Simon and Anor v Hunter and New England Local Health District. McKenna v Hunter and New England Local Health District
[2012] NSWDC 19
•02 March 2012
District Court
New South Wales
Medium Neutral Citation: Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19 Hearing dates: 13/02/12, 15/02/12, 16/02/12, 20/02/12 Decision date: 02 March 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the defendant in each matter
Catchwords: Discharge of psychiatric patient. Liability of hospital Legislation Cited: Civil Liability Act 2002
Mental Health Act 1990
Motor Accidents Compensation Act 1999Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Benic v State of New South Wales [2010] NSWSC 1039
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Smith v Leurs (1945) 70 CLR 256Category: Principal judgment Parties: Sheila Mary Simon (First Plaintiff, 2006/00267185)
Wendy Rose (Second Plaintiff, 2006/00267185)
Hunter & New England Local Health District (Defendant, 2006/00267185)
Merryn Elizabeth McKenna (Plaintiff, 2006/00267187)
Hunter & New England Local Health District (Defendant, 2006/00267187)Representation: G Graham (Plaintiffs)
R Cheney SC (Defendant)
T D Kelly & Co (Plaintiffs)
Tress Cox (Defendants)
File Number(s): 2006/00267185 2006/00267187 Publication restriction: No
Judgment
Stephen Rose was a charismatic, creative and intelligent man. He had wide-ranging interests that included the American Indian, Scottish pipebands, English history and mathematics. He was very close to his mother and two sisters. On 21 July 2004, when Mr Rose was 45 years of age, he died at the hands of his friend, Mr Phillip Pettigrove. This judgment concerns two actions arising from Mr Rose's death. The two cases have been heard together, with evidence in the one being evidence in the other. This judgment is in respect of both cases.
Mr Pettigrove attacked and killed Mr Rose at about 8.30pm in a motor vehicle parked alongside the Newell Highway about 25km south of Dubbo. Mr Pettigrove attacked Mr Rose because " Just something inside me said to do it " (Exhibit B, page 88) or perhaps because Mr Pettigrove believed Mr Rose had killed him in a previous life (Exhibit B, page 94). Earlier in the day Mr Pettigrove had been discharged from the Mental Health Unit at the Manning Base Hospital (the "hospital") in Taree. He had been discharged into the care of Mr Rose who was driving him to Echuca in Victoria to enable him to join his mother and receive continuing medical care.
The plaintiffs in the first action (2006/00267185) are Mrs Sheila Simon and Ms Wendy Rose. They are the mother and sister respectively of Mr Rose. The plaintiff in the second action (2006/00267187) is Mrs Merryn McKenna. She is also a sister of Mr Rose. The defendant in both actions is the Hunter and New England Local Health District, in particular a psychiatrist (Dr Coombes) and nurses working at the hospital.
The plaintiffs allege that Mr Rose died as a result of the negligence of the doctor and staff. They say this negligence has caused them injury in the form of nervous shock. They seek damages.
Mrs Simon and Ms Rose claim damages in the form of non-economic loss and medical expenses, past and future. Mrs McKenna makes a similar claim but in addition she asks for economic loss.
The action is governed by the Civil Liability Act 2002 ("the CLA"). The defendant does not dispute that each plaintiff has suffered a "recognised psychiatric illness" as required by Sections 31 and 33 of the CLA. The defendant also does not take any point arising from Section 32.
The real dispute between the parties concerns the alleged breach of duty of care of the defendant. The defendant not only disputes any breach of a duty of care but also relies, by way of further defence, on the provisions of Sections 5O, 43, and 43A of the CLA. The plaintiffs submitted that these sections did not apply. Even if Sections 43 and 43A did apply, submitted the plaintiffs, the degree of negligence was sufficient to exceed the higher standard required by these sections.
I had the significant benefit of hearing concurrent evidence from six psychiatrists. Their joint report, which highlights their respective opinions, is at the start of Exhibit B. The panel was made up of Drs Phillips, Kingswell, Giuffrida, Campbell, Telfer and Parmegiani.
Mr Pettigrove
Mr Pettigrove was born in 1962. As at July 2004 he had a long history of mental illness.
One of the experts, Dr Parmegiani, gave this summary of Mr Pettigrove's background:
"Mr Phillip Pettigrove was a 41-year-old man with a 20-year history of Chronic Paranoid Schizophrenia. He lived in Victoria, close to his family. He was under the care of the Echuca Community Mental Health Service. A discharge summary from Bendigo Healthcare Group indicated that Mr Pettigrove was admitted to hospital in February 2001. At the time he was trying to jump in front of passing trucks. Mr Pettigrove was acutely paranoid, confused and disoriented. The doctors recorded that Mr Pettigrove did not abuse alcohol or illicit drugs. There was no history of violence towards others." (Exhibit B, page 352).
Dr Giuffrida, in his medicolegal report, gave more detail of Mr Pettigrove's admissions to hospital in 2001. He recorded:
"There is a discharge summary referring to an admission from the 11 to 19 January 2001 for a diagnosis of Catatonic Schizophrenia. This was a relapse of schizophrenic psychosis due to Mr Pettigrove's ceasing medication some six months before. He left a note to his mother saying that he needed help and that they were using him to get to god and turn him into the devil so that they can get to heaven. He clearly therefore had at that time bizarre delusional belief."
"There is a second admission from the 21 February to 13 March 2001, a longer period when Mr Pettigrove was admitted again as an involuntary patient when he presented as confused, disoriented and delusional believing that people were trying to get him and that he was talking to himself all the time. He was yet again being non compliant with medication. It is noted in that second discharge summary that there was a history of admissions to psychiatric units over the previous five years and he had been maintained on the depot injectable antipsychotic Clopixol and oral Risperidone with a good response. On that admission he was again described as having a continual conversation and was perplexed and agitated with poor eye contact and muttering in discontinuous speech which at times was incoherent. There was loosening of association and poverty of thought. He expressed bizarre ideation of a robot contacting him." (Exhibit B, page 252).
