SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
QUEEN ELIZABETH HOSPITAL v CURTIS
[2008] SASC 344
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kourakis)
9 December 2008
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES
PROCEDURE - COSTS - APPEALS AS TO COSTS - WRONG EXERCISE OF DISCRETION
Plaintiff (respondent and cross-appellant) contracted meningitis and consequently suffered unilateral hearing loss – plaintiff commenced proceedings against hospital (defendant, appellant and cross-respondent), alleging that defendant failed to treat plaintiff appropriately on her presentation to hospital, and in doing so, the defendant acted in breach of duty of care owed to plaintiff – plaintiff successful at first instance before District Court judge – District Court Judge held that defendant was negligent in (i) failing to make a timely differential diagnosis of meningitis; and (ii) in delaying plaintiff’s treatment with antibiotics – District Court Judge further held that defendant’s breach of duty of care was a material cause of plaintiff’s hearing loss (causation finding) – plaintiff awarded damages of $222,546.22 and 90% of party/party costs (damages finding) – trial Judge reduced plaintiff’s costs by 10% as plaintiff failed to make a pre-action offer pursuant to Rule 6A.02 of the Supreme Court Rules 1987 (SA) (costs finding) – defendant appealed against causation finding and damages finding – plaintiff cross-appealed on damages finding and costs finding – whether trial Judge erred in making causation finding (appeal) – whether trial Judge erred in assessment of damages: (i) whether assessment of damages for pain and suffering and loss of amenities, and loss of future earning capacity was manifestly excessive (appeal); (ii) whether assessment of damages for loss of future earning capacity was manifestly inadequate (cross-appeal) – whether trial Judge erred in exercising her discretion to reduce plaintiff’s costs, pursuant to Rule 6A.05 (cross-appeal).
Held (dismissing the appeal, and allowing the cross-appeal): Trial Judge’s conclusion that defendant’s breach of duty of care was a material cause of plaintiff’s hearing loss confirmed on the evidence – trial Judge’s assessment of damages for pain and suffering and loss of amenities was reasonable and not manifestly excessive – trial Judge’s assessment of damages for loss of future earning capacity was erroneous (i) trial Judge used incorrect multiplier, and interest rate; (ii) trial Judge did not consider plaintiff’s loss of earning capacity beyond age 65; (iii) trial Judge’s reduction for negative contingencies was excessive (iv) trial Judge failed to award interest in respect of past non-economic loss – Court should reassess damages and interest for loss of future earning capacity – lump sum of $200,000 plus interest of $6,5000 is an appropriate award for loss of future earning capacity – trial Judge’s exercise of her discretion to reduce costs was erroneous – Rule 6A.05 discretion should not be exercised…
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Details
- Case
- [2008] SASC 344
- Decision Date
CaseChat Overview and Summary
In the matter of Queen Elizabeth Hospital v Curtis, the plaintiff, Ms Curtis, sued the hospital alleging that it failed to appropriately treat her for meningitis, which resulted in her suffering unilateral hearing loss. The District Court judge found in Ms Curtis's favour, holding that the hospital was negligent in its diagnosis and treatment of her condition and that this negligence was a material cause of her hearing loss. The hospital appealed the decision, while Ms Curtis cross-appealed on the quantum of damages awarded to her and the costs order. The central legal issues were whether the trial judge correctly found causation, whether the damages awarded were excessive or inadequate, and whether the trial judge correctly exercised her discretion to reduce costs.
The appeal court upheld the trial judge's causation finding, affirming that the hospital's negligence was indeed a material cause of Ms Curtis's hearing loss. The court also upheld the trial judge's assessment of damages for pain and suffering and loss of amenities, finding it reasonable. However, the court found errors in the trial judge's assessment of damages for loss of future earning capacity. The trial judge had used incorrect multipliers and interest rates, failed to consider the plaintiff's loss of earning capacity beyond age 65, applied excessive reductions for negative contingencies, and omitted to award interest on past non-economic loss. The appeal court reassessed these damages, awarding $200,000 plus interest of $6,500 for loss of future earning capacity. Additionally, the trial judge's exercise of her discretion to reduce costs was found to be erroneous, and the discretion should not have been exercised to reduce the plaintiff's costs award. Consequently, the final judgment entered for Ms Curtis was $288,846.65.
