SOC v Lyle
[2007] WADC 140
•16 AUGUST 2007
SOC -v- LYLE [2007] WADC 140
| Link to Appeal : | [2009] WASCA 3 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 140 | |
| Case No: | CIV:2786/2002 | 7-11 MAY 2007 | |
| Coram: | STAVRIANOU DCJ | 16/08/07 | |
| PERTH | |||
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | MILORAD SOC MAX WILLIAM LYLE |
Catchwords: | Causation Contributory negligence Burden of proof Standard of proof Damages |
Legislation: | Fatal Accidents Act 1959 (WA) Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) Law Reform (Miscellaneous Provisions) Act 1941 (WA) |
Case References: | Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017 Chapman v Hearse (1961) 106 CLR 112 Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 McGhee v National Coal Board [1973] 1 WLR 1 The State of Western Australia v Watson [1990] WAR 248 Watts v Rake (1960) 108 CLR 158 Wilsher v Essex Area Health Authority [1988] 2 WLR 557 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MAX WILLIAM LYLE
Defendant
Catchwords:
Causation - Contributory negligence - Burden of proof - Standard of proof - Damages
Legislation:
Fatal Accidents Act 1959 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Result:
Judgment for the plaintiff
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G R Droppert
Defendant : Mr P E Jarman
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017
Chapman v Hearse (1961) 106 CLR 112
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
McGhee v National Coal Board [1973] 1 WLR 1
The State of Western Australia v Watson [1990] WAR 248
Watts v Rake (1960) 108 CLR 158
Wilsher v Essex Area Health Authority [1988] 2 WLR 557
(Page 3)
- STAVRIANOU DCJ:
Introduction
1 The plaintiff claims damages pursuant to the Fatal Accidents Act 1959 (WA) for himself and his daughter Jovana consequent upon the death of his wife Slavica Soc ("the deceased").
2 The deceased was involved in a motor vehicle accident on 24 September 1999 ("the accident"). The deceased died on 29 October 2001 as a result of the consumption of Oxycontin, an opiate, which had been prescribed by her general medical practitioner.
3 The defendant has admitted that his negligence caused the accident. The defendant denies that there is any causal connection between any injuries suffered by the deceased in the accident and the death of the deceased.
The pleadings
4 The plaintiff pleads:
"2. On 24 September 1999:
(a) The defendant was the driver of a motor vehicle registration No 7JG 553 ("the Defendant's vehicle").
(b) The deceased was the driver of a motor vehicle registration No 8FZ 437 ("the deceased's vehicle").
(c) At the intersection of Warwick Road and Wanneroo Road, Greenwood ("the intersection") the Defendant's vehicle impacted with the deceased's vehicle ("the collision between the defendant's vehicle and the deceased's vehicle").
3. The defendant owed the deceased a duty of care ("the defendant's duty of care") by reason of the defendant being the driver of the defendant's vehicle at a time when the deceased's motor vehicle was in close proximity to the intersection.
4. The accident was directly caused by the defendant's breach of the defendant's duty of care.
(Page 4)
- PARTICULARS OF BREACH OF DEFENDANT'S DUTY OF CARE
(a) Failing to keep any or any proper lookout.
(b) Failing to drive with any or any proper control.
(c) Driving at a speed which was excessive in all the circumstances.
(d) Failing to brake in time or at all to prevent the collision between the defendant's vehicle and the deceased's vehicle.
(e) Failing to steer or control the defendant's vehicle so as to avoid the defendant's vehicle impacting with the deceased's vehicle.
- 5. As a result of the breach of the defendant's duty of care the deceased suffered injury included, but not limited to, soft tissue injury to her neck, resulting in headaches ("the headaches"), and psychological injury that was later diagnosed as a dysthymic/anxiety syndrome ("the psychological injury").
6. Subsequent to 24 September 1999 the deceased was treated for the headaches and psychological injury ("the medical treatment").
PARTICULARS OF THE MEDICAL TREATMENT
- (a) Medical reviews by Dr Edelman, rheumatologist.
(b) Medical reviews by Dr Fitch, pain management specialist.
(c) Medical reviews by Professor Mastaglia, neurologist.
(d) Medical reviews by Dr Kostov, consultant psychiatrist.
(e) Coordination of management, prescription of medication, and medical review by Dr Saharay, general medical practitioner.
- 7. During the course of the medical treatment referred to in the previous paragraph, and during about September/October 2001, the deceased was experiencing significant depression and was experiencing difficulty with medication use ("the problems with depression and medication use").
8. The deceased died on 29 October 2001.
9. The cause of the deceased's death was acute combined drug toxicity (principally oxycodone) ("the cause of death").
10. The cause of death was due to the deceased ingesting various medications that had been prescribed to her as part of the medical treatment referred to above.
PARTICULARS OF MEDICATION INGESTED
- (a) The plaintiff relies upon the content of the analysis of medications found within the deceased's body performed by the Chemistry Centre and referred to in a report dated 10 December 2001, as if the contents of that report were set out in this paragraph.
11. The deceased's death was a direct result of the ingestion of the medication which had been appropriately prescribed for the deceased as part of the medical treatment."
The Defence
5 The defence pleads:
"3. The defendant denies each and every allegation contained in paragraph 5 of the substituted statement of claim. In response to the allegations contained in paragraph 5 the defendant says:
3.1 that any soft tissue injury to the neck, headaches and psychological injury from which the deceased may have suffered were not caused by the motor vehicle accident pleaded in paragraph 2 of the substituted statement of claim but were caused by
- injuries sustained as a result of the deceased being involved in motor vehicle accidents in 1982 and 1994;
- 3.2 before the accident on 24 September 1999 the deceased had a history of headaches and migraine and that her headaches onset following the motor vehicle accident in 1982 and;
3.3 before the accident on 24 September 1999 the deceased consulted with Dr Kostov, consultant psychiatrist with a long history of high anxiety, mood fluctuations, pain complaints, marked self pre-occupations and excessive concerns about her daughter's health and that Dr Kostov diagnosed the deceased as having a mixed anxiety-depressive condition with a significant tendency towards self pre-occupations and excessive concerns about her daughter's health and that Dr Kostov diagnosed the deceased as having a mixed anxiety-depressive condition with a significant tendency towards self pre-occupation before 24 September 1999.
