Rossiter v De Marco

[2014] NSWDC 384

District Court

New South Wales

Medium Neutral Citation:	Rossiter v De Marco [2014] NSWDC 384
Hearing dates:	20 - 23 May 2014
Date of orders:	23 May 2014
Decision date:	23 May 2014
Jurisdiction:	Civil
Before:	Neilson
Decision:	Judgment and verdict for the plaintiff against the defendant for $327,520.  Defendant to pay the plaintiff’s costs on the usual basis until 23 January 2014 and thereafter on the indemnity basis
Catchwords:	CIVIL – Torts – Motor accident claim – Claim for pure mental harm – Assessment of damages only – Claim by plaintiff arising out of the death of her partner – Plaintiff suffered either PTSD or Adjustment Disorder – Ongoing disability for full time work in the hospitality industry – Plaintiff intending to work full time as her partner bore a child and mothered it, whilst either not working or working part time – Ability to work post injury affected by move from Wagga Wagga to Tuross Heads – Move therapeutic – Plaintiff entitled to full economic loss due to move.
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Plato Films Limited v Speidel [1961] AC1090
Category:	Principal judgment
Parties:	Kathleen Rossiter (Plaintiff) Robert Mathew De Marco (Defendant)
Representation:	Counsel: Mr I Roberts SC (Plaintiff) Mr M Inglis (Plaintiff) Mr J Ryan (Defendant)   Solicitors: Commins Hendriks (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	2012/284005
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff, Ms Kathleen Rossiter brings an action for damages for personal injury in the tort of negligence. The plaintiff’s cause of action would once have been described as an action for “nervous shock”, although, to use the terminology of the Civil Liability Act 2002, one ought these days refer to it as “pure mental harm”.

2. The plaintiff and Ms Rebecca Rutland were in a close, loving and committed relationship prior to the death of Ms Rutland as the consequence of a collision between a motorcycle being driven by her and a motor vehicle being driven by the defendant. The defendant has admitted his breach of duty of care to the deceased, Ms Rebecca Rutland, to whom I shall refer hereafter, if need be, as “Bec” which was the usual appellation that the plaintiff used for her partner. Although it is formally in issue in the defence, the defendant does not dispute that the defendant owed a duty of care to the plaintiff and that there has been a breach of that duty and that as a consequence of the death of Bec the plaintiff suffered personal injury. There is no dispute that the personal injury amounts to more than the normal grief reaction consequent upon the death of a close relative or loved one. That is adequately explained by the medical practitioner retained by the defendant, Dr Robert Lewin. In his report following upon his examination of the plaintiff on 22 March 2012 Dr Lewin said this:

“I considered the question of causation. Based upon the history and the time course of symptoms reported by Ms Rossiter, it appears that the Adjustment Disorder was a consequence of her emotional response to the death of her partner. The bereavement response is part of the normal range of human experience. To the extent that this has now largely settled, I do not find evidence of Pathological Bereavement. The Adjustment Disorder, by contrast, is a recognised psychiatric condition.”

There is also no dispute that the plaintiff is the former partner of Bec within the meaning of s 30(5)(b) of the Civil Liability Act 2002.

3. The plaintiff was born in Wagga Wagga on 20 May 1967. She attended the Forestville Primary School and the Kooringal High School. The plaintiff described herself to Professor Alexander McFarlane who examined her on 18 October 2010 as a “ratbag” at primary school and as a “rebel” in high school. However, it appears from other histories that the plaintiff’s rebellious nature was probably a reaction to her being, in essence, rejected by her peer group because of her sexual orientation. The plaintiff obtained the school certificate at the Kooringal High School in 1982. She then entered the work force.

4. Her first job was as a fitness instructor and she then worked at places such as clothing stores and cafes. Her parents had conducted a café in Wagga Wagga as the family business and the plaintiff had worked there before she left high school. In 1984 the plaintiff obtained work as a waitress at the William Farrer Hotel here in Wagga. Later, when she attained her majority, she started working behind the bar at that hotel. In 1987 she obtained a Certificate III in hospitality. In 1988 she moved to Wodonga to train as a cook at the Lake Hume Resort. She worked at both the Lake Hume Resort and the Albury Manor House and became a qualified cook. Between 1996 and 1999 the plaintiff worked for the Victorian Railways, known as V-Line, as a conductress. In 1999 she moved to Myrtleford in Victoria where she became the manager of a local hotel.

5. In 2001 she returned to live in Wagga Wagga. In that year she commenced working for Riverina Plywood which is now known as Ausply at Wagga. The evidence suggests that this was also known as the laminex factory. Whilst working there the plaintiff met Bec and that led to their relationship. The plaintiff in fact had two periods of employment with Ausply and it was during the second of those periods of employment that she met Bec. They commenced their committed and loving relationship at the end of 2003. That relationship persisted until Bec’s tragic death. In 2005 the plaintiff left Ausply, perhaps because of the nature of her relationship with Bec who was senior to her at Ausply and a full time employee. The plaintiff worked casually at the Commercial Hotel at Junee as a bar attendant and in 2007 also commenced working casually at the Thomas Blamey Tavern in Wagga as a bottle shop attendant and also as a bar attendant.