Prior to his admission into the hospital Mr Pettigrove resided with Mr Rose in the Coopernook Forest Caravan Park. At about 2.50am on 20 July 2004 Mr Rose called an ambulance because he was concerned about Mr Pettigrove's behaviour. The ambulance brought Mr Pettigrove to the hospital at 3.50am. The triage staff thought Mr Pettigrove may have had a psychotic episode. Mr Rose informed the staff that his friend had a mental health history. The doctor on duty, who was having difficulty communicating with Mr Pettigrove, telephoned Dr Coombes who was at home. Dr Coombes was then the consultant psychiatrist working at the hospital. On his advice Mr Pettigrove was admitted and administered antipsychotic medication. In addition, a "Form 2" was completed providing for the admission of Mr Pettigrove without his consent. The basis for this action was that Mr Pettigrove had expressed suicidal ideation and there was a concern that he might be of harm to himself.
Mr Pettigrove's stay and departure from the hospital
The only witness to give oral evidence about the events at the hospital was Dr Coombes. As mentioned above he was the principal target for the allegations of negligence made by the plaintiffs. Dr Coombes is a psychiatrist and has been for many years. He has worked in many hospitals across the State and also in Queensland. His curriculum vitae is Exhibit 1.
I think the discharge of Mr Pettigrove was prima facie inappropriate. I think Dr Coombes' actions and evidence give rise to a number of concerns. Whether there was a breach of a duty of care and whether any such breach caused the death of Mr Rose does not necessarily follow. I will return to those decisions below. I will first give the reasons for my disquiet about Dr Coombes and the discharge.
Dr Coombes was taken through the hospital's medical records in some detail both in his examination in chief and under cross-examination. Dr Coombes also gave evidence at a Coroners Inquest in 2007 (Exhibit B, page 166) and he had provided a statement to the police in 2006 (Exhibit F). Cross-examination revealed a number of inconsistencies between his evidence before me, his evidence before the Coroner and the contents of his police statement.
On initial interview and examination at the hospital Mr Pettigrove refused to answer questions and said that "I want to die" . His refusal to answer questions is a feature that characterised the whole of his stay at the hospital. One of the reasons may have been that he needed bilateral hearing aids. Although these were in place their respective batteries were flat and never changed by the hospital staff. In addition Mr Pettigrove had vision difficulties requiring him to wear "coke bottle" glasses.
Returning to 20 July 2004, Dr Coombes said that at about 7.45am he attended the Emergency Department where he found Mr Pettigrove either asleep or drowsy on a trolley. An examination revealed no injuries, no puncture marks and free movement of his limbs. Mr Pettigrove appeared comfortable.
This was not the first time Dr Coombes had heard about Mr Pettigrove. He gave evidence that in April 2004 the Mental Health Unit at the hospital had received a telephone call from medical staff in Echuca advising that Mr Pettigrove had moved to the area of the hospital and requesting that the hospital "keep an eye on him" . About four to eight weeks later, during a morning meeting, one of the hospital staff said they had seen Mr Pettigrove driving in a white car at high speed. No description had ever been forwarded of Mr Pettigrove and there is no explanation as to how he might have been recognised in the speeding vehicle.
Under cross-examination Dr Coombes said that although he did not obtain any responses from Mr Pettigrove he thought he understood him "because he was looking at me and making eye contact with me" (T 114.30). Dr Coombes was taken to his evidence before the Coroner (Exhibit B, page 167). He then conceded that his earlier evidence was incorrect and that there had been no interaction with Mr Pettigrove in the morning. This was because Mr Pettigrove had been asleep.
I would add at this stage that Dr Coombes' evidence about the effect of Mr Pettigrove's lack of functioning hearing aids was somewhat unconvincing. Dr Coombes suggested that Mr Pettigrove was a skilled lip-reader but other than a note about lip-reading (Exhibit B, page 56) the statement was not substantiated.
There was a persistent theme in Dr Coombes' evidence of trying to convey a presentation of normality of contact with Mr Pettigrove. This is not borne out by the evidence. Mr Graham, who appeared for the plaintiffs, made it plain that one of the intents of his cross-examination was to demonstrate that "one very large thing that sticks out ... is Mr Pettigrove didn't say much to anyone" (T 104.35). Dr Coombes agreed "overall" . Despite this qualified agreement he repeatedly returned to his observation that Mr Pettigrove often appeared settled and conversed freely.
Following his morning observations of Mr Pettigrove, Dr Coombes thought that he should be admitted to the Mental Health Unit. This was a ward with 20 beds, each in its own room. Mr Pettigrove was transferred to the Unit at about 12.30pm. Dr Coombes initially gave evidence that he had accompanied Mr Pettigrove and a nurse on the transfer but under cross-examination he was somewhat vague as to his presence. What he did say clearly, however, was that a patient being transferred might be irrational (T 118.33). I took this point up with Dr Coombes. He agreed that the trip from the hospital to Echuca was also a transfer although much longer (1,171kms) than the 100m between wards. I asked the doctor if the road transfer would carry the same risks of irrational behaviour except that now the period was much longer and Mr Pettigrove was not accompanied by experienced staff. He replied:
"There could have. There's always a possibility of something happening. With anyone who has an illness of 20 years duration but I had spoken to both of them about their taking a much safer route, which I thought was better than where they went straight over the Great Dividing Range through places - through six places where there were facilities and psychiatric services available if he became tense or irritable or started having jerking again or was troubled by any other psychotic phenomenon. They chose not to go that way." (T 121.3).
Dr Coombes said that he had specifically suggested a safer route than going through the Great Dividing Range so as to take advantage of six places where there were facilities with psychiatric services. I suggested to Dr Coombes that these facilities would be of little use if something went wrong in the motor car even if only 10km from a psychiatric hospital. Ultimately Dr Coombes said that the chance of anything happening on the trip was "very low, if not negligible" (T 122.10).
Dr Coombes described a meeting that took place from about 4pm in the Mental Health Unit, which was attended by himself, a nurse, Mr Pettigrove and Mr Rose. Dr Coombes suggested, at least in his evidence in chief, that Mr Pettigrove had been communicative during this meeting. In addition he had spoken on the telephone to his mother and he appeared to have a sensible conversation with her.
