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  • Unreported Judgment

Jack v McFarlane


[2005] QSC 101





No 2189 of 2002








..DATE 18/04/2005


THE CHIEF JUSTICE:  The plaintiff claims damages for the professional negligence of the defendant, who was a medical practitioner at relevant times.  The defendant has not appeared at the trial. 


The claim arises out of a consultation which occurred in August 1998, which led to the defendant prescribing a regime of medication for the plaintiff comprising Kalma, one milligram five times a day; Normison, 20 milligrams at night;Diazepam, one to three tablets per day; Anafranil, two tablets three times a day; and Avomine, 25 milligrams per day.  The plaintiff's diagnosed condition was Epstein-Barr Virus and Herpes 1. 


The evidence of Dr Douglas satisfies me that the defendant was negligent in three respects:  first, in prescribing an excessive quantity of medication, in particular benzodiazepine derivatives; second, in prescribing medication which was inappropriate for the condition suffered by the plaintiff; and, third, in failing to advise the plaintiff that the medications which were prescribed were addictive.  I rely on Dr Douglas' report of the 12th of April 2005 and Dr Matthews' affidavit sworn the 14th April 2005. 


Now, as soon as the plaintiff started taking these drugs she noticed an immediate change in her disposition.  She came to spend most of the day in bed.  She was like a "zombie", as she puts it, unable to make decisions, unable to continue working around the house, leading to the need for her husband to assist her even in showering, toileting and dressing. 


A pharmacist gave her some advice in the period after August 1998 that she should attempt to withdraw from the medication.She initially withdrew from Diazepam and attempted to withdraw from Anafranil and Avomine.  She continued to take Normison and Kalma and Anafranil for an extended period of time. 


In April 2000, a Dr Cole advised her that Kalma was highly addictive.  He gave her advice as to withdrawal.  She tried to follow his advice but experienced severe chest pain and faintings. 


Indeed, in May 2001 she collapsed down the front stairs of her house and attended then upon a Dr Bromeley.  He advised admission to a drug withdrawal facility at the Holy Spirit Hospital called the Damascus Unit, but the plaintiff had by then become too suspicious of doctors to follow that through.


She continued in her attempts to wean herself off the medication.  Then in December 2000, she again collapsed and that led to her admission to the Holy Spirit.  She continued to attempt withdrawal unsuccessfully.


In 2001, in February, a Dr Summers advised her to seek admission to the Damascus Unit and she accepted that advice.She spent four weeks there.  It was an extremely difficult time withdrawing from the Kalma.  She suffered nausea,vomiting, diarrhoea, headaches, chest pain, irritability,sensitivity to bright lights, disturbance of sound perception,unsteadiness on her feet, sensation of items moving around her, out of body experiences and tearfulness.  She was released from that, as I have said, after four weeks and over the next six months continued with great difficulty in her withdrawal attempts.  Over that period she experienced heightened sensitivity to light, sound and noise.  


Between September and October 2001, she was cared for in a clinic in Sydney by a Dr Burton.  She spent six months as a resident of that clinic while continuing in her withdrawals from Kalma.  Over that period she suffered depression and panic attacks, together with impaired sleep, loss of energy,loss of interest in activities, feelings of guilt, a loss of concentration and impaired short-term memory.


Even now she continues to suffer sensitivity to light, sound and noise.  She sleeps with earplugs.  She experiences emotional fragility.  She becomes tired, needing several hours sleep per day.  That sleep is disturbed.  She feels socially withdrawn.  She does not like going out by herself.  She lacks confidence and has to rely upon her husband a lot more than prior to August 1998.  She is socially more withdrawn.  Prior to that time she was an active and outgoing person who engaged in physical activities, this has changed.


Also as a result of the effects of the medication, matrimonial difficulties arose between the plaintiff and her husband.I am satisfied that these symptoms I have indicated were causally related to the defendant's negligence.  I refer to Dr Matthews' report of the 2nd of December 2003.  He says that the plaintiff underwent a protracted and complex withdrawal from the medications in February and March 2001.  He confirms significant withdrawal symptoms, including nausea, vomiting,diarrhoea, headaches, chest pain, irritability, sensitivity to light, disturbance of sound perception, unsteadiness of gait,sensation of things moving around her, out of body experiences and tearfulness.  When those symptoms from the withdrawal settled, the plaintiff developed prominent anxiety and depressive symptoms.  That doctor confirms she suffered a major depressive disorder with co-morbid panic disorder. 


Now, Dr Matthews also confirms that prior to the plaintiff's attendance upon Dr McFarlane in August 1998, there was no evidence she was suffering from any depressive disorder or panic disorder, major or otherwise, and the symptoms he confirms became apparent only after she experienced the protracted and disabling withdrawal from medication. 


There is also before me a report from Mr Stoker, a psychologist, dated 4th of June 2004, in which he expresses the view that the plaintiff should continue with psychiatric counselling for a further two to three years and that even after that time she will suffer significant psychological impairment.  He considers she will suffer periods of anxiety throughout her life.  The psychologist assesses her  psychological impairment in the range 15 per cent to17 per cent. 


I turn to the assessment of damages.  In terms of damages for pain and suffering, I have been referred to Arnold, a decision of Cullinane J of the 7th of April 1998 and Gallagher, a decision of Jones J. 