6. Both the plaintiff and Bec wanted to be mothers. The medical records of the plaintiff that are before me indicate that on 24 February 2006 the plaintiff attended Dr Gracey Gouda at the Kincaid Medical Centre and discussed with Dr Gouda in vitro fertilisation with donated sperm because the plaintiff herself wanted to know if she could have a child. The plaintiff pointed out to Dr Gouda that it was unlawful for such in vitro fertilisation to be performed in the State of Queensland and she wanted to know if it was lawful in this State. The notes made by Dr Gouda suggest that if IVF was lawful for an unmarried lady in this State that she would be referred to a gynaecologist. However at the time that she sought advice about bearing a child Dr Gouda noted that the plaintiff was “perimenopausal” and other histories suggest that the plaintiff had entered prematurely into menopause in the following year, 2007. The plaintiff told me, and was not challenged, that it was decided that Bec would bear a child for the couple and in order that that could be done the plaintiff would obtain full time work and Bec would go to part time work in order to enable Bec to carry and mother the child. Unfortunately, no child was born to either of the couple but that evidence points to the strength and maturity and loving nature of the relationship between the plaintiff and Bec.

7. The plaintiff’s work at the Thomas Blamey Tavern bottle shop brought her into contact with Mr Lewis Winter, an employee of the Fosters Group of companies. He was in fact attached to the CUB branch of that group. Mr Winter formed a very favourable impression of the plaintiff’s ability and work ethic, and approached her in 2008 with a view to her commencing work for the Fosters Group as a Customer Activation Representative. Mr Winter gave evidence in the plaintiff’s case. He told me that in addition to having the plaintiff working under him as a Customer Activation Manager, he had three other Customer Activation Managers and, of the four, the plaintiff was the best that he had. He thought that she was a very thorough employee and that she developed a good rapport with customers. The role of a Customer Activation Representative might be described as a “super” sales representative, being responsible for encouraging customers of the Fosters Group actively to promote their products and to give them priority in advertising and display and the like.

8. The plaintiff commenced working for the Fosters Group on 10 June 2008. In the following year however, the Fosters Group decided to abolish the role of a Customer Activation Manager and to assign the duties of that former office to sales representatives. Mr Winter encouraged the plaintiff to apply for a higher position as a Business Development Executive. The plaintiff was one of five applicants for that job. It was in fact a promotion. It carried a salary package of $50,000 per annum inclusive of superannuation and, like the job of a Customer Activation Representative, carried with it the use of a company motor vehicle. Of the five applicants for the position of Business Development Executive the plaintiff was successful. Unfortunately she only learned of her success after the tragic death of Bec on 24 April 2009.

9. Bec had left their home that morning and was driving towards her parents’ property where she cared for some of her parents’ horses. She would then continue her journey to her place of employment with Ausply. It would appear that it was accepted by Ausply that Bec was on a periodic journey between her place of abode and her place of employment at the time of her tragic death. As a result of Bec’s death the plaintiff received certain benefits under the Workers Compensation legislation of this State for the loss of support which Bec had given to the plaintiff when the plaintiff was only working part time and Bec was working full time. The plaintiff was also the beneficiary of certain assets of the estate of Bec. Each of those considerations is irrelevant to the current enquiry.

10. Bec had been born on 19 February 1982. At the time of her death she was 27. Bec and the plaintiff had formed the view that she should carry a child before she attained the age of 30. At the time of the death of Bec the plaintiff was aged 42. She had encouraged the plaintiff to obtain full time work and the promotion with the Fosters Group because that would enable her to reduce her work to part time work, in order to carry a child. On the morning of her death Bec left home at 7.30am. The plaintiff’s last encounter with her involved farewell kisses, and a wish to see her later in that day. Bec then drove her motorcycle towards her parents’ home when the collision occurred which caused her death.

11. When Bec had not arrived at her parents’ house, her parents phoned the plaintiff and asked her if she could find out what was going on. The plaintiff was advised that Bec’s parents could hear sirens from emergency vehicles nearby and wondered what was going on. The plaintiff and Bec lived in a house owned by Bec’s parents some three kilometres from Bec’s parents’ home. The plaintiff followed the usual route between her home and Bec’s parents’ home and, having completed about two thirds of the journey, came to a road block. At the road block she spoke to a policeman. It appears to have been obvious to the plaintiff that there had been a motor vehicle accident. She enquired of the policeman whether a motorcycle had been involved. The plaintiff had a gut feeling, to use the vernacular, that Bec had been involved. That policeman contacted another by police officer who then went to talk with the plaintiff. After the plaintiff had described what Bec was wearing and what was her name, the second policeman advised her that Bec had been involved in the motor vehicle accident and that she was in fact dead. The plaintiff collapsed onto the roadway. Persons came to her assistance and someone from her employer’s company took her to Bec’s parents’ home. The plaintiff was, clearly, very emotionally distraught. Her recollections are of viewing Bec’s body in a coffin at a funeral parlour and attending her funeral. Recollections of those two events still disturb the plaintiff. She was given three weeks off work but after that she commenced her new job with the Fosters Group on 15 May 2009.

