Sloss v NSW
[1999] NSWSC 995
•6 October 1999
CITATION: Sloss v NSW [1999] NSWSC 995 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): 11083/89 HEARING DATE(S): 20/10/1998; 26/10/1998-29/10/1998 JUDGMENT DATE:
6 October 1999PARTIES :
Frances Irene Sloss (plaintiff)
State of New South Wales (defendant)JUDGMENT OF: Hidden J at 1
COUNSEL : P Stone (plaintiff)
P R Sternberg (defendant)SOLICITORS: J F Morrisey & Co (plaintiff)
Crown Solicitor (defendant)CATCHWORDS: Tort - nervous shock - plaintiff's son murdered in prison CASES CITED: Coates v GIO (1995) 36 NSWLR 1 DECISION: Judgment for the plaintiff
THE SUPREME COURT
HIDDEN J
OF NEW SOUTH WALES
COMMON LAW DIVISION
Wednesday, 6th October 1999
No: 11083/1989 Frances Irene Sloss - v - State of New South Wales
Reasons for judgment
1 HIS HONOUR: In these proceedings the plaintiff, Frances Irene Sloss, seeks damages for nervous shock arising from the death of her son, Anthony Cameron, while he was a remand prisoner at the Long Bay prison complex. Mr Cameron had been administered an overdose of heroin by another prisoner, who was later convicted of his murder. It seems that that prisoner should not have been in the wing where Mr Cameron was. The defendant, the State of New South Wales, has not contested its duty of care or the breach of it. The only issue on liability is damage.
2 The plaintiff seeks general damages for what she claims is a psychiatric condition engendered by the circumstances of her son’s death. She also claims economic loss on the basis that that condition has had an adverse affect upon her capacity to conduct her business. The defendant contends that she has proved no more than a normal grief reaction and has failed to establish nervous shock, in the sense of a psychological or psychiatric injury: Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, per Gleeson CJ at 4 and Clarke JA at 19. The defendant also contends that, even if she could prove the psychiatric condition alleged, she has not demonstrated any economic loss attributable to it.
The son’s death and the plaintiff’s emotional reaction
3 Mr Cameron was a child of the plaintiff’s first marriage and was born on 15 June 1953. There is an older daughter of that marriage, Mrs Lynette Cappella, who gave evidence. The plaintiff later remarried but her second husband is also deceased. She gave evidence that she had been very close to her son. This was confirmed by Mrs Cappella, who considered the plaintiff to have been much closer to her brother than to her.
4 Mr Cameron had been working as a health inspector with the Sydney City Council and, it seems, was also involved in running a night club at Kings Cross. The charge which brought him into custody was conspiracy to import heroin, although he had never previously been in trouble with the police. He was killed on 27 November 1983, when he was thirty years old. There is no evidence before me of the reason for the killing. The plaintiff had visited him that day. In the mid-afternoon, after she had returned home, a nurse at Prince Henry Hospital phoned her to tell her that he had had a heart attack.
5 The plaintiff arrived at the hospital, where her son was lying on a bed under guard. She was advised to leave the room where he was, and a nurse told her he was dead. She was later required to identify his body in the hospital morgue. At that stage she had not been told anything other than that he had had a heart attack, but she found that difficult to accept as he had not had a heart problem. She was later told by an officer at the prison that the death was under investigation. His clothes were recovered from the hospital, but she had to hand them over to the investigating police the next day.
6 The plaintiff described her shock and distress on the day of the death. No doubt because of the need to retain the body for investigative procedures, the funeral did not take place till several weeks later. The delay caused her further distress. In the meantime, she became aware that her son had been killed but did not know how. She heard a variety of accounts of the manner of his death. She told Dr Rod Milton, a psychiatrist who examined her for forensic purposes, that one of those accounts was an injection of a lethal substance, and she imagined her son being held down while he struggled for his life. (I should say that, apart from being informed from the Bar table that the heroin overdose was administered by a trick, I have no evidence of exactly how the killing was carried out).
7 In evidence, the plaintiff described her continuing sadness and distress as a result of the death, saying that she had not had “real happiness” since that time. She said that her son was never out of her thoughts. She told Dr Robert Lewin, a psychiatrist who treated her for some years, that she lost her sense of humour and withdrew from social contact. She also described a disturbed sleep pattern, together with nightmares which appear to relate to the loss of her son. At the time of the death she was the proprietor of a brothel in Kings Cross and she later ventured into a fantasy phone sex business at Maroubra. I shall have more to say about this when I turn to the question of economic loss. For the moment, it is sufficient to record her evidence that after the death she became irritable and short tempered with the girls who worked for her.
