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Chapman v Wide Bay Hospital and Health Service[2022] QDC 271

Chapman v Wide Bay Hospital and Health Service[2022] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

Chapman v Wide Bay Hospital and Health Service [2022] QDC 271

PARTIES:

CARA ELISSA CHAPMAN

(plaintiff)

v

WIDE BAY HOSPITAL AND HEALTH SERVICE

(defendant)

FILE NO.:

3965 of 2018

DIVISION:

Trial Division

PROCEEDING:

Civil

DELIVERED ON:

2 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1, 2 and 3 August and 29 November 2022; written submissions dated 10, 17 and 19 August 2022

JUDGE:

Rosengren DCJ

ORDER:

Judgment for the plaintiff against the defendant in the sum of $201,770

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – where a claim is made assuming full time employment in an administrative role until the age of 67 – where the plaintiff has been working longer hours than prior to the incident – the plaintiff’s likely employment had she not been injured – whether the plaintiff has suffered a loss of earning capacity.

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GRATUITOUS CARE – whether the plaintiff satisfies the pre-conditions for awards for the provision of gratuitous care.

Civil Liability Act 2003 (Qld) ss 55, 59, 60

Civil Liability Regulation 2014 (Qld) Schedules 4, 7

Uniform Civil Procedure Rules 1999 (Qld) r 380

Allianz Australia Insurance Limited v McCarthy [2021] QCA 312

Graham v Baker (1961) 106 CLR 340

Kars v Kars (1996) 187 CLR 354

Kriz v King & Anor [2006] QCA 351

Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298

Little v McCarthy & Anor [2014] QSC 274

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264

Minchin v Public Curator of Queensland [1965] ALR 91

National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569

Nucifora v AAI Limited [2013] QSC 338

Nunan v Gerblich (1974) 10 SASR 39

Paul & Anor v Rendell (1981) 34 ALR 569

Phillips v MCG Group Pty Ltd [2013] QCA 83

Purkess v Crittenden (1965) 114 CLR 164

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211

Schneider v Smith & Anor [2016] QSC 47

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Shaw v Menzies & Anor [2011] QCA 197

Sibley v Milutinovic (1990) Aust. Torts Reports 81-013

Sutton v Hunter & Anor [2022] QCA 208

Qantas Airways Limited v Fisher [2014] QCA 329

COUNSEL:

J M Sorbello and C Campbell for the plaintiff

C C Heyworth-Smith KC and M A Eade for the defendant

SOLICITORS:

Morton & Morton for the plaintiff

Corrs Chambers Westgarth for the defendant

Introduction

  1. [1]
    This is a claim in medical negligence. The plaintiff inadvertently suffered a bowel injury during a laparoscopic hysterectomy in a hospital at Hervey Bay in mid-December 2015. It was surgically repaired the following day and she was required to wear a colostomy bag until late February 2016. In November 2018 the plaintiff commenced this proceeding against the defendant for damages and other orders. Liability has been admitted but quantum remains in dispute.
  1. [2]
    The amended statement of claim filed in January 2022, the amended defence filed in June 2021 and the reply filed in January 2022 were the pleadings relied on at the commencement of the trial. Eight witnesses gave evidence, of which six were health professionals. There were 27 exhibits tendered.
  1. [3]
    On the second day of the trial, an application was made on behalf of the defendant to file a further amended defence. The proposed pleading contained three amendments, namely the addition of paragraphs 2(e)(ii)(D), 2(f)(iv) and 2(h)(vii). The effect of these amendments is to allege that the plaintiff has been suffering from moderate to severe obstructive sleep apnoea since mid to late 2016, and to the extent that she has suffered any economic loss or has a requirement for gratuitous care, they have been solely or materially contributed to by this unrelated medical condition. The plaintiff opposed the amendments. I delivered ex tempore reasons allowing the amendments pursuant to r 380 of the Uniform Civil Procedure Rules 1999 (Qld) and giving the defendant leave to file the further amended defence (‘the defence’).  Subsequently, the plaintiff filed an amended reply.  I also gave leave for the plaintiff to be recalled and for a further report to be provided by Dr Mathew relevant to the issue of the obstructive sleep apnoea. 
  1. [4]
    It is not in issue that as a consequence of the bowel injury the plaintiff has suffered an injury to her bowel, scarring to her abdomen and a psychological injury. The parties differ widely in their submissions as to whether the plaintiff continues to have symptoms causally related to the subject events. The defendant contends for an award of $45,000 and the plaintiff for an award of approximately $620,000. The principal focuses of the dispute centre on economic loss and care. The parties have provided detailed written submissions which were supplemented with oral submissions.

Relevant background

  1. [5]
    The plaintiff was born on 15 April 1975. She was 40 years of age at the time of the subject events. She is now 47 years of age. She is married with three adult children. She has a long-standing condition of fibromyalgia, for which she has been prescribed Endep. She and her family relocated from Perth to Hervey Bay in 2011. She lives with her husband on a half-acre block of land located approximately 22 kilometres from Hervey Bay. Her youngest child was aged 15 years at the time of the subject events and at least one of the children lived with them until approximately April 2022. The plaintiff’s work history has consisted largely of administrative roles.
  1. [6]
    In April 2014 the plaintiff was referred to Fraser Coast Psychology by Dr Rohit Singh in relation to family conflict and was seen on multiple occasions by Sonia Muller, psychologist. Ms Muller first saw the plaintiff on 19 May 2014. The relevant notes record that she had experienced depression in her early thirties in the context of a “bad marriage and that she was agitated by conflict with her adoptive mother.  The provisional diagnosis was deferred grief and loss issues.  The treatment goal was to explore possible ways for the plaintiff to have a relationship with her adoptive mother.  The plaintiff further attended upon Ms Muller on 23 June, 21 July, 18 August and 15 September 2014.   In a treatment letter to Dr Singh dated 27 November 2014, Ms Muller said that the plaintiff’s sessions had focussed on her depression, anxiety and family conflict.   However, a review of the notes in relation to each of the sessions suggests that the principal focus was on the plaintiff’s relationship with her mother.   The plaintiff declined to participate in further sessions. 
  1. [7]
    It appears that the plaintiff commenced attending the Family First Medical Centre (‘the GP Practice’) in December 2014. She had a complex gynaecological history. She had undergone surgeries on several occasions for ovarian cysts, some involving laparotomies. She had dyspareunia and ongoing pain in the left pelvic region.
  1. [8]
    On 3 December 2015, the plaintiff attended the GP Practice complaining of ongoing pain in the left pelvic region and deep and superficial dyspareunia. She was provided a specialist referral to the Hervey Bay Hospital and a referral for a pelvic ultrasound. The plaintiff informed the GP Practice on 7 December 2015 that she was attending an appointment with Dr Dirk Ludwig on the following Thursday. He recommended that she undergo a hysterectomy. He told her that she would require six weeks off work following this surgery.
  1. [9]
    Dr Ludwig performed the elective hysterectomy at St Stephen’s Hospital in Hervey Bay on 14 December 2015. The plaintiff gave evidence that she initially felt good post-operatively but had increasing pain in her shoulders and subsequently developed severe abdominal pain. A CT scan was performed, the results of which revealed a pneumoperitoneum. The plaintiff recalled Dr Ludwig telling her that she had too much gas in her abdomen and she needed to undergo further surgery to determine the cause of it. Dr Ludwig sought the input of Dr Neil Harding-Roberts, surgeon at the Hervey Bay Hospital (‘the hospital’). Dr Harding-Roberts recommended that the plaintiff be transferred from St Stephen’s Hospital to the surgical ward of the hospital. When Dr Harding-Roberts examined the plaintiff, she was tachycardic and had diffuse peritonism with guarding. She was taken to theatre for an exploratory laparotomy. There was a 8mm perforation at the recto-sigmoid junction. It seems that the perforation occurred in circumstances where Dr Ludwig mistakenly resected a portion of the rectosigmoid colon, having thought it was a small residual portion of the left fallopian tube. This had left an opening in the bowel wall which was not recognised. This was closed by Dr Harding-Roberts with dissolving sutures and a defunction loop colostomy was performed. This involved bringing part of the colon to the surface of the body to form a stoma (‘the stoma surgery’). The plaintiff remained an inpatient at the hospital until 23 December 2015.
  1. [10]
    The plaintiff gave evidence that she was not aware that she had the stoma until post-operatively when her abdomen was checked by a nurse. Dr Harding-Roberts later spoke to her, and he explained what had occurred. She said that she was bed-ridden over the following days and felt “horrendous”.   She further said that she was weak and did not feel like doing much initially.  She struggled to acknowledge that she had the stoma.  
  1. [11]
    Approximately one week later, on 31 December 2015 the plaintiff presented to the hospital emergency department complaining of nausea and a stabbing pain in the right lower quadrant of her abdomen. It was thought that she might have had a post-operative infection. She was treated and discharged later that day. She re-presented at the hospital emergency department on 4 January 2016. She was complaining of numbness to the right side of her face and hands. She also reported difficulties enunciating words. Further, she described feeling panicked and felt that she was having difficulties breathing. It was considered that while an ischaemic event could not be ruled out, that her symptoms may have been anxiety related. The plaintiff self-discharged against medical advice.
  1. [12]
    Five days later, the plaintiff attended at the emergency department of the hospital. She had a green discharge around the stoma site and was feeling nauseous and lethargic. She was reassured that the discharge was normal and that there were no signs of an infection.
  1. [13]
    On 16 January 2016, the plaintiff again presented to the hospital emergency department. She reported having experienced multiple episodes of chest pain during the day. She re-presented two days later with atypical chest pain and leg swelling. She was discharged the following day. Part of the treatment plan was for assessment by a psychologist.
  1. [14]
    The plaintiff represented to the GP Practice on 27 January 2016 with anxiety and depressive symptoms, which were thought to be secondary to recent stressors and surgical menopause. On 2 February 2016, she was referred to Rodney Nembach, psychologist under a mental health care plan.
  1. [15]
    At a consultation at the GP Practice on 10 February 2016, the plaintiff was noted to have neurological symptoms, including numbness to the left side of her face, temporal ear region and left hand.
  1. [16]
    On 21 February 2016, the plaintiff again presented to the hospital emergency department. She had a diffuse constellation of neurological symptoms. She was referred for neurological review. She was subsequently examined by Dr Johan Kuyler. He was unable to make any neurological diagnosis and recommended that she be treated for anxiety.[1]  
  1. [17]
    Dr Kyaw Min, general practitioner referred the plaintiff to Wenda Psychology and Counselling Services under a mental health care plan on 22 February 2016. She attended upon Annette Wenn, psychologist for five sessions up to July 2016 before advising that she was not requiring any further treatment. Ms Wenn considered the plaintiff had ceased her treatment prematurely.
  1. [18]
    The stoma was reversed by Dr Polbert Diaz, general surgeon on 29 February 2016 (‘the stoma reversal surgery’). Dr Diaz thought the plaintiff had exhibited marked anxiety and depression pre-operatively. However, by 9 March 2016, Dr Diaz thought that these symptoms had abated and he discharged the plaintiff from his care.
  1. [19]
    It was the plaintiff’s evidence that she felt relieved after the stoma was reversed. However, she said that she continued to have pain in her abdomen and that some movements have continued to cause a pulling sensation. She is very fearful of reinjuring herself and ending up with another colostomy bag. Such is her apprehension about this, that she said that she would end her life if this was to happen.
  1. [20]
    The plaintiff attended a consultation at the GP Practice on 11 May 2016. The records indicate that she complained of recurrent headaches and feeling anxious, depressed and extremely fatigued. She re-presented five days later for a follow up in relation to migraine like headaches and ongoing anxiety. She was trialled on an antidepressant, Lexapro. When the plaintiff returned to the GP Practice on 23 May 2016, she reported that she was not feeling much different on the Lexapro and the dose was increased. A week later she reported that she had taken the increased dose of Lexapro and that her anxiety was resolving and that she was feeling much better. At a consultation at the GP Practice on 20 June 2016, the plaintiff said that she felt very happy with the Lexapro and that the control of her anxiety had been excellent. It is further recorded that the plaintiff reported that she was feeling that she “finally can leave everything behind and look forward to the future”. 
  1. [21]
    In August 2016, the plaintiff re-attended upon the GP Practice. There is a note referring to a complaint of abdominal pain. The plaintiff asked for a referral for psychological review. This was provided but she did not act on the referral. The plaintiff said in evidence that this was because she found it too confronting and she did not want to focus on the subject events.
  1. [22]
    The GP Practice records confirm that the plaintiff has been taking a 20 milligram daily dose of Lexapro since October 2016. There have been intermittent discussions about weaning her off this medication but the plaintiff has been reluctant to do this. There is an entry in the records for 23 April 2020, where it is recorded that the plaintiff told the general practitioner that her mood symptoms were well controlled on the Lexapro.
  1. [23]
    The plaintiff attended upon the hospital emergency department on 27 December 2018 complaining of abdominal pain. A CT scan revealed nothing of concern and she was discharged the same day.
  1. [24]
    The GP Practice records show that the plaintiff attended upon a general practitioner on 28 September 2020 complaining of fatigue. She said that she had been excessively tired and drowsy for the previous four years, that she had gained 15 kilograms in weight and that she was snoring frequently. A diagnosis of obstructive sleep apnoea (‘OSA’) was queried, and the plaintiff was provided with a referral to a sleep clinic for an assessment. She did not act on this referral at that time.
  1. [25]
    As to the management of the plaintiff’s OSA, she initially tried an over-the-counter snoring mouth guard but this was not successful. She subsequently consulted a dentist specialising in snoring and he recommended that she undertake a home sleep study test. She did this on 31 August 2021. She completed some paperwork for the purposes of this assessment in which she indicated that she would feel tired in the morning, she would wake with headaches, and she experienced daytime fatigue. The results of the home study sleep test indicated moderate to severe OSA. The plaintiff was somewhat surprised with these results and at her request, she was referred for specialist review.
  1. [26]
    Prior to seeing Dr Henry Lau, thoracic and sleep physician, the plaintiff trialled a CPAP machine for four weeks. Despite it being adjusted, she was unable to tolerate it and she did not notice any change in her levels of tiredness. She underwent a laboratory sleep study test overseen by Dr Lau on 14 March 2022, and this confirmed the results of the home sleep study test. Dr Lau recommended the plaintiff attend upon an orthodontist to have an oral device custom made. She now wears this device. While the plaintiff and her husband have tended to sleep in separate rooms in more recent times on account of her snoring, this did not happen for example, when they were staying in a hotel for the trial. The plaintiff’s husband said that he had noticed that her snoring has ceased. A further sleep study is planned to monitor the effectiveness of the oral device. The plaintiff has not noticed a change in her energy levels or her ability to perform household chores since using the oral device.  

