Ling v Edwards
[2001] QDC 115
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Ling v Edwards[2001] QDC 115
- Add to List
Ling v Edwards[2001] QDC 115
Ling v Edwards[2001] QDC 115
DISTRICT COURT | No 4816 of 2000 |
CIVIL JURISDICTION
SENIOR JUDGE TRAFFORD-WALKER
DANIEL JERARD LING | First Plaintiff |
and
CATHERINE ANNE LING | Second Plaintiff |
and
DR JOHN EDWARDS | Defendant |
BRISBANE
..DATE 15/06/2001
JUDGMENT
HIS HONOUR: On 23 August 1995 the defendant carried out a vasectomy operation on the first plaintiff. After recovering from the operation the first plaintiff resumed normal sexual relations with his wife, the second plaintiff.
On 13 March 1997 the second plaintiff consulted Dr Kathy Winn of the Alexander Hills Medical Centre who confirmed that she was pregnant. On 23 October 1997 the plaintiff's sixth child was born.
The plaintiffs brought this action in the Supreme Court at Brisbane seeking damages for negligence and breach of contract. Judgment in default of appearance of the defendant was entered and the matter has been referred to this Court to assess damages.
I shall briefly set out the facts upon which my assessment is made. The first plaintiff is 44 years of age, his date of birth being 12 October 1956. The second plaintiff is 40 years of age. Her date of birth being 3 May 1961. They were married on 22 December 1989. They have six children their names, ages and the dates of birth are as follows; Andrew born on 22 March 1989, 12 years; Timothy born on 19 October 1999, 10 years; Sarah born on 3 December 1991, 9 years; Rachael born on 11 August 1993, seven years; Jennifer born on 8 September 1995, five years and Christine born on 23 October 1997, three years.
Before the birth of Christine the plaintiffs had decided that they did not want any more children. There were a number of reasons for this. Both Andrew and Jennifer are autistic. The plaintiffs could not afford the cost of a sixth child and the second plaintiff had suffered health problems during her earlier pregnancies.
While pregnant, in addition to the normal discomforts of pregnancy, she had suffered constant leg cramping, sleeplessness, headaches and depression. The depression had become so severe that for a period she had been hospitalised.
At the consultation with the defendant before the operation the first plaintiff stressed to him that it was very important that the operation be a success. He explained to the defendant that they already had five children and that they could not afford any more. The evidence of the first plaintiff is that the defendant replied that he also had five children and that he understood.
The defendant would therefore foresee that if this operation was not a success as a result of negligence on his part a number of consequences could follow. Included in these would be that the second plaintiff could become pregnant. Following upon that, there would be the normal consequences of pregnancy for the second plaintiff, additional requirements for care of the sixth child, costs associated with raising the child, there could be a loss of consortium for the first plaintiff and he may have to undergo a second operation.
Having regard to the qualifications and experience of the defendant along with the information which was supplied to him by the first plaintiff, all these heads of damage were reasonably foreseeable. I shall therefore proceed to assess damages under these various heads.
So, far as pain and suffering and loss of amenities are concerned for the second plaintiff the information I have, which I accept, is as follows. She suffered morning sickness for about six weeks. She started putting on excess weight and in an endeavour to remain physically fit she started swimming.
However, while swimming she sustained an injury to her back which brought an end to that activity. As the pregnancy progressed she began to experience sleeplessness, headaches and muscular cramps. She developed emotional problems coping with the thought of the pregnancy and dealing with her other children.
For a period the first plaintiff was able to arrange some time in a local retreat for her. From the 3 to 9 October she was admitted to the Logan Hospital suffering from insomnia, suicidal thoughts and depression. She was readmitted on 16 October suffering the same problems.
The birth of Christine was induced in an endeavour to help her overcome these problems and that did, in fact, occur. The symptoms of depression did improve. The birth of Christine was induced on 23 October. The second plaintiff suffered the usual pain and discomfort associated with child birth. However, in addition to that she suffered depression and other symptoms outlined above.