8 Her account was corroborated by her daughter, Mrs Cappella, and also by Mr Richard McBride, a private inquiry agent, former police officer and friend of long standing. Mrs Cappella saw her change from a vibrant, extroverted and gregarious person to someone who was introverted and anti-social. She said that her mother was “absolutely devastated” by the incident, which “just changed her whole life”. She observed her irritability with her staff, with whom she had previously had a good and supportive relationship. Indeed, Mrs Cappella was the target of the same irritability and her relationship with her mother became strained.
9 Mr McBride described the plaintiff as a pleasant and cheerful woman prior to the death, but observed her afterwards to be “really upset all the time”. She had difficulty speaking of anything other than the death of her son, and he became concerned for her “health-wise”. He lost contact with her in the early 90s but, when he re-established it in more recent years, he found her to be still pre-occupied with her son and deprived of “the outlook on life that she had previously”.
10 Both Dr Lewin and Dr Milton diagnosed a pathological grief reaction leading to depression. However, the picture is complicated by events in the plaintiff’s life after the death, as well as her poor physical health. She has long suffered from chronic obstructive airway disease, recurrent pain in her neck and lower back due to osteoarthritis, and lower abdominal pain due to diverticular disease. For these she has been treated by a general practitioner, Dr Kwon Kan Tam. When she first consulted Dr Lewin in 1989, she was concerned with the management of her second husband, who was then terminally ill. Although they had been separated, she remained attached to him. Most importantly, at the same time she was facing a claim in the order of $100,000 by the income tax authorities after an investigation of her tax returns for the years 1983 to 1988.
11 The Australian Taxation Office later remitted that additional tax because the plaintiff was in no position to pay it, but she acknowledged in evidence that the claim caused her serious anxiety and depression. The defendant argues that this was the real source of any clinical depression she has suffered, noting that it was not until the claim for unpaid tax was made, some six years after the death of her son, that she commenced psychiatric treatment.
12 Reliance is placed upon a report which Dr Lewin prepared for her solicitors on 21 February 1992, in which the doctor wrote of her experiencing “a low-grade but sustained depressive disturbance of a reactive kind during the last two and a half to three years”. While referring to her grief following the death of her son, he expressed the opinion that her “ongoing difficulties with the Taxation Department” appeared to be “the major trigger or precipitant” of her condition. Resolution of those difficulties, he thought, would lead to “a fairly rapid resolution” of that condition. It is clear that that report was prepared for the solicitors for the purpose of their dealing with the plaintiff’s tax problem. Dr Lewin expressed the same view in a supplementary report of 8 October 1993.
13 However, in a report of 25 January 1995 Dr Lewin, after referring to her financial problems and other difficulties in her life, wrote that “the main source of distress throughout the prolonged period of time” he had known the plaintiff had been “her emotional reaction to the death of her son”. It was in that report that he expressed the diagnosis to which I have referred. In the meantime, late in 1993, she had been relieved of her tax burden.
14 The defendant challenges the reliability of this opinion, in the light of the earlier reports. On the other hand, Dr Lewin gave evidence that what he considered to be the plaintiff’s “chronic reactive depressive condition” was the result of a number of factors and, observing that the “notion of a linear causality is a notion more for lawyers than doctors”, he adhered to his view that her reaction to the death of her son was the “predominant causal factor”. With the benefit of hindsight, he said, he had given undue emphasis to the taxation problem in the reports of 1992 and 1993.
15 After careful consideration, I accept Dr Lewin’s explanation of the apparent conflict between the reports. It should be noted that in a report of 31 December 1990, directed to solicitors previously acting for the plaintiff for the purpose of a victim’s compensation claim, he described the death of her son as the “main cause of her depressive symptoms”. He added that the circumstances of the death and its effect upon the plaintiff had been “outlined in detail” in an earlier report to those solicitors. Unfortunately, a copy of that earlier report was not able to be produced. The doctor observed that her depressive condition continued well after the remission of her tax debt. Indeed, in a further report of 7 November 1997, he expressed the opinion that it would be with her “throughout the rest of her days”. In those circumstances, it is reasonable for him to have reassessed the significance of the son’s death as a contributing factor.