Credibility

  1. [27]
    The two lay witnesses who gave evidence were the plaintiff and her husband. It is unsurprising that they did not have perfect recollections of each of the matters about which they testified. In some instances, they were attempting to recall details of events that occurred more than six years earlier.
  1. [28]
    While I am conscious that not too much weight can be given to demeanour, the plaintiff and her husband both seemed to me to be sincere and honest. The experts, each in their own separate ways suggested that psychological issues are playing a significant part in the maintenance of the plaintiff’s symptoms. To the extent that she may be overstating any of her symptoms, I am inclined to think that this reflects her concerns about the litigation and her future, rather than any deliberate intention to mislead. No submission of dishonesty or deliberate reconstruction on the part of the plaintiff is made by the defendant.
  1. [29]
    The plaintiff’s husband gave evidence of the considerable support he has provided his wife. While he seemed to be endeavouring to be as accurate as he could be, some allowance should be made for his views being potentially clouded by natural affection for the plaintiff as his wife. Some examples of this are his evidence that he would perform certain tasks to take pressure off her, or so that she could sit down and relax, or because he may be quicker at performing them.
  1. [30]
    The defendant points to some parts of the plaintiff’s evidence which are internally inconsistent, or contrary to, or disproved by objectively proved facts. It also points to some inconsistencies between the plaintiff and her husband relevant to her claim for past domestic assistance and care.[2]  These inconsistencies are said to go to their credibility and reliability as witnesses. Although I have rejected parts of their evidence, there is much of it that I accept.   Wherever possible, I have sought to resolve conflicts by reference to the exhibits and other uncontroverted facts, the expert evidence, or to the inherent probabilities of the case.  Where this has not been possible, it has been necessary to resort to concepts of onus of proof.  Where necessary, I have indicated below the extent to which I have accepted or rejected their evidence. 

Obstructive sleep apnoea

  1. [31]
    The plaintiff bears the overall burden of proof that her loss and damage result from the defendant’s negligence. [3]  It is said by the defendant that the plaintiff has not discharged this onus. It is contended that the plaintiff’s ongoing fatigue is explicable by her unrelated diagnosis of OSA, which has at least materially contributed to her loss of earning capacity and need for care.
  1. [32]
    It was the plaintiff’s evidence that she first noticed symptoms in relation to her OSA within the last 18 months to two years after her husband started to complain about the increase in her snoring. There had been a few occasions when the snoring had woken her up. She then decided that she needed to seek some medical advice in relation to it. The treatment she has received for her OSA to date and the history provided by her to her treating doctors as to the onset of her symptoms is detailed in paragraphs 24 to 26 above.     
  1. [33]
    In his most recent report dated 2 August 2022, Dr Mathew explained that fatigue is a very common symptom of depression. This was confirmed by Professor Harvey Whiteford in cross-examination. It is not in dispute that depression is a feature of the plaintiff’s adjustment disorder which is causally linked to the negligence of the defendant.  I am satisfied on all the evidence that the plaintiff has discharged the persuasive burden of demonstrating that the subject events are causative of the plaintiff’s ongoing mental health issues, including her fatigue. This is addressed in further detail below.
  1. [34]
    Having made that finding, it is now necessary to turn to consider whether the defendant has discharged the evidential burden which rests on it in respect of its contention that the plaintiff’s OSA impacts on the assessment of damages. A determination of this issue involves an assessment of hypothetical situations of the past and future effects of injuries arising from the subject events or OSA, and the chance of future or hypothetical events occurring. The court is required to evaluate possibilities in these situations, rather than proof on the balance of probabilities.[4] 
  1. [35]
    It is necessary to attempt to make a judgment as to the economic and other consequences which might have been caused by the OSA, had the plaintiff not been injured by the defendant’s negligence. In my view, the evidence on this issue is not such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant exist.[5] No evidence from an appropriately qualified or experienced medical practitioner was led about OSA, including its symptoms and the treatment required.  At its highest, the evidence of Dr Mathew is that from his perspective as a psychiatrist, it is his understanding that daytime fatigue can be a symptom of OSA.  No question was directed to the issue of whether the plaintiff’s fatigue would have been the same had the defendant’s negligence not occurred.  It is worth observing that the plaintiff has not noticed any changes in her energy levels with her OSA having been treated with a CPAP machine and the oral device she is currently using. It seems that the oral device may well be successfully addressing her OSA. Some support for this can be found in Mr Chapman’s evidence that he did not hear the plaintiff snoring when they slept in the same room while staying in Brisbane for the trial.
  1. [36]
    While the OSA can be brought into account when considering the vicissitudes of life, the discount it would attract would not be significant. This is because it appears to be being successfully treated, with ongoing input from a thoracic and sleep physician.