- 4. Save to admit that the deceased received medical treatment from the medical practitioners identified in sub-paragraph 6(a) to (e) inclusive of the substituted statement of claim the defendant denies that the need for medical treatment was caused or contributed to by the accident. The defendant refers to and repeats paragraph 3 herein.
5. The defendant denies each and every allegation contained in paragraph 7 of the substituted statement of claim and refers to and repeats paragraph 3 herein.
6. The defendant admits paragraphs 8 and 9 of the substituted statement of claim.
7. Save to admit that the cause of death was due to the deceased ingesting various medications the defendant denies each and every allegation in paragraph 10 of the substituted statement of claim.
(Page 7)
- 8. The defendant denies paragraph 11 of the substituted statement of claim.
9. If, which is denied, the deceased's death was causally connected to the accident the defendant says that the death was caused or contributed to by the deceased's failure to reduce her consumption of medication.
PARTICULARS OF ADVICE GIVEN
9.1 Dr David Chin repeatedly advised the deceased of the risks of dependency and addiction associated with taking excessive doses of medication. Warnings were given to the deceased by Dr Chin during the period 18 June 2000 to 21 March 2001.
9.2 The deceased was advised by Dr Singh about the risks of taking excessive doses of medication. These warnings were given during the period 9 May 2000 to 17 October 2001.
9.3 Dr Saharay advised the deceased to reduce her use of Mersyndol on 29 and 31 May 2001 and she advised the deceased about the risk of addiction and overdose and discouraged her from stockpiling medications on, inter alia, 18 June 2001, 1 July 2001, 12 July 2001, 24 July 2001, 13 August 2001, 6 September 2001 and 28 September 2001.
9.4 Dr Rehman counselled the deceased on the proper use of medications on 16 October 2001.
10. The defendant denies that the plaintiffs are entitled to the damages claimed in paragraph 12 of the substituted statement of claim or at all.
11. The deceased's death and the plaintiff's loss as alleged in paragraph 12 of the substituted statement of claim was entirely caused, or alternatively contributed to, by the negligence of the deceased.
PARTICULARS OF DECEASED'S NEGLIGENCE
The deceased was negligent in that she neglected her own health by:
- 11.1 Ingesting large quantities and dangerous combinations of prescriptions medications;
11.2 Becoming chronically dependent upon the medications referred to in sub-paragraph 11.1.1 above despite being repeatedly instructed by her physicians to reduce her consumption of medication;
11.3 Continuing to smoke cigarettes despite being at high risk of suffering a heart attack and stroke because she suffered from:
11.3.1 Chronic migraines;
11.3.2 Hypertension;
11.3.3 Hyperlipidaemia;
11.3.4 Sleep apnoea;
11.3.5 Obesity;
11.3.6 Diabetes;
11.4 Failing to exercise, diet, lose weight and increase fitness;
11.5 Failing to seek and obtain professional help to address her marital conflicts and stress.
- 12. Further, or alternatively, the deceased's death was due to intentional overdose of medication caused by the deceased's pre-existing psychological condition exacerbated by her relationship with the plaintiff.
PARTICULARS
- (a) The deceased's relationship with the plaintiff had been fluctuating shortly before her death;
(b) The plaintiff had threatened or intimated he was leaving the deceased;
(c) The deceased was concerned about the possible breakdown of marriage;
- (d) The deceased was concerned about her relationship with the plaintiff.
- 13. The medication which the deceased ingested referred to in paragraph 10(a) of the substituted statement of claim was not prescribed as a result of the motor vehicle accident on 24 September 1999 (but as a result of the plaintiff's long history of headache and over use of painkilling medication).
14. Save as expressly admitted herein, the defendant denies each and every allegation contained in the substituted statement of claim as if each were set out seriatim and specifically traversed.
15. The defendant denies that the plaintiffs are entitled to the relief claimed in the substituted statement of claim or to any relief at all."
The Deceased
6 The deceased was born on 18 February 1963. In 1994 she married the plaintiff.
7 On 1 December 1995 Jovana, the only child of the marriage, was born.
8 Prior to the accident the deceased had a range of health problems and had received treatment for obesity, diabetes, headaches, and diplopia. Her headaches developed when she was 12 years of age.
9 In 1982 the deceased was involved in a motor vehicle accident in which she struck her head against the steering wheel and her head was then hyperextended.
10 In a report of 19 February 1987 Dr D Hoffmann, neurological registrar, noted a history obtained from the deceased of daily headaches subsequent to the 1982 accident.
11 In August 1994 and March 1995 the deceased was involved in further motor vehicle accidents. The injuries sustained by the deceased in these accidents were minor and of short duration.
(Page 10)
12 In January 1999 the plaintiff was complaining of severe "hammering headaches" and underwent a CT scan of the head and cervical spine. There was no significant finding on the scan.
13 On 6 June 1999, the deceased attended the Joondalup Health Campus complaining of migraines which had been present for a few days. She attended again on 8 August 1999 complaining of migraines. The admission records indicate that the plaintiff attended on each occasion with the deceased.
14 From about 1986 the deceased attended the Marangaroo Medical Centre where she saw Dr Debbie Roberts and Dr Wendy Rappeport.
15 Between May 2000 and the date of death the deceased attended upon Drs Chin, Singh and Saharay at the Highclere Medical Practice ("Highclere") in relation to accident and non-accident related issues on many occasions.
The accident
16 The circumstances of the accident were not in issue.
17 The defendant gave evidence that the collision involved a slight impact. He testified that his vehicle was travelling at between 5 and 10 kilometres per hour at the time.
18 On the day after the accident the deceased attended the Emergency Department of the Joondalup Health Campus. She gave a history that she had been involved in a motor vehicle accident and presented with pain and stiffness in the neck. She was examined and a diagnosis made of a flexion extension injury to the neck. She was prescribed painkillers and anti-inflammatory medication and supplied a soft collar. She was discharged home with advice to seek review from her general practitioner.
The deceased's treatment and condition between the date of the accident and the date of death
19 On 4 October 1999 the deceased attended upon Dr Wendy Rappeport, a general medical practitioner, and complained that her headaches were unbearable. She provided a history of bad neck pain and was prescribed Naprosyn.