She put on weight and has had difficulty taking that off. She also suffers bouts of depression and is currently on medication for that. Since the birth of Christine she has lost interest in sexual intercourse with the first plaintiff and sometimes finds sexual intercourse painful.
Before her pregnancy with Christine the second plaintiff had mild incontinence. Since the birth this has worsened to the extent that it is now necessary for her to wear a pad. Taking all these matters into account I assess damages under this head at $30,000. In relation to that I allow interest on $20,000 at the rate of 2 per cent for a period of 189 weeks giving a figure of $1,454.
I now come to the matter of gratuitous care. First of all, there was the additional care required of the first plaintiff as a result of the second plaintiff's pregnancy, because they already had five children to care for.
During the period of his wife's morning sickness the first plaintiff was required to spend about one and a half hours per day extra looking after the children and doing housework. Then for the last four months of the pregnancy the same time was required in extra duties. This gives a total number of 220 hours.
In addition to that there were some special periods where extra care was required from him and these are as follows:
- Arranging medical assistance, 10 hours.
- Twenty hours when the second plaintiff was in the retreat;
- Twenty-eight hours when the second plaintiff was in hospital from 3 October to the 9th;
- Fifty hours to cover the second hospitalisation plus the period immediately she was released from hospital after giving birth to Christine.
The first plaintiff claims 10 hours for preparing the babies room and 35 hours for work on the garage. The garage was modified to become a bedroom for boys. These claims I find too remote, that is, not reasonably foreseeable for the defendant and I do not allow those particular hours.
There was a similar claim for replacement of a motor vehicle and again I find this falls into the same category as not being reasonably foreseeable. The total period I allow for gratuitous care by the first plaintiff with respect to the pregnancy is 324 hours.
It has been suggested that I allow $11 per hour for care and I accept that as a reasonable rate. This gives a figure of $3,564 and on that I allow interest at the rate of 10 per cent for 195 weeks giving a sum of interest at $1,535.00. There is a claim for gratuitous care from the date of Christine's birth.
The time required varies having regard to the age of Christine and the rates claimed per hour differ having regard to the prevailing rates at the time. These estimates of time seem reasonable to me and I accept that together with the suggested rates. The basis for this claim is contained in the evidence of the first plaintiff at paragraph 59 of his affidavit. These sums are as follows:
- (a)The first month three hours per day; the following five months two hours per day. That totals 390 hours at $11 per hour amounting to $4,290;
- (b)From 23 April 1998 to 31 July 1998 one hour per day at $11 per hour being 98 hours coming then to a total of $1,078;
- c)From 1 August 1998 to 31 May 1999 being one hour per day, that is, 300 hours at $12.65 per hour coming to a total of $3,858;
- d)From 1 June 1999 to 31 August 1999, one hour per day being 90 hours at $13.04 per hour coming to a total of $1,174;
- e)From 1 September 1999 to 31 August 2000, one hour per day proceeding on the basis then of $106.14 per week giving a total of $5,519;
- f)From 1 September 2000 to 16 December 2000, one hour per day, the rate being $117.70 per week gives a total of $1,766, and finally
- g)From 16 December 2000 to 14 June 2001, one hour per week, the rate being $127 per week giving a total of $3,325.
The total claim for gratuitous care from the date of birth of Christine is therefore $21,010. I allow interest on that at the rate of 5 per cent for a period of 189 weeks and that is $3,818.
There is a claim for future gratuitous care on behalf of the parents in relation to Christine. It is suggested by the first plaintiff that such care will be required at the rate of one hour per day until Christine reaches the end of her schooling. Probably about the age of 19.
There are a number of contingencies that have to be taken into consideration when making calculations such as this.
The period allowed for such care in my view should therefore be reduced. I have allowed a period of 10 years for future care. Using the evidence of susan Decampo the present cost of such care per week would amount to $127.90. Using that rate for 10 years with a discount rate of 3 per cent gives a figure of $57,785 and I allow that sum for future care.
