Pappin v Hobson No. DCCIV-95-41483 Judgment No. D3652

[1997] SADC 3652

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Bright

Hearing

11/06/97 to 13/06/97.

Catchwords

Plaintiff - female - 22 year old nanny.Passenger in motor vehicle driven by her mother.Rear end collision with another vehicle. Minor physical injury.Concussion and bruising across chest.PTSD.Loss of chance to pursue nursing career.Recurring nightmares and insomnia.Headaches.Liability admitted.Assess economic loss $25,000.Non economic loss $13,100.Specials agreed in the sum of $552.50.Judgments for plaintiff in the sum of $38,652.50; 16 year old female nanny; Past economic loss $25,000.00; Past non-economic loss $13,100.00; Past special loss $552.50

Representation

Plaintiff JENNIFER JOY PAPPIN:
Counsel: MR. D. GREENWELL - Solicitors: W.S. DE GARIS &; CO

Defendant BRIAN JUNIUS HOBSON:
Counsel: MR. M. NEWELL - Solicitors: FINLAYSONS

DCCIV-95-41483

Judgment No. D3652

13 August 1997

(Civil)

PAPPINVHOBSON

Civil

Judge Bright

In this case, liability is admitted, but damages are to be assessed.The plaintiff was born on 22 December 1984.On 27 September 1991, when she was sixteen, she was a passenger in a car driven by her mother, with which a car driven by the defendant came into violent collision.The plaintiff'smother was about to turn left into the driveway of their home, which is on a straight stretch of country road near Millicent, when the defendant's vehicle came over to its incorrect side and into almost headon impact.It was not formally proved, but there are allegations in the evidence that the defendant and his passengers were drunk.At the least, that perception is part of the reason for the plaintiff's continuing anger about the circumstances.

It was at night.She recalls the headlights of the approaching car.She recalls that it travelled quickly.She has a brief moment of non recall at the moment of impact which may indicate brief concussion, but, if so, it was mild and is not thought by anyone to have had any lasting affect.

The plaintiff's mother suffered obviously serious injuries, with multiple fractures to various limbs.Her legs were trapped beneath the dashboard. She was bleeding.There was fear that the car might catch fire.The plaintiff recalls her father, who was on the scene almost at once, getting an axe, in case heroic measures were called for.The plaintiff was left to mind her mother while ambulance and police were called.

The plaintiff sustained only relatively minor physical injury.The seatbelt caused nasty bruising across her chest.That was painful, but resolved without problem in the ordinary course of a week or two.

The significant dispute between the parties is as to the severity of the psychological sequelae she claims to have suffered, the effect they had on her ability to qualify for training as a nurse, and her entitlement to damages in respect of any lost chance to become a nurse.

In 1991, the plaintiff was in year 12 at school.Her work had generally been good.I have an extensive volume of school reports, covering many years. Mr. Newell, counsel for the defence, pointed to a number of occasions on which teachers have described her progress in less than glowing terms.However, the preponderance of reports is very favourable.I am satisfied that she had demonstrated a level of ability and achievement sufficient to suggest she could have become a nurse.

In saying that, I am aware from the evidence that the marks necessary to get into nursing courses vary from time to time, and institution to institution. Thus a person capable of qualifying may, or may not, actually be accepted into a course.My finding, at this stage, is that the plaintiff, if accepted, was likely to have been able to complete a course and to have become a good nurse.

Vocational testing, before and after the accident, indicated that nursing was an area to which she was suited.It was a career which she had planned to pursue.It had been an interest for many years.She played normal school sport, and there is no indication of any physical problem which might have restricted her.Her Year 12 exams, at the end of 1991, would generate the marks which would determine whether she would be accepted into formal tertiary training.

I return to the scene of the accident.The plaintiff was conscious of the smell of her mother's blood.She was frightened for her.She was angry with the defendant and his passengers.After some time, her mother was freed and takento hospital.The plaintiff was also taken, but in another vehicle. The two passengers in the defendant's car went in the same vehicle.She remembers their drunkenness.

The plaintiff was in hospital over night, and then returned home.With her mother away, she had to take on a lot of the housework - cooking, cleaning and washing.Her mother was away for about two months.Thereafter, she still needed a great deal of help.I accept the plaintiff's evidence that, with the attention given to her mother's very obvious and serious injuries, her own were not perceived to be significant.She was "the lucky one".

It is true that her physical injuries were minor.However, following the accident she was subject to frequent nightmares, with intrusive dreams of the oncoming headlights, of the smell of her mother's blood and of walking on broken glass.She became sleepless and tired.She had headaches.She was frightened by these intrusive dreams, or "flash backs", as she called them. She reported these symptoms to her doctor within a few weeks of the accident.