20 On 7 October 1999 the deceased attended the Joondalup Health Campus and presented with headaches and neck pain.
(Page 11)
21 On 13 October 1999 the deceased attended upon Dr Rappeport for more Naprosyn.
22 The deceased's attendances at Highclere were documented in the medical notes of that practice produced through Dr Indriani Saharay. Separate notes were maintained for accident and non-accident related issues.
23 Dr Singh saw the deceased on a number of occasions between May 2000 and October 2001. In a report of 16 June 2006 he opined that medications prescribed by him were for accident related neck pain and headaches. The report outlined the medication prescribed by him at each attendance upon him by the deceased.
24 Dr Singh considered the deceased suffered from chronic pain and headaches as a result of her accident related injuries. In his view the chronic pain led to development of underlying stress and depression which was compounded by ongoing marital problems. There was evidence that he had advised the deceased about the risks and side-effects of taking excessive medication.
25 Dr Chin saw the deceased between June 2000 and March 2001 on 13 occasions. He prescribed medication similar to that prescribed by Dr Singh. He considered that the deceased's chronic pain and ongoing headaches were a result of the accident. In a report of 5 July 2006 he opined that the medication prescribed was for neck pain, headaches and insomnia arising out of the accident. Dr Chin's report particularises the medication prescribed by him at each attendance by the deceased upon him.
26 In his report of 5 July 2006 Dr Chin stated:
"In trying to ascertain whether the motor vehicle accident contributed in any material way to her death several factors have to be considered. The deceased did suffer chronic pain and ongoing headaches as a result of the accident. This could most probably have resulted in psychosocial stress and even depression. She also had some ongoing domestic and mental problems which would have also contributed and magnified her stress and depression. With regards to the Oxycontin found at post mortem; I did not prescribe her that medication for her injuries. In summary the deceased's death could have partly been caused by the motor vehicle accident related injuries but that could not be the sole reason …"
(Page 12)
27 On 9 May 2000 the deceased attended upon Dr Singh who noted headaches and neck pain.
28 On 5 June 2000 the deceased attended upon Dr Saharay who noted "MVA ongoing issues".
29 On 18 June 2000 the deceased attended upon Dr Chin who noted headaches and neck pain.
30 On 9 August 2000 the deceased attended upon Dr Chin who noted the deceased had neck pain and was not sleeping.
31 On 16 September 2000 the deceased attended upon Dr Singh who noted the deceased had headaches and neck pain.
32 On 19 October 2000 there is a Highclere note that the deceased had a sore neck and headaches.
33 On 22 October 2000 the deceased attended upon Dr Chin who noted the deceased presented with severe headaches for three days.
34 On 12 November 2000 the deceased attended upon Dr Saharay. Dr Saharay noted a complaint of "neck ache from MVA". She noted examination of the neck revealed extension to 70 degrees, flexion to 80 degrees, and rotation to 40 degrees. She noted extension and flexion caused neck ache. At that stage she considered physiotherapy was appropriate. She prescribed Endone which had previously been prescribed by Dr Chin and Dr Singh.
35 In the notes of Highclere for January and February 2001 there are references to the deceased presenting with neck pain and headaches.
36 On 11 March 2001 Dr Chin noted bad headaches.
37 Dr Chin in a report of 14 April 2001 noted that the deceased was able to work and was symptom free prior to the accident and that:
"… it would be fair to say that her incapacity to work is a result of the injuries sustained. There has been no other known cause for the current symptoms …"
38 On 29 May 2001 Dr Saharay noted headaches. There are also notes of neck and back pain.
(Page 13)
39 On 30 June 2001 Dr Singh noted complaints of neck pain and that examination revealed tender cervical paraspinal muscles.
40 On 7 July 2001 Dr Singh noted neck pain and tenderness of the cervical paraspinal muscles.
41 Dr Saharay's note of 12 July 2001 is in the following terms:
"Stowing away Mersyndol Forte for when the claim ends. Alert, well, needs to reduce weight, 126 kilos. Duromine suggested, side-effects and use et cetera told, prescriptions provided."
42 On 27 July 2001 Dr Singh noted complaints of neck pain and headache and more medication was prescribed.
43 On 1 August 2001 Dr Singh noted complaints of neck pain and headache.
44 On 5 August 2001 Dr Saharay noted "Legs swelling, cellulitis and depression".
45 On 5 August 2001 Dr Singh noted "Neck pain, headaches, insomnia, cervical whiplash injury and general health advice."
46 The note of 7 August 2001 from Dr Singh is "Needs one last script before settlement, neck, back pain, headaches."
47 On 10 August 2001 Dr Singh noted complaints of neck pain and headache. Examination revealed tender cervical paraspinal muscles.
48 It was Dr Saharay’s evidence that by mid-August 2001 the deceased was being prescribed large quantities of analgesic medication which the deceased told her she was stockpiling. Dr Saharay testified that at times the deceased told her that she needed further prescriptions because her medication had been lost or stolen.
49 On 22 August 2001 Dr Singh noted neck pain, back pain and headaches and that he had been told the deceased needed one last script before settlement.
50 The Highclere note of 22 August 2001 is "Advised to cut down medication. Complaints, neck, back pain."
51 Dr Singh's note of 1 September 2001 is "Stress, neck, back pain."
(Page 14)
52 On 6 September 2001 Dr Saharay noted "No Mogadon, please."
53 On 30 September 2001 Dr Saharay noted "All medication taken by husband. Moving out."
54 On 10 October 2001 the deceased fell and injured her back.
55 On 11 October 2001 the deceased attended Highclere.
56 On 13 and 17 October 2001 Dr Singh prescribed medication for neck pain.
57 On 21 October 2001 Dr Saharay noted complaints of generalized pain.
58 The deceased was also reviewed by a number of specialist medical practitioners after the accident.
59 Dr Ken Fitch is a sports physician and reviewed the deceased on 26 June 2001.
60 Dr Fitch provided a report dated the 26 June 2001 in which he noted the history provided of acute neck pain post accident. He also noted that in relation to headache and migraine these had been aggravated as a result of the accident. In his report he acknowledged the difficulty in ascertaining precisely what injury was suffered and its extent. He considered that the deceased may benefit from a review by a consultant in pain medicine or from acupuncture.
61 In his report of 29 March 2006 Dr Fitch noted that he had no information which led him to believe that that the deceased was taking excessive doses of medication.
