to earn income. 

7. The plaintiff described how in the late 1970s he commenced a search for his natural parents. He became involved with a number of groups that specialise in this area, as well as government institutions. He used his involvement with these groups and politicians to advocate for legislative changes to enable people in his position to make unrestricted enquiries and in an effort to correct what he regarded as injustices. The newspaper clipping outlining his efforts is self-explanatory. His enquiries proceeded over a number of years and he was successful in locating his biological parents. He ascertained that his mother had had two children prior to him by two different men in Western Australia. He discovered that his natural father had relationships with three women and had fathered two children by each of the first and second relationships and five children by his mother. He described how these children had been adopted by different families all over the country. It may well be that he was disappointed with the outcome of some of his enquiries.

8. The plaintiff clearly became preoccupied with these issues. Exhibit P4 is some evidence of his intense social conscience.

9. The plaintiff said that he had four, what I would describe as, minor road accidents in which he suffered injuries to his neck. However, in each case he recovered.

10. He believed the first accident was in 1977 when he was driving his motor cycle and was hit by a vehicle. He thought he was about 16 or 17 at that stage and his problems resolved. He recalled receiving a small amount of money by way of compensation for his injuries.

11. In January 1980 he was a passenger in a vehicle which collided with a bus and he suffered what he thought was a whiplash type injury. His symptoms lasted for about a year, but he totally recovered. The third accident, he said, occurred in August 1982, again when he was a passenger in a car. A utility collided with the vehicle in which he was a passenger and all the occupants sustained quite serious injuries. He believed he eventually received about $12,500 as recompense from both these accidents.

12. Finally, he had an accident in November 1989 when his vehicle was struck from behind. In addition to neck injuries he also suffered hand injuries. Ultimately he received an award of $12,500. 

13. The plaintiff said that in 1996 when he was about to commence his law course at the University of Adelaide his health was good and he felt, at the age of 36, quite young and fit. He certainly was not taking any form of medication. Indeed, during his part-time studies at Deakin University he never experienced any problems with his neck. He said that he noticed slight residual problems from his motor vehicle accidents whilst undertaking his fine arts course, but assured me that they did not cause him any long term or permanent problems.

14. The plaintiff said in 1996 he was still involved with Lana. He was obliged to do the domestic work and had no difficulties with such tasks.

15. The plaintiff described how he commenced psychotherapy sessions in 1987 with Dr Kulbach. He explained that because of his personal background and, no doubt, his preoccupation with related issues, including his racially mixed heritage, he had difficulty in coming to terms with these problems. Consequently, he sought assistance. As he said:

    “My father’s Greek ..... I met him; he was Greek. He’s dead now. He’s from Sparta, and my mother’s a mixture of races including Scottish Irish, Aboriginal, German, and he met her in Adelaide. She come over from WA.”

16. The plaintiff said that he was far from settled at this time and felt that he could not discuss these issues with his adoptive parents because he did not want to embarrass them or in any way make them feel threatened. He said they had their own problems. Further, he did not want to bore his friends with his problems. Consequently, he was referred to and met Dr Marika Kulbach in or about the middle of 1987 for psychotherapy. He said he found his sessions with her most helpful. The plaintiff said that he viewed Dr Kulbach as his mentor. She directed him to think about his own future rather than running around “trying to fix other people’s problems which were virtually unfixable”. The plaintiff said he saw Dr Kulbach from 1987 to 1994 when she ceased practising in this State.

17. The plaintiff said that his visits to Dr Kulbach were quite regular, “every month, every two weeks, every one. It was quite often, probably 30 times a year” and in that time she had prescribed some medication, but certainly no anti-depressant medication. He said he always understood that depression was a condition, a mental illness, that “affects your life, takes away energy and self-esteem and distorts personality”. It was his view that prior to 1996 he was not suffering from depression.

18. The plaintiff also said that he was referred to Dr Page in 1991 to assist him with Lana’s management and for psychotherapy treatment. The plaintiff said he both respected and accepted Dr Page’s advice and judgement, and, said that she had greatly assisted him in this time.

19. The plaintiff explained how he was anxious to complete his law degree as soon as possible in order to gain entry into the GCLP course. He originally planned to complete this course in the second semester of 1998 and be admitted to the bar in late 1998 or early 1999. The plaintiff said that he was conscious of his mature age and was anxious to be admitted before he was 40.

Accident

1. The plaintiff described how, on the day of the incident, he was completing a form when he felt:

   “..... this great bang in the back of my head that pushed my body forward towards the table. .... I felt a sharp pain in the middle of my head. .... I saw a sharp light, like a flash, like when I was - it made my vision white.”

2. He said the blow stunned him “like somebody had hit me with a baseball bat”. Eventually people removed the partition. He was still rather stunned. He said that one of the bystanders commented that the partition had nails “sticking through it”. The plaintiff said he thought the partition was about 2.5 metres wide and 2.0 metres high. He estimated the weight of the partition to be 50 kilograms, as it felt heavy and he was unable to remove it from his body. He said that when he touched the back of his head he felt a hole and blood coming from that area. This caused him much concern.