It is clear from Dr Coombes' own notes that the situation was somewhat different. Dr Coombes completed the document at page 48 of Exhibit B in order to maintain the right of the hospital to detain Mr Pettigrove without his permission. It was completed after the 4pm meeting. This in itself is of significance because it suggests that at this time Dr Coombes was of the view that Mr Pettigrove should remain in the hospital. In his observations of the patient Dr Coombes stated: "Unwilling to answer questions but able to ask leave to go to his room. Looked perplexed, bewildered and sitting quietly by himself. No [sic] obviously hallucinating but this cannot be excluded."
The Conclusion in the document has this sentence: "For admission overnight and transfer to his mother's home in Victoria tomorrow in company of his friend." The friend was obviously Mr Rose who had volunteered to transport Mr Pettigrove "when Phillip is well enough to return to Victoria ..." (Exhibit B, page 20).
Notably, the decision having been made to discharge Mr Pettigrove the following morning, no further examination was contemplated. At that stage no medication was prescribed for the morning or use on the trip. The arrangement was that Mr Rose would pick up Mr Pettigrove at about 7am and begin the journey to Victoria with the intent of completing it within the day. It was even envisaged by Dr Coombes that Mr Pettigrove might drive for parts of the journey.
The following morning (21 July) Mr Rose was delayed and did not arrive at the hospital until after 11am. The only contact between Dr Coombes and Mr Pettigrove on the morning of the 21 st was a 10 to 15 minute conversation in which Mr Pettigrove appeared settled and pleasantries were exchanged. Dr Coombes relied on this conversation as part of his observations that Mr Pettigrove was well enough to travel with Mr Rose. I specifically say 'with Mr Rose' because it was put to Dr Coombes that he favoured transport with Mr Rose as this relieved him of having to engage with bureaucracy to arrange an accompanied transportation. In this regard Dr Coombes was referred to the final paragraph of his statement to the police (Exhibit F) which is as follows:
"22. The decisions made by treating staff were very difficult and depended upon the careful consideration of probabilities. I thought this man would be best treated by his long-term treatment team rather than being detained in a mental Health facility some 1200 km from his family and friends. He was not a man with any forensic history and no history of violence noted in his clinical file. These considerations were weighed up in assessing the risks of a transfer inter state. He was detained in NSW under the Mental Health Act and his transfer to Vic Mental Health facilities would have involved considerable negotiation between authorities against which a speedy but private transfer was thought to have advantages." (Exhibit F, page 5).
Although Dr Coombes rejected the suggestion that his main purpose was to 'get rid' of Mr Pettigrove and avoid 'red tape' it is evident that he was considering Mr Rose's assistance some 4 to 6 hours before the 4pm meeting (Exhibit B, page198.14).
As stated above, Dr Coombes spoke to Mr Pettigrove before his departure. He did not, however, have access to the nursing notes that had been completed overnight. Dr Coombes said that even if he had seen them they would not have affected his decision to discharge Mr Pettigrove (T 98.27 and 136.23).
The notes appear in Exhibit B at page 21. The 6.30am entries are:
"21.7.04 Nursing 06.30hrs. Observed to be awake on all rounds, pacing in his room once the courtyard was locked, talking loudly to himself. Refused oral prn medication and refused the offer of hot milk and honey. Said he felt restless and would walk until he fell to sleep. No management problem, remaining in his room, and keeping his voice down on request. Says he is looking forward to going back to Victoria today. S L Reece RN.
21.7.04 Nursing 06.30hrs addit: Phillip was heard to say by staff in the courtyard 'I love my ?wife or life' several times prior to retiring to his room. Staff could not hear what Phillip was saying when he was talking to himself in his room and he would stop when staff knocked and entered on rounds. SL Reece RN." (Exhibit B, page 21).
The reference in the above notes to "prn" was described by Dr Coombes as follows:
"Q. What is PRN?
A. Pro re nata, which is sort of pig Latin for "as required" or "if necessary."
Q. Do you know what that is referring to?
A. Yes, it was referring to the medication I have ordered which was called Promazine syrup. PRN means it is to be given at the discretion of the nursing staff and it's the practice to order some so that they don't have to then go chasing a doctor.
Q. What triggers giving it to the patient?
A. The nursing staff would be very concerned about them and find them difficult to manage, troublesome, boisterous, noisy, abusive, shouting, running around the unit, being very distressed in themselves to the point that they were so distressed that some sort of relief had to be offered beyond what a competent nurse could give.
Q. Can we then assume that the fact it was offered by nurse Reece means he was showing those signs you have just described?
A. He had some signs that she was concerned about, yes." (T 98.4)
The notes seem to show disturbed behaviour on Mr Pettigrove's part and indicate a lack of sleep, which had now continued for two nights. In this regard Dr Coombes was taken to the self-assessment forms completed by Mr Pettigrove, in particular the form filled out on 21 July (Exhibit B, page 39). After some argument about whether Mr Pettigrove's entries were obviously "nonsense" Dr Coombes agreed with my compromise suggestion that they were " unreliable " (T 140.18).
Dr Coombes did not agree with the characterisation of Mr Pettigrove's overnight behaviour as disturbed. In re-examination he said this:
"Q. If you'd read that again to yourself sir, and say whether or not you regard what's observed there as betraying a very disturbed night on the part of Mr Pettigrove?
A. That is not a disturbed night. There was no management problem. He remained in his room. He kept his voice down on request and it's unlikely that that would have come above the - come onto the radar screen, if I could use that phrase, at the 8.30 meeting." (T 166.15)
Returning to the nursing notes. The entries for 12.45 and 14.00 on 20 July are also important. Dr Coombes initially took comfort from both entries in support of his assessment of Mr Pettigrove's capacity to travel but on closer reading of the 12.45 note agreed that it did not support him. He nevertheless maintained that the entry at 14.00, in particular "pleasant and conversant on approach" did indicate improvement on Mr Pettigrove's part.
The difficulty with Dr Coombes drawing support from the above quote as well as his observations of Mr Pettigrove in the evening (about 7.30pm) and the following day is that the intervals display a different picture. It is for this reason that I find Dr Coombes' evidence that it would have made no difference to him had he seen the overnight notes difficult to accept. The pattern evident from the notes is of a fluctuating condition and not one of steady improvement as postulated by Dr Coombes.
