Read v The Australian Capital Territory
[2023] ACTSC 37
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Read v The Australian Capital Territory |
Citation: | [2023] ACTSC 37 |
Hearing Dates: | 15 and 17 February 2023 |
DecisionDate: | 7 March 2023 |
Before: | Mossop J |
Decision: | See [89] |
Catchwords: | APPEAL – NEGLIGENCE – Medical negligence – appeal from Magistrates Court – magistrate found breach of duty arising from delay of the respondent to recognise internal bleeding and rectify with further surgery – whether magistrate erred in assessment of damages – whether magistrate erred in failing to award compensation under s 100 of the Civil Law (Wrongs) Act 2002 (ACT) or under the common law for domestic assistance compensation – whether magistrate erred in failing to find the appellant suffered economic loss – appeal dismissed APPEAL – CROSS-APPEAL – Whether magistrate erred in findings on causation – finding of breach of duty not challenged – whether award of general damages manifestly excessive – no reasons provided by magistrate for award of general damages – cross-appeal allowed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 45(1), 100 |
Cases Cited: | Griffiths v Kerkemeyer (1977) 139 CLR 161 John XXIII College v SMA [2022] ACTCA 32 Singh v Cooper [2016] ACTCA 55; 78 MVR 210 |
Parties: | Kristin Read ( Appellant) The Australian Capital Territory ( Respondent) |
Representation: | Counsel D Richards ( Appellant) D Higgs SC ( Respondent) |
| Solicitors Maliganis Edwards Johnson ( Appellant) ACT Government Solicitor ( Respondent) | |
File Number: | SCA 12 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 14 April 2022 Case Title: Kristin Read v The Australian Capital Territory Citation: [2022] ACTMC 8 Court File Number: CS 196 of 2020 |
MOSSOP J:
Introduction
This is an appeal from a decision of a magistrate awarding damages for negligence against the Australian Capital Territory. The appellant, who was the plaintiff below, sued the Australian Capital Territory, which runs the Canberra Hospital, for negligence in the treatment which was provided to her related to the birth of her second child.
The appellant’s pregnancy was complicated by the fact that she had vasa praevia and a low‑lying placenta. Because of this condition, an ante partum haemorrhage and the risks posed to her and her baby’s health, she spent 25 days in the Canberra Hospital prior to the birth of her child at just over 34 weeks gestation. Her child was born by emergency caesarean section following some further significant bleeding. During the course of that caesarean operation the appellant lost approximately 3500 mL of blood.
Following that operation, which was completed just before midnight on 26 October 2017, she was transferred at 2am the next day to the birth suite of the hospital. However, she suffered from internal bleeding from her uterine artery. After the possibility of such internal bleeding was recognised, she underwent a laparotomy (the second surgery) in order to investigate and address the source of that bleeding. That commenced at 9:29am on 27 October 2017. During the course of the second surgery approximately 3000 mL of blood was removed from her body bringing the total blood loss to 6500 mL or 6.5 L.
The appellant and her husband brought proceedings in tort against the respondent, the Australian Capital Territory. In the Magistrates Court, the respondent was found to have breached its duty to the appellant by failing to recognise by 5:20am that the appellant was suffering from internal bleeding and take steps to quickly remedy the situation by further surgery. Instead, it was only some hours later that there was a recognition of the likelihood of an intra-abdominal bleed and steps then taken to investigate. The magistrate awarded damages to compensate the appellant for loss and damage that she suffered as a result of an approximate three‑hour delay in returning her for the second surgery in order to address the internal bleeding: Kristin Read & Anor v The Australian Capital Territory [2022] ACTMC 8.
The claim by the appellant’s husband arising from the same events was dismissed by the magistrate and there is no appeal from that decision.
It was not contended in the Magistrates Court, and the magistrate did not find, that there was negligence in the performance of the original caesarean delivery. It was not contended, and the magistrate did not find, that the cause of the internal bleeding from the uterine artery resulted from negligence of the respondent. As a result, it was accepted that the requirement to undergo the second surgery in order to address the internal bleeding did not arise from negligence. It was only the period of delay which was found to have resulted from negligence and it was for that which compensation was awarded.
The magistrate awarded $50,000 as general damages and interest on that amount. He also awarded $2056.85 for out-of-pocket expenses. He declined to make any award for economic loss arising from loss of wages. He declined to make any award pursuant to s 100 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) or as Griffiths v Kerkemeyer damages for domestic care and assistance.
The appellant appealed against the magistrate’s decision and the respondent cross‑appealed. In this appeal the respondent did not challenge the magistrate’s finding of breach of duty.
Grounds of appeal and cross-appeal
The grounds of appeal (excluding particulars given in relation to those grounds) are as follows:
4.1. His Honour’s assessment of general damages of $50,000 fell outside any reasonable range for general damages having regard to the evidence and His Honour’s findings;
4.2. His Honour erred when interpreting and applying s 100 of the Civil Law (Wrongs) Act 2002, and when interpreting and applying common law domestic assistance compensation;
4.3. His Honour erred by failing to award compensation under s 100 of the Civil Law (Wrongs) Act 2002 (ACT) and failing to award common law domestic assistance compensation;
4.4. His Honour erred by failing to find that the Appellant had suffered economic loss for 16 weeks from 14 May 2018 to 3 September 2018.
A cross-appeal was filed and leave was granted to file an amended cross-appeal during the appeal hearing. The grounds of cross-appeal (complete with their bespoke numbering system) were as follows:
3A. The learned Magistrate erred in finding that at the time of the second surgery at 9:30 am on 27 October 2017, a further 3.5 L of blood was lost in addition to the approximately 3 litres of blood loss during the previous caesarean section.
4a.A. The learned Magistrate erred by failing to provide adequate reasons for finding the necessary causal relationship between the respondent’s breach of duty of care (as found) and:
(i) Her admission to the ICU; and
(ii) The psychological symptoms his Honour found the appellant suffered as a result of the breach of duty of care.
a. The learned Magistrate erred in finding the necessary causal relationship between the respondent’s breach of duty of care (as found) and the majority of the harm (especially the psychological injury his Honour accepted she suffered) alleged by the appellant.
b. The available evidence did not permit his Honour to find that, but for the breach of duty of care, the appellant would not have developed her psychological injury.
c. His Honour erred in failing to distinguish between the consequences of the breach of duty of care and the psychologically traumatic experiences to which the appellant was exposed in any event in addressing causation.
d. On the evidence before his Honour, the assessment of general damages (at $50,000) was manifestly excessive.
e. Where, contrary to the respondent’s primary submission, its breach of duty of care is found to have caused the appellant’s psychological injury, the respondent contends his Honour did not err in declining to award damages for ‘domestic assistance compensation’ (as described in the notice of appeal) or economic loss, there having been no or no sufficient evidence before his Honour to demonstrate any injuries and disabilities referable to the respondent’s breach of duty of care gave rise to any relevant incapacity on the appellant’s part.