3. He said he was then assisted to the health centre where he laid down. It was then decided to transfer him to hospital. He was transferred and thought he was admitted to hospital at about 12.00 or 1.00pm on 28 February 1996. He underwent xrays. He said there was concern over the results of the xrays, and talk about a fracture, and treatment with antibiotics. Subsequently, he was attended by a neurosurgeon. He said he had developed a headache, but was discharged at about 6.00 or 7.00 that evening and returned home.

4. He said in the following days he experienced headaches and the head wound ached. Problems with his back and fluid leaking from the head wound caused him much anxiety. However, the latter problem resolved quickly. The plaintiff said he was obliged to seek physiotherapy due to his back muscles “seizing up”. He said the pain in his neck and back was fairly constant from March to June. The plaintiff attended at his general practitioner during this time for assistance.

5. The plaintiff said that after he sustained the injuries, he commenced and continued with his studies. However, he would endure headaches when concentrating for long periods. He felt that this problem eventually improved.

6. The plaintiff also believed his condition had improved as a result of the physiotherapy, and, the advice of Mr Sweeney about the manner in which he should go about his various exercises.

7. He viewed his health problems as abating in 1997.

8. The plaintiff outlined how he became somewhat anxious and suffered some nightmares. He said he has also been anxious and concerned about the litigation process of this matter and rather overwhelmed by the trial process.

9. He said he progressed with his law course, but the exams were “an absolute trial”. He found that his law studies were different from his earlier studies and he “just couldn’t stop worrying”. However, he persevered and completed his studies and was admitted to the Bar in January 2000. The plaintiff said he has not worked as a solicitor since his admission. Clearly the various attempts of the trial of this matter have not assisted his anxiety and he described the process as “like a carrot and the donkey”.

10. The plaintiff said that the detailed or defacto friendship with Lana has ceased. He felt that once this action was finalised many of his concerns would no longer exist.

11. The plaintiff outlined that although he continued with his studies in 1996 he found he had little energy and experienced difficulties culminating in the dropped subject of Associations in 1997. He said by then he had become preoccupied with the personal issues in his life and the litigation process. He completed Associations in 1998 and his law degree in December of that year. However, by that time, the GCLP course had finished and been replaced by the GDLP course. Therefore, he commenced the GDLP course in 1999. He further explained that if he had undertaken the GCLP course the cost was around $900, whereas, the cost of the GDLP course in 1999 was $2,900, which he borrowed from his parents.

12. The plaintiff said that during his law studies he became concerned about his lack of application to his studies and applied for approval to sit for supplementary examinations on medical grounds. The grounds of these applications related to his accident in February 1996.

13. He said it was his initial intention, on being admitted, to obtain work in Adelaide. He had carried out some part-time work in the early part of his course. However, after completing the GDLP course in 1999 he worked as a taxi driver for some seven months. Initially he said he worked 50 hours a week which he reduced to about 30. He said his hours dropped because at times he found this employment frustrating. He said there were other issues which caused him to give up his taxi driving, including concerns for Lana and the manner of his driving. He said that after he completed the GDLP course a barrister offered him work. However, at that stage he felt he could not give his best attention to such work. Further, he thought that there may be an avenue for a cadetship open to him because of his indigenous background. On his evidence, his general concerns about the litigation process made him hesitant to do something and then “make a mess of it, everybody would know pretty quickly”.

14. The plaintiff outlined that in this period he provided considerable lay legal advice to a number of friends in various tribunals and outlined the same.

15. The plaintiff said that during this time he took medication, including Panadeine Forte and Alprazolam, known as Xanax, which really assisted his pain and helped him settle at night. He said for his depression he was prescribed Sertraline, known as Zoloft, which he stopped taking in August 1999.

16. The plaintiff said he saw the defendants’ psychiatrist, Dr Ewer, in September 1999. The interview lasted about 40 to 45 minutes. He said he found this interview most difficult. He viewed it as intense questioning by the doctor on topics which he did not understand, nor, could he see any reason for the same. He said Dr Ewer asked him questions about his sexual identity and his sexual life and seemed to have an odd interest in these areas. He said:

    “At one stage he said to me, talking about my sexuality, he said ‘Have you had any homosexual experience?’ He looked at me and said ‘You seem hesitant’. I said ‘I am trying to relate how being or not being gay relates to being hit in the head with a board’. I couldn’t work out where he was coming from.”

17. He said he eventually received a copy of Dr Ewer’s report. It caused him concern because he viewed a number of matters in that report as inaccurate. He felt as though Dr Ewer had taken some artistic licence with his comments. He said he had never told the doctor that he’d had emotional problems for many years. He denied that he said he was depressed, but may have said “I feel very anxious”.

18. The plaintiff said that he still consults with Dr Page about every three weeks and finds her psychotherapy of much assistance. Once this matter is completed, he believes he will totally recover and get on with his life.