Another point that arises from Nurse Reece's overnight notes is Dr Coombes' change of mind about providing medication for Mr Pettigrove to take on the road trip. The decision made the night before was that there was no need to provide any medication. It is to be recalled that at that stage it was envisaged that Mr Rose and Mr Pettigrove would depart at about 7am the following morning. They did not do so and Dr Coombes saw Mr Pettigrove in the morning. As outlined above he insisted that Mr Pettigrove was settled and displaying no signs of concern.
Nevertheless Dr Coombes decided to prescribe the medication. It was put to him that he would only have done so had there been some deterioration in Mr Pettigrove's condition. He rejected the assertion (T 149.38) and then said the reason that he changed his mind arose from a member of staff asking him whether or not medication should be obtained. Dr Coombes agreed that "you don't give medication if people haven't got symptoms" (T 150.8). In the very next question, however, he agreed that for people such as Mr Pettigrove the medication is also addressing an underlying disorder in addition to current symptoms. Ultimately this exchange occurred with the doctor.
"Q. I could understand if the nurse came up to you and said, "Oh he seems a bit strange", or you noticed something yourself, so you'd say, "Well, just for safety's sake we'd better give him some medication", but what I can't see on your evidence is the change between the evening before and the next day which prompts you to prescribe the medication?
A. No I can't explain it." (T 151.14)
I find it difficult to accept that Dr Coombes, having made a previous decision not to provide medication, changed his mind without observing some need for medication on the trip. It seems probable to me that the decision to prescribe the medication must have been prompted by some observation made by the doctor.
Another issue concerning medication is Dr Coombes' evidence about the resumption of Depot injections. This passage of evidence arose in cross-examination:
"Q. Yes. So you knew, at the time you were assessing this man, if indeed you ever assessed him - but we'll come to that - at the time you assessed him, you knew he'd been on depo injections and yet there is not a mention of you considering that the depo injections should be resumed. Why was that?
A. I can't explain that.
Q. No. Because it's really quite an extraordinary omission isn't it, doctor?
A. It's an omission, yes." (T 114.3)
The importance of the Depot injections became apparent in this passage of evidence:
"Q. And, in addition, you knew at that time, as we've discussed, his history from Victoria about hallucinations, possibly command and as well as paranoid delusions. Those factors magnified the risk of something untoward happening on that very long journey, didn't it?
A. Had they been present, yes.
Q. And, of course, you never know when they're going to be present do you?
A. No.
Q. And if he had had a depo injection and it had been given the time to work, the chances of that happening would've been vastly reduced?
A. Yes." (T 122.26)
Unfortunately, although they commented on Mr Pettigrove's medication the panel of experts did not address the Depot injections.
Before leaving this section of the judgment I think I should note that the experts, despite areas of disagreement between them, were generally critical of some elements of the care given to Mr Pettigrove.
The entire panel agreed that a longer period of treatment at the hospital would have reduced the risk of Mr Pettigrove suffering an acute psychotic episode on the road trip (Joint Report, Question 9, Exhibit B). In addition, as I read the response to question 12, the doctors agreed that the overnight observations should have been communicated to Dr Coombes. As already noted, I think this observation also reflects on Dr Coombes who, in my view, should have called for and read the notes before discharging Mr Pettigrove. In his answer to Question 3 in the joint report, Dr Telfer, who generally supported the defendant's position, assumed Dr Coombes was aware of the overnight notes in concluding that there had been continuous monitoring of the patient's condition.
The alleged failings of the defendant
The plaintiffs ultimately submitted that the defendant had committed four acts of negligence or breach of a duty of care. These were:
(a) By Dr Coombes using Mr Rose as a means of transport to deliver Mr Pettigrove from the hospital to Victoria.
(b) By Dr Coombes in failing to properly medicate Mr Pettigrove.
(c) By the nursing staff in failing to bring the overnight notes to the attention of Dr Coombes.
(d) By Dr Coombes in failing to seek out and read the notes.
The allegation against the staff must immediately fall away because Dr Coombes said that if he had read the notes that would not have made any difference to his decision to discharge Mr Pettigrove:
"Q. Well let us just put it in simple terms. If the nurse had told you about the unsettled night would you have let him go?
A. Yes." (T 136.23)
The case against the defendant is therefore a case against the alleged failings of Dr Coombes.
Sections 43 and 43A of the CLA
The nature of the transportation is an important element in the plaintiffs' allegations because it involves the 'sending' of Mr Pettigrove on a very long journey without proper medical support.
In setting out the four alleged acts of breach of a duty of care it will be noticed that I did not use the word "discharge" . This is because the plaintiffs submitted that the act of discharge was separate to the patient's treatment and the arrangement of the journey to Victoria. Their purpose in making this distinction was to base a submission that Sections 43 and 43A of the CLA did not apply.
Before going any further I think it fair to say that the parties agreed that if either of these sections was applicable it was more likely to be Section 43A. I agree.
The defendant submitted that Section 43A applied because the act of discharging Mr Pettigrove amounted to the exercise by a public authority of a special statutory power conferred on that authority. In the present case, the power is contained in Section 35(3) of the Mental Health Act 1990 ("the MHA") which is as follows:
"(3) If, on examination of a person detained as a mentally disordered person or a mentally ill person, a medical superintendent is of the opinion that the person is not a mentally disordered person or a mentally ill person or that other care of a less restrictive kind is appropriate and reasonably available to the person, the person must not (except as provided by section 37 or 37A) be further detained in the hospital."
The defendant submitted that the discharge of Mr Pettigrove was an exercise of the power contained in Section 35(3), therefore bringing Section 43A into play. Its senior counsel stated, in written submissions:
"5. Any suggestion by the plaintiffs that their case does not impugn the defendant's exercise, or failure to exercise, a function (s43) or special statutory power (s43A) under the MHA is, with respect, sophistry and a naked attempt to circumvent those provisions."
The plaintiffs' response was that the exercise of the power related only to the discharge of Mr Pettigrove, which action was completed when he walked out of the door of the hospital. The discharge did not include the arrangements for the trip to Victoria which were governed by common law principles of negligence as modified by Part 1A of the CLA.
The plaintiffs drew support for their distinction from the evidence given by Dr Coombes at the inquest into Mr Rose's death. The following passage was relied upon:
"Q. Yes doctor?