12. There was an induction period. Her previous job with the Fosters Group was, in essence, dealing with the products of the CUB branch. Her new role was dealing with the products of the Premium Wine branch of the Fosters Group which has been described in evidence as Treasury Wines. The plaintiff told me that she did not go very well in her new job. She had difficulty doing it. Her job essentially was a person-to-person job, persuading the representatives of customers, that is, for example, licensees of hotels, licensees of bottle shops and managers of such establishments, to promote her employer’s wine products. She was concerned about the loss of her relationship with Bec and that made it difficult for her to give her full attention to others with whom she had to deal in the course of her employment.

13. The plaintiff told me that she struggled to get into a motor vehicle and drive and had difficulty concentrating on the job without thinking about Bec. If she concentrated on the job and forgot about Bec she would feel guilty about betraying their relationship. Eventually she was asked by her employer to resign. She did so because, implicitly, there was a threat that if she did not do so her services would be terminated. The exact date of her termination is unknown but she submitted her resignation in September 2009. It appears to have come into effect at either the end of that month or in early October 2009. The plaintiff re-joined the work force on 18 November 2009 by commencing work at the Thomas Blamey Tavern as a bottle shop assistant working casually.

14. On 19 July 2010 the plaintiff left Wagga Wagga and moved to Tuross Heads on the south coast of this State. The reason for her doing that was because living and working in Wagga Wagga reminded her very much of her relationship with Bec. Bec’s parents, to whom the plaintiff was close, also remained living in Wagga Wagga. The plaintiff had difficulty, for example, driving anywhere past the site of the collision which caused Bec’s death and driving past the cemetery in which Bec had been interred. It is accepted by the medical practitioners, and accepted by the defendant, that the plaintiff did the right thing by moving out of Wagga Wagga because it, to an extent, mitigated her symptoms. However there has been some gentle criticism of the plaintiff for moving to Tuross Heads rather than to some larger centre of population such as Albury or Canberra and, although no submission to this effect was put, a place like Nowra or Batemans Bay. The significance of this, of course, is that in moving to a larger centre of population might provide greater employment opportunities and might, for example, have enabled the plaintiff to obtain work similar to the work that she had been doing for the Fosters Group prior to Bec’s death. However a failure to mitigate damages has not been specifically pleaded. Once upon a time the rules of Court required a failure to mitigate damages to be specifically pleaded, however that is not now required by UCPR 14.14 although there is authority that it is required to be pleaded: Plato Films Limited v Speidel [1961] AC1090.

15. The defendant submitted, and the plaintiff agreed in cross-examination, that the move to Tuross Heads was what is now well known in Australia as a “sea change”. However, the amenity of the place to which one makes such a change is often important for its therapeutic value. A nice place to move enhances the ability of the person moving to enjoy the move and therefore to obtain a beneficial effect on the mood of the person moving. For example, were I to move from the city of Sydney I might find it more congenial to move to Coffs Harbour than to Condobolin, with the utmost respect for those who live in Condobolin. Equally a move from, for example, Bondi to Bega might be more beneficial than a move from Bondi to Broken Hill or Bourke. Furthermore, Tuross Heads is only some 20 kilometres from Moruya, a not insignificant country town, and only 40 kilometres from Batemans Bay, a thriving and ever growing coastal town where there is much employment. Indeed Moruya, once a usual circuit town, is no longer attended by circuit Courts but Batemans Bay is, although it never had been a circuit town until the current century.

16. On 12 November 2010 the plaintiff, who after her move to Tuross Heads was unemployed, commenced working at the local country club on a casual basis promoting raffles and gaming. She obtained that work through friendship with a lady with whom she had worked in the past at a hotel here in Wagga. The plaintiff was offered on a number of occasions permanent employment with the Tuross Heads Country Club and eventually, on 12 November 2013, after three years of casual employment, became a permanent part time employee of the country club as a duty supervisor.

17. The matter is before me as an assessment of damages. The issues before me are narrow. Following upon Bec’s death, the plaintiff was referred by her solicitor, Mr Potter, to a psychologist, Ms Melissa Harrison at the firm of Wendy J Dignand & Associates here in Wagga. Bec’s parents were close personal friends of Mr Potter and knowing the family to be in distress he referred both of Bec’s parents and the plaintiff, and Bec’s brother-in-law to that firm of psychologists. The plaintiff saw Ms Harrison for three counselling sessions; on 28 August 2009; 8 September 2009; and 29 September 2009. The plaintiff did not believe she obtained much benefit from the counselling. Essentially the plaintiff was in denial, however it is important to bear in mind some observations of Ms Harrison with respect to the plaintiff’s work. In her report Ms Harrison said this:

“10. At her session on 8 September 2009 Ms Rossiter reported experiencing significant difficulty meeting work demands in her employment as a Sales Representative and Business Development Executive with Fosters Australia. She described feeling guilty; her employment distracted her from her thoughts of Rebecca; and also guilty that she was unable to fully commit her efforts and energy to her job role.