19. He said he plans, as soon as he is able, to obtain his practising certificate and enter a general legal practice. He also expressed a desire to re-establish his friendships.

20. In cross-examination Mr Nunn confirmed that in 1996 he completed a full year of legal studies. He agreed that although there was really no delay in undertaking any subjects in either that year or 1997, he withdrew from Associations in 1997. He said that he believed he was depressed in 1997, 1998 and 1999.

21. The plaintiff called his long term friend, Mr Reynolds, who spoke of his pre- and post-accident presentation. Mr Reynolds was convincing in his quiet manner of expression. Mr Reynolds said he has known the plaintiff since about 1982 and has met with him regularly since that time. He described the plaintiff before the accident as having a positive, happy-go-lucky personality but thorough in his activities.

22. Mr Reynolds explained that the plaintiff has been of great assistance in all aspects of his personal life especially since his AIDS diagnosis in 1988. He said Mr Nunn had assisted him weekly or fortnightly since this time.

23. However, he said the plaintiff’s approach to life seemed to change about six months after the accident when he became somewhat of a recluse. Eventually, Mr Nunn told him of his depression, which was already evident. He said he has seen the plaintiff occasionally over the last few years and his demeanour was “completely opposite to what he used to be”. Whereas he was always positive, he now had a negative approach and seemed lacking in energy.

Medical Evidence

1. The plaintiff’s general practitioner, Dr Louis, confirmed that he saw the plaintiff about three weeks after the accident. He noted that the plaintiff described pain in his neck which had become worse, along with stiffness and headaches which interfered with his ability to sit comfortably during lectures. At this time the plaintiff believed there were ancillary problems of lack of both concentration and sleep and Dr Louis viewed those findings as consistent with his examination.

2. Dr Louis saw the plaintiff in April, June, August, November 1996 and then in June 1997. Most of those consultations were in regard to neck pain and headaches. Dr Louis said he assessed the plaintiff’s initial injury on a severe scale and based this conclusion on the symptoms that he displayed, namely, his pain descriptions and his restricted neck movement.

3. Dr Louis commented that he had seen some reports from psychiatrists and, although that was not his area of expertise, he felt that the plaintiff had organic injuries, with secondary psychological symptoms relating to those injuries.

4. Orthopaedic surgeon, Mr Sweeney, examined the plaintiff at frequent intervals from July 1996 until March 2000. Mr Sweeney was of the view that the plaintiff had suffered a musculo-ligamentous injury to his cervical and upper thoracic spine and assessed that injury as coming from a severe blow. Mr Sweeney said that he viewed the partition as weighing somewhere between 50 to 60 kilograms with a protruding nail which collided with the back of the plaintiff’s head. He said that, fortunately, this area is a very thick part of the skull. Therefore, he felt the nail would not have penetrated the plaintiff’s skull.

1. He said when he first examined the plaintiff he noted the hollow at the back of his head. Consequently, he thought that the neurosurgeon working at the time of the plaintiff’s admission to the Royal Adelaide Hospital would have been concerned with this area and possible complications that might result from it. He commented in his second report in August 1996, after he had received a copy of a MRI scan of his cervical spine, that he had no doubt that the plaintiff’s ongoing pain problems were related to this musculo-ligamentous injury. However, he believed in the course of his examinations that the plaintiff’s condition had improved.

2. He said he regarded this as an acute flexion type injury. Namely, the head was pushed forward by the force and resulted in sprained ligaments at the back of the spine and possibly some inflammation of the apophyseal joints. Mr Sweeney confirmed that the xrays had shown some abnormalities in the C5 area which would not have been caused by this accident, but, would be related to pre-existing degenerative changes in his spine. Moreover, he mentioned that this pre-existing problem made the plaintiff more susceptible to injury of this type.

3. He confirmed that he last saw the plaintiff in early 2000 and noted a slight stiffness, especially on rotation. In contrast, when he first saw him he had marked limitation of flexion and extension. He said the plaintiff had recovered from that difficulty, but thought that there was probably a psychological element in his presentation. He eventually considered that the plaintiff had a 10% residual disability of the neck which meant he was fit for professional, or, clerical work, but would encounter problems with heavy lifting. However, if clerical work involved long hours of sitting, or, leaning over a computer, the plaintiff may have trouble with his neck and experience headaches.

4. Dr Kulbach confirmed that she obtained her medical degree in 1976. In October 1982, she became a member of the Royal Australian and New Zealand College of Psychiatrists and obtained a further diploma in psychotherapy from the University of Adelaide in 1983. Dr Kulbach said she always had, even as a medical student, an interest in psychotherapy. Dr Kulbach outlined her extensive psychiatric and psychotherapeutic practice in the ensuing years until 1994.

5. When she went overseas in 1994 she closed her practice and all her notes were placed in safe keeping. However, unfortunately, at some stage the notes were apparently mislaid. In recent months she has made some notes from her memory of her consultations with the plaintiff in the early period. Dr Kulbach said that she first saw Mr Nunn in 1987 and continued to treat him on a regular basis until she ceased practice in 1994. She then referred him for ongoing treatment to the psychiatrist, Dr Page.