Not surprisingly, her school work suffered.She obtained marks well below what her previous work might have led one to expect.She failed to matriculate at the end of the year and failed to gain entry into any nursing course.

She became rather desperate about her insomnia and intrusive memories. Within a few months (I am not sure whether before her exams) she began to drink alcohol.She had a little money of her own, and appears also to have stolen from her parents.Her kindly local publican was stupid and dishonest enough to sell alcohol to her (mainly whisky) despite her obvious youth.

This was a foolish stratagem on her part.It did work to keep her flash backs at bay for long enough to get to sleep, but she would not sleep for long before waking to the same problem.She says she was drinking a third of a bottle most nights of the week.It is a mark of the disruption prevailing in the household generally that this was not detected by other family members.I am not convinced that she drank quite as much as she now recalls, but I do accept that she drank heavily and frequently.

Having failed to matriculate, she returned to school and repeated year 12. Hitherto, although brought up by rather protective parents, she had been outgoing, a member of various school groups, and apparently happy.She became withdrawn and solitary.She would retire to her room and just sit on her bed for long periods.She frequently "wagged" school in 1992, going for drives with a friend, or simply sitting in the park alone.

In the aftermath of the accident, problems arose between her parents.The evidence is quite unspecific about their nature.It seems probable that the accident gave rise to some problems.I cannot say - and common sense leads me to doubt - that it was the only cause of trouble.

The evidence is perfectly clear that the plaintiff suffered a post traumatic stress disorder (PTSD) of quite serious proportions as a result of the accident.

The plaintiff's decision, and decision by her it was, to abuse alcohol was an attempt to obliterate the after effects of the accident.It was not a decision over which she had no control.In November 1992 she must have realised for herself that her deception could not continue.She confided in her doctor (who respected her confidence).He arrange for treatment and counselling, which were carried out so discreetly that the plaintiff's parents, apparently, never found out.Dr. Burchall noted some signs of genuine addiction.Fortunately, medical tests showed no sign of organic damage. With counselling, the plaintiff regained control, and has since then showed no tendency to addiction.

This is not a case in which a plaintiff claims damages for the fact of becoming an addict to a drug.Rather, the period of alcohol abuse can be seen as corroborating her evidence that she was miserable and desperate for relief from her dreams.I note that it was a long time before she revealed her abuse.If she had revealed it sooner, she would have been counselled sooner. I can understand why she kept it secret.

Mr. Newell argues that, insofar as alcohol abuse aggravated her situation, in particular, insofar as it diminished her performance at school, that aggravation and diminution may be seen not as a consequence of the accident, but as a consequence of a voluntary decision on her part.The position is not clear cut.A situation of difficulty was certainly caused by the accident. It seems to me that it is artificial either to say that the accident had no causal link, or to say that it was the only cause.Each position ignores the reality that the accident was one of a number of factors.

As it happens, there is little evidence to identify harm directly and solely attributable to alcohol abuse.One can reasonably infer that the plaintiff must, at least sometimes, have felt below par, or suffered hangovers in the morning, which, in turn, are likely to have caused her to perform worse than she otherwise would have.While teachers noted a drop in her performance, there was no evidence that they detected the after effects of alcohol.

Operating at the same time were the clearer effects of disruption at home and of PTSD.These were enough to explain the poorer performance.I do not think I can disentangle any additional effect from alcohol, though I expect there was some.Similarly,on looking at her general enjoyment oflife during that period, I expect that hangovers and guilt about what she was doing played a part in her unhappiness.However, I cannot clearly separate out specifically alcohol related matters from the others I have mentioned.

I have noted that differences arose between the plaintiff's parents.As a generality, assuming that to be at least partly a consequence of the accident, I believe the effect on the plaintiffto be so remote as no longer in law, to be a ground for damages to be awarded her.In this case, the factual evidence is too slight to establish it in any event.Thus, unhappiness in the plaintiff caused by that friction between her parents, is not sheeted home to the defendant.

I have noted that the plaintiffhad to devote much time to housework as a result of her mother's injuries.I think it is reasonably foreseeablethat, in circumstances like these, it is likely that family members will have to pitch in.If there is a problem, it is in foreseeing that such a load will be placed on a person in the plaintiff's position that she will not keep up studies, and may fail important exams.No evidence was led which would enable the defence to establish that the plaintiff, or her mother, failed to mitigate her claim by, for example, hiring other help.In the absence of evidence of that type, I think it was reasonable of the plaintiff to help, and foreseeable to the defendant, that help would be needed, and in such an amount as might seriously interfere with the normal life of the helper, in this case the plaintiff.