62 Dr Peter Panegyres, neurologist, saw the deceased on a number of occasions. In a report of 1 June 2001 he opined that the deceased had not sustained any physical residual disabilities as a result of the motor vehicle accident injuries. He noted a history obtained of a worsening of symptoms since the accident.
63 Jack Edelman, specialist rheumatologist, reviewed the deceased on 18 October 2000. He obtained a history that the deceased's headaches had become more severe after the accident and her neck pain was better before the accident. In his view the headaches appeared to be tension and soft tissue in origin. Her neck discomfort was soft tissue in origin.
(Page 15)
64 Professor Frank Mastaglia, consultant neurologist, saw the deceased on 27 September 2001. In his report of 2 October 2001 he noted a history of persisting neck soreness as well as headaches. It was his opinion that the injuries were of moderate severity. Examination revealed a full range of neck movement with discomfort at the extremes of movement, and tenderness bilaterally over the upper cervical areas and great occipital nerves.
65 As to the relationship between the deceased's then current symptoms and the accident it was Professor Mastaglia's opinion that the accident had resulted in a significant cervical whiplash injury which in turn aggravated the deceased's pre-existing tendency to migraine headaches and episodes of double vision. He considered that ongoing treatment including medications for headaches was required.
66 Dr S H Kostov, psychiatrist, first saw the deceased on 24 June 1999. Thereafter he saw her during 1999 and 2000. He also saw her on 2 August 2001 and 28 August 2001. In his report dated 22 January 2002 he noted that the deceased first mentioned problems in her relationship with her husband on 29 August 2001. At that time he noted a strong exacerbation of headaches. He opined that overall psychiatrically in spite of the significant stresses and her physical problems on that day the deceased had reported that she was "feeling better".
The deceased’s attendance on Dr Saharay of 28 October 2001
67 On 28 October 2001 the deceased attended upon Dr Saharay who prescribed 20 slow release 20 milligram Oxycontin tablets. In her report of 18 April 2006 Dr Saharay noted the deceased's complaints at the attendance as being "headache, backache, requesting samples".
68 Dr Saharay was questioned in detail about her prescription of Oxycontin.
69 In cross examination her evidence was:
"DROPPERT, MR: Two final questions, Dr Saharay: oxycontin, slow release or otherwise, is a powerful opiate, isn't it?---Correct.
It has the capacity to repress respiratory function?---Yes.
You knew that at the time you prescribed it?---Yes.
(Page 16)
- You knew you had a patient who had a history of significant use of analgesics, didn't you?---Yes.
And when you prescribed it to her it should have been two tablets a day to last 10 days?---Yes.
There were 20 in a packet?---Yes.
But in the act of prescribing it to her you told her in effect that she could take more than that, didn't you?---I gave her limitations on their use, yes.
You told her she could use more than two a day, didn't you?---Yes.
You wouldn't have prescribed this medication for her, knowing what you do of it, if you thought there was any risk at all that she would take them all and intentionally kill herself?---Correct.
Or that, indeed, she would take so many that she would intentionally kill herself even if she didn't take the whole packet?---Correct.
But you knew there was a chance that she would use more than the two a day?---Correct."
70 Dr Saharay's report of 18 April 2006 contains the following reference to treatment:
"Assessed to be incongruent in affect as demonstrating elevated mood in light of physical complaints and request for analgesics. Used this to show patient can reduce medication to more acceptable levels and dosage of twice daily only. Mersyndol Forte use of several dosages a day to twice daily dosage of a slow release agent (Oxycontin) which is more appropriate …"
71 Dr Saharay on 28 October 2001 substituted the existing medication with Oxycontin. There was no evidence of a warning by Dr Saharay as to the consequences of taking in excess of the prescribed dose of Oxycontin.
The death of the deceased
72 On 28 October 2001 the deceased was at home with the plaintiff. A neighbour visited at about 5.30 pm. There was no evidence of any tension or stress as between the plaintiff and the deceased that evening.
(Page 17)
- There was no evidence of the deceased having any suicidal ideation. The deceased had gone to bed and she was still alive when the plaintiff saw her in the early hours of the morning on his way to bed.
73 There is no direct evidence that the deceased took her own life. There was no suicide note.
74 Dr G A Cadden, forensic pathologist, provided a report dated 22 January 2002.
75 In referring to the level of oxycodone found in the deceased’s stomach he opined that:
"... the oxycodone level obtained in this case would appear to reconcile with what would be anticipated from an 80 mg dosage of oxycontin, oxycontin being a tradename for controlled release oxycodone hydrochloride…"
76 Dr Cadden's report was one of a number admitted by consent. I accept that the cause of death was acute combined drug toxicity, principally oxycodone.
77 I also accept that 0.1 milligrams per litre of oxycodone was consistent with a single dose of 80 milligrams of Oxycontin.
78 I am satisfied on the evidence that the death of the deceased was accidental.
The evidence
The Plaintiff
79 The plaintiff gave evidence that he was born on 29 December 1953 in Yugoslavia. On 11 October 1991 he arrived in Melbourne where he remained for two years before moving to Western Australia. It was the plaintiff's evidence that when he met the deceased she was working full-time. On 5 August 1994 he married the deceased.
80 The plaintiff gave evidence that he and his wife wanted to have children and that he was very happy when the deceased told him she was pregnant. The deceased continued working until she was about six to seven months pregnant with Jovana. On 1 December 1995 Jovana Soc was born.
(Page 18)
81 In 1996 the plaintiff, the deceased and Jovana moved to Port Hedland. The child remained in Port Hedland for about six months and then returned to Perth to live with her grandparents.
82 The plaintiff and the deceased worked full-time whilst living in Port Hedland.
83 In March 1998 the deceased's brother-in-law was killed and her nephew injured in a motor vehicle accident.
84 The plaintiff gave evidence that the death of her brother-in-law was a great loss for the deceased. The deceased moved to Perth to assist her sister and parents in relation to the care of the nephew. In late 1998 the plaintiff returned to Perth. The plaintiff, the deceased and Jovana lived together in Marangaroo.
85 The plaintiff gave evidence that he could not remember the deceased's car accidents in 1994 or 1995. He gave evidence that he was not a passenger in a car with the deceased in either accident.