6. Dr Kulbach felt that in this seven year period she probably saw the plaintiff on a monthly basis and had, at times, regular weekly psychotherapy sessions with him. Dr Kulbach embarked on this psychotherapeutic approach because she felt, in all the circumstances, that this was the correct path to take. In particular, she assessed the plaintiff as being of above average intelligence and not suffering from any psychiatric impairment. She believed in this time he changed from being a young man who had fixated on numerous problems in his life, to one who was able to successfully complete a fine arts degree. It was her view that this therapy enabled the plaintiff to change his life dramatically and thus obtain professional qualifications. She felt when she last saw him in 1994, that he had a very healthy prognosis for his future.

7. Dr Kulbach said from 1987 until her final sessions in 1994 that she was never of the opinion that the plaintiff was suffering from a major psychiatric illness or disorder or, for that matter, a personality disorder. In her opinion, he had an adjustment disorder which related to his reaction to finding his birth parents and other family issues. Dr Kulbach was quite adamant that, whilst she was treating him, the plaintiff had never suffered from a personality or generalised anxiety disorder.

8. She said that she met the plaintiff again quite by accident in a shopping centre in 1997, shortly after she had returned from overseas. From her observations she thought that he appeared a different man. She noted that anxiety was evident in his presentation and that he seemed to be preoccupied and more introspective than when she had last seen him.

9. She said Mr Nunn had subsequently telephoned her and advised her of the details of the injury which occurred in 1996. That call was prompted by his feelings of anger after reading the report from Dr Ewer. She was critical of the approach of Dr Ewer.

10. Since that time she has read copies of reports from Dr Page and Dr Ewer. She said, in her opinion, the report from Dr Page was succinct and accurate. She did say that it was of concern to her that Dr Ewer made two separate lifelong diagnoses during an alleged 45 minute interview, and strongly disagreed with his conclusions. She outlined her reasons particularly in reference to DSM4.

11. Dr Terissa Page is a psychiatrist with an extensive professional background dating back to 1990. She has supplied reports concerning the plaintiff dated 1 July 1999 and 7 June 2000. Dr Page outlined that she first saw Mr Nunn for psychotherapy purposes in 1991, following a referral, she believed from Dr Kulbach. She recalled seeing him approximately four times in 1991, six times in 1992 and not again until 1995. Dr Page did not have records of these attendances but was able to refer to the exhibit from the Health Insurance Commission which confirmed that she saw him in 1996 on 10 occasions, some 20 in 1997, about 27 in 1998, 19 in 1999 and on about 8 occasions in the year 2000.

12. Dr Page confirmed the nature of the psychotherapy, as outlined by Dr Kulbach. She outlined that it is a form of therapy in which the patient talks freely about their thoughts, feelings and issues of concern for up to an hour on a regular basis. The aim is to resolve the various issues and enable the patient to develop an understanding of themselves and their thoughts, feelings and how they relate to other people. She explained that psychotherapy is different to psychiatric treatment in that psychiatric treatment is provided to a patient with a mental illness.

13. She described the plaintiff as a very intelligent man who was interested in himself, the world and other people. However, she did not believe that at any time during the course of her consultations he was suffering from any form of psychiatric illness. She believed the therapy undertaken by Dr Kulbach and herself had considerably assisted the plaintiff.

14. By 1995 she was aware that he was studying law and enjoying his studies. She was aware that he had commenced his studies at Deakin University and later transferred to the University of Adelaide to allow him greater access to study. Dr Page was also aware of his relationship with a young woman and the constant demands that she placed upon his time.

15. However, in the middle of 1998, after many sessions, she arrived at the conclusion that he was suffering from a post-traumatic stress disorder resulting directly from the accident. This problem and the accompanying depression caused him to become preoccupied with his injury, and to focus more intently on his physical health and his symptoms. She believes any problems he might have at the present time, such as headaches and neck pain, not explained organically, are due to the psychiatric condition that she has diagnosed.

16. Dr Page said she believed that the plaintiff tried very hard to cope with the consequences of the accident. He sought medical help. Eventually these issues subsided and he was able to carry on with his studies, despite his residual concerns. She believed it was in this period that he developed a post-traumatic stress disorder and depression, but was unable to say which of these problems or conditions first eventuated. However, she was adamant that shortly prior to the accident the plaintiff had not had any psychiatric condition. Rather, he had some problems with his life, which were under control. She explained that the accident occurred and the combination of physical and psychological consequences caused the post-traumatic stress disorder symptoms to emerge.

17. Dr Page felt that it was likely that the plaintiff became depressed towards the end of 1996 and early 1997. He was certainly depressed by the time she recognised this condition in the middle of 1998. Dr Page realised that in retrospect this had been the diagnosis for a number of months. She was asked:

    “Q     When do you think he developed the post-traumatic stress disorder.