The appeal court upheld the trial judge's causation finding, affirming that the hospital's negligence was indeed a material cause of Ms Curtis's hearing loss. The court also upheld the trial judge's assessment of damages for pain and suffering and loss of amenities, finding it reasonable. However, the court found errors in the trial judge's assessment of damages for loss of future earning capacity. The trial judge had used incorrect multipliers and interest rates, failed to consider the plaintiff's loss of earning capacity beyond age 65, applied excessive reductions for negative contingencies, and omitted to award interest on past non-economic loss. The appeal court reassessed these damages, awarding $200,000 plus interest of $6,500 for loss of future earning capacity. Additionally, the trial judge's exercise of her discretion to reduce costs was found to be erroneous, and the discretion should not have been exercised to reduce the plaintiff's costs award. Consequently, the final judgment entered for Ms Curtis was $288,846.65.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
As earlier observed the judgment was entered for Ms Curtis for $222,546.65. The Judge provided a summary of the components of the award:General Damages for pain & suffering & loss of amenities $ 80,000.00Past economic loss $ 500.00Future economic loss inclusive of superannuation $ 140,000.00Voluntary assistance past and future $ 1,000.00Special Damages past $ 346.65Future medical treatment $ 500.00Interest on past losses $ 200.00Total of award $ 222,546.65Background Facts The Judge was impressed by Ms Curtis and described her as having given evidence in a clear and generally candid manner. She impressed the Judge as a remarkably determined and resourceful young woman who despite the challenges she has faced in her life has managed to obtain considerable achievements. The Judge had one minor reservation concerning Ms Curtis’ evidence and that was an unwillingness at times to answer questions in cross-examination or concede issues that might be positive to the defence case. However, the Judge considered this as minor and concluded “the plaintiff in general gave truthful evidence to the best of her ability”. The Judge also accepted the evidence of Ms Curtis’ mother saying “I was impressed by her evidence, which I accept”. Professor Newall, an expert audiologist, provided a report describing problems associated with unilateral hearing loss. In that respect he observed:Hearing is one of the senses that we rely upon for personal safety when in danger and for self-perception in space when vision is deprived. The ability to accurately localize where sounds are coming from allowing quick mental decisions when in danger is rated as one of the most disadvantageous and disabling factors caused by unilateral total hearing losses. Most monaural patients report fear and lack of confidence when crossing the street. Their ability to localize a vehicle that has been heard but not seen is impaired thus rendering their chance to quickly move into safety very difficult or impossible.…The loss of hearing in one ear is greatly responsible for difficulties including poor sound localization, poor understanding in the presence of background noise, poor ability to follow a group conversation and inability to identify sounds from the deaf side.…The ability to localize sounds is greatly affected in monaural listeners who have only one functioning cochlea (Arjan, 2000). Binaural hearing is primordial for retro-cochlear and cortical analyses that provide acoustical cues for sound detection. Sound localization is an ability primarily established by intensity and time differences of a sound detected on both ears. The integrity of peripheral hearing in both ears is therefore fundamental for binaural analysis that will allow localization of sounds.…Monaural listening in noise can become an exhaustive and stressful task that can be facilitated by lip-reading, however in a large group situation, where the conversation moves quickly around several talkers, the ability to read the lips is challenging and does not compensate sufficiently.The difficulty following conversations in noise is exacerbated by the inability to locate and track the talkers in a group as the conversation jumps quickly from one to another person (Dillon, 2001). In a clinical practice it is common to hear from monaural patients that conversations in group are not possible as they unsuccessfully try to locate who is speaking and follow the conversation as it flows across several people. The sense of frustration, isolation and the embarrassment of “guilt” in asking other repeat themselves usually results in social isolation and withdrawal.The emotional side-effects generated in more demanding situations may contribute to an increase in levels of anxiety (Dillon, 2001). Individuals with unilateral hearing loss usually develop negative emotions towards social situations where communication has been difficult and tend to avoid them.…Speech perception can also be affected by reverberation. The spectral energy of the vowel sounds are prolongated when the environment is reverberant causing a masking effect on the consonant sounds, especially at the end of words. Speech perception decreases as reverberation time increases. The reverberation time refers to the amount of time that a sound, at a specific frequency, takes to decay 60dB after the end of the signal. A quiet and not highly reflective environment, such as a living room, will have a reverberation time average of 0.6 seconds and highly reflective environments, such as churches and assembly halls, will have a reverberation time average of 3 to 4 seconds. In adults with normal binaural hearing speech perception starts to be compromised when reverberation time exceeds 1 second but for individuals with sensorineural hearing loss reverberation is already a source of difficulty at 0.4-0.5 seconds (Crandell and Smalldino 2002).…Considering that high frequency speech sounds are more attenuated than low frequency sounds when transposing the head (head shadow effect) and that the noise has a negative impact on high frequency speech sounds, which are essential for speech intelligibility in noise, it is not surprising that speech recognition is considerably affected when a conversation is carried out in a noisy environment and especially when the talker is positioned on the deaf side of the listener.Certainly, individual ability to manage a unilateral hearing loss varies considerably from person to person. Certain factors as duration of deafness and hearing loss onset may be associated with subjective outcomes. Individuals with congenital unilateral total or profound hearing loss have probably acquired several coping strategies through hearing experiences throughout their life and may be able to manage communication better than someone that has recently lost hearing on one side.Although Professor Newall’s opinions as to loss of earning capacity were not acted on by the Judge, there was no suggestion that his general observations of the difficulties confronting persons with one-sided deafness were not appropriate observations on which the Court could act.