86 The plaintiff gave evidence that after the accident the deceased complained of headaches and neck pain. He gave evidence that the deceased was in pain on the day after the accident and that he had taken the deceased a few times to the Joondalup Hospital to get tablets.
87 The plaintiff testified that before the accident the deceased was taking tablets from time to time for blood pressure or for headaches. He gave evidence that after the accident he was doing the housework.
88 The plaintiff gave evidence that by the date of death he and the deceased were sleeping in different bedrooms. He said this was because Jovana liked to sleep with her mother.
89 The plaintiff testified that on occasions when he came home from work after the accident the deceased would be lying down in bed. This had not occurred before the accident.
90 It was his evidence that whilst the deceased was in Port Hedland her health was good and in that time she did not complain about headaches.
91 The plaintiff gave evidence that he knew that the deceased was attending Drs Roberts and Rappeport. He gave evidence that he would see the deceased taking medication. It was his evidence that she was taking tablets for blood pressure and headaches. He gave evidence that he noticed in her bedroom several packets of tablets in yellow boxes.
(Page 19)
- He said that after the accident the deceased tried to work for five to six days but was unable to do so because of her illness.
92 The plaintiff's evidence in relation to the period between the motor vehicle accident and the date of death of the deceased was that she started to gain weight.
93 The plaintiff gave evidence that he did not know that the deceased was suffering from diabetes or had a cholesterol problem.
94 The plaintiff gave evidence that he worked at Bunnings Monday to Fridays and occasionally on Saturdays. His normal hours of employment were 6 am to 3 pm. Before he went to work the deceased would assist him and get him a cup of coffee if she was not in pain.
95 He denied that he had at any time physically abused the deceased.
96 The plaintiff gave evidence that on a number of occasions he, together with the deceased's mother, had removed tablets so the deceased could not take them.
97 It was the plaintiff's evidence that his marriage to the deceased was a normal marriage in which the family would participate in social visits and normal interactions.
98 The plaintiff's evidence in relation to the death of the deceased was that during the evening before her death a neighbour had visited. The plaintiff gave evidence that the deceased had been to a doctor that day and been given tablets. After a meal the deceased went to lie down. She was feeling low. The plaintiff's evidence was that at 1 am he had seen the deceased in her bed asleep next to Jovana. At that stage the deceased was breathing. On that same morning at about 5 am the plaintiff had gone into the deceased's bedroom and had found her dead.
99 It was the plaintiff's evidence that in the first two years of marriage the deceased did not complain of headaches. Her complaints were limited to complaints in relation to blood pressure. He testified that when the plaintiff had her period she would have migraine headaches.
100 It was the plaintiff's evidence that before the motor vehicle accident the deceased would have headaches every 10 to 15 days. He did not see the plaintiff take lots of tablets as she kept her medication in her own bedroom.
(Page 20)
101 The plaintiff denied that he deserted his wife in August 2001 and that there was any breakdown in the marriage in September 2001.
Boban Banovic
102 Mr Boban Banovic gave evidence on behalf of the plaintiff.
103 He testified that in 2001 he would give the plaintiff a lift to and from work.
104 The number of times per week Mr Banovic would give the plaintiff a lift to work depended upon whether the deceased needed the family car. He said it was usually three days per week but that on occasions there were weeks when no pick-ups occurred.
105 He gave evidence that he had seen the plaintiff and the deceased interacting. He described the family as being a very happy one.
Drago Ljub Soc
106 Mr Soc gave evidence on behalf of the plaintiff.
107 He is the plaintiff's cousin and had attended the deceased's wedding to the plaintiff.
108 He had been to the home of the plaintiff and the deceased on a number of occasions. Apart from the time when they were living in Port Hedland he would see them almost every week. He said in evidence that the pattern of his visits to the deceased's house was nice and friendly.
109 He testified that the deceased was a very big woman and not very healthy and at least in the year before her death she complained of headaches and started to complain about her neck.
110 He was asked about the relationship between the deceased and the plaintiff and he described it as friendly.
111 He gave evidence that in the two months before the deceased's death there was not a time when the plaintiff had left the house and was living somewhere else. It was his view that the deceased would have told him if the plaintiff had left the home.
Indriani Saharay
112 The general practitioner, Dr Saharay, first saw the deceased on 5 June 2000. At that consultation the deceased requested sleeping tablets.
(Page 21)
113 She gave evidence that the deceased's medical problems included non-insulin dependent diabetes, obesity, hypertension, raised cholesterol and hyperlipidaemia.
114 It was her view that the deceased's symptoms could not be viewed in isolation. She gave evidence of a history obtained from the deceased that her neck pain and headaches originated from her accidents.
115 In a report dated 12 November 2001 she noted that the deceased had multiple medical problems complicated by significant depression, physical pain and marital conflicts with domestic violence.
116 Dr Saharay testified that on 4 September 2001, the deceased was tearful upon presentation and that she had a "chat" with the deceased about her personal circumstances. At that time she made a note that "hubby left".
117 Dr Saharay's note of her consultation with the deceased on 30 September 2001 was "moving out, selling home, looks well". She agreed in cross-examination her note could have meant that there had been less arguing, that the deceased looked well, that the family home was to be sold and that the deceased and plaintiff would be moving out.
118 The notes produced by Dr Saharay did not have details of any physical or verbal attack of the deceased by the plaintiff.
119 Dr Saharay’s evidence concerning the relationship between the deceased and the plaintiff was vague and unconvincing. She was asked about the relationship between the deceased and the plaintiff. She testified that at its highest, a history of pre and postnatal depression from some five years beforehand was at best neutral as to whether there was marital stress as at June 2000. She agreed she probably would have recorded a complaint of actual physical violence and that there was no note of any physical violence or abuse of the deceased by the plaintiff. Whilst there were notations by Dr Saharay of relationship problems her evidence was imprecise. I was not satisfied I could act on it to conclude there were problems as contended by the defendant.
120 In her report of 30 October 2001 Dr Saharay opined that the deceased's headaches originated from an injury to the cervical spine. She noted findings of right cranio cervical neck pain and headache with significant overlay from depression and interpersonal conflicts. In her report after noting a history of complex medical problems Dr Saharay expressed the view that the outlook for the deceased was guarded.
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121 On 28 October 2001 the deceased attended upon Dr Saharay.