16 However, the defendant also relies on the clinical notes of Dr Tam, the general practitioner who saw her many times over a period of years from mid 1983. It was he who referred her to Dr Lewin in 1989. The plaintiff’s evidence was that she discussed her feelings about the death of her son with Dr Tam on numerous occasions. His notes, which are characteristically brief, contain no reference to any such discussion. On 1 February 1985 she is noted to be “depressed”, but the entry is unexplained. Similarly, a note of 10 November 1987 records her complaint of nightmares, but without elaboration. It is clear that she spoke to Dr Tam about her taxation problem, because on 27 February 1992 he wrote to the Department to explain her physical ailments and to describe the “stress and depression” engendered by her financial difficulties.
17 On the other hand, in certificates of 18 June and 7 December 1992, both addressed “To whom it may concern”, Dr Tam referred to her “long-standing” or “chronic” depression as a result of her son’s death. It is not clear for what purpose those certificates were prepared. He expressed the same view in a brief report of 10 October 1993 to the plaintiff’s solicitors, and in evidence before me. It may be that in earlier consultations the plaintiff had discussed her grief, but he did not perceive its clinical significance. As he said in evidence, it was not his “field to manage depression”.
18 Dr Milton saw the plaintiff on 1 May 1989, 5 June 1995 and 17 July 1997. While she told him of her problem with the taxation authorities, the doctor said in evidence that she did not “make a big issue of it”. It seems that his knowledge of the extent of that problem derived from the reports of Dr Lewin, with which he had been supplied before the consultation in June 1995. Nevertheless, his diagnosis remained unchanged and he saw the death as the ‘principal source’ of her continuing depression. In his first report of 1 May 1989, he referred to her pathological grief reaction and the fact that she was close to her son and deeply missed him. He added that “she would have been able to come to terms with his loss if he had died under more normal circumstances”. In his final report, of 7 August 1997, he concluded that she “is unlikely ever to do so”.
19 The defendant engaged Dr Kenneth Dyball to examine the plaintiff, and he saw her on 27 September 1991. In a report of the same day, he concluded that she had “an abnormal grief reaction”. In the course of the consultation she referred to the tax debt, which was still unresolved at that stage. However, according to the doctor’s evidence, she told him that “it didn’t worry her in any abnormal fashion”.
20 Dr Dyball was later supplied with Dr Lewin’s reports, which led him to supply a supplementary report of 28 October 1998. In the light of Dr Lewin’s reports of 1992 and 1993, he expressed the view that the association of the death of the plaintiff’s son with her emotional problems was “rather more dubious”. He saw the death as a factor, but considered her financial problems and the death of her husband to be “of equal significance”. He adhered to that view in evidence, noting that whatever “grade of depression” was present prior to the claim for unpaid tax in 1989, it was not “of such intensity” as to induce her to seek psychiatric treatment.
21 However, I consider that there is force in the observations of Dr Lewin in a supplementary report of 4 May 1998, which addressed the question of why the plaintiff may have left it so long to seek treatment. He considered that she was able to manage “chronic low-grade ongoing depressive symptoms”, tending “to soldier on rather than to complain”. He noted that she was initially somewhat reluctant to consult him, feeling that there was a measure of “social stigma attached to seeing a psychiatrist”. Nevertheless, she did so because her symptoms worsened over the passage of time, as a result of the other factors to which reference has been made.
22 The plaintiff did not see Dr Lewin between February 1995 and October 1997, a period of about two and a half years. She had been taking medication but stopped doing so sometime in 1995. The defendant contends that this is consistent with a recovery from her depressive condition, following upon her release from her tax liability. However, Dr Lewin saw this as consistent with the fact that her symptoms fluctuated over the years. As to the medication, her evidence was that she ceased taking it because it had side effects which she found disagreeable. On balance, I accept this evidence.
23 In final address, counsel for the defendant attacked the plaintiff’s credibility, submitting that the proceedings in this Court amounted to “double dipping”. Having been absolved of a substantial debt to the taxation authorities, it was said, she has sought to enhance her good fortune by falsely ascribing her depressive symptoms to the death of her son. Counsel relied upon the understatement of her income in the tax returns which led to the investigation of her affairs as testament to her lack of honesty. However, the evidence before me is insufficient to warrant any conclusion about her personal culpability for any misstatement in those returns.
24 I do not accept the whole of the plaintiff’s evidence without reservation. She is a woman in her late sixties and I consider that her recollection of events was not entirely reliable. I also think that there were occasions in her evidence when she gilded the lily to some extent. Nevertheless, she impressed me as basically an honest witness. Further, as I have said, her account of her emotional reaction to the death over the years was corroborated in significant respects by her daughter and Mr McBride, whose evidence I accept.