    A...... It is hard to know because he and I did not recognise it actually until early 1999. When I look back again some of the symptoms that fulfil the criteria for having post-traumatic stress disorder he had mentioned to me off and on in the preceding period of time. I suspect that the disorder emerges or evolved over the first 12 months after the accident but I can’t definitely say when he began to have the full set of symptoms because it was only in 1999, early, that I considered that that was a possibility and inquired about the full symptom list and found that he fulfilled the criteria for that condition.”

18. Dr Page based all of her conclusions on DSM4 which she referred to at length. She concluded that he was not fit to work as a legal practitioner in the latter part of 1999 or 2000. Dr Page is aware that, instead of practising as a lawyer, he became a taxi driver. She said the plaintiff was frustrated because of the lack of funds and his dwindling resources. However, Dr Page had little doubt that his problems and his depression were primarily caused by this accident.

19. Dr Page was aware that the litigation was posing a problem with him. Indeed, he was becoming obsessed with the court proceedings and with a report by the psychiatrist, Dr Ewer. However, it was her view that once the case was resolved it would go a long way towards enabling him to move on with his life. Her diagnosis suggested that this process may well occur over a twelve month period. Dr Page said the plaintiff would have the capacity to work in twelve months time when he adjusted to his life and resolved the feelings of anxiety and depression. Also, it is necessary to build up his confidence so he can be gainfully employed. However, she believed the plaintiff had the motivation to totally recover. She was optimistic about his future.

20. On the basis of her developed understanding of the plaintiff and her many attendances on him, Dr Page disagreed firmly with the views expressed by Dr Ewer. She was firmly of the view that Mr Nunn did not have a “long history of psychiatric illness” and was not depressed in 1995.

21. Dr Page outlined that the periods of counselling by herself and Dr Kulbach were rather passive in nature. Alternatively, Dr Ewer used an intense style of questioning, including a variety of probing questions. It is apparent that the plaintiff became frustrated as a result of Dr Ewer’s style.

22. Dr Page pointed out that the plaintiff, given his detailed history, was not a suitable candidate for a quick consultation. Furthermore, she would never have been able to unravel all the features in his life during a 45 minute period, particularly because Mr Nunn was not the sort of person who gave simple “yes” or “no” answers. This was apparent in his evidence. Some of the answers he gave were quite lengthy, albeit rational.

23. Dr Page said she believed that the plaintiff would be obliged to continue his psychotherapy for at least another twelve month period, by which time his condition would stabilise. She said fifteen sessions may be required in this period to achieve this result.

24. The defendants called Dr Champion, a specialist consultant physician and rheumatologist, who examined the plaintiff on 16 August 1999 for medico-legal purposes and prepared a report for the defendants’ solicitors.

25. Dr Champion, in that report, said that he did not believe there was any causal connection between the injury and Mr Nunn’s headaches, or, the unusual circumstances in his neck. However, he was unable to explain the cause of the headaches and outlined his reasons for that conclusion.

26. Dr Champion expressed some reservations about the weight of the screen that fell on Mr Nunn’s head, bearing in mind that it was apparently free-standing. He pointed out that the plaintiff was not rendered unconscious by the blow. Dr Champion had read the reports of Mr Sweeney. However, Dr Champion did not view this type of injury as being similar to that of a road accident. Indeed, if it was that type of injury he said he would have expected the plaintiff to have made a full and complete recovery by now as, in his view, such injuries resolve within a space of months and certainly by this time.

27. The details of Dr Louis’ observations of the plaintiff following the accident were placed before Dr Champion. He simply said that you have to be somewhat circumspect because patients can voluntarily restrict movements of the neck.

28. The defendants called Dr Martin Ewer, a psychiatrist in private practice, who examined the plaintiff on 8 September 1999 at the request of the defendants. In his letter of report of 10 September 1999, Dr Ewer, in summary, disagreed with the views of both Dr Kulbach and Dr Page. He viewed the plaintiff as having had psychiatric problems for many years because of a “strong family history of psychiatric illness”. Furthermore, he considered that the plaintiff was suffering from a generalised anxiety disorder and a personality disorder not otherwise specified which had been present for many years.

29. Dr Ewer confirmed that his attendance on the plaintiff lasted for approximately one hour and outlined that the format of the interview was his questioning of the plaintiff. In his evidence, it was apparent that Dr Ewer added considerably to his brief notes his recollections of the manner in which the plaintiff had answered the various questions.

30. Dr Ewer viewed the plaintiff’s generalised anxiety disorder as stemming from a range of factors including separation anxiety in childhood, his adoptive mother threatening to return him to the orphanage, and his dysfunctional relationship with his friend Lana.

31. Dr Ewer admitted that the plaintiff has a complicated history, but would not accept that he wasn’t a man prone to giving short answers. He viewed him as giving his answers promptly to the questions that were asked. He did agree that he did not understand a number of the plaintiff’s responses, however, he refused to accept that he was other than on the same wavelength as the plaintiff. He did not agree with Mr Nunn’s contention that, from a psychiatric point of view, he was any worse following the accident.