I now come to the costs associated with raising Christine. These have been set out in a detailed schedule attached to the affidavit of the first plaintiff. One could argue about specific amounts or perhaps add some matters that have not been taken into consideration. In the end, that does not seem to me to be necessary as looking at them generally these figures seem reasonable. I have therefore come to the view that they should be allowed. In relation to year one the figure is $4,367.67. In relation to year two the figure is $4,721.78. In relation to year three it is $6,843.88. For part of year four it is $4,109.64. That gives a total of $20,043 that is allowed and upon that I allow interest at the rate of 5 per cent for 189 weeks giving a figure of $3,642.
There is also a claim for the future costs associated with raising Christine. These are set out as follows:
a) | Balance of years 3 to 4, i.e nil to 0.5 - $2,362.00 | $ 2,280.00 |
b) | Years 4 to 5, i.e. 0.5 to 1.5 - $6,383.88 | $ 6,102.00 |
c) | Years 5 to 6, i.e. 1.5 to 2.5 - $7,451.88 | $ 6,779.00 |
d) | Years 6 to 7, i.e. 2.5 to 3.5 - $7,468.63 | $ 6,477.00 |
e) | Years 7 to 8, i.e. 3.5 to 4.5 - $8,297.93 | $ 6,846.00 |
f) | Years 8 to 9, i.e. 4.5 to 5.5 - $9,207.38 | $ 7,242.00 |
g) | Years 9 to 10, i.e. 5.5 to 6.5 - $10,931.53 | $ 8,178.00 |
h) | Years 10 to 11, i.e. 6.5 to 7.5 - $11,898.28 | $ 8,489.00 |
i) | Years 11 to 12, i.e. 7.5 to 8.5 - $12,209.78 | $ 8,288.00 |
j) | Years 12 to 13, i.e. 8.5 to 9.5 - $13,112.33 | $ 8,498.00 |
k) | Years 13 to 14, i.e. 9.5 to 10.5 - $13,154.88 | $ 8,095.00 |
l) | Years 14 to 15, i.e. 10.5 to 11.5 - $13,037.88 | $ 7,647.00 |
m) | Years 15 to 16, i.e. 11.5 to 12.5 - $13,439.88 | $ 7,168.00 |
n) | Years 16 to 17, i.e. 12.5 to 13.5 - $13,934.88 | $ 7,075.00 |
o) | Years 17 to 18, i.e. 13.5 to 14.5 - $13,934.88 | $ 7,075.00 |
p) | Years 18 to 19, i.e. 14.5 to 15.5 - $17,635.88 | $ 8,513.00 |
|
| $ 115,198.00 |
However, once again, it is necessary to discount this figure allowing for contingencies. In this case, I think it appropriate to discount the total claim under this head by 5 per cent which gives a sum of $109,438.00 and I allow that sum for future costs of raising Christine.
The first plaintiff has claimed for loss of consortium. Since Christine's birth the second plaintiff has lost interest in sexual intercourse and has had problems associated with depression. These are on-going. I have no evidence as to how long these problems may last.
However, things are likely to improve with the passing of time and no doubt the conclusion of this litigation will help. For loss of consortium I allow the sum of $3,000, The final claim on behalf of the first plaintiff is with respect to the second vasectomy.
There was associated pain and discomfort with respect to that operation and I allow a sum of $3,000. Upon that I allow interest at 2 per cent for 189 weeks giving a sum of $215.
In summary damages are assessed as follows; in relation to the first plaintiff loss of consortium $3,000, damages for the second vasectomy $3,000 and interest on such damages $215 that being a total of $6,215. In relation to the second plaintiff general damages of $30,000, interest on past pain and suffering $1,454, past Griffiths v Kerkemeyer or care, gratuitous care $24,574. The interest upon that $5,353. Future gratuitous care $57,785 giving a total of $120,165.
Damages in relation to both the first and the second plaintiff; first of all, the past cost of raising Christine to date $20,043. Interest upon that of $3,642. Future costs related to raising Christine of $109,438, The total of the joint damages being $133,123.
...