122 Dr Saharay's evidence was that she told the deceased that she should take two Oxycontin tablets a day but wanted the prescription of 20 tablets to last a week. In her evidence she explained the reason she wanted it to last a week was because she knew that the deceased was likely to take more than two tablets a day.
123 Dr Saharay gave evidence that she spoke to the deceased about her use of medication. It was her evidence that from March 2001 the deceased had been requested repeatedly to reduce the medication she was taking.
124 It was her view that Oxycontin, 20 milligrams twice per day, would not completely relieve the deceased's pain but it would be a starting point to alter her behaviour. The Oxycontin prescribed was a slow release tablet.
125 Dr Saharay gave evidence of 21 motor vehicle accident consultations and six Medicare consultations by the deceased upon her. She was asked about her billing practices. She testified that she billed the Insurance Commission of Western Australia if she wrote a prescription relating to analgesia for the deceased's neck pain or headaches if the deceased stated that it was to do with the accident.
126 She was asked about the deceased's injuries in cross-examination and testified:
"Your evidence in explaining the notes was that for various reasons it was convenient to keep those consultations relating to, for example, motor vehicle accident in one set of notes?---Correct.
As distinct from just slotting them in through the whole range of consultations, whatever they may be?---Correct.
Was I correct in understanding that?---Correct.
I thought you actually said that the motor vehicle accident date was noted at the top of the page?---Yes. I don't know if Dr Singh has attributed those symptoms to that accident.
All right?---It was classified under the date attached to that accident, the insurance claim attached to that accident date but I don't know if those symptoms - the double vision - I'm inferring
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- the double vision did not date from 22/9/99 because I have written in my notes from history that it's 1996.
Okay. Dr Saharay, you are answering something else at the moment but - - -?---Okay.
Within those blue notes, there are notes of yours, aren't there?---Correct.
And there's no doubt that as you wrote your notes for those consultations on those sheets you were making deliberate decision to attribute those notes and those consultations to matters relating to the motor vehicle accident which your surgery had a record of as being 22/9/99. Is that right?---My notes do relate to that accident.
You have told us that one of the reasons why they are kept this way is so that in a multi-medical practitioner practice, as you have, you can follow through what your fellow medical practitioners have been doing. Is that correct?---Yes.
So if you see the day before the patient has seen a doctor and prescribed medication, you can take that into account. If you see that they presented - you are nodding. The transcript doesn't pick up that?---Yes, yes.
If you see the day before that someone has presented with a complaint of neck pain, you can take that into account?---Yes.
There's absolutely no doubt at all, is there, that these notes - the blue ones in front of you - are the notes produced by you and your fellow doctors relating to the motor vehicle accident of 22/9/99. Isn't that right?---Correct."
127 She gave evidence in re-examination concerning the injuries as follows:
"There were three accidents anyway and I think they are in your notes. I think they were 82 and 84 and 99?---I can't seem to quickly find the dates of the accidents, but there were three.
When Slavica came to you and said, 'My neck's in pain, my back's in pain, I've got headaches,' she related them - did she relate them to the motor vehicle accidents?---She said they were initiating out of - her first consultations to me said that she had
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- neck pain and this was as a result of her motor vehicle accident most recently, 1999.
Perhaps I can ask you that: did Slavica relate her neck pain or back pain or headaches to other causes later on?---I got the impression over time, which is where that final notation, that final part of my - to summarise paragraph comes from - that the maintenance of her symptoms was caused by her other health, personal and family matters.
That's what you have got in your report, isn't it?---Yes, I felt the initiating cervical or soft tissue paraspinal whiplash symptoms were genuine, she did experience neck pain but the translation into migraine and tension headaches came more from her personal life and other health problems."
128 In her report of 18 April 2006 Dr Saharay stated:
"I am of the opinion Slavica Soc had ongoing chronic pain from several MVA's dated back from 1982. I believe the intense marital conflicts and abuse from which she suffered enhanced her recurrent headaches and somatic pain …"
129 The evidence establishes that Dr Saharay treated the deceased's complaints of neck pain and headaches as arising from the accident.
Wendy Rappeport
130 Dr Rappeport, a general practitioner of 27 years experience, first saw the deceased in 1986.
131 In a report of 28 June 1996 Dr Rappeport described the deceased's accident injuries as short lived and minor and that the majority of any continuing discomfort being experienced by the deceased was due to " … obesity, smoking and unfitness." The report refers to the accidents of August 1994 and March 1995.
132 Dr Rappeport provided a report dated 28 October 1999 having seen the deceased on 10 October 1999. She opined in the report that it was difficult to isolate the injury that was sustained. She referred to the deceased having years of unresolved headaches. Dr Rappeport noted in a report of 28 October 1999 that the deceased complained that the headaches were unbearable and that her neck was "really bad".
133 Dr Rappeport reported on 24 June 2000 that:
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- "… since the car crash, Slavica tells me her headaches and neck pain have been much worse."
134 She gave evidence that the deceased had health problems including obesity, diabetes, hypertension, hypercholesterolemia, depression and chronic headaches. It was her view that the deceased always seemed to exaggerate her symptoms. She testified that she came to that conclusion because of the extravagant nature of the language used by the deceased.
135 She said that the deceased would often present in pain but when she had a prescription she would be quite happy and walk out.
136 When asked about how often she had seen the deceased after October 1999 Dr Rappeport testified she did not know exactly because she didn't have any notes to go by, but would say approximately once a week, or once a fortnight.
137 In her report of 15 November 2001 she noted that after the attendance of 4 October 1999 the deceased saw her and requested more analgesics and wanted these billed to the State Government Insurance Commission because of the accident. Dr Rappeport said she could not accede to the request.
138 Dr Rappeport gave evidence that the deceased requested medication frequently and would provide excuses for the request including that her medication had been lost, stolen or sent overseas.
139 She gave evidence that the deceased had complained about marital conflict but she could not identify when. She testified that the deceased wasn't slow to complain about aches and pains. She considered these were presented in an elaborate way to obtain medication.
140 She testified that in the year before September 1999 there were long periods of time where there were no references in her notes to headaches. There were three references in 1999 to severe, bad or pounding headaches. There was one reference to neck pain in 1995. She agreed that there were no other specific references to neck complaints between August 1994 and September 1999. She testified that this did not mean that there were no other instances of neck pain. She testified she considered complaints of migraine to possibly include complaints about neck pain. This was because of the connection between headaches and neck pain.