Issues on appeal
Having regard to the grounds of appeal and the grounds of the cross-appeal the issues to be determined on this appeal may be summarised as follows:
(a)How much blood was lost by the plaintiff during the caesarean and second surgery? (Cross-appeal ground 3A)
(b)Did the magistrate err in finding that the plaintiff had established a causal relationship between breach of duty and ”the majority of the harm” “especially the psychological injury”? (Cross-appeal ground 4aA, 4a, 4b, 4c.)
(c)Did the magistrate err in the assessment of general damages at $50,000? (Appeal ground 4.1, cross-appeal 4d)
(d)Did the magistrate err in failing to make an award under s 100 of the CLW Act or make an award of Griffiths v Kerkemeyer damages? (Appeal ground 4.2, 4.3, cross-appeal 4e)
(e)Did the magistrate err by failing to award economic loss for the 16 weeks from 14 May 2018 to 3 September 2018? (Appeal ground 4.4, cross-appeal 4e)
How much blood was lost by the plaintiff during the caesarean and subsequent laparotomy? (Cross-appeal ground 3A)
This issue arises out of the following finding of fact by the magistrate:
8. It is not disputed that the amount of blood lost by the first plaintiff during the emergency C-section was approximately 3 litres and by the time of the second surgery at 09:30 am on 27 October a further 3.5 litres of blood was lost.
The relevant operation notes from the second surgery indicated that the blood loss was as follows:
Prior to return to [operating theatre] 3500 mL
Suction 2000 mL
Sponges 1000 mL
Total 6500 mL
It was ultimately uncontroversial on the appeal that these notes should be understood as follows:
(a)As a result of the caesarean section the appellant lost 3500 mL of blood.
(b)During the second surgery the blood loss (in the form of blood that had accumulated in the abdomen and other blood loss arising during the second surgery itself) was a total of 3000 mL, 2000 mL of which were removed by suction and 1000 mL of which were removed in sponges.
While some of the other hospital records made reference to a total of 9 L of blood having been lost by the appellant, the position of the parties was consistent with the operation note as explained above and reflected a total loss of blood of 6.5 L.
This finding of the magistrate incorrectly indicates that 3 litres rather than 3.5 L had been lost as a result of the caesarean delivery. It also could be read as indicating that a further 3.5 L was lost prior to the second surgery as distinct from as a result of the second surgery. However, if it was read as such that would have involved an error on the part of the magistrate. It should be read as indicating that the further 3.5 L was lost by the conclusion of the second surgery.
As a result, the only errors in the magistrate’s finding quoted above were:
(a)identifying 3 L rather than 3.5 L as the amount lost during the caesarean operation; and
(b)identifying 3.5 L rather than 3 L as having been lost in the second surgery.
These errors are not significant for the outcome of the present appeal. This ground of appeal is made out. The blood loss suffered by the appellant should have been found to have been that explained that [13]-[14] above.
Did the magistrate err in finding that the plaintiff had established a causal relationship between breach of duty and ”the majority of the harm” “especially the psychological injury”? (Cross-appeal ground 4aA, 4a, 4b, 4c)
This was the most significant area of contest on this appeal. The essential contention of the respondent was that the appellant did not establish on the balance of probabilities that she had suffered any additional significant harm as a result of the delay in treatment beyond that which she would have suffered in any event as a result of the caesarean operation and the second surgery, neither of which arose because of any breach of duty on the part of the respondent.
In order to assess the respondent’s contention, it is necessary to examine the facts in some detail. The findings of the magistrate were set out in 40 numbered paragraphs of his reasons. Those findings provide the starting point for consideration of the issue of causation.
Findings of fact by the magistrate
Having recited in summary form the oral evidence given before him, the magistrate made the following findings of fact (Findings of Fact).
1. The first plaintiff experienced an internal bleed after the emergency C-section was performed at about 10:00 pm on the evening of 26 October 2017 by the O&G Canberra Hospital medical team.
2. The first plaintiff was admitted to hospital on 2 October 2017 for minor bleeds in relation to her pregnancy. The first plaintiff was advised that should she experience a major bleed it was likely an emergency C-section would be conducted. Subsequently, on the 26 October 2017 the first plaintiff experienced a significant bleed, and the decision was made for her to undergo emergency C-section.
3. At approximately 10:12 pm on 26 October 2017 the first plaintiff gave birth to her second child Heidi as a result of an emergency C-section conducted by Canberra Hospital medical staff at the Canberra Hospital. On or about 11:45 pm after the surgery and after suturing the first plaintiff she was returned to the birthing suite arriving at about 2AM.
4. On the evidence of the second plaintiff the plaintiffs were aware of the risks associated with the emergency C-section. Further, the second plaintiff was not able to attend the Canberra Hospital to see his wife prior to the emergency C-section having arrived at about 10 pm with his eldest daughter Erin and ultimately seeing his wife on her returning to the birthing suite at about 2 am.
5. The second plaintiff recalls his wife had some colour in her cheeks and she otherwise appeared stable. Accordingly, he and his eldest daughter left the birthing suite at about 2:30 am to return home prior to their planned return to Canberra Hospital at about 08:00 am 27 October 2017.
6. Professor Izzo suggests that the blood oozing from the uterine artery region is likely to have commenced all but immediately after the emergency C-section surgery had been completed and the first plaintiff was returned to the birthing suite. In the absence of any evidence to the contrary in Professor Izzo's further comment that the blood oozing was located during the second surgery in the uterine artery region I accept his observation.
7. Blood oozed out of the suture leak into the peritoneal gap otherwise known as the Morisons pouch.
8. It is not disputed that the amount of blood lost by the first plaintiff during the emergency C-section was approximately 3 litres and by the time of the second surgery at 09:30 am on 27 October a further 3.5 litres of blood was lost.
9. At about 03:00 am the first plaintiff awoke to the sound of a number of support machine noises and alarms which gave rise to a concern. There are four separate occasions in which he sought to press her medical call button seeking assistance to explain what the alarms meant and whether not things were proceeding well.
10. At 03:30 hours the patient progress note reveals the blood loss of 3 litres, the first plaintiff is pale she is given IV influences and a unit of packed red blood cells. She is reported to be tachycardic. Notwithstanding an urgent blood count was requested I am unsure when it was completed.
11. At 03:42 am her blood pressure is taken with a heart rate of 120 bpm and blood pressure of 100/60.
12. The next entry at 05:20 am follows from the first plaintiff being reviewed by the SRMO. The SRMO directs that 20-minute observations be undertaken along with a repeat haemoglobin test. The test and the observations are not carried out as directed until 1 hour and 35 minutes later at 06:55 am. The first plaintiff's heart rate has increased to 127 and her blood pressure fallen to around 94/60.
13. It is not until the registrar finally sees the first plaintiff at 07:10 am that the observation is made that there is further distension of her abdomen which was readily apparent at 05:20 am.