25 In my view, the plaintiff has established that she has suffered from nervous shock, as that expression is explained in the modern authorities, as a result of the loss of her son. I accept the view expressed both by Dr Lewin and Dr Milton that she has been depressed as the result of a pathological grief reaction. It is true that she has had other distressing experiences, principally the death of her second husband and her tax problem, which deepened her depression and for which the defendant is in no way responsible. Nevertheless, I accept that the tragic event of November 1983 is the source of a significant and enduring level of depression, of which she will never be free. As a result, her mood, her lifestyle, her relationships with others and her capacity to deal with the ordinary vicissitudes of life have been adversely affected. Of course, in the future her continuing depression will merge with the inevitable effects of advancing age and deteriorating health.
26 I would award $70,000 as general damages. For the assessment of interest, I would attribute sixty percent of that amount to the past.
Economic loss
27 From her mid-teens, the plaintiff has had a varied and, at times, colourful working life. A significant proportion of the evidence and the submissions of counsel related to her business interests in the 80s and 90s, but the issue refined itself in such a way as to enable it to be dealt with fairly briefly.
28 As I have said, at the time of her son’s death, the plaintiff was the proprietor of a brothel in Kings Cross. In 1986 she set up a fantasy phone sex business, with an associated escort service, in Maroubra. It is her case that that business declined over the ensuing years, one of the reasons being her inability to retain staff because of her irritability. In 1996 she abandoned it and set up another brothel in the Maroubra area. She closed it in September 1997. Again, she claims that her poor relationship with the staff was one of the reasons she did so. In 1998 she did some shift work as a receptionist in a brothel in Banksia, and at the time of the hearing she was running a phone sex and escort business on a limited basis from her home. She has been receiving the aged pension since 1992.
29 I heard some interesting evidence from Ms Roberta Perkins, a university graduate who has undertaken extensive research into the sex industry. She said that prostitution declined from the mid 1980s because of the fear of AIDS and the reluctance of many clients to use condoms. That decline “gradually started to plateau” as the use of condoms gained widespread acceptance by sex workers and their clients. The plaintiff herself gave evidence to the same effect, expressing the view that it was that decline which led to the development of the fantasy phone sex industry. Ms Perkins also saw significance in limitations upon tax deductions for entertainment, so that businessmen could not claim a deduction for entertaining clients at brothels, together with a general economic downturn.
30 It is in the light of this evidence that the plaintiff claims past economic loss from 1989, rather than some earlier time. A claim for future economic loss was effectively abandoned by her counsel, in the light of her general physical health.
31 Both parties relied upon actuarial reports and the author of each report gave evidence. Given the view I have formed about this claim, it is unnecessary to summarise that material. It is sufficient to say that the figures in the report prepared for the plaintiff, based upon her tax returns, show a decline in business income from 1990. In evidence the plaintiff agreed that her business “commenced to ease off in about 1992”, but it may have been somewhat earlier than that. The difficulty she faces is that this could well be attributable to the combination of a number of factors other than depression arising from her bereavement.
32 She acknowledged in evidence that the fantasy phone sex industry was in its infancy when she ventured into it, but competition developed markedly over the years thereafter. She agreed that her preoccupation with her tax problem diminished her interest in the business, causing it to decline, although she added that she “still had the stress” after she was relieved of that obligation. She added that the phone sex enterprise, being a twenty four hour a day business, was difficult to administer on her own, and the Maroubra brothel was beset by problems with the landlord and the local council. Finally, in the certificate of 27 February 1992 referred to in paragraph 16 of these reasons, Dr Tam expressed the view that her physical health at that time was such that she would be unable to work for more than another year. He adhered to that view in evidence, saying that she should have stopped working by early 1993.
33 I accept that the depression engendered by the loss of her son affected her relationship with her staff and, generally, made her working life more difficult. I have taken account of that in the award for general damages. However, I am not satisfied that that condition contributed in any significant way to the decline of her business. The claim for economic loss is not made out.
Conclusion
34 Accordingly, the plaintiff is entitled to damages assessed in accordance with my conclusion in paragraph 26 of these reasons. The agreed out of pocket expenses, rounded off, are $6,210. No interest is claimed on them.
35 I request the parties to bring in short minutes to give effect to my reasons. On the question of damages, they should not hesitate to inform me if I have made any technical or procedural error, or have failed to determine any matter in dispute. If necessary, I shall hear argument on costs.**********
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