A. The best guide to how long someone will benefit from hospital is previous hospital admissions. There's a very extensive discharge summary on page 18 when he was admitted to Bendigo Hospital from 21 February '01 - admittedly it's some years out of date - to 13 March, that's three weeks. It's you know three weeks, four weeks. I would've expected him to be significantly better within ten days and I would have discharged him back to Victoria by the end of July '04. The problem was then how to get him down. I would not have just put him on the train there because I don't think he would've been able to manage the complexities of Central Railway and couldn't be sure that he'd be on the Victorian Express." (Exhibit B, page 211)
In addition the plaintiffs pointed out the contradiction between Dr Coombes' evidence before me and at the inquest of the difficulties in arranging 'formal' transport (compare Exhibit B, page 209.47 with T 159.36).
The evidence I have just referred to in Exhibit B also carries a greater significance in the plaintiffs' argument. I think it worth quoting:
"Q. If in fact Mr Rose had not been available Pettigrove in fact would not have been discharged would he?
A. No, no he would not. He would not. And I would've looked at other ways but transported across, transport across state boundaries and different jurisdictions, health jurisdictions and ambulance and police jurisdictions make it very difficult to have facilitated such a discharge. He would have stayed and there is, there was no reason for him to be discharged beyond his putting what I thought was a reasonable proposition. And there's a balance between what we think is appropriate, what seems to be in his best interest and what any patient and relative would like to happen." (Exhibit B, page 209).
The following points arise from this passage:
(a) The implication is that Mr Pettigrove had not yet recovered when discharged.
(b) The "reasonable proposition" had not emanated from Mr Pettigrove. It had come from Mr Rose, but only on the condition that he would transport Mr Pettigrove when "he was well enough" (Exhibit B, page 20).
(c) The inference from the last sentence of the quote is that Dr Coombes thought it appropriate that Mr Pettigrove stay in the hospital but he, in essence, bowed to the balance in favour of discharging Mr Pettigrove because those were the wishes of the patient and relative. This is at odds both with Dr Coombes' repeated evidence that Mr Pettigrove seemed well and settled and Mr Pettigrove apparently being mostly incommunicative throughout his stay at the hospital.
I find the plaintiffs' interpretation of the discharge very difficult to accept. The discharge of Mr Pettigrove was into the care of Mr Rose with the specific intent of Mr Rose taking Mr Pettigrove to Victoria.
In my view a distinction cannot be drawn between the arrangements for the transfer and the discharge. I think the travel arrangements were an integral part of the discharge. The discharge would not have occurred if there had not been, as a component of Mr Pettigrove's release from hospital, the arrangement to take Mr Pettigrove to Victoria.
The plaintiffs mounted a secondary argument in respect of Sections 43 and 43A, which I think is more persuasive. It was submitted that Section 35(3) of the MHA is concerned with a patient who is no longer "a mentally ill person" , but Mr Pettigrove, at discharge, was still mentally ill. The passage of Dr Coombes' evidence quoted in paragraph 56, above, is consistent with this diagnosis.
Although not discussed precisely in the terms being debated here, the issue of Mr Pettigrove's condition on discharge was dealt with by the experts in Question 4 of the joint report. Drs Kingswell, Giuffrida and Phillips, as I read their answers, were of the view that Mr Pettigrove remained mentally ill.
The terms of Section 35(3) place the test on the opinion of the examining doctor. There is no other conclusion to be drawn from " he would have stayed ..." and " there was no reason for him to be discharged ", but that Dr Coombes was of the opinion that Mr Pettigrove remained mentally ill.
The defendant's response was that there is a second leg to Section 35(3). It also applies where the patient remains ill but "other care of a less restrictive kind is appropriate and reasonably available to the person ..." .
The plaintiffs submitted that there was no evidence of less restrictive care being available. The Discharge Summary (Exhibit B, page 5) says no more than that the " Echuca Team " and Mr Pettigrove's mother were notified of the transfer. There is no indication in the notes of what treatment was envisaged, let alone any suggestion that it would be less restrictive. It is also noteworthy that Dr Coombes wrote the summary after he became aware of Mr Rose's death.
The plaintiffs' argument then continues that if Mr Pettigrove was not mentally ill and he was not being sent to other treatment of a less restrictive kind then the act of discharge was not an exercise of a statutory power or function contemplated by Section 35 of the MHA. Accordingly Sections 43 and 43A would not apply.
I think the plaintiffs' reasoning is correct and I would add another reason. If Mr Pettigrove was mentally ill there is no evidence that he would not have remained in the hospital voluntarily. In other words there was no exercise of a power to detain or not to detain.
I therefore conclude that Sections 43 and 43A of the CLA do not apply.
Section 5B of the CLA
Section 5B states:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
The plaintiffs first of all pointed out that the definition of "harm" in Section 5 is very broad and unquestionably covers the death of Mr Rose. I agree.
The plaintiffs then submitted that the risk was foreseeable and relied on admissions by Dr Coombes to that effect. These are examples:
"Q. He could just become irrational and, in some way, harm Mr Rose. That was a complete and obvious possibility, wasn't it?
A. As you put it." (T 121.48)
"Q. And, in addition, you knew at that time, as we've discussed, his history from Victoria about hallucinations, possibly command and as well as paranoid delusions. Those factors magnified the risk of something untoward happening on that very long journey, didn't it?
A. Had they been present, yes.
Q. And, of course, you never know when they're going to be present do you?
A. No.
Q. And if he had had a depo injection and it had been given the time to work, the chances of that happening would've been vastly reduced?
A. Yes." (T 122.26)
The plaintiffs next submitted that the risk of harm was not insignificant and that a reasonable person in Dr Coombes' position, a doctor discharging a patient, would have taken precautions to prevent the risk. The precautions would be simple, namely not discharging Mr Pettigrove into Mr Rose's care to be taken on a long and uncertain journey.
The defendant did not concede any element of Section 5B(1) but concentrated its defence on the foreseeability and significance of the risk and the application of Section 5B(2)(a).
The defendant's written submissions began with this passage from Hunter Area Health Service v Presland (2005) 63 NSWLR 22:
"There is no reason whatsoever to doubt that persons working in a psychiatric hospital would be applying their best endeavours to the care of those who come to the hospital. From time to time, things go wrong."