32. Dr Ewer, to say the least, was loath to admit that the best source of information would be from the psychiatrists who had seen the plaintiff regularly over a long period. He preferred his opinion based on his one hour or less interview. He agreed that if it was established that the plaintiff did not have any clinically significant distress or impairment in functioning several years prior to the accident, it would mean a diagnosis of a personality disorder was inappropriate.

33. Dr Ewer agreed that he had asked the plaintiff a short time into the interview if he had any homosexual experiences. He recalled that the plaintiff may have said after a delay “why is that relevant”, but denied that the nature of that question had alienated the plaintiff for the remainder of the interview. The doctor justified such a direct question by referring to diagnostic criteria in DSM4.

34. Dr Ewer was of the view that the plaintiff’s generalised anxiety disorder developed prior to 1996. He did concede, however, that the accident itself was not a positive event in his life.

FINDINGS

Credit

1. The plaintiff gave his evidence in an honest and credible manner. He was examined and cross-examined at length about his life and the numerous personal and, in some respects, traumatic events that had occurred over a long period of time. The plaintiff is an intelligent man. At times his answers were lengthy, but still rational. This is just his manner of expression. It is very apparent that the plaintiff is a person who becomes obsessed with issues, including personal issues, the welfare of others and perceived injustices. He became heavily involved in correcting or attempting to correct those issues.

2. It is apparent that since his early teenage years the plaintiff put much effort into finding the identities of his parents and siblings. These enquiries obviously lasted many years and the outcome, in some respects, may have been disappointing to him. However, in time, he no doubt rationalised the acceptance of these facts. Clearly, the efforts of Dr Kulbach and Dr Page were of much assistance in this process.

3. His economic path over the years has been, at times, one of subsistence rather than of personal financial gain. Notwithstanding this he has kept himself occupied. There have been many instances when he took up causes for friends and went to great lengths to help them, to his own social and/or financial detriment. His social and caring conscience is apparent from his relationship with Lana and confirmed by the evidence of Mr Reynolds.

4. I have no doubt in finding that the plaintiff was very honest when giving his evidence. There is no room for criticism of his presentation. I find that his long answers were merely attempts to fully explain things from his perspective. He was also able to articulate the nature of his feelings and health both before and after the accident. I accept that explanation.

5. The evidence of Dr Kulbach and Dr Page was most convincing. Their opinions were obtained after long periods of quiet discussion with the plaintiff. I believe they accurately summarised the plaintiff’s psychiatric condition. From a community perspective one always views a long period of psychotherapy with some concern, but I believe that in this case it was a very important factor in assisting the plaintiff with the day to day events of his life. This therapy was most constructive and provided a firm base upon which to encourage the plaintiff to proceed with his life.

6. Dr Kulbach pointed out that she encouraged the plaintiff to undertake the fine arts degree as she was impressed by his artistic talents. Dr Page was of a similar view. It is notable that the plaintiff successfully completed this degree at a time when he was consulting Dr Kulbach and Dr Page.

7. I have no doubt, bearing in mind my own view of the fairly intense nature of the plaintiff’s character, that these encouraging consultative sessions with Dr Kulbach and Dr Page kept the plaintiff on, what I would describe as, a level plane. Having said that, it is evident from the plaintiff’s presentation and his complex background that he is one who dwells at length on every issue in his life. There may have been times when he was in a fragile state. He may well be a perfectionist of sorts. Such persons need, at times, support which he clearly obtained from Dr Kulbach and Dr Page.

8. On the other hand, Dr Ewer did not impress me. The plaintiff had what I regard as a relatively short attendance on him. I accept Dr Ewer’s manner of approach would have been very direct and forthright. That is obvious from the manner in which he gave his evidence. I believe it was apparent from some of the answers given by the plaintiff that he was at odds with Dr Ewer. However, this seemed to play no part in Dr Ewer’s deliberations. It may well be that the doctor made assumptions about Mr Nunn’s psychiatric condition, and subsequently used some matters to support that conclusion albeit incorrectly. I do not believe that there is any basis for accepting his views. His attendance was too short and fraught with problems. In contrast, the plaintiff was in the witness box for over a day. During this time his personality gradually became apparent. Experienced as Dr Ewer may be, I fail to see how he could arrive at his dogmatic conclusions after less than an hour with the plaintiff. Further, I find that his conclusions were based on some matters which I believe were wrong or wrongly interpreted.

1. I have no doubt in accepting the evidence of, particularly, Dr Page and her very detailed diagnosis of the plaintiff’s pre- and post-accident condition.

2. The plaintiff was a good historian. He was able to recall and describe the prior accidents. His manner when discussing these topics was very open and frank.