11. With respect to other symptoms Ms Rossiter reported sleep disturbance due to ruminative thinking and irritability while at work. She noted her appetite as reduced.

12. Ms Rossiter noted for the 12 weeks following her partner’s death she had felt insecure about living alone and had been drinking excessively to aid sleep onset. She reported having reduced her alcohol intake to premorbid levels.

13. At the time of her third consultation (29 September 2009) Ms Rossiter reported feeling substantially better. She attributed the improvement to having resigned from her employment.”

Clearly trying to do her new job with the Fosters Group was causing the plaintiff further psychic distress.

18. One of the few issues tendered for my consideration is the question of the correct diagnosis of the plaintiff’s condition. She did not attend upon a medical practitioner after Bec’s death until 8 April 2010 when she attended the Kincaid Medical Centre. She there saw Dr George Saleeb. She attended upon Dr Saleeb again on 20 April 2010 and 28 May 2010 and finally on 15 July 2010 when she was about to move to Tuross Heads. The plaintiff complained to Dr Saleeb of feeling down, of feeling depressed and also of feeling anxious. She told him that those symptoms commenced when Bec died in the motorcycle accident. Dr Saleeb recommended that the plaintiff seek psychological assistance when she moved to the south coast.

19. Eventually the plaintiff saw Dr Charlie Lavender at Moruya on 22 March 2011. The doctor’s notes indicate that the plaintiff had ongoing grief. He noted that the plaintiff had received “limited counselling” in Wagga Wagga. He also obtained a history of the plaintiff’s drinking more heavily than usual after the accident. She gave him a history of feeling depressed over the preceding three months, that is roughly since the end of 2010. The plaintiff told him that she was not sleeping well; that she was often waking early, that she was withdrawing socially, that she had less enjoyment in her life, that she had poor concentration, and that she was more irritable and angry even with her closest friends. She also told the doctor that she was avoiding dealing with problems and, interestingly, that her appetite had increased. Other histories suggest that initially the plaintiff’s appetite decreased and she lost a substantial amount of weight but by the time she commenced seeing Dr Lavender she was putting on weight. The plaintiff was referred at that time by Dr Lavender to a firm of psychologists in Moruya where the plaintiff eventually saw Ms Ninette Schoubye, a registered psychologist.

18. The plaintiff first saw Ms Schoubye on 8 April 2011 and Ms Schoubye noted the plaintiff’s affect was flat, that her mood was very low, that her sleep had been interfered with, and that she had night sweats and bouts of crying at night. The plaintiff attributed those symptoms to Bec’s death. There is no dispute about that. The plaintiff told Ms Schoubye that she had seen a counsellor in Wagga a few times to help her deal with her grief but that she “didn’t deal with it”. Ms Schoubye obtained a history of increased alcohol intake, as had a number of medical practitioners. The plaintiff saw Ms Schoubye again on 29 April 2011. At that time she told Ms Schoubye of being angry and easily irritated and feeling and a need to be alone because dealing with people and events was “an effort”. The plaintiff told M Schoubye of crying a lot and of her general grief. The plaintiff had difficulty understanding her reaction to Bec’s death and the plaintiff and Ms Schoubye discussed grief and loss and the various stages of grief.

19. The next consultation with Ms Schoubye was on 27 May 2011. At that time the plaintiff complained of lethargy and of low motivation, and of having to push herself to be active and busy, and forcing herself to socialise. The plaintiff also complained about her anger and irritation, of being less tolerant of others’ complaining, no doubt because the plaintiff believed that her loss was greater than the trivial complaints that many others might make. The plaintiff told Ms Schoubye of difficulty in trying to find a meaning in life, and her feeling worthless at times. Ms Schoubye provided grief and loss counselling. There were further consultations on 15 July 2011 and 26 August 2011 when there was further counselling and on the last occasion some cognitive behaviour therapy. Consultations with Ms Schoubye then ceased, no doubt because of some Medicare quota.

20. The plaintiff when to see Dr Lavender again a month after the last consultation with Ms Schoubye, on 22 September 2011. The plaintiff gave to Dr Lavender essentially a history that the counselling with Ms Schoubye had been helpful. However she still had symptoms. She complained to Dr Lavender of being short tempered, of a lack of incentive to socialise, again of an intolerance of other people’s complaints, of continued disturbed sleep and a reduction in libido. The plaintiff was prescribed an antidepressant, the diagnosis of Dr Lavender being depression.