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141 She testified that there was evidence of one complaint from the deceased of neck pain resulting from the September 1999 accident made to her and that there were others made to her colleague Dr Debbie Roberts.
142 Dr Rappeport gave evidence concerning the deceased's attendances at her practice including her attendance upon Dr Roberts. She referred to the notes made at the time of the deceased's consultations.
143 Dr Rappeport's notes of 30 October 1999 contain a reference to a prescription of digesic "for back of neck - car crash injury".
144 On 18 November 1999, Dr Roberts noted a complaint of headaches from car accident and a request for more analgesia at which time Endone was refused.
145 In March 2000 Dr Rappeport noted neck and upper back aches and prescribed Panadeine Forte with the notation "SGIC"
146 On 13 April 2000, Dr Roberts made the notation "MVIT accident 24/09/1999" and noted that the deceased was still experiencing "headaches from neck related to injury, Mogadon and Digesic were prescribed."
147 On 10 May 2000, Dr Roberts noted prescriptions for Mogadon and Panadeine Forte.
148 Dr Rappeport in her report of 24 June 2000 opined that it was difficult to "disentangle" the accident injuries from the deceased's ongoing health concerns.
149 Dr Rappeport's evidence was that the deceased's presentation before the accident was no different to her presentation after the accident, and that had the accident not occurred, the deceased's "path" would have been the same. She would have continued to present with the same symptoms, continued to overuse medication and be in the same position that she was in at the date of her death. Dr Rappeport agreed in her evidence that in expressing that opinion she did not take into account any of the presentations by the deceased to the doctors at Highclere.
150 She agreed that between October 1999 and June 2000 she did not examine the deceased's neck. She testified that the deceased had full free movement of her neck. She testified she could see simply by looking at the deceased that there was full mobility of the neck. She agreed that
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- observation by this means would not determine whether or not there was any tenderness of the muscles or structures of the neck.
151 In June 2000 Dr Rappeport effectively stepped out of the role of being the deceased's treating general practitioner. She did however have discussions with Dr Roberts concerning her management.
152 Dr Rappeport noted in her report of 28 October 1999 that it was difficult to isolate the actual injury that occurred and that the deceased had years of unresolved headaches.
153 Dr Rappeport's notes contained only one reference to neck pain in the five years before the accident. Dr Rappeport and Dr Roberts each received complaints from the deceased of neck pain resulting from the accident. Dr Rappeport and Dr Roberts each sent accounts for payment for prescriptions and treatment to the State Government Insurance Commission. Dr Rappeport recorded complaints from the deceased that subsequent to the accident her neck pain and headaches were worse.
154 I do not accept the opinion of Dr Rappeport that the deceased's condition would have been the same without the accident. I was not impressed by her evidence. As counsel for the plaintiff submitted one difference between Dr Rappeport's evidence and that of other practitioners was that she was not prepared to consistently act on the deceased's complaints of neck pain and headaches. She had not examined the deceased's neck after the accident. Her involvement in treatment after June 2000 was minimal. She did not have any information as to findings by other practitioners who had seen the deceased and examined her after the accident. In all the circumstances I do not accept and I am not prepared to act and rely upon her opinions and evidence in this respect.
The relationship between the plaintiff and the deceased
155 Evidence was adduced from the plaintiff, Mr Banovic and Mr Soc concerning the relationship between the deceased and the plaintiff. The evidence of each of the witnesses was to the effect that the plaintiff and the deceased were in a happy relationship.
156 The defendant pleads that the relationship between the plaintiff and the deceased exacerbated her pre-existing psychological condition.
157 Dr Saharay noted in her report dated 10 April 2006 that she declined to prescribe larger quantities of Oxycontin at the request of the deceased because it had become obvious she was stockpiling the medication.
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158 In the report Dr Saharay stated:
"Slavica's condition of migraine/tension headaches/cervical spine and general pain were undoubtedly exacerbated by this disharmony. She was repeatedly distressed from arguments with her husband, including a telephone conversation to a cousin the day prior to her death where she stated she could see no point in living further. I believe this marital strain was integral to her depression. Reliance on analgesia and inattention to her heath…I am of the opinion Slavica Soc had ongoing chronic pain from several MVA's dating back from 1982. I believe the intense marital conflicts and abuse from which she suffered enhanced her recurrent headaches and somatic pain…"
Legal Principles
159 Where there are possible competing causes it is sufficient if the evidence would support an inference that the defendant's negligence "materially contributed" to the plaintiff's injury: McGhee v National Coal Board [1973] 1 WLR 1at 6; Wilsher v Essex Area Health Authority [1988] 2 WLR 557 at 560;Chance v Alcoa of Australia Ltd(1990) A Tort Rep 81-017 at 67,727.
160 In Watts v Rake(1960) 108 CLR 158 Dixon CJ said at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
161 As Professor Luntz notes in "Assessment of Damages for Personal Injury and Death" (4th ed) at [1.9.13] the Chief Justice in Watts v Rake (supra) prefaced his remarks with the statement (at p 159) that:
"The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum
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- awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the defendant and this is when he sets up matter in mitigation of damages." (My emphasis).
162 In Purkess v Crittenden(1965) 114 CLR 164 Barwick CJ, Kitto and Taylor JJ, at 168, considered the decision in Watts v Rake (above) and said:
"We understand [Watts] to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
163 In March v E & MH StramarePty Ltd (1991) 171 CLR 506 at 622 Deane J said:
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- "For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it."
164 The applicable legal principles may be shortly stated:
1. It is unnecessary for the plaintiff to prove that the defendant's negligence was the sole cause of the injury or damage – it is sufficient if it was a cause: Chapman v Hearse (1961) 106 CLR 112 at 120.
2. Establishing a connection between the plaintiff's injury and the defendant's negligent act or omission is a prerequisite to the recovery of damages.
3. The standard of proof is the balance of probabilities.
4. The legal burden of establishing that the defendant's negligent act or omission caused or materially contributed to the plaintiff's injury rests on the plaintiff at all times.
5. A causal contribution is 'material' if it is shown on the evidence not to have been negligible: The State of Western Australia v Watson [1990] WAR 248 at 286.