Evidence
Evidence Before The Court
In the present proceeding, it is of assistance to define the purpose and scope of the duty of care. At its most general, the scope of the duty was to meet the standard of care observed by competent medical practitioners in the diagnosis of medical conditions and the implementation of appropriate treatment. More particularly, in the present case the scope of the duty was to meet the standard of care observed by a competent medical practitioner in the area of emergency medicine, to make a differential diagnosis of meningitis, and to provide treatment to avoid or minimise the risk of mortality or permanent disability. In this particular case, it is relevant to have regard to the need for a prompt differential diagnosis because of the grave consequences that can follow soon after the onset of meningitis. Causation – The Direct Evidence Led at Trial Before further discussing the relevant legal authorities, it is convenient to outline the expert evidence before the Court that was said by Ms Curtis to prove causation as a matter of fact, on the balance of probabilities. Although the Judge did not expressly refer to this evidence, it was uncontested, and in the submission of counsel for Ms Curtis on appeal, was evidence that overwhelmingly established that Ms Curtis’ loss of hearing was directly caused by the breach of duty of the Queen Elizabeth Hospital. At trial, this evidence came primarily from Drs Croxson and Raftos. The evidence was placed before the Court through the tender of written expert reports, and was the subject of short oral evidence from Dr Croxson. As earlier observed, the Queen Elizabeth Hospital did not require Dr Raftos for cross-examination. In my view, the evidence of these experts was relevant and probative on the issue of causation. Dr Croxson provided a report of 15 March 2004 in which he set out, with thoroughness and clarity, the relevant history provided by Ms Curtis, as well as information from the Queen Elizabeth Hospital records. He then addressed the mechanism by which bacterial meningitis causes deafness. In that respect, as earlier observed, he commented: The exact mechanism by which bacterial meningitis causes deafness remains uncertain. However, bacterial meningitis is believed to precipitate sensorineural hearing loss by way of extension of meningeal infection from the subarachnoid space along the eighth nerve, the peri otic duct, and the cochlear aqueduct. Infection initially affects the perilymphatic spaces, and eventually spreads to the endolymphatic spaces.Direct infection of these spaces leads to labyrinthitis which initially may be transient and partial, but may lead to complete hearing loss, if left untreated.He then continued:Otopathological studies in cases of fatal bacterial meningitis have demonstrated serious cochlear pathology, initially with serofibrinous exudate, infiltration of inflammatory cells, and formation of granulation cells. If the infection is unresolved, varying degrees of damage ranging from alteration in the stereocilia of hair cells to complete loss of the organ of Corti may occur.Thus cochlear hearing loss from meningitis occurs primarily at the cochlear level with loss of the organ of Corti. It is believed that these pathological events occur early in the course of the illness.Early intervention is critical in preventing the complications of unresolved labyrinthine destruction.The exact time of onset of sensorineural hearing loss associated with bacterial meningitis is not known. In-patient testing will reveal that most cases of sensorineural hearing loss occurs within 48 hours of admission to hospital. However, follow up outpatient testing is also important because of the rare possibility of progressive sensorineural hearing loss.