14. It is then highlighted that there is a concern regarding an internal bleed. The calling of Dr Gallagher the consultant for review and an ultrasound did not occur until conducted by Dr Nair sometime between 08:00 am and 8:20 am.
15. The ultrasound revealed free fluid in the Morisons pouch consistent with an intra‑abdominal bleed and as Dr Ford and Professor Izzo suggests that bleed noted to be from the unsecured left uterine artery.
16. Further by 07:00 am the first plaintiff's haemoglobin level falls significantly to 89.
17. At about 08:00 am the second plaintiff arrives with his elder daughter Erin makes his observations that his wife has an alabaster look about her face, he was shocked by what he saw, he rubbed his wife's arm and said goodbye as did his daughter Erin prior to her being wheeled out to commence the second surgery.
18. The second plaintiff is informed on his arrival that there are concerns about what is going on for the first plaintiff, the extent of those concerns would not be known until a second surgery is undertaken, and an investigation carried out.
19. The second plaintiff forms unreasonably in my view that his wife is going to die on the premise that he has been asked to say goodbye to her prior to going in for surgery.
20. There is no evidence that either one of the plaintiffs had been informed by medical staff that her life was in danger other than the normal risks with going under a general anaesthetic, which as the second plaintiff identifies he was aware of those risks in relation to the first surgery. I have no evidence that his memory of that had been lost in the short time period of less than 24 hrs. Accordingly, I infer he was equally aware of those risks for the second surgery.
21. There is no evidence that the second plaintiff was directed by the Canberra Hospital staff to say his final goodbye when all that he had been advised to do, in his evidence was to say goodbye as the first plaintiff was going in for her second surgery.
22. The second plaintiff said he rubbed his wife's arm having regard to her being connected to a number of support machines. To suggest the 'goodbye' was somehow to be a final goodbye that is the first plaintiff might die is not supported by the evidence of the first or second plaintiffs, including the first call in the morning as the second plaintiff was driving to the hospital to see his wife.
23. Professor Izzo says the second surgery concluded with the leak area having been ascertained, in the area of the uterine artery and was tied off.
24. From 27 October 2017 until her discharge from hospital on 2 November 2017, the first plaintiff remained in ICU with limited access to her new daughter Heidi who remained in the NICU having been born premature at 34 weeks. Heidi was subsequently released from hospital on 11 November 2017.
25. I am satisfied the Canberra Hospital failed to exercise reasonable care and skill in the management of the plaintiff from 3:30 am following her return from emergency C‑section surgery concluding at or about 11:45 pm on 26 October 2017.
26. I accept Professor Izzo's expert assessment that the defendant failed in the delivery of its duty of care because of its failure to manage the first plaintiff in post-operative period.
27. I am satisfied that the bleeding from the uterine artery had not been appropriately secured through tying off the stem the flow of blood which was ultimately the process applied in the second surgery.
28. I am satisfied pursuant to section 46 that the plaintiff carried the burden of proving on the balance of probabilities the facts relevant to the issue of causation concerning the first plaintiff. I am satisfied the first plaintiff has discharged that burden.
29. The defendant says the question to be answered is what difference did it make in the delay of the surgery to stem the blood flow either at 5:20 am or at 9:30 am when the second surgery was completed.
30. I am satisfied it made a significant difference in the causal link between the first plaintiff's anxiety, blood loss the extent of pain identified by Professor Izzo in his third report that she would have experienced. The concern going into the second surgery knowing the risks that she would be exposed to, the fact she spent a further three days in ICU with limited contact with a newborn daughter, the fact the first plaintiff had to undergo an increased number of transfusions to replace her significant blood loss as a result of the delay and the identification of the internal bleed reasonably identifiable at 5:20 am having regard to the elevated pulse rate, low blood pressure, low haemoglobin level and distended stomach of the first plaintiff after the first surgery.
31. I accept Professor Izzo's expertise that the second surgery should have commenced shortly after 5:20 am with it being noted that the first plaintiff’s abdomen was slightly distended and therefore at least indicative of an internal bleed.
32. The fact the defendant failed to take relevant observations for 1 hour and 35 minutes and failed to record the first plaintiff’s high heartbeat, low blood pressure and low haemoglobin levels is indicative of the failure to have taken exercised an appropriate level of care to the first plaintiff. In particularly in light of her presentation at 3:00 am and certainly by 5:20 am.
33. I acknowledge the first plaintiff had a number of mental health concerns following the events of 27 October 2017. Significantly she did not want to have another child for fear of finding herself in a similar situation again, potentially dying, potentially never seeing family again and putting them through the same situation was her evidence.
34. I am satisfied the first plaintiff has physically recovered by January 2018 as was the evidence of the first plaintiff, in particular, on a note recorded by Dr He. I am satisfied the first plaintiff had ongoing psychological distresses. These included the first plaintiff's evidence of distressing intrusive memories about her hospital experience. Triggered either by smells or noises or when washing up and getting wet around the waist.
35. As I made mention earlier in my reasons, I found at times it difficult understand the extent of the first plaintiff's ongoing issues with any degree of detail or certainty given the general nature of her responses. I accept however that she experienced for a time into 2018 and sometimes more recently, on a lesser level, feelings of anxiousness; flashbacks and reliving the moments while waiting in the birthing suite for medical staff to respond to her nurse call button pressing and to make decisions about what was causing her distended abdomen.
36. Amongst all the feelings she was experiencing, she felt she was going to die when returning to o [sic] theatre for the second surgery.
37. I accept the first plaintiff was emotionally detached as identified by her husband in January 2018 that she was irritable and at times tearful these were not challenged or explained by any other behaviour perhaps connected to the birth of her child.
38. I note further that her explanation for her physical incapacity and her mental incapacity prevented a return from maternity leave on 14 May 2018 lacked any real strength or logic nor was it underpinned by any medical advice explaining that inability. I find it difficult have regard to the evidence that I should make a finding that the first plaintiff's inability to return to work could be exclusively linked to or even partially linked to the events which occurred in October 2017. Particularly in light of Dr He's notes from her December 2018 review with the first plaintiff. Accordingly, I am not satisfied that the past economic or consequential superannuation loss as sought by the first plaintiff is supported by the evidence.
39. I recognise the past out-of-pocket expenses in relation to the assistance provided to the first plaintiff by Ms Carter in the amount of $1,012.00 and Medicare of $1,044.85 being a total of $2,056.85.
40. I am not satisfied there are any past domestic assistance or interest payable as the evidence was clear that the first plaintiff mother-in-law provided assistance until her return to Inverell in February 2018. That otherwise cooking and house cleaning responsibilities were shared across both plaintiffs and the first plaintiff's mother-in-law.