21. On 18 October 2010 the plaintiff saw, at the request of her solicitor, Professor Andrew McFarlane in rooms in Canberra. This was after the plaintiff’s move to Tuross Heads but prior to her commencing work with the Tuross Heads Country Club. The plaintiff was then unemployed. Professor McFarlane diagnosed a post-traumatic stress disorder. He also thought the plaintiff had had panic attacks prior to Bec’s death and had also experienced some panic attacks after her death. It appeared to me from reading the medical evidence that the panic attacks might be related to the plaintiff’s premature menopause rather than some underlying psychiatric condition. Even if it related to some underlying psychiatric condition it would only have made the plaintiff more vulnerable to developing a condition such as PTSD. In his report following upon this consultation, Professor McFarlane said he did not believe that the plaintiff had developed a major depressive disorder. A major depressive disorder is not a condition reactive to a psycho-social, external stressor. A major depressive disorder is the diagnosis of a biochemical condition affecting the brain although an episode of a major depressive disorder can be triggered off by a psycho-social stressor, although intrinsically the condition is idiopathic or constitutional.

22. I have some problems with this report of Professor McFarlane. For example when asked to comment on the nature and extent of the psychological impact of the accident upon the plaintiff the doctor again offered the diagnosis of post traumatic stress disorder but said that it was now “subsyndromal”. Unfortunately the Professor has failed to observe the injunction of the late Sir Winston Churchill that one should not qualify a Greek noun with either a Latin prefix or a Latin suffix. Sub is Latin; syndrome is Greek. I do not know precisely what the Professor meant by that, however in his summary the Professor referred to “a post traumatic stress disorder which is now in partial remission”. I do understand that. It means the plaintiff did have a post traumatic stress disorder and it had only partially got better. That is the plaintiff was still affected by it. At the foot of page 6 of the report the Professor referred to the plaintiff having gone into “spontaneous remission with the passage of time”, although it is clear from page 8 of the same report that the condition was only “in partial remission”.

23. The plaintiff was seen in the following month by Dr Robert Gertler on 12 November 2010. Like Professor McFarlane, Dr Gertler was qualified by the plaintiff’s solicitor. To discuss an issue I have previously raised, Dr Gertler noted that the plaintiff had lost some 11 kilograms in weight after Bec’s death but had not fully regained that weight loss. Dr Gertler remarked that the plaintiff had been “profoundly grief stricken”. He went on to express this view:

“In my opinion Ms Rossiter is suffering from a chronic adjustment disorder with depressed mood which has developed as a result of the nervous shock which she sustained at the time of her partner’s death and which also has elements of a continuing grief reaction.

The symptoms of the Adjustment Disorder with depressed mood include lowered mood, recurrent preoccupation with the circumstances of Rebecca’s death, and the meaning of her death to Ms Rossiter’s life, a loss of interest in previous activities, a general lack of motivation, indecisiveness, poor sleep, appetite disturbance, and marked social withdrawal.

Ms Rossiter has not received any treatment since her partner’s death. She would in my opinion benefit from counselling undertaken by a psychologist or a psychiatrist. The counselling would assist Ms Rossiter not only to come to terms with her partner’s death, but also to move on in her life.”

One can note that subsequently the plaintiff saw Dr Lavender at Moruya and then saw Ms Schoubye and commenced counselling with Ms Schoubye, a psychologist. At that time Dr Gertler thought the plaintiff had a 7% whole person impairment. In making that assessment he thought the plaintiff capable of only several hours of work a week and that her work attendance might be erratic. That is, in essence, that the plaintiff was fit to do casual work at the Tuross Heads Country Club where initially the plaintiff averaged 12 hours of work a week.

26. On 22 March 2012 the plaintiff saw Dr Robert Lewin for the defendant. However, antecedent to that the plaintiff had a further consultation with Ms Schoubye which appears to have been part of a second referral to her made by Dr Lavender. However the plaintiff only saw Ms Schoubye once on the second referral, that being on 16 February 2012. Ms Schoubye noted the plaintiff had started on antidepressants that had been prescribed by Dr Lavender. The plaintiff reported no side effects from the antidepressants and told Ms Schoubye that she thought they had helped her. The plaintiff said that she was sleeping better than she had over the past three years. The plaintiff told Ms Schoubye that she was feeling better, that her motivation had increased and that her mood had improved, although she had some “down days” but, in general, there was improvement in her condition. Much of what the plaintiff told Ms Schoubye on this occasion indicates an amelioration of her condition. For example, she told Ms Schoubye that she was coping better, that she had better focus on her activities and better concentration, and had increased her ability to regulate her emotions, her anger had reduced “significantly”, but not evaporated. The plaintiff had noted increased energy and enjoyment in such activities such as playing golf and socialising. The plaintiff told Ms Schoubye that she planned to take up yoga and was planning a holiday in North America riding a motorcycle. The end of Ms Schoubye’s notes for this consultation point to the fact that she was advised that she might experience “setbacks” and a return of grief for periods of time. She was advised that such periods of grief could be very intense but they might become less frequent with the passage of time. She pointed out to the plaintiff that such relapses into periods of grief were part of the normal recovery and healing process.