3. The plaintiff’s counsel submitted that the plaintiff was refreshingly frank about the effect of the legal proceedings on his current state of health and commented that he portrayed an optimistic view of his future when answering my questions. Namely, he expected to gain his old vitality within a twelve month period. I accept that submission. I find that the plaintiff was a witness of truth and, at times, may well have attempted to play down the effect of these injuries.

4. Although the plaintiff sustained a number of injuries to his neck in the previous four road accidents, the last being in 1989, I view him, as at the date of this accident in February 1996, as having completely recovered from any of his prior injuries. He was not troubled by any pain or headaches, nor was he taking any form of medication. He experienced no particular difficulties whilst studying at Deakin University or whilst completing his visual arts degree.

5. I accept the plaintiff’s evidence, supported as it is by Dr Kulbach and Dr Page, that he was not experiencing any symptoms of depression prior to the subject accident.

6. The accident was a very forceful blow to the back of his head. I have described the size of the screen. Its weight may well have been in the order of 50 kilograms. Although freestanding, the screen resulted in a very forceful impact to his head. This incident caused a depression in the back of his head which bled. The plaintiff became most anxious about his head injuries and the potential serious and graphic consequences. His fears were not allayed by the fluid leaking from his wound. However, eventually he was reassured that there were, in fact, no serious consequences.

7. After probably suffering in a degree of silence, the plaintiff sought the advice of his general practitioner, Dr Louis, in late March 1996 because of his headaches and neck pain. Thereafter, the plaintiff had a number of attendances upon Dr Louis. Eventually, the headaches and pain abated, but were overtaken by his depression, now diagnosed as a post-traumatic stress disorder.

Medical Evidence

1. I accept the evidence of the general practitioner, Dr Louis, and the orthopaedic surgeon, Mr Sweeney, in preference to Dr Champion. Dr Louis saw the plaintiff within a month of the accident. However, he viewed his situation by late March 1996, as considerably improved. He considered that by June 1996 the headaches would only occur during periods of stress, ie examinations. However, the plaintiff may well suffer neck pain if sitting at a desk or reading for prolonged periods. He was also receiving physiotherapy and carrying out recommended exercises at this time.

2. Mr Sweeney examined the plaintiff first in July 1996 and was of the opinion that because of the accident the plaintiff had suffered a musculo-ligamentous injury to his cervical and upper thoracic spine, but viewed his future prognosis as good. He reviewed the plaintiff in February 1997 and considered that his condition was stable, but he had some residual disability and stiffness in his neck, and suffered occasional headaches. He again saw the plaintiff in March 2000. He had perused the report from Dr Champion, but disagreed with the conclusions. It was apparent from his evidence that there were developing psychiatric features which in many respects had overcome his organic difficulties. At that time Mr Sweeney felt that although the plaintiff was fit to work it would be in his interest to have the litigation resolved because of the stress it caused him.

3. Dr Champion saw the plaintiff in August 1999 and was of the view that there was no abnormality of the cervical spine. Indeed, he was further of the view that the plaintiff did not suffer any ongoing injury to his neck as a result of the accident. I am of the view that Dr Champion is over-simplifying the issues.

4. The plaintiff has not maintained the same manner of neck restriction during treatment, but outlined to his practitioners the marked improvement in the same. There is no basis to say that he was exaggerating.

5. Cases of this nature more often than not depend on the assessment of the plaintiff’s evidence. I have no hesitation in accepting the plaintiff’s evidence of his injuries and the ongoing pain, supported as it is by his treating general practitioner and the surgeon.

Psychiatric Evidence

1. I accept the evidence of Dr Kulbach and, more importantly, Dr Page. Dr Page eventually diagnosed the plaintiff as having sustained a post-traumatic stress disorder as a result of this accident. The initial depressive symptoms caused the ongoing illness/disability. This means that the plaintiff has suffered a considerable residual disability through to the present time which is ongoing. I viewed the plaintiff in this time as being unfit for work in the legal profession. However, following the resolution of this litigation I am of the view that he will gain a measure of control of his life and be able to work as a legal practitioner.

2. Support for the opinions of Dr Kulbach and Dr Page is found in the uncontested evidence of Mr Reynolds.

DAMAGES

1. I assess damages on the following basis. 

Pain And Suffering

1. I have outlined the nature of the impact of the screen to the plaintiff’s head which caused a musculo-ligamentous injury to his neck. This injury gave rise to his headaches and ongoing neck stiffness which has, over the years, gradually resolved. Unfortunately, perhaps because of the intensive nature of the plaintiff’s personality, that injury then gave rise to the onset of depressive problems which have been ongoing. The accident was causative of the plaintiff suffering a post-traumatic stress disorder which has affected his well-being and daily life. It was directly responsible for him foregoing one of his legal subjects. I accept that he proceeded with his legal studies in 1996 and 1997 without much mishap, no doubt accepting his problems with a measure of doggedness. I have no doubt that the depressive nature of Mr Nunn’s condition slowly developed, or that Dr Page was entirely correct in her eventual diagnosis. The two prior trial attempts have certainly not assisted the plaintiff’s recovery. I anticipate that when the litigation is resolved and with continued support from Dr Page the plaintiff’s condition, within a twelve month period, will become stable. This will enable him to proceed with the next step in his legal career. However, having said that, the plaintiff has endured some four years of headaches, neck pain, and psychiatric sequelae. Although there have been improvements, the symptoms are, to a lesser extent, likely to continue. However, with the resolution of the legal matters, the symptoms should abate and the plaintiff will be able to return to a life of some normality.