I set general damages in respect of pain and suffering and loss of amenities at $60,000.  I allow interest on $30,000 at 2 per cent per annum in respect of the period of 347 weeks;that is, $4,004. 


The plaintiff's special damages are as follows: 

(1)  Health Insurance Commission - as per

     Exhibit 8 in her affidavit;$16,587.00 

(2)  Expenses incurred as per Exhibit B to

      her affidavit;$14,914.28 

(3)  Medibank Private - as per Exhibit C to

      her affidavit $19,651.40 


Past special damages total $51,152.68.  I allow interest at five per cent on $14,914.28 for 347 weeks, yielding $4,976.


As to future special damages, her ongoing medication costs are as follows:

(1)Mersyndol - two tablets per day, 20 tablets per packet, costing approximately $8 per packet, which suggests an  amount of $5.60 per week being required; 

(2)Laxettes costing approximately $8 per bottle, lasting two  weeks, that is $4 per week.


Total medication costs per week amount to $9.60.  I allow $9.60 per week for 10 years at 5 per cent, totalling $3,965.  


In Mr Stoker's opinion, the plaintiff will require ongoing psychiatric treatment, involving 60 to 70 sessions, costing $172 over the next two to three years.  I allow for 65 sessions over two and a half years; that is, one session every two weeks.  That will cost $86 per week over two and a half years; in other words, $10,561.


Now, the plaintiff had not attended upon Dr Matthews since the 20th of April 2004 and, therefore, I discount that sum of $10,561 by one-third, leaving $7,040.67.  I allow $500 for travel expenses.  Future special damages total, therefore,$11,505.67. 


I turn to the Griffiths v. Kerkemeyer assessment in respect of the past.  In her affidavit the plaintiff has set out details of this claim.  In summary, the additional assistance which her husband has provided has been as follows:


(1)  26 hours per week for six months after August 1998; that is, 676 hours; 


(2)  18 hours per week over the next six months; that is, 468 hours; 


(3)  between November 1999 and March 2001, 69 weeks at 11 hours per week, totalling 759 hours; 


(4)  over the six months following the discharge from the Damascus Unit, 26 hours per week; that is, 676 hours;


(5)  since approximately October 2001, six and a half hours per week over 184 weeks; that is, 1,196 hours;


The total amount of hours of assistance since August 1998,therefore, adds up to 3,775 hours.  I allow $15 per hour, see McChesney v. Singh, QSC 311, and on appeal 2003 QCA 498, which yields a total of $56,625.  I allow interest on that sum at 5 per cent over 347 weeks, totalling $18,893. 


As to the future component under Griffiths v. Kerkemeyer, on the evidence before me, particularly that of Mr Stoker, the assistance required of her husband is likely to continue into the future and may increase if the plaintiff has a family.Conservatively, I allow $15,000 in this regard.


As to past economic loss, I note that the plaintiff was born on the 3rd of September 1969 and is 35 years of age.  Prior to her treatment by the defendant she had been engaged in several forms of employment.  She worked for two and a half years for an interior decorating and design company; she ran a jewellery shop owned by her father for several years; she spent two to two and a half years working for Prouds; she worked as a bank teller for St George for about two years and also in its lending department.


Between 1996 and August 1998, leading up to the consultation,she ran with another a small business making chutneys, jellies and jams.  She and Ms Campbell, her partner, had leased a commercial kitchen where they manufactured, packed and sold the products.  That business ran for about 18 months until 7th August 1999.  The plaintiff says that the business was improving and profits were being channelled back into it.  She was confident it would succeed. 


The plaintiff is to be compensated for having lost the opportunity of succeeding in that business.  Even if the business had not been successful, she would have been able to gain employment similar to that in which she had previously been engaged.  I allow past economic loss over 347 weeks at $172.91 per week, yielding $60,000.  Interest on that at 5 per cent for 347 weeks amounts to $20,019, which I will also allow.


As to future economic loss, Mr Stoker's firm view is that the plaintiff is presently unable to work because her levels of anxiety preclude her concentrating, rendering her commercially unemployable.  She is 35 years of age.  It is reasonable to look at economic loss over a period of 30 years.  In the updated Statement of Loss and Damage, a claim of $100,000 is made, plus $9,000 for loss of superannuation benefits.  I think really that is an appropriately conservative claim in the circumstances.  It has to be dealt with on a global or broad basis.  There can be no certainty in the calculation,but all in all I think that claim is sustainable.  I,therefore, allow $100,000 in respect of future economic loss at 9 per cent, $9,000 for future loss of superannuation entitlements.  As Mr Kimmins who appears as counsel for the plaintiff points out, that represents a loss of about $125 per week over 30 years at 5 per cent, which I think is reasonable. 


The sum total of all of those components is $411,175.35.  I give judgment for the plaintiff against the defendant in that sum, together with her costs of and incidental to the proceeding to be assessed. 


Editorial Notes

  • Published Case Name:

    Jack v McFarlane

  • Shortened Case Name:

    Jack v McFarlane

  • MNC:

    [2005] QSC 101

  • Court:


  • Judge(s):

    de Jersey CJ

  • Date:

    18 Apr 2005

Litigation History

No Litigation History

Appeal Status

No Status