The findings in relation to breach of duty involved some inconsistencies. At [25] the finding suggests a breach of duty from 3:30am. Yet at [30] the magistrate found that the internal bleed was reasonably identifiable at 5:20am and he accepted Professor Izzo’s opinion that the second surgery should have commenced shortly after 5:20am. Notwithstanding inconsistencies in the reasons, having regard to the terms of Prof Izzo’s report it is from 5:20am that the magistrate should be understood as having identified a breach of duty. That was consistent with the approach taken by the appellant on the appeal. Although the written submissions asserted breach of duty from 3:30am, in oral submissions it was not contended that the evidence established a breach at 3:30am prior to any abdominal distension being recorded.
The findings of the magistrate outlined above do not address the relevant comparison, that is, a comparison between the position of the plaintiff in the circumstances as they occurred and the position of the plaintiff had there been no breach of duty. The burden on the plaintiff was to demonstrate that she was worse off as a result of the breach of duty than she would have been had there been no breach of duty. While clearly she was worse off during the period of delay, the award of substantial general damages appears to have been on the basis that, as a result of the delay, she suffered ongoing psychological harm that she would not have otherwise suffered.
In order to appreciate the arguments as to causation it is necessary to examine the facts in some more detail. A useful starting point is a chronological description of the appellant’s hospital admission. The chronology is not comprehensive but picks up the principal points significant for the issue of causation.
Date
Time
Event
2 October 2017
Appellant admitted as an inpatient to Canberra Hospital with major placenta praevia and vasa praevia
26 October 2017
10:20pm
Emergency caesarean section commences following a bleed. Premature birth at 34 weeks.
11:54pm
Operation concludes.
27 October 2017
12:50am
Appellant is awake and alert.
2am
Appellant transferred to birth suite.
2:50am
Appellant feeling well.
3:15am
Appellant tachycardic. Heart rate 120 bpm.
3:30am
Heart rate 120 bpm. Asymptomatic but lying in bed, appears pale, urgent full blood count requested.
3:42am
Heart rate 120 bpm.
5:20am
Haemoglobin 112. Heart rate 130 bpm. Slight distension of the abdomen noticed. Repeat haemoglobin requested.
6:55am
Heart rate 127 bpm. Dr Linehan (a registrar) reviews the appellant. Full blood count taken and sent urgently.
7:10am
Haemoglobin has fallen from 112 to 89. Heart rate 127 bpm. Abdomen noted as further distended. Impression recorded “concern re: intra-abdo bleed”.
7:30am
Blood transfusion.
7:40am
Heart rate 130 bpm.
8am
Blood transfusion.
Between 8am and 8:20am
Ultrasound shows fluid in Morrison’s pouch.
8:20am
Theatre booked.
8:52am
Anaesthetic commences.
9:29am
Operation starts.
10:25am
Operation completed. Bleeding from uterine artery identified and sutured.
29 October 2017
10:49am
Appellant discharged from Canberra Hospital intensive care to Canberra Hospital ward.
2 November 2017
Appellant discharged from Canberra Hospital.
11 November 2017
Baby discharged from Canberra Hospital.
When should the second surgery have commenced?
One matter significant in assessing the counterfactual situation in which there was no breach of duty is when the second surgery would have occurred in the absence of that breach.
In his third report (dated 21 July 2021) Professor Izzo said that “certainly by 5:30 it should have been clear to all that internal bleeding was continuing and certainly at that time surgery should have been organised, not four hours later.” He also expressed the opinion that she should have been classified as a category A patient who required surgery in less than one hour rather than a category B patient who required surgery only within four hours. He therefore expressed the view that the surgery should have been undertaken soon after 6am.
So far as assessing the counterfactual that did not involve any breach of duty, Prof Izzo did this by reference to a general statement that surgery should have been within an hour. He did not assess the reasonableness or unreasonableness of the particular actions which took place after 7:10am when an intra-abdominal bleed was suspected. The result of accepting Prof Izzo’s opinion is that surgery would have commenced at around 6:29am rather than 9:29am as it in fact did. That would mean that the effect of the breach of duty was that the appellant had to wait for an additional three hours during which the internal bleeding from the uterine artery continued.
If, on the other hand, the counterfactual is assessed by reference to times actually taken from the first impression of an intra-abdominal bleed that was recorded (7:10am) then the delay would be somewhat less than two hours.
The magistrate accepted Prof Izzo’s evidence that the second surgery should have commenced shortly after 5:20am. This should be understood by reference to his report and oral evidence which was consistent with it commencing within an hour of that time. As a consequence, the delay was approximately three hours and the period of three hours prior to 9:29am, is the period in relation to which the appellant was entitled to compensation.
Findings in relation to causally related damage
The finding of the magistrate concerning causation at [30] of the Findings of Fact it is not well expressed. It appears to indicate that the appellant suffered causally related damage as follows:
(a)anxiety;
(b)blood loss;
(c)“the extent of pain identified by Professor Izzo in his third report that she would have experienced”;
(d)the concern going into the second surgery knowing the risks that she would be exposed to;
(e)the fact that she spent a further three days in the ICU with limited contact with a newborn daughter; and
(f)the fact that she had to undergo an increased number of transfusions to replace her blood loss.
The reference in the Findings of Fact at [30] to “the extent of pain identified by Professor Izzo in his third report that she would have experienced” appears to be a reference to the part in Prof Izzo’s third report in which he indicated that the appellant would not have suffered severe pain because she had been given adequate pain relief.
In addition, the magistrate made findings about the “mental health concerns” following the events of 27 October 2017 in the Findings of Fact at [33]-[37]. The key findings appear to be as follows:
(a)The finding at [33] that the plaintiff had “a number of mental health concerns” following the events of 27 October 2017, including not wanting to have another child. This finding related to the events generally rather than the particular period of delay.
(b)The finding at [34] that the appellant “had ongoing psychological distresses”. That included the appellant’s evidence (which the magistrate impliedly accepted) of “distressing intrusive memories about her hospital experience” which were triggered either by smells or noises or when washing up and getting wet around the waist. Once again, these findings relate to the events generally rather than the particular period of delay.
(c)The finding at [35]:
I accept however that she experienced for a time into 2018 and sometimes more recently, on a lesser level, feelings of anxiousness, flashbacks and reliving the moments while waiting in the birthing suite for medical staff to respond to her nurse call button pressing and to make decisions about what was causing her distended abdomen.
Clearly this finding relates in part to the respondent’s breach of duty insofar as it refers to medical staff making decisions about what was causing her distended abdomen. However, it will be necessary to examine the evidence about the pressing of the nurse call button in more detail to determine whether it relates to the period of breach of duty or not.
(d)The fear of death prior to the second surgery and emotional detachment observed by her husband in January 2018.
The findings of the magistrate do not make any reference to post-traumatic stress disorder or to the report of Dr Knox. It is not clear why the report of Dr Knox (as distinct from some things she had told Dr Knox) was not mentioned at all by the magistrate.