Decision
Reasons for decision
GRAY J
The Queen Elizabeth Hospital submitted that the observations of King CJ were obiter and did not represent the law. I disagree. The law is primarily concerned to produce a just result. It is of note that the observations of King CJ have been cited with approval and have been applied by courts in Australia and within the United Kingdom.[43][43] See eg. Ellis (Executor of Estate of Cotton, deceased) v State of South Australia [2006] WASC 270 at [683]; King v Raymoon Ltd [2004] NSWSC 694 at [53]; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at 64-65; Hughes v Minister for Health [1999] WASCA 131 at [65]; Marsh v Ruggiero (1997) 70 SASR 132 at 142; Bendix Mintex v Barnes (1997) 42 NSWLR 307 at 345; Bauchop v The Commonwealth of Australia (Unreported, Supreme Court of New South Wales, Grove J, 4 July 1997).Causation - Conclusion The conclusion that the Queen Elizabeth Hospital’s breach of duty of care was a material cause of Ms Curtis’ hearing loss was open to the Judge at trial. No basis has been shown to disturb that finding. To the contrary, it was the correct finding to be made. It follows that the appeal should be dismissed.DamagesThe Assessment As earlier observed the judgment was entered for Ms Curtis for $222,546.65. The Judge provided a summary of the components of the award:General Damages for pain & suffering & loss of amenities $ 80,000.00Past economic loss $ 500.00Future economic loss inclusive of superannuation $ 140,000.00Voluntary assistance past and future $ 1,000.00Special Damages past $ 346.65Future medical treatment $ 500.00Interest on past losses $ 200.00Total of award $ 222,546.65Background Facts The Judge was impressed by Ms Curtis and described her as having given evidence in a clear and generally candid manner. She impressed the Judge as a remarkably determined and resourceful young woman who despite the challenges she has faced in her life has managed to obtain considerable achievements. The Judge had one minor reservation concerning Ms Curtis’ evidence and that was an unwillingness at times to answer questions in cross-examination or concede issues that might be positive to the defence case. However, the Judge considered this as minor and concluded “the plaintiff in general gave truthful evidence to the best of her ability”. The Judge also accepted the evidence of Ms Curtis’ mother saying “I was impressed by her evidence, which I accept”. Professor Newall, an expert audiologist, provided a report describing problems associated with unilateral hearing loss. In that respect he observed:Hearing is one of the senses that we rely upon for personal safety when in danger and for self-perception in space when vision is deprived. The ability to accurately localize where sounds are coming from allowing quick mental decisions when in danger is rated as one of the most disadvantageous and disabling factors caused by unilateral total hearing losses. Most monaural patients report fear and lack of confidence when crossing the street. Their ability to localize a vehicle that has been heard but not seen is impaired thus rendering their chance to quickly move into safety very difficult or impossible.…The loss of hearing in one ear is greatly responsible for difficulties including poor sound localization, poor understanding in the presence of background noise, poor ability to follow a group conversation and inability to identify sounds from the deaf side.…The ability to localize sounds is greatly affected in monaural listeners who have only one functioning cochlea (Arjan, 2000). Binaural hearing is primordial for retro-cochlear and cortical analyses that provide acoustical cues for sound detection. Sound localization is an ability primarily established by intensity and time differences of a sound detected on both ears. The integrity of peripheral hearing in both ears is therefore fundamental for binaural analysis that will allow localization of sounds.…Monaural listening in noise can become an exhaustive and stressful task that can be facilitated by lip-reading, however in a large group situation, where the conversation moves quickly around several talkers, the ability to read the lips is challenging and does not compensate sufficiently.The difficulty following conversations in noise is exacerbated by the inability to locate and track the talkers in a group as the conversation jumps quickly from one to another person (Dillon, 2001). In a clinical practice it is common to hear from monaural patients that conversations in group are not possible as they unsuccessfully try to locate who is speaking and follow the conversation as it flows across several people. The sense of frustration, isolation and the embarrassment of “guilt” in asking other repeat themselves usually results in social isolation and withdrawal.The emotional side-effects generated in more demanding situations may contribute to an increase in levels of anxiety (Dillon, 2001). Individuals with unilateral hearing loss usually develop negative emotions towards social situations where communication has been difficult and tend to avoid them.…Speech perception can also be affected by reverberation. The spectral energy of the vowel sounds are prolongated when the environment is reverberant causing a masking effect on the consonant sounds, especially at the end of words. Speech perception decreases as reverberation time increases. The reverberation time refers to the amount of time that a sound, at a specific frequency, takes to decay 60dB after the end of the signal. A quiet and not highly reflective environment, such as a living room, will have a reverberation time average of 0.6 seconds and highly reflective environments, such as churches and assembly halls, will have a reverberation time average of 3 to 4 seconds. In adults with normal binaural hearing speech perception starts to be compromised when reverberation time exceeds 1 second but for individuals with sensorineural hearing loss reverberation is already a source of difficulty at 0.4-0.5 seconds (Crandell and Smalldino 2002).…Considering that high frequency speech sounds are more attenuated than low frequency sounds when transposing the head (head shadow effect) and that the noise has a negative impact on high frequency speech sounds, which are essential for speech intelligibility in noise, it is not surprising that speech recognition is considerably affected when a conversation is carried out in a noisy environment and especially when the talker is positioned on the deaf side of the listener.Certainly, individual ability to manage a unilateral hearing loss varies considerably from person to person. Certain factors as duration of deafness and hearing loss onset may be associated with subjective outcomes. Individuals with congenital unilateral total or profound hearing loss have probably acquired several coping strategies through hearing experiences throughout their life and may be able to manage communication better than someone that has recently lost hearing on one side.Although Professor Newall’s opinions as to loss of earning capacity were not acted on by the Judge, there was no suggestion that his general observations of the difficulties confronting persons with one-sided deafness were not appropriate observations on which the Court could act.
Ratio Decidendi
Legal Principle Established
Established by: GRAY J
Full text does not contain this section.