27. Like Dr Gertler, Dr Lewin diagnosed an adjustment disorder. The former name of an Adjustment Disorder was reactive depression. Before advising the formal diagnosis of adjustment disorder, Dr Lewin offered the diagnosis of “Depressive Reaction”. He accepted that this was triggered off by the plaintiff’s reaction to Bec’s death. Dr Lewin accepted that the adjustment disorder was “a partially treated condition”. Dr Lewin thought the plaintiff should continue to take antidepressant medication and that she should remain under the care of a general practitioner, and that it was reasonable for her to continue to see a psychologist. He thought the plaintiff was progressing to recovery.

28. The second issue raised in this case is as to the plaintiff’s fitness for work. On that issue Dr Lewin said this:

“You asked me to evaluate fitness for work. Most people who have an Adjustment Disorder continue to work. A drinking problem of the nature described often impairs the capacity to work. That problem is now in remission and has no impact upon Ms Rossiter’s capacity to work. In my opinion, there is no impairment in Ms Rossiter’s fitness for work resulting from any psychiatric condition caused by the death of Rebecca Rutland.”

Nevertheless, the doctor went on to find that the plaintiff had a permanent impairment which he thought was in the order of 2%. He noted that the plaintiff had problems with concentration, persistence and pace, and also with adaptation.

29. The plaintiff saw Professor McFarlane again on 9 April 2013. According to his history the plaintiff was “in a bit of a hole” at that time. That was frankly conceded by the plaintiff. She said that in the early part of 2013 she was overwhelmed by depression and upset, and became suicidal. She stopped taking the antidepressants because she thought the antidepressants was to stop her getting into that state and had obviously failed to do their job adequately. At the time the plaintiff saw Professor McFarlane in April 2013 she was feeling sad all the time and wanting to cry.    The Professor said this about the plaintiff’s work:

“At work she has to smile, which she struggles with because she does not feel this way. Five years ago she was a different person who had a sense of purpose. She does not like the person who she is now and hates feeling miserable all the time.”

By that stage Professor McFarlane noted the plaintiff’s weight had increased by 4 kilograms. The plaintiff was despairing at that time. Professor McFarlane said this:

“She wants a future but cannot see this at present. She has got nothing to give anyone in a relationship and has no sexual desire. She wanted to speak about her sense of self-destructiveness because she feels very troubled by these emotions. She feels very lonely and Bec’s death still does not feel real.”

On examination the Professor noted that the plaintiff became tearful and distressed relatively quickly when discussing her then circumstances and her then ability to live a normal life. Again Professor McFarlane diagnosed a chronic post traumatic stress disorder together with the development of a co morbid major depressive disorder. I am afraid that I often must apply Ockam’s razor in cases involving psychiatry. Why postulate two psychiatric conditions when the existence of one adequately explains the symptoms? Unsurprisingly, Professor McFarlane noted that the plaintiff’s condition had increased in severity from the time of his earlier assessment. There is no dispute that that is correct.

30. On or about 19 July 2013 the plaintiff saw Mr Mark Ravagnani, a consulting psychologist in Sydney, at the request of her solicitors. Mr Ravagnani appears to have accepted a diagnosis of PTSD but also a diagnosis of depression.

31. The final expert evidence before me is from Dr Alan Jager, a psychiatrist appointed by the Motor Accidents Authority. The plaintiff was assessed by Dr Jager on 10 September 2013. Under the heading “Current Symptoms” Dr Jager said this:

“Her mood fluctuates but is more stable than it was. On the odd occasion she is able to enjoy things. She has difficulty getting to sleep and she wakes up after four hours. She had one isolated nightmare about a likely plane crash. She experiences a few flashbacks a week however, to coming around the corner and arriving at Rebecca’s mother’s place and Rebecca is in a coffin. Another flashback is where Rebecca is in the coffin. The coffin is going into the ground. Her emotional response varies. Her energy is low. Appetite is fair but she has no libido. She can focus her attention for only 15 minutes at a time. On two occasions, she had suicidal thoughts but made no attempts.”

Dr Jager thought the plaintiff was still taking the antidepressant although I’m assured that that is not in fact correct. Like Professor McFarlane, Dr Jager diagnosed a post traumatic stress disorder and also alcohol dependence, although the latter appears to have been in remission. He did not believe the plaintiff’s alcohol dependence was related to the motor vehicle accident in question but if the plaintiff’s alcohol intake increased it is on the evidence before me purely explicable by the symptoms that the plaintiff had following Bec’s death and therefore is causally related. As to prognosis, Dr Jager said this:

“The injury was sustained over four years ago, has been treated, and no new treatment modalities are planned to be used. I therefore consider the impairment to be permanent”.

He diagnosed a 6% whole person impairment noting a decrease in the plaintiff’s social functioning, a decrease in her concentration, persistence and pace, and a greater impairment of her adaptation to life.

32. Whether one accepts the diagnosis of an adjustment disorder or post traumatic stress disorder is, in my view, of little moment. Each is much the same. Each is reactive to an external psycho-social stressor. The only thing which attaches the categorisation of PTSD is the nature of the stressor. To attach that diagnosis the stressor must be life threatening, either to the patient to somebody beloved and close to the patient himself or herself. In the current case a diagnosis of PTSD is appropriate, however I note that the one diagnostic criteria that is normally relied upon, nightmares, is not here present. Therefore one might be more attracted to the diagnosis of an Adjustment Disorder. In any event it matters not.