Quantum

General damages

  1. [37]
    The plaintiff claims $21,780 for general damages. This equates to an ISV of 13. This is comprised of a combination of Items 12, 73 and 155.3 of the Civil Liability Regulation 2014 (Qld) (‘the Regulation’).  Item 155.3 is for moderate scarring to a part of the body other than the face. The ISV range is 4 to 8.   Item 73 is for a moderate bowel injury. The ISV range is 7 to 18.   Item 12 is for a moderate mental disorder. The ISV range is 2 to 10.  It is claimed by the plaintiff that the bowel injury is the dominant injury.  It is said that an ISV of 10 is appropriate for this injury and that an uplift of 25 percent to an ISV of 13 is warranted to reflect the totality of the extent of her injuries.  The defendant accepts that an ISV of 13 is warranted for general damages.  While the damages under this head are agreed, it will assist in understanding the arguments about economic loss and care to detail the relevant evidence.  
  1. [38]
    The plaintiff has been examined by four medical experts with respect to her injuries, namely a colo-rectal surgeon, a plastic and reconstructive surgeon, and two psychiatrists. The experts have each provided assessments of whole person impairments relevant to their respective expertise. While these assessments are important, they are only one consideration affecting the assessment of an ISV. The plaintiff has also been assessed by two occupational therapists.
  1. [39]
    As to the scarring, its existence in the location of the laparotomy and stoma site is admitted. It is further pleaded that the scarring has healed well and that the plaintiff has no physical or functional limitation consequential upon it.
  1. [40]
    It was the plaintiff’s evidence that the scarring is a “permanent representation of what happened” and that she keeps them hidden.[6]  The plaintiff has consistently reported feeling this way about her scars.  In May 2019 she also told Emily Howard, occupational therapist that there was numbness at the sites of the scars.  In February 2021 she said to Professor Whiteford, psychiatrist that she was embarrassed and sensitive about the scarring and that they had adversely impacted on her relationship with her husband as she did not want him to touch her.  This was confirmed by Mr Chapman.  A photograph depicting the scarring is exhibit 21.  There is a vertical one of some 17 centimetres, extending from the base of her belly button to the top of her pant line.  There is also a horizontal one of a similar length along a skin fold just above her pant line.   The stoma surgery resulted in the vertical scar.  The horizontal scar was already there but was extended on account of the surgery.   There are also more minor scars, some in relation to the stoma site and port holes and others relating to previous operations. 
  1. [41]
    In May 2019, the plaintiff was examined by Dr William Cockburn, plastic surgeon at the request of her solicitors and he has provided a report dated 22 May 2019. The plaintiff told him that the scars are a continual reminder of the subject events and that they felt tight from time to time. Dr Cockburn considered the scars had healed well and were of excellent quality with little evidence of hypertrophism. He assessed a 10 percent whole person impairment.
  1. [42]
    On 12 February 2021, the plaintiff was examined by Dr Andrew Renaut, colorectal and general surgeon and he has provided a report dated 12 February 2021. On examination, the plaintiff’s abdomen was unremarkable. Dr Renaut assessed a four percent whole person impairment for the scarring. Some questions were asked of Dr Renaut in cross-examination directed at whether he has the qualifications and expertise to be assessing the scars. I am satisfied that he does. This is because of his extensive experience in making surgical incisions in abdomens and managing post-operative cares in such patients, including scar revisions.
  1. [43]
    Table 8.2 in the American Medical Association Guide to the Evaluation of Permanent Impairment 5th Edition (the AMA Guide’) details the impairment criteria for all dermatological disorders, including scarring.  In the reports of both experts, reference is made to their whole person impairments having been calculated by reference to this table.  It is comprised of Classes 1 to 5.   Dr Cockburn considered that the plaintiff’s whole person impairment falls within Class 2, while Dr Renaut thought that it falls within Class 1.  
  1. [44]
    Class 1 applies to a whole person impairment of between zero and nine percent and Class 2 applies to a whole person impairment of between 10 and 24 percent. Dr Cockburn’s assessment of 10 percent enlivens a consideration of the three criteria to be met to qualify as a Class 2 injury. The first criterion is that there are signs and symptoms of a skin disorder which are permanently and intermittently present. The fact of the permanent scarring in the plaintiff’s abdomen satisfies this requirement. The second criterion requires the limited performance of many activities of daily living. There is no mention in Dr Cockburn’s report of the plaintiff having reported any such limitations and he otherwise did not recall the plaintiff mentioning anything like this to him. I do not accept that the reference in Dr Mathew’s report to the scars being a constant reminder to her and her family of the subject events implies that this requirement is met. The third criterion is that the plaintiff may require intermittent or constant treatment. This criterion is also not met, in circumstances where Dr Cockburn opined that he did not consider any further treatment was likely to benefit the plaintiff. I am not persuaded by Dr Cockburn’s evidence to the effect that this criterion is met because there is always a risk that scars will require treatment for fungal infections or ingrown dirt. He conceded in cross-examination that the plaintiff had not experienced such problems with her scars in the past and was unlikely to experience such problems in the future.
  1. [45]
    Another caveat relevant to Dr Cockburn’s assessment was his understanding regarding the abdominal scars referable to the subject events, as distinct from those referable to previous surgeries. For example, it was the plaintiff’s evidence that the horizontal scar in her skin crease just above her pant line existed but was extended as a consequence of the surgery to repair her bowel. Further, Dr Cockburn explained in cross-examination that he approached his assessment in accordance with the “best fit principle”.  To the extent this is inconsistent with table 8.2 as referred to above, I prefer the approach to the assessment as provided for in the table.  
  1. [46]
    In my view, Item 155.3 is the appropriate item. It is for moderate scarring to a part of the body other than the face. The ISV range is 4 to 8. Examples of the injury are several noticeable scars that are hypertrophic, or a significant lineal scar in an area of cosmetic importance, such as the front of the neck. While there are multiple scars and at least one of them in the order of 17 centimetres, the evidence is that they have healed well and are of excellent quality with little evidence of hypertrophism. While I accept the plaintiff’s evidence as to the triggering effect that the scars cause and her sensitivities around having them, there is no evidence that the plaintiff has sought treatment or other medical input for them in the more than six years since the stoma reversal surgery. In my view, an ISV of 4 properly reflects the likely ongoing permanent impairment consequential upon the scarring.
  1. [47]
    As to the bowel injury, Dr Renaut described the stoma surgery to repair the bowel perforation as “major surgery”.[7]  The defendant contends that the plaintiff has no permanent physical impairment as a consequence of the perforation and its treatment.
  1. [48]
    The evidence establishes that the plaintiff has repeatedly complained of symptoms in her abdomen which she considers have been caused by the bowel perforation and subsequent events. She told Ms Howard in May 2019 that she continues to suffer from a “grabbing” pain in the left side of her abdomen.  She also reported having a fear of causing further injury to herself with physical activity. 
  1. [49]
    Ms Howard requested the plaintiff perform a number of different manoeuvres and considered the results showed that the plaintiff’s ongoing symptoms and impairments included:
  1. (i)
    pulling” pain in the left-side of her abdomen during trunk extension and right-sided lateral trunk rotation;
  1. (ii)
    grabbing” pain in the left-side of her abdomen when engaging her abdominal muscles during lifting activities, which increased when lifting to shoulder level and eased once the weight was released;
  1. (iii)
    reduced trunk extension, and left and right-sided lateral flexion; and
  1. (iv)
    restricted trunk and lumbo-pelvic flexibility.
  1. [50]
    The plaintiff’s solicitors arranged for her to be assessed by Dr Joseph Mathew, psychiatrist. While he examined her on one occasion only, being 17 July 2019, he has provided five reports dated 17 July, 29 September and 5 November 2019 and 29 July and 2 August 2022. At the time of the examination in July 2019, the plaintiff complained of ongoing pain at the stoma site, particularly when contracting her abdominal muscles.
  1. [51]
    On 4 February 2020, the plaintiff was assessed by Nichola Martyr, occupational therapist at the request of the defendant’s solicitors, and she has provided a report dated 5 March 2020. The plaintiff reported a “pulling” sensation when she attempted to brace her abdominal muscles. The plaintiff told Ms Martyr that she felt that she had no strength in her abdomen, meaning that she needed to avoid reaching, bending, lifting and any other movements which caused a ‘pulling’ sensation.
  1. [52]
    In assessing the plaintiff’s physical capacities, the plaintiff was noted by Ms Martyr to be restricted to the extent of 50 percent with lumbar extension. This was reportedly due to a pulling sensation in her abdomen. The plaintiff also told Ms Martyr that spinal rotation felt “a bit tight”.   Further, she reported a pulling sensation with extended reach, and when rotating to the left when reaching overhead.  She was observed to be very cautious when engaging in lifting activities.   She was able to lift weights of up to six kilograms between floor and waist height, provided that she could release them from her hold without having to reach forward.  She was observed to lift two and a half kilograms between floor and eye height on three occasions, provided she held the weight close to her body.   It was Ms Martyr’s opinion that lifting and carrying weights from floor to waist height of up to 10 kilograms would be a realistic expectation of someone at the same stage of the recovery of the plaintiff from abdominal surgery.  She thought that with further guidance from a surgeon and support from an exercise physiologist, the plaintiff could reach this level of physical function.  
  1. [53]
    Ms Martyr considered that the plaintiff’s bending and lifting restrictions are explicable by a fear of re-injury. This was in circumstances where Ms Martyr thought the plaintiff demonstrated a reasonable amount of abdominal strength. She opined that with reassurance and guidance to engage in physical conditioning that it was possible the plaintiff had the ability to improve her physical function, which in turn would be likely to alleviate her psychological symptoms and thereby increase her overall participation in activities of daily living and in employment.
  1. [54]
    In February 2021, the plaintiff continued to report a pulling sensation in the mid-abdomen on lifting heavy objects, or when exerting herself physically. She told Dr Renaut that there had been four occasions where she had experienced episodes of quite severe abdominal pain lasting a couple of days before resolving spontaneously.
  1. [55]
    In cross-examination, Dr Renaut explained that the plaintiff will have adhesions in her abdomen from the internal scarring consequential upon the further surgeries to address the bowel perforation. He considered that these adhesions will not cause pain by themselves, although they can cause a bowel obstruction with associated pain. There is no suggestion from the evidence that the plaintiff has experienced such a complication. Absent such an explanation for the plaintiff’s ongoing abdominal symptoms, Dr Renaut could find no other physical explanation for them. He attempted to reassure the plaintiff that her prognosis was good and that there was no physical reason why she could not pursue many of the physical activities that she had been capable of pursuing prior to the subject events.
  1. [56]
    Dr Renaut assessed a two percent whole person impairment for the loss of the sigmoid colon that occurred consequential upon repairing the perforation to the bowel. He is the only expert to have assessed this particular injury. He was not cross-examined as to how he arrived at such a low whole person impairment. His assessment was in reliance on table 6.4 in the AMA Guide. This table encompasses the criteria for rating impairment due to colonic and rectal disorders. Class 1 in the table applies to a whole person impairment of between zero and nine percent.
  1. [57]
    In my view the adverse impact of this injury on the plaintiff supports an ISV within Item 73. This item is for a moderate bowel injury and the ISV range is between 7 to 18. It provides that an ISV at or near the bottom of the range will be appropriate if the injury requires an ileostomy or colostomy for less than three months, bowel function returns to normal and there are no ongoing symptoms. On account of the bowel perforation, the plaintiff was required to undergo major abdominal surgery involving repairing the bowel with part of it redirected to a colostomy bag outside the body connected through an opening in the lower left abdomen. She remained in hospital for a further seven days. The stoma reversal surgery was not undertaken until some two months later. This involved a further surgical procedure and inpatient admission. In the intervening period the plaintiff had two attendances upon the emergency department at the hospital on 31 December 2015 and 6 January 2016, with potential complications associated with the stoma surgery. This was a significant injury for the plaintiff, particularly in the weeks and months following the stoma surgery. In my view an ISV of 10 is appropriate to reflect the level of impact of the plaintiff’s bowel injury.
  1. [58]
    As to the adjustment disorder with depressed mood (‘the adjustment disorder’), there is no dispute on the pleadings that the plaintiff has suffered this psychiatric condition, which has been at least partly contributed to by the bowel perforation and the subsequent recovery. This psychiatric injury is secondary to her physical injuries in the sense it arises in reaction to the impact those injuries have had on her life.
  1. [59]
    In arriving at his conclusion as to the diagnosis of an adjustment disorder, Dr Mathew relied on information provided by the plaintiff to the effect that she:
  1. (i)
    was fearful of being harmed and was generally more anxious and had developed panic attacks;
  1. (ii)
    was avoiding medical care, including from her general practitioner;
  1. (iii)
    feared it would be very difficult to undergo further operations;
  1. (iv)
    described a low mood and was ruminating about her losses;
  1. (v)
    was very distressed about her abdominal scarring and the consequences of it on her relationship with her husband.[8] 
  1. [60]
    As to the fear of being harmed, the report indicates that the plaintiff told Dr Mathew that:

I just get [she paused] I get worried that if something happens to it again and they have to do something in there again, because I know the first surgery has weakened the area.  And I know I wouldn’t survive if I had another stoma put in.  …  I would kill myself.”[9]

  1. [61]
    In re-examination Dr Mathew explained that the plaintiff’s pain when doing activities could be one of the stressors maintaining her adjustment disorder.
  1. [62]
    Dr Mathew assessed a six percent whole person impairment wholly attributable to the subject events. The plaintiff told Dr Mathew that her state of mind was at its worst until the stoma reversal surgery in February 2016.
  1. [63]
    Professor Whiteford assessed the plaintiff on 9 February 2021 and he has provided reports dated 23 March and 7 October 2021, and 28 July 2022. The plaintiff told Professor Whiteford that she had found the need for the colostomy and the permanent scarring to be markedly distressing. This was in addition to the emotional impact arising from the limitations caused by her restrictions on heavy lifting. She said that she had withdrawn from social interactions, was much less active around the house, more easily fatigued and relying on the assistance of family with domestic chores.[10] 
  1. [64]
    In agreeing with Dr Mathew’s diagnosis of an adjustment disorder, Professor Whiteford was satisfied that the plaintiff had mental health symptoms including complications arising from the hysterectomy. He considered the symptoms referred to in the abovementioned paragraph to be clinically significant, to the extent that they were causing emotional distress and impairment in functioning.[11]
  1. [65]
    Professor Whiteford conducted a mental state examination. The plaintiff told him that she continued to ruminate about the subject events and has considerable unresolved anger and frustration in relation to them. She also continued to experience frustration with respect to physical limitations. He considered her mood was depressed, with a restricted range of emotional reactivity and some transient mood lability. He also thought there was depressive thought content. He was satisfied that the results of the examination revealed evidence of clinically significant depression.
  1. [66]
    It was considered by Professor Whiteford that the plaintiff’s whole person impairment was in the order of four percent when assessed on the Psychiatric Impairment Rating Scale (PIRS). He thought that the stress of the litigation was contributing to the maintenance of her adjustment disorder and that resolution of the litigation will be a major factor in improving her functioning.
  1. [67]
    Dr Mathew and Professor Whiteford differed on whether anxiety is a feature of the plaintiff’s adjustment disorder. Professor Whiteford considered that this difference could be attributable to the passage of time between the two assessments. In my view whether it is a feature or not impacts little on the plaintiff’s earning capacity and requirement for care, and also the prospects of her adjustment disorder being successfully treated.
  1. [68]
    Consistent with Professor Whiteford’s opinion, it is pleaded by the defendant that the plaintiff’s conflict with her mother is another stressor maintaining her adjustment disorder. I do not accept this, because the basis for this opinion was not borne out in the evidence.
  1. [69]
    Professor Whiteford considered that the plaintiff had probably suffered from previous adjustment disorders which had resolved, and this provided some reassurance that the plaintiff’s current adjustment disorder will resolve. The Fraser Coast Psychology records were relied on by Professor Whiteford in this regard. There is the plaintiff’s mental health history recorded in the entry from 19 May 2014, to the effect of the plaintiff having had depression in her early thirties. There are also the entries referred to in paragraph 6 above.  In my view, the relatively limited content of these records is not sufficient to enable psychiatric diagnoses to be made.  Further, I am inclined to accept the plaintiff’s evidence as to the circumstances in which she attended upon Ms Muller in 2014.  Therefore, I do not accept this history to be of much significance in understanding the plaintiff’s adjustment disorder, nor its likely trajectory in the context of it being appropriately treated.
  1. [70]
    When Ms Howard assessed the plaintiff in May 2019, the plaintiff was required to complete a DASS-21 questionnaire as a psychological screen. She subjectively rated her level of agreement with each statement on a four-point scale of severity and/or frequency. This valid and reliable screening tool contains three sub-scales related to depression, anxiety and stress. The measure contains seven items per scale. The responses the plaintiff provided suggested that she was experiencing extremely severe depression and anxiety and severe stress. I have no reason to doubt that the plaintiff was being honest when providing the answers. There was some criticism levelled against the results of this test, given that Ms Howard is not a psychologist or psychiatrist. However, Ms Howard was not using this screen to provide a clinical diagnosis. Rather, it was being utilised as a quantitative measure of the plaintiff’s distress.
  1. [71]
    In February 2020, the plaintiff told Ms Martyr that while her mood improved slightly after the stoma reversal surgery, she remained worried about reinjuring herself and requiring another colostomy bag. She complained of feeling exhausted by the end of the day and that she found it would take a long time to wind down when going to sleep. The plaintiff also said that she had experienced occasional panic attacks. She further said that she would try to put a brave face on for her children and now had minimal contact with friends. She told Ms Martyr that she did not like being at home on her own as she “thinks about things”.  
  1. [72]
    The assessments of Dr Mathew and Professor Whiteford of six percent and four percent respectively leads me to conclude that Item 12 of the Regulation is the appropriate starting point for assessing the plaintiff’s ongoing psychological symptoms. The item is for a moderate mental disorder. The ISV range is 2 to 10. Examples of the injury are for PIRS ratings between four percent and 10 percent. In my view, an ISV of 5 properly reflects the likely ongoing impairment.
  1. [73]
    In my view, the plaintiff’s ongoing symptoms can largely be explained by the maintenance of her adjustment disorder, and there is a causal relationship between this and the subject events. These ongoing symptoms have continued to impose functional and occupational limitations on her. It is accepted, as the defendant points out, that fear of reinjury is not a recognised mental disorder. Rather, I am satisfied that it, together with her fatigue, is part of the constellation of symptoms maintaining the plaintiff’s adjustment disorder. Further, I accept Dr Renaut’s opinion that the plaintiff’s physical symptoms can probably be explained by her reluctance to perform any movements that use her abdominal muscles around the stoma site. As Dr Renaut opined, this reluctance is likely to be explicable by the plaintiff’s fear of causing internal damage in her abdominal area if she was to overly exert herself. He thought some form of counselling may be of assistance. [12]  This opinion is supported by Ms Martyr.  She opined that because the plaintiff avoids any task which involves abdominal bracing, specifically reaching forward, bending, heavy lifting and lifting away from her body on account of her fear of re-injury, that she has lost physical conditioning. 
  1. [74]
    While the plaintiff has received some psychological treatment, she has not been properly treated. She recognises the need for further treatment but has been reluctant to engage in it as she has found it too confronting recounting the subject events. I accept her evidence that she may well be willing to engage in further treatment in the future. Further, I accept that the plaintiff’s symptoms are likely to improve with future treatment and also with the resolution of the litigation. If the treatment is successful, I consider the plaintiff is capable of a life without too much in the way of functional or occupational restrictions.
  1. [75]
    In assessing an ISV for multiple injuries, the court must consider the range of ISVs for the dominant injury of the multiple injuries. To reflect the level of adverse impact of multiple injuries on the plaintiff, the court is required to assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. If it is considered that the impact of the multiple injures on a plaintiff is so severe that the maximum dominant ISV is inadequate to reflect the level of impact, the court cannot increase it by more than 25 percent without the provision of detailed written reasons.
  1. [76]
    In my view the dominant injury is the plaintiff’s bowel injury, which I have assessed as having an ISV of 10. It is agreed between the parties that an ISV of 13 is warranted to reflect the adverse impact of the bowel injury, the scarring and the plaintiff’s adjustment disorder. Schedule 7 of the Regulation produces a figure of $21,780.
  1. [77]
    Pursuant to s 60(1)(a) of the Civil Liability Act 2003 (Qld) (‘the Act’), a court cannot award interest on general damages.  