6. The evidentiary onus may shift in the sense that where the plaintiff has proved a breach of duty by the defendant and that the breach increased the risk of injury and that risk eventuated then, in the absence of evidence that the breach has no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty of care caused or materially contributed to the injury. Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 at [25] per Le Miere J.
165 The defendant pleads that if the deceased's death was causally connected to the motor vehicle accident, then the death was caused or contributed to by the deceased's failure to heed advice repeatedly given by her treating physicians to reduce her consumption of medication.
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166 The defendant further pleads that the deceased died due to an intentional overdose of medication. The defendant maintains that the deceased overdosed on medication because of her pre-existing psychological condition exacerbated by her relationship with the plaintiff.
Findings
167 The plaintiff gave his evidence through an interpreter. His memory was in some respects lacking, however, overall given the time which has elapsed and the significant trauma of the deceased's death, I found him to be a reliable and honest witness. The plaintiff's evidence is that he had not separated from the deceased prior to her death. There was a short period of one week when he worked on a farm. I accept his evidence generally. The impression I gained was that he was doing his best to recall events which had occurred in some cases more than seven years before trial. On the plaintiff's evidence the deceased's condition changed after the accident. Her condition deteriorated and he was doing housework and helping her in domestic work. After the accident the deceased complained of headaches and neck pain.
168 The evidence of Mr Drago Soc and Mr Banovic is consistent with the plaintiff's evidence as to his relationship with the deceased. The effect of the evidence was that the relationship was at least a reasonably happy one.
169 The deceased was a person who did have medical problems prior to the accident. She had been significantly affected by the family problems which had arisen as a result of the death of her brother-in-law and the health of Jovana. Before the accident the deceased was taking significant quantities of medication.
170 The deceased did suffer migraine headaches before the accident and these were at times significant. In January 1999 the deceased had an episode of migraine headaches which she had complained were severe and pounding. There were complaints of migraines in June 1999 and August 1999. It was the evidence of the plaintiff that the deceased had headaches every 10 to 15 days before the accident.
171 Between August 1994 and September 1999 there were no specific references to neck pain in the medical notes save for one notation by Dr Rappeport on 24 June 1995.
172 I accept that on 24 September 1999 the deceased was involved in the accident. In the accident she suffered soft tissue injury to the neck and resulting headaches.
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173 The preponderance of the medical evidence is that after the accident the deceased on presentation had a full or nearly full range of movement but there was tenderness in the neck.
174 On the day after the accident the deceased attended the Emergency Department of the Joondalup Health Campus with a complaint of neck pain and headaches. On 4 October 1999 she attended her general practitioner with a complaint of severe pain in the back of her neck.
175 I am satisfied that between the date of accident and the date of death the deceased attended a number of medical practitioners and complained of neck pain and headaches for which she received treatment primarily in the form of medication. Dr Singh examined the deceased on a number of occasions and found tenderness in muscles in the cervical area.
176 The deceased was prescribed medication including painkillers in relation to her accident related injuries.
177 The evidence adduced establishes there were a significant number of attendances from May 2000 at Highclere by the deceased in which she complained of headaches and a sore neck either separately or together. The notes of such consultations were kept separate from those not relating to the accident.
178 Dr Chin and Dr Singh in their reports expressed the same opinion that medication was prescribed to the deceased for accident related neck pain and headaches. Professor Mastaglia was of the view in September 2001 that the deceased may require ongoing treatment. In his view the deceased had suffered a significant cervical whiplash injury in the accident.
179 After the accident the deceased was prescribed a wide range of medication including pain killers. Dr Singh prescribed medication on 15 September 2001, 10 October 2001, 13 October 2001 and 17 October 2001 for accident-related neck pain.
180 The deceased was given a prescription of Oxycontin on 28 October 2001. Dr Saharay's note of her consultation of 28 October 2001 when she prescribed the Oxycontin was in the motor vehicle section of her notes. She accepted in cross-examination that her notes related to the accident. I accept and find that what Dr Saharay was doing in prescribing the Oxycontin was to reorganise the medication prescribed to the deceased. Some of that had been prescribed by her colleagues at Highclere and some prescribed by her.
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181 Sometime on 28 or 29 October 2001 the deceased ingested a large quantity of Oxycontin which had been prescribed by Dr Saharay.
182 The deceased died from the effects of the Oxycontin.
183 I accept the continuation of the plaintiff's symptoms arising from the accident required review and treatment up to the date of her death. It was the decision of Dr Saharay to prescribe the Oxycontin. This was in the context of the plaintiff's presentation of ongoing symptoms of neck pain and headache. The plaintiff was given a prescription for 20 tablets. She was to take one tablet twice a day. Dr Saharay expected them to last seven days and told the deceased she could take more than two a day.
184 I accept that the Oxycontin which was the cause of death of the deceased was prescribed for the deceased's condition including for injuries suffered by her in the accident. Whilst the deceased had had some symptoms prior to the accident, her condition was made worse by it. Her symptoms of neck pain and headaches were continuing up until the date of death.
185 There is very little evidence as to the precise advice given to the deceased in relation to her excessive consumption of medication. Many of the reports tendered refer to advice given to the deceased to reduce her medication. There is no clear evidence that the deceased understood any warning provided to her by the medical practitioners she consulted. There was no satisfactory evidence as to the content of warnings given. The deceased was advised repeatedly to reduce her medication. Her requests for medication were met by the general practitioners she consulted. Notwithstanding such advice she continued to receive prescriptions when requested by her. Dr Saharay decided to prescribe Oxycontin which caused the death of the deceased. The deceased had not requested Oxycontin on 28 October 2001 or requested any particular dose of that medication. It was Dr Saharay's decision to prescribe the medication.
186 The plaintiff has established that the prescription of Oxycontin for treatment for injuries suffered in the accident as a result of the defendant's negligence was a material cause of the death of the deceased.
187 There is no medical evidence that the deceased died as a result of cigarette smoking, obesity or lack of fitness.
188 The evidence as to marital stress was vague and unconvincing. I am not prepared to rely on Dr Saharay's evidence in this respect. I am not
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- satisfied that there was any failure by the deceased to seek appropriate counselling and advice. There is no evidence that even if there was a failure to seek such assistance, that such failure caused or contributed to the death of the deceased.
189 I do not consider that the deceased was guilty of any contributory negligence.
Conclusion
190 The plaintiff is entitled to judgment.
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