The essential contention of the respondent was that insofar as the magistrate made a finding that the subsequent “psychological distress” of the appellant was caused by the breach of duty, that finding was in error because the appellant had not proved that was any more than would have been suffered even if the breach of duty had not occurred. In order to assess the submission that is necessary to examine what the evidence established about causally related damage.
Evidence in relation to causally related damage
Although there was a variety of evidence about the appellant’s experiences between 2am and 9:29am there was little clear evidence as to matters which occurred during the period of breach of duty as distinct from other matters which occurred over the period as a whole. That made it more difficult to attribute subsequent psychological harm to the breach of duty as distinct from the overall, undoubtedly difficult, experience. It certainly made it difficult to reach a conclusion that the period of delay was a necessary condition for any psychological harm as required by s 45(1)(a) of the CLW Act.
The plaintiff’s evidence related generally to the time between 2am and when her husband arrived shortly prior to the second surgery. She recalled “a number of times during the period” wondering what was happening. She recalled pressing the buzzer to call for assistance a number of times. She gave evidence of having pressed it on four occasions. She said that sometimes she would just press it and no one would arrive. She said that she got the impression that she was a bit of a nuisance. She said that on one occasion she told the midwife that the monitors were making lots of beeping noises and the midwife said that was normal. He checked the monitors and there was nothing wrong. She said on another occasion she thought that her belly was very rounded and wondered whether this was normal. However, she could not recall what he said to her. The third occasion the same midwife came. She requested water and was told she was only allowed to have ice chips. She could not recall any tests, monitoring or observations being recorded. On the fourth occasion she could not recall thinking about what was happening to her belly. She was “concerned as to why people were taking so long and why the buzzers were still making sounds and I wasn’t getting answers as to what was going on. I could feel something was not right.” She said that on the first occasion it took the midwife a long time to arrive. Each time she pressed the buzzer the response was “not immediate at all”. She said that on the fourth occasion the midwife felt her abdomen and then left rather quickly after that. She said that the overall time taken between these four incidents was a number of hours. She said that it was after the fourth occasion that a number of people came into the room, four or five of them. It was then that there was a conversation with a woman (“the lady in white”) who said that depending on the results of the ultrasound she may be sent back for another surgery and there would be a number of other consultants from the hospital coming by to check or ascertain what was happening. She also said that she had a conversation with Dr Nair (the surgeon who supervised the second surgery) about a second surgery.
It is clear from the evidence given that the fourth occasion preceded, and was a prompt for, further activity and investigations by doctors. The evidence about the fourth occasion does not obviously match any of the entries in the medical notes. However, it is consistent with the fourth occasion occurring after distension was noted in the appellant’s abdomen and this only occurred at 5:20am.
Because it is only the fourth buzzer incident that might have fallen within the period of the breach of duty, the evidence given by the plaintiff as to the earlier events did not provide any foundation for a finding of causally related damage. As a consequence, the lengthy examination‑in‑chief of the appellant about these events served to reinforce the proposition that any psychological consequences of the events on that day would have occurred even without the breach of duty.
The plaintiff gave evidence that during the conversation with Dr Nair she was told that it might require the removal of her reproductive organs. Understandably, this made her feel uncomfortable, worried and concerned. It was not demonstrated that the possibility discussed only arose by reason of the breach of duty and would not have existed in any event.
She described having an ultrasound and doctors coming and going and discussing matters with each other. While this occurred within the period of the breach of duty, having regard to her condition such consultation and discussion would likely have occurred in any event.
She then gave evidence about her husband and daughter arriving about 20 minutes after she had the ultrasound. She was then wheeled away for the second surgery by one of the assistant surgeons. That is consistent with the medical records which shows that the theatre was booked at 8:20am, the preoperative checklist was being completed at 8:46am and the anaesthetic commenced at 8:52 am. The assistant surgeon stayed with her for the whole time until the second surgery commenced.
She described being “uncomfortable, worried and scared” when she was asked upon entering the operating theatre whether she could get from the gurney onto the operating table. She explained that this was her second surgery in a small amount of time so she could not. She did not feel very reassured. This event was not a result of the breach of duty. Her next recollection after the operating theatre was waking up in the intensive care unit (ICU).
While in the ICU she had an intravenous line put in her neck. The evidence did not establish whether this would have been unnecessary in the event that she had to have some lesser identified amount of blood products during her stay.
She said that between 27 and 29 October 2017 she was scared and worried. She described other patients coming in and out of the ICU and one of them having a heart attack and dying.
The questioning turned to the topic of fear. She was asked what she was in fear of in the operating theatre. She said she was in fear of dying. She was subsequently asked a leading question about whether she had feared dying previously on that day. She said yes. When asked when it was she said “When the machines in the suite kept beeping and no one was responding to my call when I was pressing the nurse call button.” Even though the appellant’s counsel attempted to get her to identify any other occasion on that day when she feared dying, she said “Not on that day”. Not yet satisfied, counsel for the appellant then asked her whether when she was in the ICU she had a fear of dying and she said “there were times, yes.” Having obtained this brief answer, the issue was not pursued. As a result, it is not clear what caused her to have this fear in the ICU, whether it related to her condition or what was happening around her, how long it lasted, what allayed it and whether or not it was something that would have occurred in any event.
Thus, the end result of her evidence was that she had a fear of dying:
(a)sometime prior to the breach of duty when she didn’t understand the beeping of the machines;
(b)when the second surgery was about to commence, something that would have occurred in any event; and
(c)at unspecified times in the ICU for reasons which were not explored.
She gave evidence about what happened after she left hospital. She described feelings and memories when she visited the hospital that arose from her time at the hospital. She described perfectly understandable emotions arising from her experience generally. The evidence did not attempt to establish any particular feelings, emotions or memories associated with the period of the breach of duty as distinct from all the other significant life events that occurred during her stay at the hospital. She described discussing the events with a psychologist to whom she was referred by her general practitioner and said she had eight to ten consultations with the psychologist. No detail of the issues discussed was given.
She gave evidence of flashbacks experienced when water would soak through her clothes at home from doing dishes or cleaning her babies. The flashback related to when she was in hospital after the second surgery and a drain which was inserted would leak through her clothing. The second surgery itself was something which would have occurred in any event.
Her evidence about not wanting to have another baby was given at a high level of generality and no attempt was made to tie it to the breach of duty as distinct from the experience as a whole. The foundation was not laid to permit a conclusion that the breach of duty was a necessary condition for this state of mind.
The overall effect of the evidence was that although there were quite understandable psychological effects of the experience upon the appellant, there was nothing which would identify the period of the breach of duty as having any particular effect upon her psychologically. That conclusion is one which is consistent with the report of Dr Knox.
The report of Dr Knox
In the hearing before the magistrate, the appellant tendered a report of Dr William Knox, a consultant psychiatrist. He was not required for cross-examination. On the appeal, the appellant placed significant emphasis in submissions on the fact that the report of Dr Knox was “unchallenged”. No reference at all was made to the report of Dr Knox in the reasons given by the magistrate. That was notwithstanding the fact that the magistrate went to some length in his reasons to recite the evidence given by the plaintiff and her husband and the evidence given by Dr Ford and Prof Izzo.