Special damages

  1. [78]
    The parties are agreed that the plaintiff has incurred out of pocket medical, pharmaceutical and travel expenses in the sum of $3,206. It is also agreed that the plaintiff is obliged to refund Medicare the sum of $3,634.05.
  1. [79]
    The plaintiff’s private health insurer BUPA has paid the sum of $8,054.35 in relation to her medical expenses, which she also claims. The defendant disputes this part of the plaintiff’s claim on the basis that there is no evidence that this amount is required to be refunded to BUPA. In particular, it is said that there is no such legislative requirement, nor is there evidence that the plaintiff has informed BUPA of the litigation with BUPA having levied a charge or produced documentation requiring it to be refunded once the litigation is finalised. It is said that in the absence of such evidence, the plaintiff will take the benefit of this sum when she has not incurred any such cost and is not required to disgorge it. Sibley v Milutinovic[13] is relied on to support this submission.
  1. [80]
    In my view the claim for expenses paid by BUPA should be allowed and is not contingent upon the existence of an obligation on the part of the plaintiff to repay BUPA. The policy behind this is that a tortfeasor should indemnify the injured person for the loss, rather than enjoy a windfall gain by shifting the burden of compensation to BUPA. This is in circumstances where this private medical insurance was effected by the payment of money by the plaintiff for her own benefit in the event of the need for medical treatment.[14]

Interest on out of pocket expenses

  1. [81]
    It is not in dispute that the plaintiff is entitled to interest on $3,206. Interest on this sum at the agreed rate of 1.8 percent for a period of 6.92 years is about $400.

Past economic loss

  1. [82]
    The plaintiff left school after year 10. She worked as a waitress for approximately 18 months before having children. She returned to the workforce in 2002 after having had her youngest child. Over the next eight or so years, she worked in casual and part-time positions with Peter Spenneit Podiatry and Hydroequip Pumps in administration roles, and with Fitness First as a body combat instructor.
  1. [83]
    In January 2011, the plaintiff and her family relocated from Perth to Hervey Bay. She commenced casual work for Advanced Foot Care on 29 July 2011. She was working between 15 and 20 hours per week. She said that she was desirous of working more hours but this could not be accommodated by her employer.
  1. [84]
    It is agreed between the parties that the plaintiff earned an average net weekly income of $464.51 in the 2013 financial year, $535.56 in the 2014 financial year and $514.90 in the 2015 financial year. It is further agreed that she was earning a net weekly income of $497.36 just prior to the subject events.
  1. [85]
    The reason the plaintiff had scheduled her hysterectomy for mid-December 2015 was because it coincided with the office closure at work. She said that it was her intention to return to work in the first or second week of 2016. However, as explained above, Dr Ludwig had informed the plaintiff in the pre-operative period that she would require six weeks off work following the hysterectomy.
  1. [86]
    After the subject events, the plaintiff returned to her employment with Advanced Foot Care in April 2016. Her evidence in chief was that she remained working there one to two days per week until she resigned from that role on 21 August 2016. It was the plaintiff’s evidence that she resigned from this employment as she “imploded”.  She said that she was struggling with her confidence, handling the pressures of her job and being on light duties.  She did not have another job to go to. 
  1. [87]
    The plaintiff’s daughter-in-law was working for Action Auto Group in an administrative role. She was taking time off work for maternity leave and encouraged the plaintiff to apply for her job, which she did. She was the successful applicant and commenced this employment in administration on a casual basis on 19 October 2016, initially working for half days. The name of her employer subsequently changed to Trio Automotive Group Queensland Pty Ltd (‘the current employer’). She is the only employee working in administration. The other employees are the branch manager, two staff in the workshop and two patrol vehicle drivers.
  1. [88]
    In cross-examination, the plaintiff accepted that her role is encompassed by the performance of the following duties:
  1. (i)
    answering, directing and making phone calls;
  1. (ii)
    organising and booking in appointments for the services department;
  1. (iii)
    ordering parts for vehicles being serviced;
  1. (iv)
    handling enquiries and incoming work requests;
  1. (v)
    reviewing files and records to answer requests for information;
  1. (vi)
    processing and filing invoices;
  1. (vii)
    daily cash banking and EFTPOS transactions;
  1. (viii)
    typing;
  1. (ix)
    distributing and organising jobs to patrol and truck drivers;
  1. (x)
    co-ordinating work flow;
  1. (xi)
    managing petty cash; and
  1. (xii)
    gathering data and correspondence for weekly payroll timesheets.
  1. [89]
    Ms Howard understood that the plaintiff’s work involved kneeling, bending, crouching and squatting and that it involved prolonged periods of sitting and static posturing. Ms Howard’s report also refers to the plaintiff being required to lift car batteries and spare parts, and push and pull items, such as stalled vehicles and a vacuum cleaner. In cross-examination, the plaintiff confirmed that she was not required to push stalled cars or to lift and carry batteries.[15]  She explained that if she needed assistance with lifting a heavier part, that the mechanic in the workshop would help her.  
  1. [90]
    The plaintiff told Ms Martyr that she avoided lifting anything as she was worried about reinjuring herself and ending up with another stoma. She said that while her colleagues were happy to help her, she did not like asking for help. She also described difficulties managing conflict which she said was occurring on a weekly basis.
  1. [91]
    While the plaintiff continued working on a casual basis until January 2018, she worked on average 35 hours per week. She said that she was experiencing ongoing problems related to left sided abdominal pain and that she was being adversely affected by psychological symptoms, such as intrusive recollections of the subject events.
  1. [92]
    In January 2018, the plaintiff’s employment status changed to full time, working 40 hours per week. She said that she was concerned that she would not cope with the increase in work hours, but she wanted to try and do it. The plaintiff said that she found it exhausting and that it was too much. It would cause an exacerbation of her abdominal pain under the stoma site to the point where it could not be managed with Panadol. Despite these symptoms, there were three weeks in December 2018 and January 2019 where the plaintiff worked overtime. The amount of overtime worked were two, two and a half and four and a half hours respectively.
  1. [93]
    By letter dated 14 January 2020, the plaintiff purported to resign from her employment effective from 7 February 2020. The plaintiff told Ms Martyr that she found herself crying at her desk and that she had “lost focus, felt frantic and disorganised”.  Her employer requested to meet with her prior to her making a final decision.  The meeting was fruitful and an agreement was reached for the plaintiff to work 35 hours per week, which equated to working from 8am until 3.30pm Monday to Friday.  The finish time meant that she would arrive home from work around the same time as her husband.  It was the plaintiff’s evidence that the workload for her position has not reduced, but now her manager is completing those tasks that she had previously completed but could no longer complete in the reduced hours.  She said that she does not think she can resume the additional hours as she will end up in the “same self-destructive cycle”. 
  1. [94]
    The plaintiff’s employment records with her current employer are exhibit 18. They show that she continued working forty hours per week until late February 2020 when it was reduced to 35 hours per week. Since then she has on occasions worked overtime of between 0.5 hours and 5.5 hours per week. Evidence of this can be found in the pay dates of 10 and 24 March 2020, 10 November 2020, 22 and 29 December 2020, 12 January, 2 February, 2 March, 23 March, 13 April, 20 April, 14 September and 21 September 2021 and 11 January 2022. Further, she took a day of annual leave in early April 2022 as time in lieu for further overtime that she had worked. Her leave records show that no leave has been taken for injuries referable to this claim.
  1. [95]
    In February and May 2022, the plaintiff received bonuses of $500 and $250 respectively. The plaintiff explained that these were not to compensate her for additional hours worked. Rather, they were paid to her as a show of appreciation from her manager, for the assistance that she had provided when he had been absent from the workplace. I accept the plaintiff’s evidence about this.
  1. [96]
    The parties agree that the plaintiff earned a net weekly income of $377.90 in the 2016 financial year, $566.75 in the 2017 financial year, $719.61 in the 2018 financial year, $754.48 in the 2019 financial year, $802.12 in the 2020 financial year, $771.68 in the 2021 financial year and $795.22 in the 2022 financial year. It is further agreed that the net weekly income for 35 hours per week is $761.70 and for 40 hours per week is $843.80.               
  1. [97]
    In the statement of claim past economic loss was claimed in the sum of $50,000. However, in the plaintiff’s written submissions, the amount claimed has been reduced to approximately $24,000. It is calculated by reference to two distinct periods. The first period is from mid-December 2015 until the plaintiff commenced work with her current employer on 18 October 2016. The claim over this period is the difference between the plaintiff’s pre-injury net weekly income of $497.36 and the income she has earned. It is said that the shortfall is in the order of approximately $15,000. The second period over which past economic loss is claimed is the two and a half years since February 2020, when the plaintiff reduced her work from 40 to 35 hours per week. It is claimed that this has resulted in a net weekly loss of $75.45, which equates to approximately $10,000.
  1. [98]
    It is conceded by the defendant that the plaintiff is entitled to damages for past economic loss. In the defence, it is pleaded that:
  1. (i)
    the plaintiff has suffered no physical or functional limitations which prohibit or restrict her undertaking her current occupation;
  1. (ii)
    since about 19 October 2016 she has earned in excess of $700 per week, which is more than what she was earning prior to the subject events;
  1. (iii)
    any financial loss the plaintiff has suffered has been solely or materially contributed to by the plaintiff’s OSA.
  1. [99]
    There are a few points to be made about these contentions. First, I am satisfied the plaintiff’s ongoing physical and functional limitations can be explained as a consequence of her fear of re-injury, which is a feature of her adjustment disorder. It is also worth observing that it was other features of her adjustment disorder that were the reason for her reducing her work hours in January 2020. These are detailed in paragraph 93 above and was confirmed by Ms Martyr. [16]  In accepting this, I reject the defendant’s contention that it was the plaintiff’s choice to reduce her work hours and that it was unrelated to her capacity to work longer hours. 
  1. [100]
    Second, while Professor Whiteford considered the fact that the plaintiff is now earning more than she was prior to the subject events to be of some significance, this is not determinative of whether there has been economic loss, and if so the quantum of it. The relevant loss to be assessed is the loss of earning capacity, rather than the loss of earnings.[17] There is still a loss of earning capacity if the plaintiff’s post-injury earnings would have been even higher without the subject events.  What the plaintiff needs to establish is a diminution of earning capacity, and that the diminution is or may be productive of economic loss. [18]   I think it is probable that if the plaintiff was not suffering from the adjustment disorder, that she would have continued working full-time in February 2020.  
  1. [101]
    Third, for the reasons detailed above, I am not persuaded that the plaintiff’s OSA has materially contributed to any financial loss she has suffered.   
  1. [102]
    In written submissions, the defendant relies on the opinion of Dr Mathew expressed in his report dated mid-2019 to the effect that there is no ongoing occupational incapacity from a psychiatric perspective. This needs to be considered in the context of the chronology. It was not until January 2020 that the plaintiff reduced her work from full time to 35 hours per week. I accept her reason for this and consider that it was linked with the symptoms of her adjustment disorder. Further, in light of this change in the plaintiff’s employment, Dr Mathew revised his opinion in his updated report dated 29 July 2022.[19] When Ms Martyr assessed the plaintiff in early 2020, she considered the plaintiff’s psychological symptoms were adversely impacting on her occupational capacity.[20]
  1. [103]
    The defendant also submits that it is implausible that the plaintiff needed to reduce her work by five hours per week on account of her mental health, in circumstances where she has not complained to medical practitioners or psychologists of mental health symptoms and has not required time off work for this reason. However, I accept the plaintiff’s evidence that the reason she did not complain to treating medical practitioners about her mental health symptoms is because she did not “want to be forced into therapy”.[21]  I also accept her evidence to the effect that she effectively used work as a distraction from ruminating about the subject events. 
  1. [104]
    It is not in issue that the plaintiff’s work history prior to the subject events was of working part-time hours. In evidence in chief the plaintiff explained that Advanced Foot Care was not in a position to offer her additional hours. Further, prior to this time she had her three children still living at home and her husband was working full time.
  1. [105]
    The defendant contends that past economic loss ought to be awarded for a shorter period than claimed by the plaintiff, and that it should be limited to approximately $10,200. It is said that the first period is confined to a period of no more than 12 weeks between February and April 2016, which is attributable to the plaintiff’s recuperation from the bowel perforation and its repair. It is asserted that the second period is limited to some eight and a half weeks between 21 August and 19 October 2016. This is the period when the plaintiff was off work after leaving her employment with Advanced Foot Care.
  1. [106]
    I prefer the plaintiff’s approach to the calculation of past economic loss, although in my view the commencement date for the calculation of the first period ought to be 1 February 2016 rather than mid-December 2015. This is because the plaintiff was informed by Dr Ludwig prior to the hysterectomy that she would require six weeks off work following the surgery.
  1. [107]
    For the period of approximately 36 weeks between 1 February and mid October 2016, I have allowed the difference between the plaintiff’s pre-injury net weekly income of $497.36 and the income she actually earned. The resulting figure is approximately $7,000. Had it not been for the subject events, I am satisfied that the plaintiff would have continued working full-time after February 2020. It is agreed by the parties that the difference between full-time and 35 hours per week is $75.45. Allowing this weekly loss since Febraury 2020, results in a sum of approximately $11,100. The total for past economic loss is $18,100.