The defendant relied heavily on Presland in particular to emphasise there was no common law duty to detain a psychiatric patient against the patient's will. As I have already mentioned, the difficulty with this submission is that there is no evidence that Mr Pettigrove would not have remained at the hospital without the need for compulsory detention. The distinction in the present case with Presland is that the issue here is not the question of whether to detain or not, but rather whether it was negligent to discharge Mr Pettigrove into Mr Rose's care having regard to the road journey that was to take place.
I also think the present facts can be distinguished from those authorities, such as Smith v Leurs (1945) 70 CLR 256, where it is said that a duty of care does not normally extend to cover the acts of third parties.
Once again I think the facts of this case, at least as presented by the plaintiff, have a point of distinction. The third party here is one known to the defendant and being specifically used to perform a service on behalf of the defendant, namely to deliver Mr Pettigrove to Victoria to receive ongoing care. The situation is more akin, on the plaintiffs' reasoning, to a person being asked to transport a dangerous prisoner without precautions being taken to ensure that the prisoner could not harm the person undertaking the carriage.
Ultimately I think this case comes down to the foreseeability of the harm, the significance of the risk occurring and "the probability that the harm would occur if care were not taken" .
The defendant referred me to Benic v State of New South Wales [2010] NSWSC 1039 where Garling J conducted a concise analysis of Section 5B. In relation to foreseeability his Honour said the following:
"[90] The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the Civil Liability Act, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (ie. the defendant ought to have known) in the defendant of the risk of harm.
[91] The Ipp Report was the source of the provision of the Civil Liability Act under discussion. In para 7.10, the following remarks were made:
Whereas probability is a scientific concept, foreseeability is a matter of knowledge and inference. For instance, no matter how likely it is that something will occur, it is foreseeable by a person only if that person knows or ought to know that it might occur. (Knowledge must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.
[92] In my opinion, the plaintiff must satisfy the court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense."
I think the view of the experts is significant. The issue is dealt with in Question 7 of the joint report (Exhibit B). Drs Kingswell, Parmegiani, Campbell and Telfer all classified the risk as minor or fanciful. It is noteworthy that Dr Kingswell fell into this category because he was one of the doctors more critical of the discharge. Drs Giuffrida and Phillips did not think the risk was fanciful. Despite Dr Phillips' view on this point he was nevertheless of the opinion that many of his peers would have seen the discharge as being reasonable (T 201.43). This point is perhaps more relevant to the applicability of Section 5O, which I will return to below.
I also, however, note this evidence from Dr Phillips where he agrees with Dr Campbell that a particular patient's history is important. I interpolate here that there was no history of violence toward others in the whole of Mr Pettigrove's 20 year history of schizophrenia.
"WITNESS PHILLIPS: Jonathon Phillips. I think it would be fair to say, your Honour, that the more acute and active psychotic symptoms a person has the higher the risk of something wrong, something happening which will be potentially dangerous to self or others. However, that has to be taken in the context of the person's longitudinal history and if a person has over a very substantial period of time despite active psychotic features not acted on them, then that will suggest a higher level of safety.
HIS HONOUR: Well, that's Dr Campbell's point about history as an important factor in a decision.
WITNESS PHILLIPS: I believe the longitudinal history is quite critical, not only in this man's case but in any similar case." (T 199.17, emphasis added )
In Benic Garling J concluded his analysis of Section 5B(1)(b) in this way:
"[101] I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant":
(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;
(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;
(c) The phrase "not insignificant" is intended to refer to the probability of the occurrence of the risk;
(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;
(e) Whether a risk is "not insignificant" must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."
Returning to the evidence of the experts, Dr Kingswell, commenting on Mr Pettigrove's history said:
"Mr Pettigrove had a known history of doing odd things when he was unwell - neglecting himself, trying to jump in front of trains and other dangerous behaviours - so misadventure was a clear outcome and it should have been a known one." (T 184.15)
Dr Parmegiani gave what I thought was this important piece of evidence, which is perhaps as much relevant to causation as foreseeability:
"There is - I can't see the connection between the car trip and in fact because there is no evidence that the car trip played a role either in unsettling him or causing an accident in somehow killing Mr Rose, I just cannot see either a connection between the homicide and the car trip or see the decision to discharge him home via car that was driven by he and his friend alternating as having any bearing on what happened or on the level of care decision making by Dr Coombes.
HIS HONOUR: What you've done is put your finger on one of the main legal issues in the case. But we're not - we're looking at it from a medical point of view. What we're looking at at this point is whether the decision to discharge in the manner that happened and in the knowledge that it involved the long car trip was reasonable.
WITNESS PARMEGIANI: Well, I think the evidence is that that in itself was reasonable because as I said there was no accident and no fitting and no connection between the car trip, apart from being perhaps away from civilisation where he could have been anyway in the state forest or in a hotel room; I cannot see the connection between the homicide, the car trip and the discharge planning ." (T 193.4).
Thus if Mr Pettigrove had not been released the possibility must exist that the decision to attack or the hallucination may nevertheless have occurred if Mr Rose had visited him later in the day at the hospital. I think the importance of Dr Parmegiani's observation, in relation to foreseeability and the significance of the risk, is that the plaintiffs' case revolves around the act of negligence of Dr Coombes in placing Mr Pettigrove into Mr Rose's care for the car trip. True it is that had the trigger for Mr Pettigrove's attack occurred during visiting hours in the hospital there would have been assistance more readily available but that is a possibility which ignores any evidence about the particular circumstances of what might have occurred. For example, an attack in the ward would probably have been quickly dealt with whereas an assault walking in the gardens may not have enabled a rescue.
Despite the series of failings that I have outlined above on the part of Dr Coombes and the nursing staff (not showing the notes to Dr Coombes) I have, with regret, reached the conclusion that, in terms of Section 5B, the risk was not foreseeable and was not so significant that a reasonable person would have taken precautions against it. In my view it was not probable that harm would occur if care was not taken.