33. I accept, however, that the condition is chronic. I accept that the condition is likely to be permanent subject to one matter to which I shall in due course allude. For there to be whole person impairment there must be some condition that it likely to persist indefinitely. Even Dr Lewin accepts that. The question is, is the plaintiff capable of working full time in, for example, the job that she had with the Fosters Group? I accept the plaintiff’s evidence and the weight of the medical evidence which is contrary to that proposition. The plaintiff essentially has worked in the hospitality industry for many, many years. Now, she is still working in it. She must interact positively with people. When one’s mood is dour; when one finds it difficult to concentrate; when one is preoccupied with one’s grief, it is very difficult to positively interact on a full time basis with others. Working, for example, in licensed premises one must deal with all manner of people from brash 18 year olds who behave uproariously and sometimes violently, to the old and infirm who need constant care, attention and consideration. One may also have to deal with people who are demanding and people who behave anti-socially. One might be required to deal with persons who might be described as hoons and with demanding people, such as crotchety old judges.

34. I accept the plaintiff cannot now do that full time. I accept that she could not now do the work that she did with Fosters. Indeed, Mr Winter, who believed the plaintiff would have been able to do the job to which she had been appointed immediately after Bec’s death, but clearly formed the view that after Bec’s death she could not, described her as a completely different person to the one that worked under him prior to Bec’s death.

35. I turn then to the assessment of the plaintiff’s damages. The plaintiff’s past out of pocket expenses are agreed to amount to $1,708. The plaintiff’s future out of pocket expenses are claimed to be $1,600 and there is no dispute about that.

36. The plaintiff’s claim for past economic loss has a number of different calculations within it. As I earlier mentioned, at the time of the plaintiff’s loss she was on a salary of $50,000 per annum inclusive of superannuation plus the use of a motor vehicle. The claim propounded by the plaintiff is from 17 October 2009. I accept that. As at that date the plaintiff’s net weekly earnings were $775. The plaintiff was unemployed until 18 November 2009. Her loss from 17 October 2009 until 17 November 2009 is $3,487. No submission was put to me to the contrary. As I mentioned earlier, the plaintiff started casual work at the Thomas Blamey Tavern as a bottle shop attendant on 18 November 2009 and held that job until 14 July 2010 when she left to move to Tuross Heads. The period is 34 weeks. The plaintiff earned an average of $336.40 net per week. The difference between $775 net per week and $336.40 net per week is $438.60 per week. The period of employment was 34 weeks. The plaintiff’s loss during that period is $14,912.40. No submission was made by the defendant that the plaintiff ought not be awarded that sum.

37. From 15 July 2010 until 11 November 2010 the plaintiff was unemployed. The period is 17 weeks. The plaintiff claims her wage loss of $775 per week net during that period. Theoretically, the plaintiff would have had the ability to earn $438.60 per week net during that period. That is her earnings at the Thomas Blamey Tavern and, theoretically, she would also have had the ability to earn $385.54 per week net, her average earnings once she found work with the Tuross Heads Country Club. However this is a claim for damages, not a claim under s 40 of the Workers Compensation Act 1987. The plaintiff’s move to the south coast is accepted as being therapeutic. The inevitable consequence of such a move is a loss of a job in one place and the need to seek employment in the new place. A period of unemployment is a reasonable and foreseeable consequence of such a therapeutic move. I therefore accept the plaintiff is entitled to $775 per week for the period now in question and that amounts to $13,175.

38. Between 12 November 2010 and 11 November 2013 the plaintiff’s average earnings with the Tuross Heads Country Club as a casual employee were $385.54 per week net. It has been submitted by the plaintiff’s learned senior counsel that by November 2013 had the plaintiff not been injured but remained in the employment of the Fosters Group her original salary would have increased by some 7% per annum in line with the increase in earnings of full time adult female employees in New South Wales, as can be seen in exhibit M. Mr Roberts SC submitted that an increase of 17% on $50,000 represents $58,500 per annum gross or $905 per week net. I accept that calculation. Furthermore, it is consistent with a history given by the plaintiff to Mr Ravagnani which was not the subject of any objection. Mr Ravagnani has this in his history:

“As a wine sales professional she received a salary of $50,000 per year before tax with a potential increase to $60,000 within five years.”

Counsel have calculated that the mean but for injury earnings of the plaintiff would have been $840 per week net during this period. The difference between $840 per week net and $385.54 net per week is $454.46 per week net which amounts to a lump sum of $70,895.76 over the period. I accept that figure.

39. Since 12 November 2013 the plaintiff has been working as a permanent part time shift supervisor at the Country Club. Her average earnings are $734 gross per week or $647 net per week. The net difference has been calculated by Counsel to be $258 per week net, the period of the claim, that is to date, is 27 weeks, and the lump sum is $6,966. I hasten to add as I have stated repeatedly when sitting both in the civil jurisdiction of this Court and the criminal jurisdiction of this Court, that I make no pretence to being a mathematician. In fact I constantly tell people I am mathematically challenged. I have accepted the calculations made by Mr Roberts SC, with the assistance of his junior, Mr Inglis. No submission has been put to me by learned counsel for the defendant, Mr Ryan, that the calculations are inaccurate. The total for past economic loss is $109,436.