2. Consequently, in all the circumstances, I propose to assess under this head of damage:

Past pain and suffering	$20,000
Future pain and suffering	$6,000

Past Economic Loss

1. The difficulty in this area is the assessment of when the plaintiff would have been able to complete his legal studies, be admitted as a practitioner and engage in meaningful employment. The plaintiff has been a good student not only in his fine arts course but also in his legal studies. The plaintiff was most successful in his studies from 1989 to 1997. I refer to the number of credits and distinctions he obtained. The finding must be that the plaintiff is a very competent scholar.

2. I accept the plaintiff’s evidence and find that, had it not been for the accident and his past academic successes, he would have been able to complete Associations and, therefore, his law degree in 1997 and be admitted to the Bar in late 1998 or early 1999. Due to his depression he deferred Associations to the following year, which meant that he was not able to proceed with his graduate diploma course until 1999 or be admitted as a practitioner until January 2000.

3. I accept his reasons for not wanting to commence practising the law until these matters are resolved. He may well want to be in the right frame of mind before embarking on legal employment. If a mistake was made in his legal practice, practitioners can be unforgiving and reputations tarnished.

4. Plaintiff’s counsel, as a starting point for his past economic loss, has based his claim on pay rates obtained from the Salaried Lawyers Award (SA) and has formulated the gross position as follows:

“1999
26 weeks @ $540.00 gross / $423.85 net per week	$11,020.10	net
6 weeks @ $579.00 gross / $449.00 net per week	2,694.00	net
20 weeks @ $589.00 gross / $455.50 net per week	9,110.00	net
$22,824.10
2000
32 weeks @ $589.00 gross / $455.50 net per week	$14,576.00	net
8 weeks @ $673.00 gross / $530.00 net per week	4,240.00	net
12 weeks @ $718.00 gross / $561.00 net per week	6,732.00	net
$25,548.00
2001
9 weeks @ $800.00 gross / $617.00 per week	$5,553.00	net
TOTAL	$53.925.10	“

1. I have to bear in mind that because the graduate certificate course changed to a graduate diploma of legal practice, it involved him outlaying a further $2,000.

2. The plaintiff, after completing his legal course, worked in this period as a taxi driver and earned a net amount of $5,520.

3. One has to consider the contingencies. In this young man’s life, one would have to say, they were considerable. Further, he has never been in receipt of a significant work income. He has been very much involved in obtaining work qualifications, and looking at his achievements, they have been considerable. However, in the period 1985 to 1987, he applied for and withdrew from a number of university subjects. He may well have been slowly considering his future options, of which law was prominent. On the other hand, he had a significant work capacity as seen from his taxi earnings.

4. I propose to assess his past economic loss in the sum of $30,000.

Future Economic Loss

1. I am of the view that the plaintiff is entitled to an award in the order of twelve months from publishing this judgment. I believe he will, with the aid of further counselling from Dr Page, return to his pre-accident condition. Of course, there are the same contingencies here to be taken into account concerning his ability to work.

2. I fix his future economic loss in the sum of $12,000.

Interest

1. The plaintiff is entitled to interest on his past economic loss which I assess in a lump sum figure of $2,000.

2. Further, the plaintiff is entitled to interest on past pain and suffering, which I assess at $1,200, thus making a total of $3,200.

Special Damages

1. I have a notification from the Health Insurance Commission seeking to recover a total of $4,519.65 for services rendered by a whole host of practitioners, including Dr Louis and Dr Page. This certificate was presented to the plaintiff and he outlined some 36 attendances on Dr Page which he felt were related to the accident. This is in addition to the attendances he ascribed to general areas of difficulty in his life. He freely admitted that this was very much a guess on his part. Dr Page thought that there was something in the order of 30 to 40 sessions which related to the accident. In the period April 1996 to July 2000 there may well have been something like 80 attendances upon Dr Page. However, if I allow for 30 attendances it would give a figure of approximately $3,000.

2. Several attendances on Dr Louis should also be allowed for, making a total of say $3,041.70

Future Medical Expenses

1. There will be at least a further 15 attendances on Dr Page. Her current fee appears to be $114.50 making a total of $1,717.50.

SUMMARY

1. The position is as follows:

Pain and suffering
Past	$20,000.00
Future	6,000.00
Economic loss
Past	30,000.00
Future	12,000.00
Interest	3,200.00
Special damages	3,041.70
Future medical expenses	1,717.50
TOTAL	$75,959.20

1. Accordingly, I enter judgment for the plaintiff in the sum of $75,959.20.