The conclusion of Dr Knox was that the appellant had suffered PTSD for approximately six months following her hospital experiences and that there were now some residual symptoms of partial PTSD.
Contrary to the submissions of the appellant, the report of Dr Knox did not provide significant evidence of psychological consequences flowing from the breach of duty as distinct from those flowing from the experience as a whole.
The report of Dr Knox is just over six pages long. The letter of instructions was not in evidence. It records that he was asked to “examine, assess and report on” the appellant. The report recorded that the appellant “still has distressing, intrusive memories about her hospital experiences that are triggered by smells, noises, or exposure to events which remind her of the time in hospital”. He describes her suffering from “clammy, hot feelings” as a result of an upper respiratory tract infection that reminded her of “her post-caesarean poor health due to internal bleeding”. The doctor records that she remains phobic for visiting the Canberra Hospital because she is “reminded of her experiences there”. He also records that when she hears “noises that remind her of the monitor sounds in the hospital, or clinical smells she again has surges of anxiety as she re-experiences her fearful thoughts of post-surgery times in hospital”. Those recollections “include not only her time in the birthing unit following the caesarean procedure but the ICU where she was exposed to other clinical treatments, including a patient dying.” He describes that whenever the appellant “wets her abdomen, for example when washing the dishes, or doing the laundry” she is reminded of the drain tube in her abdomen following the second surgery. Later in the report he records her as feeling “tired and vague” during the early hours of the morning of 27 October 2017. He also records her recollection of “worrying why staff were not regularly attending her given that the equipment monitoring her health was regularly signalling abnormality”. He records that she was in the ICU for two days and that was a stressful experience “given the noise and disruption of the other patients needing care, and the death of one of these people”. He records that when showering she sees her naked body with the abdominal scarring. His conclusion was that the appellant “suffered from a diagnosable level of Post-traumatic Stress Disorder for approximately six months following her hospital experiences” and that there were now residual symptoms of partial PTSD. In answer to one of the solicitor’s questions he said: “Your client’s psychiatric condition is completely the consequence of experiences at The Canberra Hospital.”
It will be apparent from this summary that the report did not distinguish between the hospital experiences generally and the particular period during which the respondent was found to have breached its duty. In particular, the following matters can be noted:
(a)The reference to “post-caesarean poor health due to internal bleeding” includes the period of delay but also includes the rest of her experience.
(b)The evidence of noises and monitor sounds relates to her experience generally but probably specifically to the initial time when she enquired about whether the sounds were normal and possibly the period during her stay in the ICU.
(c)The clinical smells are not specific to the period of delay.
(d)In relation to the time in the ICU that may have been affected by the period of delay and this is an issue which will be returned to below.
(e)The association between wetting her abdomen and the experience of the drain tube is unrelated to the delay as that was a product of the second surgery.
(f)The description of worrying why staff were not regularly attending her given that the equipment monitoring her health was regularly signalling abnormality appears to correspond to one of her early buzzer experiences (prior to the period of breach of duty) which led to the midwife explaining to her that the equipment was operating normally.
(g)Her viewing of the abdominal scarring is not attributable to the period of delay because that is something which would have occurred in any event as a result of having two surgeries.
(h)The ultimate diagnosis of PTSD is stated in general terms as a consequence of her experiences at the Canberra Hospital rather than directed to the period of the breach of duty.
It is quite understandable that a person who had gone through the medical treatment that the appellant had at the Canberra Hospital, including the period of delay, would have some residual psychological difficulties. However, for the purposes of this case, a very discrete question had to be asked, namely whether the period of delay resulting from the breach of duty was a necessary condition for the harm suffered. The evidence of Dr Knox did not provide an answer that question. Indeed, it was more consistent with a conclusion that the appellant would have suffered PTSD in any event as a result of the necessity to have an emergency caesarean and then a laparotomy to address internal bleeding.
The ICU stay
Another matter relied upon by the appellant to support a significant award of general damages was the necessity for the appellant to spend time in the ICU. Some of the complaints made to Dr Knox related to her time in the ICU.
Further, the necessity to spend time in the ICU was submitted to be indicative of the serious nature of her condition following the second surgery. It was submitted that in the absence of the period of delay, the condition of the appellant following the second surgery may have been such that she would not have required any time in the ICU. The evidence to support that submission was elicited during cross‑examination. It was suggested to Dr Ford that had the surgery occurred at 5:00am to 5.30am the appellant may not have spent any time in the ICU. Dr Ford did not accept this, saying that if he had a patient with an intraperitoneal bleed from an unsecured uterine artery who had obviously significant blood loss then he would certainly want her in the ICU. It was put to him that if she had in fact lost only 3.5 or 4 L of blood she may have spent one day in the ICO as opposed to three days. He accepted that it was possible she would have had a shorter stay in the ICU. Prof Izzo said that if she had lost only 3.5 to 4 L of blood then “I don’t know that she would have ended up in the ICU at all”.
Insofar as the questioning was based upon a hypothesis that only 3.5 or 4 L of blood had been lost in total, that questioning did not provide a useful foundation for any expert opinion. That was because the evidence disclosed that the patient had lost 3.5 L during the caesarean operation. Although the rate of internal bleeding following that operation was not clearly disclosed, it was very unlikely to be as little as 500 mL prior to the time (approximately 6:30am) by which, on the findings of the magistrate, the surgery should have commenced. There was no clear evidence as to any variation in the rate of internal bleeding over the period after the conclusion of the caesarean operation. The evidence of Prof Izzo was consistent with it being an “ooze” from an inadequately secured suture rather than the failure of a previously appropriately secured suture. If it was assumed, consistent with there being an “ooze”, that the internal bleeding occurred at a consistent rate over the nine hour period from 11:54pm (when the caesarean operation concluded) until 9:29am (when the second operation commenced) and that the total bleeding during that period was 3 L, then the plaintiff was losing one third of a litre per hour and would have lost approximately 1 L of blood during the period of delay. As a consequence, had there been no breach of duty then she would have lost 5.5 L rather than 6.5 L of blood. No questions about the likely length of stay in the ICU relevant to that comparison were asked of the witnesses. However, it must be recognised that the assumption about the rate of blood loss that forms the basis of these calculations is just an assumption. Prof Izzo agreed with the proposition that the rate of blood loss over the relevant period was uncertain. That uncertainty necessarily infected any assessment of the causally related consequences of the breach of duty for the length of the stay in the ICU.
Thus, the state of the evidence was that there was no precise expert opinion directed to the consequences of the length of delay ultimately found by the magistrate. There was possibly available the general proposition that losing an additional amount of blood would, in the circumstances, have increased the gravity of the appellant’s condition, required additional blood transfusions beyond those which would have been administered had there been no delay and may have contributed to some additional period being required in the ICU. However, it was not possible to reach any conclusion about the length of the stay on the balance of probabilities. Further, there was no evidence as to whether or not any additional period in the ICU would have had an impact upon her ultimate discharge date from the hospital.