40. The plaintiff’s claim for loss of future earning capacity is based on a loss of $258 per week net for a period of 20 years into the future when the plaintiff will attain her 67th birthday. The appropriate multiplier is 666.4. Learned senior counsel for the plaintiff reduced that sum by 15% for the usual vicissitudes of life. That is the conventional reduction allowing for the vicissitudes of life. This has caused me to pause. There are two variables here; the first is that the plaintiff might eventually recover from her PTSD, however I pointed out that a number of the medical practitioners accept that it causes a permanent impairment. The result of that of course is that it is likely that the condition will not spontaneously remit in toto.

41. However, the fact remains that the plaintiff, who is now 47, is a caring, talented and presentable lady who still entertains or hopes to find a new partner in her life who might replace Bec in her affection, and whose existence might cause her condition to ameliorate. Were the plaintiff married to a male that was deceased, then I would no doubt have been referred by counsel to the widow’s remarriage prospects tables which were once commonly used in the assessment of damages, for example, under Lord Campbell’s Act. I have come to the view that rather than the usual 15% reduction for vicissitudes of life, I should apply a 20% reduction for the vicissitudes of life. I should be pleased if junior counsel for the plaintiff could work out what the result is using a 20% reduction for the vicissitudes of life.

42. As I have mentioned at least twice now, the plaintiff’s job package with the Fosters Group came with the use of a motor vehicle. That motor vehicle was to be used in the course of her employment but also could be used for her own personal use. She believed that it could not be used during holiday periods but the evidence from Mr Winter is that the only restriction on use was if it is being driven interstate and that merely required the approval of the employee’s superior. The inference I drew from his evidence is that if, for example, the plaintiff wished to drive her company motor vehicle to Victoria or to the Gold Coast or to Adelaide, approval might be given but if she wished to drive into the Kimberley or into the rough stretches of the Northern Territory approval might not be given. According to exhibit P, on one way of calculating the value of the vehicle, the plaintiff would be entitled to $160.41 per week. On the other way of calculating the value of the vehicle to her, that is the NRMA way, the value was $236.67 per week. Nevertheless the plaintiff only claims the modest sum of $100 per week. The claim in respect of the past is $23,900 and the claim for the future has been calculated but again using the 15% discount rather than the 20% discount. I should be pleased if counsel for the plaintiff would work out the figure using a 20% discount. I pause now to find out what counsel has calculated.

43. HIS HONOUR: What’s the total for future loss of earning capacity?

44. INGLIS: So according to my calculations, your Honour, $137,544.

45. HIS HONOUR: $137,544. Thank you.

46. RYAN: That’s agreed, your Honour.

47. HIS HONOUR: Sorry?

48. RYAN: I agree with that calculation, thank you.

49. HIS HONOUR: All right, thank you. The figure for the plaintiff’s loss of future earning capacity is $137,544. The value of the plaintiff’s future loss for the provision of a motor vehicle is?

50. INGLIS: $53,312 your Honour.

51. HIS HONOUR: $53,300 and?

52. RYAN: That’s agreed.

53. HIS HONOUR: $53,312. Thank you. The total of the heads of damages amounts to?

54. INGLIS: $327,520. We’ve got a minor discrepancy, your Honour. $327,520 your Honour.

55. HIS HONOUR: Any further reasons for judgment required?

56. RYAN: No, your Honour.

57. HIS HONOUR: For those reasons, I give verdict and judgment for the plaintiff against the defendant for $327,520.

58. Is there any argument about costs?

59. INGLIS: Yes, your Honour.

60. HIS HONOUR: What is it?

61. INGLIS: Your Honour on 22 January 2014--

62. HIS HONOUR: Hang on, I didn’t write the result in the bench book. Yes Mr Inglis?

63. INGLIS: On 22 January 2014, your Honour, the plaintiff by way of offer of compromise offered to accept the sum of $140,000 plus costs. Your Honour, even if your Honour accepts as we do that there is a cogent argument about the claim for the motor vehicle not being adequately particularised, the plaintiff has successfully exceeded the--

64. HIS HONOUR: Yes, well I mean the claim for the car amounted to a total of $76--

65. INGLIS: Thousand dollars.

66. HIS HONOUR: Yes.

67. INGLIS: Yes. Yes, your Honour.

68. HIS HONOUR: And you exceeded the offer by well more than that.

69. INGLIS: Yes. So, your Honour, we make application for an order for indemnity costs from 23 January 2014.

70. HIS HONOUR: Any submission to the contrary?

71. RYAN: None at all, your Honour.

72. HIS HONOUR: I order the defendant to pay plaintiff’s costs on the usual basis until 23 January 2014 and thereafter on the indemnity basis.

**********

Decision last updated: 04 July 2016