This opinion includes the alleged failure to properly medicate Mr Pettigrove. I think it worth noting this observation from Dr Phillips:
"Your Honour, I think it would be fair to say that his experience overnight in the hospital was one of agitation and quite a high state of distress, which is not uncommon in people with a psychotic illness; as darkness comes there are less cues to keep a person focussed, and the trip did start later than was anticipated with an almost inevitable overnight stop somewhere, or worse still driving through the night, and that would have added to the risk of an exacerbation of psychotic symptoms whether or not he had the additional medication." (T 176.25)
Garling J observed in Benic that "hindsight has no part to play" . The admissions by Dr Coombes, if that is how they are to be regarded, are a result of hindsight and no doubt a product of his regret looking back at the events that followed his discharge of Mr Pettigrove.
Hindsight perhaps allows for a conclusion that if Mr Pettigrove had not been discharged for another day or two, or if he had been given certain or more medication, the killing would not have occurred. Looked at prospectively, however, and utilising the opinion of the experts, I could not conclude that a reasonable person in Dr Coombes' position would have concluded that there was a not insignificant risk of Mr Pettigrove behaving as he did, with or without extra medication. He certainly would not have concluded that there was any significant probability that the harm would occur.
As observed by Garling J, the CLA is intended to limit and not expand liability. Thus the burden is greater than existed under the common law.
I hope it is obvious from this judgment that I have a great deal of sympathy for the plaintiffs and that I have not exempted Dr Coombes from criticism. What I cannot do is to reach a conclusion that when Dr Coombes decided to release Mr Pettigrove into Mr Rose's care that there was a foreseeable risk of the fate that later befell Mr Rose. I think my conclusion, in medical terms, is consistent with the view of the experts, although with the exception of Drs Giuffrida and Kingswell.
I do not think Mr Pettigrove should have been discharged after only one restless night in hospital and without a proper medication plan having been implemented. That, however, is a very different question to whether the consequences of his discharge made the discharge negligent in terms of Section 5B.
The plaintiffs must therefore fail.
Section 5O of the CLA
I think the plaintiffs must also fail for another reason. Section 5O of the CLA is as follows:
"5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
The plaintiff submitted that this section would not apply because Dr Coombes' actions had been irrational. I do not agree. Once again I think Dr Coombes was in error in discharging Mr Pettigrove. An error is not necessarily irrational. He took the view that it was in Mr Pettigrove's interest to send him to Victoria. There was good reason to do so, even if not at the time the decision was made. I have already referred to the evidence of Dr Phillips on this point. The experts discussed the matter in their answers to Question 11 of the joint report (Exhibit B). Drs Telfer, Parmegiani, Campbell and Phillips (the latter for perhaps slightly different reasons) accepted that a body of their peers would have found it reasonable to discharge Mr Pettigrove.
Drs Giuffrida and Kingswell were of the opposite view. My decision is not dictated by the numbers of doctors stating an opinion one way or the other. I am, however, particularly impressed by the view of Dr Phillips, especially as he generally favoured the plaintiffs' case.
In his oral evidence Dr Campbell usefully described the decision making process from the point of view of a doctor in the country. He said:
"WITNESS CAMPBELL: That's all right. Dr Campbell. We're all faced as clinicians and all, we all have to make these decisions day in and day out. I'm always guided and I think we all are by history. We can't go on supposition of what might happen, we have to - you make an educated guess. This man, on my reading of the file he had driven up, he'd known his friend for ten years, they had both driven - he had driven up to these places without any medication in him, nothing - with no ill effect. They'd managed to, you know, then stay in the forest. There was no reason to suppose that suddenly this could not be repeated. But someone else, you'd say, look, I think it's far too risky for you to drive to Victoria if you've never done it before, but they'd been doing it all the time. So I think you go on the individual and the assessing an individual. You're not just assessing a case or schizophrenia so dangerous, you're looking, how does this individual cope with his illness and how does his friend cope, what supports can we give them. It is also incumbent to find what is the least restrictive and that's the law; we can't just make up our minds, no, you're too unwell to go, you've got to have evidence to keep people because it's tested in with the magistrate if they stay on. This is normal practice, to do those risk assessments, and in this case I don't think it's unreasonable to assume that someone who got up there could get back. That's why I was framing my decision." (T 192.5).
In the absence of evidence of irrational behaviour I can see no other conclusion but that Dr Coombes acted " in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice."
Causation
I think I should also deal with causation, once again in case my conclusions on liability are wrong.
Under Section 5E of the CLA the onus in respect of causation is on the plaintiffs. I think it worth remembering the basis upon which the plaintiffs have put their case. They have submitted that the discharge of itself was not negligent, rather the placing of Mr Pettigrove into Mr Rose's care for the road trip was the act of negligence.
The plaintiffs' case on causation then is that but for Mr Pettigrove and Mr Rose being on the road trip the killing of Mr Rose would not have taken place. This is perhaps correct in a very broad sense but I think it is outside the scope of the requirement that the negligence was "a necessary condition of the occurrence of the harm ..." . I noted above the observations of Dr Parmegiani doubting the connection between the road trip and the killing. I think Dr Parmegiani is correct. He was not attempting to make a statement of the law but taken at a common sense level there is no conditional connection between Mr Pettigrove having his hallucination or compulsion to kill Mr Rose and the road journey. There is no evidence to suggest that whatever motivated Mt Pettigrove was triggered by anything associated with being in the car or on a long trip or any other element of the journey. The killing happened to occur on the journey but it was not dependent upon it.
In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Campbell JA, in paragraph 243, discussed and gave an example of liability not flowing from the "infinite number of necessary conditions of every event" . I think this is a case where allowing Mr Pettigrove to go with Mr Rose was one of the many conditions that had to occur before the event but could not be seen as the cause of the event. The cause was the trigger that compelled Mr Pettigrove to attack Mr Rose.
I think the plaintiffs' case on causation arising from Dr Coombes not medicating Mr Pettigrove properly is stronger but still not sufficient to establish the link required by Section 5D. The hallucinations may have been less likely to occur but that is different to a conclusion that the lack of medication caused Mr Pettigrove to have the hallucinations at all, and secondly, on the journey. I do not think the evidence allows for such a conclusion.