Interest on past economic loss

  1. [108]
    Interest on $19,000 from early February 2016 for a period of 6.83 years at a rate of 1.8% is approximately $2,225.

Past loss of superannuation

  1. [109]
    The parties agree that the appropriate rates for past loss of superannuation are 9.5 percent from December 2015 until 30 June 2021, 10 percent from 1 July 2021 to 30 June 2022 and 10.5 percent from 1 July 2022. The allowance for loss of past superannuation is approximately $1,820. 

Future economic loss

  1. [110]
    Turning to the effect of the subject events on the plaintiff’s future earning capacity, this involves the art of double prophesying – what would have happened uninjured and what will happen in her injured state.[22]  It is unnecessary for the plaintiff to establish that her injury will be productive of financial loss.  It is sufficient to prove that there is a chance of that loss occurring.[23]
  1. [111]
    The plaintiff has demonstrated a significant earning capacity since she commenced her current employment in October 2016. For the reasons explained above, I am satisfied that the major impediment to her returning to working full time is her adjustment disorder. Even though the plaintiff told a general practitioner in mid-2016 that the Lexapro had been excellent and was controlling her anxiety, she has continued to struggle with depression. This is accepted by both Dr Mathew and Professor Whiteford.
  1. [112]
    The plaintiff has the financial incentive to continue working. She said that they could barely meet their financial expenses on her husband’s income. Her prospective work life is some 20 years. She is aged 47 and might have been expected to work until a normal retirement age of 67. As much is accepted by the defendant.
  1. [113]
    In the statement of claim, future economic loss was claimed in the sum of $250,000. In the plaintiff’s written submissions, the claim has been reduced to approximately $155,000, before applying a discount of 10 percent for contingencies. Approximately $55,000 of this reflects an ongoing weekly loss of $82.10, reflecting the difference between the plaintiff working 35 hours per week rather than full time. An additional global sum of $100,000 is claimed for factors such as the risk of the plaintiff losing her current employment with a sympathetic employer, and being placed at a disadvantage on the open labour market on account of her injuries. It is further claimed for the loss of the opportunity to be promoted within her employment and the likelihood of the need to take leave from the workplace in order to deal with the injuries.
  1. [114]
    The defendant contends that the plaintiff has not suffered any future loss of earning capacity. Alternatively, it is said that if the plaintiff has suffered any such loss, that a global sum of no more than $40,000 is appropriate. Further, it is pleaded that if the plaintiff were to undergo any psychiatric counselling or psychiatric treatment, that any loss of earning capacity will be eliminated, or at least diminished.
  1. [115]
    As to the expert evidence, Ms Howard opined in her report that the plaintiff’s future employability has been significantly reduced on account of the subject injuries. However, this opinion did not withstand the rigours of cross-examination. At the time of preparing her report, Ms Howard understood that the plaintiff’s ongoing employment involved prolonged periods of sitting and static posturing when completing computer tasks; heavy lifting of car batteries and spare parts; kneeling, bending, crouching and squatting when unpacking batteries and spare parts; and pushing and pulling stalled vehicles and vacuum cleaners. She further understood that the plaintiff’s left sided abdominal pain was aggravated by activities including lifting car batteries and forceful pushing of cars. However, it was the plaintiff’s evidence that she was not required to push cars, and she would seek the assistance of the mechanic for lifting items such as car batteries.
  1. [116]
    In Ms Howard’s report, she opined that an administrative position, such as the one the plaintiff is currently performing, is classified to fall within the light physical demand category of work. She thought that this exceeded the plaintiff’s assessed physical capacities, in that she is now only fit for work or activities that fall below the sedentary physical demand category. However, in cross-examination the plaintiff’s evidence regarding her work tasks was summarised for Ms Howard and she agreed that none of them elevated the plaintiff’s duties from the sedentary to the light physical demand category of work. Ms Howard thought that while the plaintiff could perform a job within the sedentary demand category of work, that she would struggle to lift items weighing in excess of four and a half kilograms above and below waist height. Ms Howard accepted that if she was not required to lift such weights unassisted, that her job falls within the sedentary category. Further, I accept Ms Martyr’s evidence that with further guidance from a surgeon and support from an exercise physiologist, that the plaintiff would be likely to be able to lift and carry weights of up to 10 kilograms.
  1. [117]
    Ms Howard thought the plaintiff could not engage in work that frequently required her to stand without changing her posture for more than one hour, frequently required her to sit without changing her posture for more than two hours, walk on uneven or inclined surfaces for more than 200 metres, or drive for more than three hours without a break. There is no evidence that the plaintiff’s job requires her to exceed any of these tolerances. Further, it would not be excepted that most administrative type roles would require the plaintiff to exceed these tolerances.
  1. [118]
    It was considered by Ms Howard that the plaintiff could not spend more than a third of her workday crawling or completing transfers. There is no suggestion that the plaintiff is required to perform either of these manoeuvres in her daily work duties. Ms Howard also considered that the plaintiff could not spend more than a third of her workday crouching, squatting, or reaching or working overhead with her arm/s extended. There is no evidence that the plaintiff is required to exceed these capacities with such manoeuvres during her workday. Further, Ms Howard considered that the plaintiff was restricted when bending or kneeling. Her kneeling restriction meant that she needed to steady herself by putting her hand on something stable if she was going down to or rising from a kneeling position. In short, Ms Howard conceded that at the time of her assessment in May 2019, none of these non-exertional capacities were limiting the plaintiff in her employment.
  1. [119]
    Ms Howard considered that the plaintiff’s success in maintaining her current employment was largely attributable to an empathetic employer who was accommodating the plaintiff’s psychological and physical challenges. She observed that it would be tenuous whether her current employer will be able to continue to accommodate her occupational restrictions over time. This is because in her experience, the ongoing effects of occupational restrictions often force the employment relationship to wane over time. There are two points to be made about this. First, the plaintiff’s work restrictions are not as significant as Ms Howard understood them to be. Second, there is no evidence that the plaintiff’s employment is currently in jeopardy on account of the limitations she has.
  1. [120]
    As discussed above, the plaintiff has been regularly taking Endep since prior to the subject events and has remained on the same dose of Lexapro since late 2016. Ms Howard considered in her report that the side effects from these medications would impact upon the plaintiff’s ability to successfully obtain or maintain employment in the future. I am not persuaded by this. There is no suggestion from the medical records or from any other evidence, that the plaintiff has experienced side effects from either of these medications which have impacted upon her ability to work. Further, to the extent that any side effects from the Endep are relied upon, the plaintiff takes this medication to treat her fibromyalgia which predates and is unrelated to the subject events.
  1. [121]
    The plaintiff considers that it is her psychological rather than her physical symptoms that are affecting her capacity to work. I accept this. It accords with Ms Martyr’s assessment. Ms Martyr considered the plaintiff’s psychological symptoms could be addressed with regular counselling.
  1. [122]
    I consider that there are grounds for some optimism about the future course of the plaintiff’s adjustment disorder. There are three reasons for this. First, as explained above, I do not consider Ms Howard’s understanding of the plaintiff’s functional limitations to be as serious as Ms Howard considers them to be. Second, it is uncontroversial that treatment for the plaintiff is available, that has yet to be tried. She has to date resisted engaging in all necessary psychological treatment as she has found it too confronting having to revisit the subject events. However, in evidence she expressed a willingness to consider engaging in further treatment. Third, Professor Whiteford talked of the significance of litigation related factors. This is consistent with the plaintiff having said that the litigation was “starting to grind her down”. It is my impression that the pending litigation has been a barrier to successful treatment.  The resolution of the case will remove one significant stressor.  However, I am not persuaded by Professor Whiteford’s opinion that in the absence of treatment, the plaintiff will recover from her adjustment disorder within six months following the resolution of the litigation.  
  1. [123]
    In the shorter term until the plaintiff receives appropriate psychological treatment, it is highly likely that her income is at risk. She is still not back working full time. The proposed treatment is in my view likely to improve not only her mental state but also her functionality. I assume that any improvement will be more than modest. In the longer term, this risk is likely to diminish.
  1. [124]
    I assess the plaintiff’s loss of earning capacity at $82.10 per week for two years, to enable the plaintiff to accept the need for and receive appropriate treatment. This results in a figure of approximately $8,200.
  1. [125]
    Beyond this time, I consider that the assessment can only be on a global basis rather than by reference to a defined weekly loss. There are imponderables not capable of calculation, although the risk of ongoing loss of earning capacity is real enough. Pursuant to s 55 of the Act, I am required to state the factual findings underpinning the award and explain the reasoning behind the award. The methodology used need not include an explicit statement of a formula.[24]  It is necessary to form an estimate of the possibility of ongoing loss occurring, ignoring the possibilities that have a less than one percent chance of coming to be.[25]  This assessment should not be based merely on intuition and should adopt a transparent and reasoned approach based on the evidence.[26]
  1. [126]
    There is no suggestion on the evidence that there would be the opportunity for the plaintiff to be promoted to a different role with her current employer. There is also nothing in the evidence to suggest that the plaintiff will lose her current employment, either in the near or not too distant future. However, she may be vulnerable to losing her job, if for example her manager was replaced, or the business was acquired by a different owner.
  1. [127]
    The following are the major assumptions that I make on which I base the global award:
  1. (i)
    the plaintiff is still only in her late forties, has a work history suggestive of a person very likely to have worked into her late sixties, has minimal loss of earnings to date, but has an ongoing psychiatric condition continuing to impact on her capacity to perform full-time work; 
  1. (ii)
    in her current state, the plaintiff can continue working a substantial number of hours, but will struggle to resume full-time employment unless her adjustment disorder is treated;
  1. (iii)
    there is a real prospect that the plaintiff will pursue the treatment options suggested by the experts;
  1. (iv)
    while improvement in the plaintiff’s adjustment disorder sufficient to resume full-time employment is not certain, there is a significant chance she will recover; and
  1. (v)
    her future irrespective of the subject events probably lies in administrative type roles.
  1. [128]
    I accept that there are too many contingencies to approach an assessment of loss of future earning capacity on the basis of any kind of mathematical precision. At one extreme is the possibility that the plaintiff will lose her current job in the near future, and despite her residual employment capacity, struggle for years to find more than occasional casual work of a sedentary kind. At another extreme is the contingency that she will be successfully treated within a short time and will return to work in administration for her current or another employer until aged 67. These and other more probable contingencies must be considered.
  1. [129]
    The law remains somewhat unsettled as to whether the methodology for a global award for more than a modest sum is required or whether it can be a based on an ‘experienced guess’.[27] To the extent that it is required, an ongoing loss of $82.10 per week for the remaining 18 years of the plaintiff’s working life (deferred for two years) and applying the 5 percent discount tables gives a figure of approximately $46,500.  The application of discounting figures of 20 and 25 percent gives rise to calculations of $37,200 and $34,875 respectively.  Having regard to the artificial precision of those calculations, I allow $35,000.
  1. [130]
    The total allowance for future economic loss is $43,200.