Out of pocket expenses
At [39] of the Findings of Fact the magistrate “recognised” the payment of out-of-pocket expenses. He made no specific finding about whether or not those out-of-pocket expenses would have been incurred even without the breach of duty. When it came to the award of damages, the reasons given by the magistrate (set out in full at [66] below) did not make specific reference to these expenses. However, the orders made included an order that “The defendant to pay the first plaintiff’s out-of-pocket expenses of $2056.85.”
The out-of-pocket expenses included payments made to the appellant’s psychologist, general practitioner and for pathology services.
An inference may be drawn from the reasons as a whole that the reference to out‑of‑pocket expenses at [39] of the Findings of Fact was intended to refer to expenses incurred as a result of the finding at [30] of the Findings of Fact (“I am satisfied it made a significant difference in the causal link…”) or alternatively the finding at [33]-[36] about ongoing mental health concerns. However, there was no finding made that the delay caused by the breach of duty was a necessary condition for the incurring of these expenses. Rather, the evidence was such that the appellant did not discharge her burden of proving that the out-of-pocket expenses were expenses which would have been incurred in any event.
Conclusion
Having regard to the evidence given by the plaintiff and the expert evidence of Dr Knox, it is not possible to reach the conclusion, required by s 45(1) of the CLW Act that the breach of duty “was a necessary condition of the happening” of the PTSD diagnosed by Dr Knox. Even without a period of delay it is likely that the combination of 32 days in hospital including significant ante partum bleeding, an emergency caesarean followed by internal bleeding, followed by a second surgery in order to correct the internal bleeding and a period in the ICU would have caused equivalent intrusive thoughts about, and memories of, her experiences. That is not to deny that the appellant is entitled to compensation for the anxiety and discomfort suffered during the period of delay when she continued to bleed internally and have an elevated heart rate, and any additional consequences that can be proved to have flowed from the additional loss of blood but that is distinct from the claim for PTSD said to arise generally out of the hospital experience. Those are matters which will be addressed in relation to the next ground of appeal.
Did the magistrate err in the assessment of general damages at $50,000? (Appeal ground 4.1, cross-appeal 4d)
Each party appealed against the finding of the magistrate. The appellant contended that the award of general damages was too low. The respondent contended that it was too high. The respondent also contended that the magistrate had failed to give adequate reasons for his decision to award the sum that he did.
The Findings of Fact made by the magistrate are set out above. Following those findings, the magistrate dealt with and rejected the claim made by the appellant’s husband. The magistrate then returned to the issue of damages and the full extent of his reasons were as follows:
Having been satisfied that the first plaintiff is successful in her application that the defendant breached its duty of care to her in the circumstances and for the reasons that I have outlined above I am satisfied the first plaintiff be awarded damages of $50,000 plus interest at 2% on those general damages for the past 3 years.
I am satisfied I should allow the interest to operate only for 3 years as I too am in agreement with the defendant that this matter should have returned to court for hearing much earlier than 4 years.
As will be apparent, no reasons were given specifically explaining the award of general damages of $50,000. In particular, there was no explanation of precisely what this was for. The Findings of Fact at [30], [33]-[37] appear to provide the basis for the award, although that is speculative as there is no cross-reference to the issues addressed in those paragraphs.
The approach taken to reviewing on appeal an award of general damages was outlined in Scuderi v Raskurasingham [2017] ACTSC 41 at [44]:
An appellate court should not interfere with an assessment of general damages for personal injury simply because it would have awarded a different figure if it had tried the case [at] first instance. Where an assessment is made and it has not been shown that the trial judge acted on any error of [principle] or misapprehension of the facts the appellate court will only interfere if it is satisfied that the charge made a “wholly erroneous estimate” of the damages suffered: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369; Sutherland Shire Council v Major [2015] NSWCA 243 at [40]. The assessment of general damages is neither scientific nor normative: Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 at [52]. It relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30]; Baxter v Insurance Australia Ltd [2015] ACTSC 273 at [32].
This passage was quoted with approval by the Court of Appeal in John XXIII College v SMA [2022] ACTCA 32 at [206]. See also Singh v Cooper [2016] ACTCA 55; 78 MVR 210 at [45].
In the present case it is open to reconsider the award of general damages because the respondent has established that the findings of the magistrate in relation to the causation of psychological harm involved either errors or such a lack of precision that they failed to reflect the need to be satisfied of causation. It is necessary to consider the award of general damages against those findings of causally related harm that are sustainable having regard to the evidence before the magistrate.
The appellant clearly suffered during the approximately three-hour delay in her treatment. She suffered from tachycardia and was aware that her abdomen was distending. She did not give evidence that she was in pain during this period. While it can be accepted that she had some pain from the previous operation, it was controlled with drugs. The medical records indicate that she was attended to and notes were made on 12 occasions after 5:20am before the anaesthetic commenced at 8:52am. She therefore had a significant presence of doctors and midwives during that period. She would have suffered anxiety as a result of her elevated heart rate and the concerns expressed by the medical staff. While she would have been anxious at being required to undergo a second operation, that is an anxiety which would have occurred in any event, albeit over a shorter period. As a result of some increased loss of blood during the period of delay, she would have had to have a greater number of blood product transfusions than would otherwise have been the case. The evidence did not address the different blood products in fact transfused or address which of those might have been avoided had the delay arising from the breach of duty had not occurred. Thus, it can only be said that it is likely that some of those transfusions would have been avoided.
Similarly, had the appellant lost less blood, then this may have affected the time she was required to spend in the ICU. However, given that the delay caused some incremental increase in the blood loss it is likely that, having regard to her history, she would have been admitted to the ICU. She was admitted some time after midday on 27 October 2017. She was discharged from the ICU to the general ward at about 11:30am on 29 October 2017. The evidence does not establish that there was more than a theoretical possibility of an earlier discharge, for example, a discharge on the afternoon of 28 October 2017. When she was seen by obstetrics/gynaecology medical staff at 8:39am on 28 October 2017 the doctors indicated that they would see her daily. The ICU ward round on the afternoon of 28 October 2017 contemplated further treatment the next day. This appears to relate to getting the appellant’s blood pressure up (amongst other things) but that was not the subject of oral evidence. She was seen again by the obstetrics/gynaecology doctors at 7:26am on 29 October 2017 and it was at that point that they indicated a likely discharge to the postnatal ward that day. She was cleared for transfer out of the ICU by an ICU consultant at 9:14am on 29 October 2017. She was ultimately discharged from hospital on 2 November 2017.