Drs Phillips, Kingswell and Giuffrida thought Mr Pettigrove should not have been discharged (Joint Report, Question 6) for various reasons but they do not say the failure to medicate was the cause, in medical terms, of Mr Pettigrove having hallucinations near Dubbo. The onus is on the plaintiffs to show that the lack of medication was " a necessary condition of the occurrence of the harm. "
Once again I think Dr Phillips appropriately summarised the missing link concerning the medication in the passage quoted in paragraph 86, above.
Accordingly I do not think the plaintiffs have established, pursuant to Section 5D, that any act or omission by Dr Coombes, or the hospital staff, caused Mr Rose's death.
Section 294 of the MHA
The defendant submitted that had I found any breach of duty on the part of Dr Coombes this section would relieve the hospital of vicarious liability. I do not agree. Section 294 prevents Dr Coombes being sued personally. It does not prevent any other person who might be liable for his acts of negligence from being sued. Had I found negligence on Dr Coombes' part I would have found the hospital vicariously liable for that negligence.
Damages
My decision on liability means the plaintiffs are not entitled to damages. I will nevertheless assess damages in case my conclusion is wrong.
The extent of the cross-examination of Ms Rose and Mrs McKenna, and the absence of cross-examination of Mrs Simon, demonstrate the limited dispute between the parties concerning the nature of the psychiatric injury suffered by the respective plaintiffs. Although the figures suggested by either side are in a wide range this is as much to do with the effects of the discounting required by Section 16 of the CLA as by any difference in opinion. The defendant does however entirely dispute Mrs McKenna's claim for economic loss.
The absence of any real issue on quantum was also reflected in the cross-examination of Dr Burke by the defendant. This doctor, a psychiatrist, treats all three plaintiffs and has done so for some time. He usually sees them on the same day as they travel together from the Central Coast for the appointment. Dr Burke's evidence was essentially not controversial although, contrary to the defendant's submission, Dr Burke did not think Mrs McKenna could return to work on the open labour market. Dr Burke was not, however, cross-examined on this point by the defendant's counsel. Defendant's counsel referred to Dr Burke as a " breath of fresh air ".
Dr Burke's description of the plaintiffs I think revealed the following:
(a) They have all substantially improved since their consultations with him began.
(b) Mrs Simon was initially the most traumatised.
(c) Ms Rose was now on the brink of not having a diagnosis of chronic Post Traumatic Stress Disorder ("PTSD"). She was currently in partial remission.
(d) Mrs McKenna is in partial remission from her PTSD.
(e) Dr Burke was optimistic about the future for all the plaintiffs. He foresaw them requiring a reduced need for psychiatric treatment, perhaps in a couple of years, reducing to occasional visits to a psychiatrist or perhaps even a general practitioner.
(f) The conclusion of the litigation process would aid their recovery.
(g) Dr Burke thought there was a " 50/50 " chance that the plaintiffs would not reach a stage where they no longer required psychotropic medication (T 69.23).
Dealing first with non-economic loss, each plaintiff is, of course, different and no doubt there have been subtle distinctions in the way that they have each dealt with the loss of Mr Rose. Having said that I find it difficult to suggest that any one of them has suffered greater injury than the others. Both counsel suggested that Mrs Simon might not be entitled to the same percentage under Section 16 of the CLA as her daughters because of her age.
There is some force in this submission but it ignores the evidence of Dr Burke that Mrs Simon appeared initially to have the most difficulty dealing with the loss of her son and that the prognosis for the future was gradual improvement over the next few years. Because any psychiatric injury is unlikely to remain for the balance of the respective plaintiffs' lives, their expected longevity is not as relevant as it might be in cases where there is a permanent injury.
With this background I have decided to assess each plaintiff at 26% of a most extreme case. This percentage, applying Section 16, produces a figure of $41,500.
Past out of pocket expenses were agreed as follows: Mrs Simon $5,716.45, Ms Rose $7,352.50 and Mrs McKenna $5,942.30.
Future out of pocket expenses were also agreed, as follows: Mrs Simon $16,740.85, Ms Rose $30,873.03 and Mrs McKenna $30,598.90.
Mrs McKenna is the only plaintiff making a claim for economic loss. The claim is for one year in the past and about two years into the future, both periods assessed at average weekly earnings, or alternatively put as a buffer of $130,000.
The defendant submitted that there should be no award for future economic loss because Mrs McKenna had not satisfied the requirements of Section 13 of the CLA. I disagree. I am satisfied that following her separation Ms McKenna would have returned to work and continued to work into the future. I am also satisfied that with her background and interests she had a capacity to work which has now been significantly reduced. Dr Burke said that she could not presently work on the open labour market.
In the defendant's favour there is no evidence of any particular employment that Mrs McKenna might have commenced or of any rates of remuneration that she could have expected to receive. There is also no evidence indicating that she would have worked on a fulltime basis.
The Court of Appeal recently affirmed the legitimacy of awarding a buffer notwithstanding the provisions of Section 126 of the Motor Accidents Compensation Act 1999 (which is the same as Section 13 of the CLA). In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Basten JA said the following in paragraph 30:
" That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this Court:"
I think this is precisely the type of matter referred to by Basten JA, although I do not think the buffer should be to the extent suggested by the plaintiff. Mrs McKenna may well have commenced, or even remained, on part-time work and the employment opportunities where she lives or will live may be limited.
Although, as stated above, I am satisfied that Mrs McKenna at the present time does not have a capacity to work on the open labour market, this situation is likely to be of limited duration and with the improvement in her psychiatric condition I see no reason why she should not re-enter the work force in a year or two. Taken with the uncertainties of the type of work she may have done I think the appropriate buffer, including both past and future loss and superannuation benefits, should be $35,000.
A summary of the damages I have assessed is as follows:
| Non-economic loss | Out of pocket expenses | Future out of pocket expenses | Economic Loss | Total | |
| Mrs Simon | $41,500.00 | $5,716.45 | $16,740.85 | $0 | $63,957.30 |
| Ms Rose | $41,500.00 | $7,352.50 | $30,873.03 | $0 | $79,725.53 |
| Mrs McKenna | $41,500.00 | $5,942.30 | $30,598.90 | $35,000.00 | $108,041.20 |
Final orders
Judgment for the defendant in each matter.
I will hear the parties on costs in the light of any Offers of Compromise or 'Calderbank' offers.
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Decision last updated: 03 March 2012
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