Future superannuation

  1. [131]
    The parties agree that future loss of superannuation entitlements should be allowed at a rate of 11 percent. Allowing this rate on future economic loss gives a figure of $4,750.

Future out of pocket expenses

  1. [132]
    The plaintiff’s claim for future expenses is approximately $14,000, of which $11,500 of this is claimed for psychiatric treatment and medication as recommended by Dr Mathew. The remaining component of the plaintiff’s claim is for some $2,500 for aids, equipment and home furniture costs recommended by Ms Howard. On the other hand, the defendant contends that the plaintiff’s award in this regard ought to be limited to $430. This is comprised of $400, which reflects a 50 percent chance that the plaintiff will require five sessions of adjustment counselling. The remaining $30 is the cost of Lexapro for up to 12 months.
  1. [133]
    In evidence in chief, the plaintiff was asked whether she will seek some psychological or psychiatric treatment in the future. Her response was that she hoped one day that she would. She said that while she knows it would be helpful, her concern is that there is no amount of intervention that will bring back the person she was before.[28] 
  1. [134]
    Dr Mathew estimated the total cost of future treatment over the following five years to be $13,450, with an annual cost of $2,690. This is comprised of $2,190 for six sessions with a psychiatrist to treat her adjustment disorder and a global sum of $500 for medication. I consider that her medication can be managed by a general practitioner rather than a psychiatrist. Further, I consider that it is most unlikely that the treatment would be required for a period of five years.
  1. [135]
    In his report dated 7 October 2021, Professor Whiteford opined that if the plaintiff’s concerns about further injuring herself persist once the litigation is resolved, she may benefit from five sessions of counselling with a psychologist at a cost of approximately $1,300. He considered that the plaintiff should continue taking Lexapro for a further six months and that it can be prescribed by a general practitioner. Ms Martyr considered the plaintiff requires counselling to assist her in returning to her pre-injury level of functioning.
  1. [136]
    As explained above, I consider there is a real prospect that the plaintiff will pursue the treatment options recommended by the experts over the next two or so years. I would allow $5,000 for the cost of psychiatric or psychological treatment and medication.
  1. [137]
    The plaintiff’s claim for aids, equipment and furniture cost is based on the recommendations of Ms Howard. She opined that the plaintiff would benefit from the use of a Thermoblend for meal preparation and cleaning up, a folding laundry trolley and clothes airer, a lightweight vacuum cleaner and easy mopping system, and a car transfer bar. The total cost is $624.90. Based on Ms Martyr’s assessment she did not consider any of these items were required. She noted that the plaintiff had not reported any difficulties transferring in and out of her car. She further observed that bending, reaching and standing while cooking, doing laundry and light cleaning should be encouraged and are unlikely to exacerbate her symptoms. I am not persuaded that any of these items are required as a consequence of the subject events and make no allowance for them.
  1. [138]
    Ms Martyr considered the plaintiff required review with a surgeon to discuss her concerns regarding reinjuring herself and requiring another colostomy. She also considered that the plaintiff requires assessment and a series of sessions with a physiotherapist for appropriate exercises for home. The occupational therapists agree that the plaintiff would benefit from two one-hour occupational therapy sessions at a total cost of $634 and a mixture of individual and group exercise physiology sessions at a total cost of $1,296. I have allowed approximately $2,500 for this further treatment. The total allowance for future treatment is $7,500.