By failing to provide any reasons for the award of $50,000 general damages, I am satisfied that the magistrate failed to provide adequate reasons for his decision. However, given that I have concluded that his findings as to causation cannot be supported, I consider that the award of $50,000 damages was in error. In my view, when regard is had to the limited period during which the breach of duty occurred and the evidence which I have summarised about the suffering of the appellant during that period an award of $13,000 for general damages is appropriate.
Did the magistrate err in failing to make an award under s 100 of the CLW Act or make an award of Griffiths v Kerkemeyer damages? (Appeal ground 4.2, 4.3, cross-appeal 4e)
The appellant had given evidence that her husband and mother-in-law prepared meals and provided cleaning, washing and general household assistance in addition to assistance provided to the appellant’s six-year-old daughter. An exhibit was tendered disclosing an hourly rate for commercially provided domestic assistance.
The appellant had claimed 30 hours per week from 27 October 2017 until 2 November 2017, 20 hours per week from 3 November 2017 to 2 April 2018 and 10 hours per week from 3 April 2018 until 2 September 2018.
The figure of 20 hours per week was the subject of cross-examination:
And in making that estimate of 20 hours per week, did you allow for any assistance that you would have needed anyway because you had had the caesarean section?---No, because I had had two caesarean, they were two – I then went in for the second time, I think had a lot of – previously, before having the first one, I think I had the expectation that I would bounce back relatively quickly. So I – in making that, that was done with the – as a direct result of having to have the two surgeries and the second opening of the same area.
She agreed that she had not attempted to partition her estimate of assistance between particular aspects of what had occurred. She also agreed that she took the same approach with the 22-week period during which domestic assistance was claimed between April and September 2018.
The conclusion reached by the magistrate is that in [40] of the Findings of Fact:
I am not satisfied that there are any past domestic assistance or interest payable as the evidence was clear that the first plaintiff mother-in-law provided assistance until her return to Inverell in February 2018. That otherwise cooking and house cleaning responsibilities were shared across both the plaintiffs and the first plaintiff’s mother-in-law.
It is not at all clear what these reasons were meant to convey. It is possible that they were meant to convey that there had been no out-of-pocket expenditure upon domestic assistance in the past. If that was what was intended, then it reflects a clear misunderstanding of both the operation of s 100 of the CLW Act and the principle of common-law compensation derived from Griffiths v Kerkemeyer (1977) 139 CLR 161. Damages are available under s 100 where the injured person would have provided gratuitous services to that person’s family. Damages are available under the principle in Griffiths v Kerkemeyer where gratuitous services are provided by others for the benefit of the injured person. Neither s 100 nor the common law requires that there be out‑of‑pocket expenditure prior to the award of damages; s 100(2)(c)-(d); Griffiths v Kerkemeyer at 178-180, 193-194; Kars v Kars (1996) 187 CLR 354 at 372.
The submissions of the appellant recognise that the appellant’s GP, Dr He, cleared the appellant physically in December 2017. Dr He noted ongoing psychological disability for which she referred the appellant to a psychologist. The appellant also placed reliance upon the evidence of Dr Knox. Reliance was placed upon the proposition that Dr Knox completely attributed the six months of post-traumatic stress disorder and her residual symptoms to her experience at the Canberra Hospital.
The submissions of the appellant did not point to evidence linking her psychological condition with the inability to perform domestic work or the need to receive gratuitous assistance. However, more significantly, the submission failed to address the main question in contest, whether or not that assistance would have been required in any event having regard to the stay in hospital, the two surgeries and the premature birth of a second child. The evidence of the plaintiff and the other evidence in the case did not establish that the inability to perform domestic services for her family or the need for gratuitous assistance from her family was any greater than would have been the case without the breach of duty that led to the three-hour delay in her treatment.
In other words, it is not possible to be satisfied that there was any requirement for domestic assistance which arose from the breach of duty as distinct from the other events that occurred in relation to the birth and the presence of a new baby in the household. It is not possible to draw some general inference from the circumstances that additional care was required or denied to the family. Inevitably, the causation question was a difficult one and the appellant, who bore the onus of proof, failed to prove any care requirement beyond that which would have been required in any event without the breach of duty.
Did the magistrate err by failing to award economic loss for the 16 weeks from 14 May 2018 to 3 September 2018? (Appeal ground 4.4, cross-appeal 4e)
The appellant claimed that she was entitled to economic loss from 14 May 2018 until 3 September 2018. She claimed 16 weeks at the rate of $1585 per week after tax totalling $25,360. The appellant was asked why she did not return from maternity leave on 14 May 2018 and stayed on leave for a further period of 16 weeks until 3 September 2018. She said “I didn’t feel that I was psychologically or even physically ready to go back to my position at Canberra Grammar.” She gave evidence that she had spoken to her GP about this and that the “GP didn’t tell me what was the best course of action but we did – we had a conversation”.
The finding of the magistrate was that at [38] of the Findings of Fact.
The submission of the appellant was that the appellant’s evidence was “unchallenged” as was the “unchallenged and uncontradicted evidence of Dr Knox”. Attention was drawn to the evidence that the plaintiff had counselling with a psychologist between March 2018 and 27 August 2018. These findings were said to compel a conclusion that the failure to award economic loss involved an error.
I do not accept those submissions. They fail to disentangle the events for which there is no liability and the consequences of those events from the event for which there is liability. The evidence of the appellant was in understandably general terms. The evidence of Dr Knox related to the whole of the appellant’s experience and did not specifically relate to any discrete consequences of the three-hour delay. The fact that the appellant received counselling with a psychologist between March and August 2018 is completely understandable in the context of what she had experienced generally but the evidence did not establish that the counselling or the underlying psychological concerns would not have arisen in any event from the balance of the traumatic experience.
As a consequence, no error is disclosed in the failure to make an award for this kind of economic loss.
Conclusion
The conclusions reached above mean that the appellant’s appeal must be dismissed and the respondent’s cross-appeal must be allowed. The award of general damages of $50,000 will be substituted with an award of $13,000. No award should be made for out‑of‑pocket expenses. Having regard to the fact that the appellant’s pain and suffering occurred at the time of her hospital admission, the award of interest should operate from that time. However, the magistrate reduced the award of interest to take into account the delay in the matter to hearing (see [66] above). Recognising that approximately a further year has passed since the decision of the magistrate, interest will be awarded on the general damages at four percent for four years, giving a total of $2080. This gives a total award of damages of $15,080.
Orders
The orders of the Court are:
1.Orders 1-3 made by the Magistrates Court on 14 April 2022 are set aside and the following orders made:
(i) Judgment for the first plaintiff against the defendant in the sum of $15,080.
(ii) The defendant is to pay the first plaintiff’s costs.
2.The appellant is to pay the respondent’s costs of the appeal and the cross‑appeal.
3.These orders may not be entered for a period of seven days and if either party notifies the associate to Mossop J by email (copied to the other party) that it wishes to be further heard in relation to costs of the proceedings before the Magistrates Court or the Supreme Court, the orders may not be entered until further order of the court.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 March 2023 |
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