I am prepared to find, on balance, that the accident was the cause of the plaintiff failing her 1991 exams and of her not being offered a place in a tertiary institution to study nursing in 1992.I further find that it was reasonable of the plaintiff to return to school in 1992 to try to do better.

During 1992, on a diminishing basis, the plaintiff continued to help at home. She continued to suffer PTSD.She remained withdrawn.She wagged school a lot.She continued to drink heavily.She was clearly unhappy.Her school results, though better than her 1991 matriculation results, were still generally poorer than her pre accident record would have suggested.Teachers became concerned, but were not able to get her well motivated to study.At the end of 1992, she did pass her exams, but she failed to gain entrance to any nursing course.

With the light of hindsight, it appears that she may have been able, with the assistance of a vocational counsellor affiliated to SATAC, to have persuaded one of the institutions to accept her, despite her marks being too low.I have commented that the entrance mark varied between institutions.She was, for example, very close to that required at Whyalla TAFE in 1993.She did not know this.It is not established that she should have known and that her failure to follow this course should be classified as a failure to mitigate loss.

In 1993 the plaintiff abandoned her plan to nurse.She formed a relationship and lived with a male friend for a period.She did not get much in the way of work.She limited her efforts to get work to the Millicent area, where she had always lived and where not much work was available.I think that, had she been prepared to travel further, her chances would have been rather better. Though she was not obliged to travel, I note that she would have had to leave home to study nursing.

In 1994, as it happens, the entrance marks for nursing courses were rather lower than in 1993.Had the plaintiff resubmitted her 1992 marks it is probable she would have been accepted.She did not do that.She did not particularly turn her mind at that time to nursing.She had come to the view that, having got out of the habit of studying, it would be too hard to take it up again.I accept that a return to study would have been an effort.I remain of the view that she is intellectually, quite capable of such a course.

I have no doubt that a factor in this apathy was her PTSD.It diminished her motivation and self confidence.But she was not simply an automaton driven by PTSD, with no choices.She has made many decisions about employment and lifestyle.They include decisions to continue to reside in her home area, to enjoy a relationship with a male, (which she hopes will be long term), to involve herself in community activities in Millicent, to enjoy the support of her parents and to continue in employment as a nanny/housekeeper/child minder. The accident is only one of many links in the chain of circumstances leading up to this.I accept that, if the accident had not occurred, it is probable that her situation would be different.

Having said all this, I do not wish to be thought to underratethe severity of her PTSD.I accept that, even though she has learned to cope with it better over the years, it has been a significant disability.She is not free of it even now.Dr. Bassett appears rather surprised at what he regards as the minimal treatment she has received for it.I infer that he hopes that treatment now might alleviate it.

The plaintiff is predisposed to suffer PTSD in the future, in the event of some further untoward stimulus.Quite minor triggers raising associations with the accident still precipitate occasional flash backs.Depending on the success of future treatment, that may be expected to improve.Even with successful treatment, some future significant event (which may not in itself be compensable) is more likely to cause PTSD than if she had not already suffered it.

Her plan in 1991 was to embark on further study which, at least in the early stages, would not have attracted any wage.So she lost nothing during that period.At a later stage, if all had gone well, she would have begun to nurse and would have earned considerably more than she has in fact earned.

In the future, she will work.I hope she will qualify herself for better work than she has at present.If treatment for PTSD were successful, there would be nothing preventing her from taking up nursing training.It seems probable that treatment could be sufficiently successful within less than, say, a year.Evidence about future treatment is rather spare.

What she lost was the chance that particularly in 1992 and, to a lesser extent, in 1993 she could have been accepted into training and the chance that she would thereafter have qualified and found work as a nurse.By the time she now qualifies for whatever she decides to become, she will be behind where she would have been.I assess the value of that lost chance at $25,000.

On the scale 0 to 60, I fix the number 10 in respect of the plaintiff's non economic loss.The multiplier is $1310, so the assessment is $13,100. Special damages to date are agreed in the sum of $552.50.Although I speculate that the plaintiff will have some psychotherapy, no evidence of what that may cost was given.No claim is made for gratuitous services.

Accordingly, there will be judgment for the plaintiff in the sum of $38,652.50. I will hear the parties as to costs.

WEDNESDAY, 13 AUGUST, 1997

Judgment for the plaintiff in the sum of $38,652.50.Costs will follow the event.I reserve liberty for seven days, to apply for interest, if it should transpire that an application ought to be made.