Past care

  1. [139]
    Pursuant to section 59 of the Act, damages for gratuitous services are not to be awarded unless the services are necessary, the need for them arise solely out of the subject injuries, and the services are provided or are to be provided for at least six hours per week and for at least six months.
  1. [140]
    The plaintiff must prove the need for the services gratuitously provided by her family, but she does not need to show that the need is such that it would ordinarily be met at some financial cost to her.[29]  Some plaintiffs may have greater needs than others and because the defendant must take the plaintiff as found, the test is an objective one, but applied by reference to the circumstances of the plaintiff.   Once the threshold provided for in s 59 of the Act is met, it is irrelevant that the care needed might drop below that level at other times.[30] Where it is possible to distinguish between the services provided to the injured person from the services provided to others, such as the dependants of the injured person, the latter should not be counted towards a determination of whether the threshold is met. 
  1. [141]
    The plaintiff claims that she meets the threshold and that approximately $125,000 ought to awarded for this head of damage. This equates to more than 3,100 hours of care at the agreed rate of $38 per hour.
  1. [142]
    The defendant contends that the plaintiff’s claim for past care cannot succeed. Alternatively, it is said that if the court finds that the plaintiff required and received six hours of care per week for at least six weeks in the immediate six months after the subject events, that subsequent to this time, she has required only 26 hours per year for any heavier physical tasks that she previously shared with her husband that she perceives that she is unable to do due to her fear of re-injury and deconditioning. This approach results in a figure of approximately $12,000.
  1. [143]
    I accept that prior to the subject events, there was a very traditional split in domestic chores around the house between the plaintiff and her husband. The plaintiff said that she shopped for groceries, cooked the meals, undertook all domestic chores, and managed the household finances. She and her husband equally shared the gardening and lawn mowing, and would share home and property maintenance tasks. This was confirmed by Mr Chapman.
  1. [144]
    In the weeks prior to the trial, the plaintiff provided a document detailing the estimate of the hours of care she has required to date.[31] This was based on her recollection and not on any contemporaneous documents.  The services claimed differ depending on the plaintiff’s recollection of the extent of her recovery.   The weekly estimates provided are as follows:
  1. (i)
    16 to 23 December 2015 while the plaintiff was in hospital – 17.5 hours for assistance with ADLs and ambulating at hospital and washing (15 hours), managing household finances (0.5 hour); and property maintenance (2 hours).
  1. (ii)
    24 December 2015 to 20 February 2016 – 24.5 hours for meal preparation (7 hours); fetching and carrying (3.5 hours); showering, dressing and grooming (3.5 hours), toileting and hygiene (3.5 hours); grocery shopping (2 hours); laundry (1.5 hours); household cleaning (2 hours); managing household finances (0.5 hour), property maintenance (2 hours); and transport (2 hours).
  1. (iii)
    21 February to 24 March 2016 - 22 hours for meal preparation (7 hours); fetching and carrying (3.5 hours); showering, dressing and grooming (3.5 hours); grocery shopping (2 hours); laundry (1.5 hours); household cleaning (2 hours); managing household finances (0.5 hour); property maintenance (2 hours); and transport (2 hours).
  1. (iv)
    25 March to 31 March 2016 – 18.25 hours for meal preparation (4 hours); fetching and carrying (3.5 hours); showering, dressing and grooming (3.5 hours); grocery shopping (1 hour); laundry (0.75 hour); household cleaning (1 hour); managing household finances (0.5 hour); property maintenance (2 hours); and transport (2 hours).
  1. (v)
    1 to 15 April 2016 - 14.75 hours for meal preparation (4 hours); fetching and carrying (3.5 hours); grocery shopping (1 hour); laundry (0.75 hour); household cleaning (1 hour); managing household finances (0.5 hour); property maintenance (2 hours); and transport (2 hours).
  1. (vi)
    16 April to 26 June 2016 – 12.75 hours for meal preparation (4 hours); fetching and carrying (3.5 hours); grocery shopping (1 hour); laundry (0.75 hour); household cleaning (1 hour); managing household finances (0.5 hour); and property maintenance (2 hours).
  1. (vii)
    27 June to 30 August 2016 – 9.25 hours for meal preparation (4 hours); grocery shopping (1 hour); laundry (0.75 hour); household cleaning (1 hour); managing household finances (0.5 hour); and property maintenance (2 hours).
  1. (viii)
    1 September 2016 to current - 7.25 hours for meal preparation (2 hours); grocery shopping (1 hour); laundry (0.75 hour); household cleaning (1 hour); managing household finances (0.5 hour); and property maintenance (2 hours).
  1. [145]
    Mr Chapman was called to support the care component of the plaintiff’s claim. As stated above, I found him to be honest. That he has rendered assistance to the plaintiff from time to time cannot be doubted. However, it becomes a question of reasonableness. I accept the defendant’s contention that the estimate of the time spent in assisting the plaintiff needs to be scrutinised carefully. There are three principal reasons for this. First, the plaintiff was living with her husband and at least one of her children until April this year. It is necessary for the plaintiff to disentangle what was done to assist other family members or what was done in pursuit of their own interests.
  1. [146]
    Second, for the last number of years, it is my impression that some of the domestic chores that the plaintiff could have coped with have been done by Mr Chapman out of loyalty to his wife, meaning that there has been no pressure for her to assist around the house more than she is. Support for this can be found in some of Mr Chapman’s evidence to the effect that he performed some of the tasks because he was quicker at it, or it was easier to take the load off the plaintiff so that she could sit down and relax.[32]  Further, it was Mr Chapman’s evidence that his continuing involvement in the household finances has been necessitated as the plaintiff lacks the concentration to, for example, ensure that all bills are paid.   While I have no doubt that Mr Chapman genuinely believes this, I am inclined to think that such assistance is in fact not required.  In cross-examination the plaintiff said that while Mr Chapman would double check what she would do with the household finances, he had yet to pick up an error in her work.  Another example is his concern that the plaintiff will burn food or even the house when cooking, once again said to be consequential upon lapses in concentration.  I am simply not persuaded these concerns are well-founded, given that the plaintiff has been able to work at least 35 hours per week for this entire period performing the multitude of administrative tasks detailed in paragraph 88 above.
  1. [147]
    Third, no diary or other contemporaneous record of the tasks and time taken of the care in fact rendered to the plaintiff was kept, meaning that the plaintiff and her husband were being asked to recall some events long after they had taken place. If estimates are to be made about matters the plaintiff could have proved more clearly, such estimates ought be conservative.[33] If that in fact results in under compensation, a plaintiff who has failed to provide evidence to support a more adequate assessment has no ground to complain.[34]  The imprecise nature of the plaintiff’s estimates is demonstrated for example in the plaintiff claiming that she was still requiring assistance with fetching items up until 26 June 2016, in circumstances where she had returned to work more than two months earlier.  Another example is the plaintiff claiming that she was still requiring two hours assistance with driving at the time she returned to work with Advanced Foot Care.  This is the same weekly hours as claimed for the entire period dating back to her discharge from hospital in late December 2015. Further, the plaintiff was unable to explain how she arrived at the dates for each of the various periods referred to above.  This reinforces the somewhat arbitrary nature of the estimates.
  1. [148]
    Section 59(3)(b) of the Act precludes an award for gratuitous care where the need for services in respect of the plaintiff arises in circumstances where she was in hospital. While there are cases in which a claim in such circumstances can be made out, in my view the statutory preclusion applies here for the periods the plaintiff was in hospital. The first claimed period is between 16 and 23 December 2015 where it is claimed that Mr Chapman provided the plaintiff with 17.5 hours of care and assistance. While I have no doubt that Mr Chapman was attending the hospital and may have assisted her with ADLs, and ambulating and washing, in my view this was not necessary. This is because there would have been nursing and other allied health professionals, whose jobs it would have been to provide such assistance. Further, I am not convinced the defendant would have spent two and a half hours on property maintenance and household finances while the plaintiff was in hospital. The same observations can be made about the second period the plaintiff was in hospital for the stoma reversal surgery between 29 February and 3 March 2016. It is of note that the plaintiff’s second period in hospital is not accounted for in the estimates referred to in paragraph 144 above.
  1. [149]
    I am ultimately satisfied that the pre-conditions laid down in s 59 of the Act are met and that the plaintiff has required and received six hours of care per week for at least six months in the immediate period after the subject events. In arriving at this conclusion, I am mindful that the plaintiff would have required some care and assistance in any event in the immediate six or so weeks after the hysterectomy. Further, I do not consider that such a finding is inconsistent with the plaintiff having resumed work in April 2016, being about four months after the bowel perforation. In addition, I do not accept the submission by the defendant that the plaintiff would not have been discharged from hospital after the stoma surgery and stoma reversal surgery unless she was independent and not requiring the assistance of family members with personal cares such as showering, hygiene and dressing. It was her evidence that after the stoma surgery she was discharged from the hospital in a wheelchair.
  1. [150]
    I propose to allow domestic assistance on the following basis:
  1. (i)
    14 hours per week for eight weeks between late December 2015 and late February 2016 (‘the first period’);
  1. (ii)
    Seven hours per week for five and a half months between early March and late August 2016 (’the second period’);
  1. (iii)
    Three hours per week for six years and two months from September 2016 until now (‘the third period’).
  1. [151]
    I accept that the plaintiff contributed little to the household in the context of the performance of domestic duties during the first period. I also accept that she required daily assistance with personal cares. While I accept that she would have been also recovering from the hysterectomy during at least some of this period, I am satisfied that the subsequent surgery to repair the bowel perforation significantly increased the need for assistance with domestic chores and was the sole reason for the need for assistance with personal cares. Repairing a bowel perforation is a significant surgery. Further, it created the need for the stoma site and the colostomy bag, both of which needed to be cleaned and otherwise looked after.
  1. [152]
    Further, I accept the plaintiff’s evidence that she struggled mentally accepting that the perforation had occurred, and particularly the consequential need for the colostomy bag. I am persuaded that her mental state contributed to the need for personal care and domestic assistance. The fact that the plaintiff was not coping mentally is supported by the various medical records. Over that two or so month period, the plaintiff presented to the GP Practice or the hospital on repeated occasions complaining of physical and/or psychological symptoms. For example, one presentation involved the plaintiff feeling nauseous and lethargic with concerns regarding a green discharge from her stoma site. There were other occasions where she presented to doctors with complaints of neurological symptoms or chest pain for which no physical causes were found, and part of the treatment plan involved psychological intervention. On other occasions she presented with psychological symptoms, such as feeling panicked and finding it difficult to breath. Further, prior to her stoma reversal surgery, Dr Diaz thought the plaintiff had marked anxiety and depression.
  1. [153]
    I accept the plaintiff’s evidence that after she had the stoma surgery, she was weak and she did not feel like doing much. Mr Chapman corroborated this. He said that when she returned home from hospital “she was totally different. She obviously couldn’t do the things that she used to do before at her full capacity.”[35] He further explained that he would assist her in having a shower twice a day and that this alone would take at least half an hour each time, because the colostomy bag would need to be washed as well.  Mr Chapman said that the colostomy bag needed to be cleaned about three times a day and would take approximately 15 minutes each time.   This involved removing the bag, cleaning around the stoma, disinfecting her abdomen at that site of the stoma and replacing the bag.  The plaintiff explained that her son assisted her with this in the first few days after she was discharged from hospital, before her husband took over doing it.  She did not start changing the bag until everyone in the house had gone back to work.  
  1. [154]
    I have no doubt in accepting that the plaintiff was not driving over this period. There was potentially some confusion about this as Ms Howard’s report refers to the plaintiff driving two weeks after the surgery, which Ms Howard thought was a reference to the stoma surgery. I accept the likely position is summarised in Ms Martyr’s report, namely that the plaintiff returned to driving a month following the stoma reversal surgery and that she was independent with driving by the time she went back to work in mid-April 2016.
  1. [155]
    During the second period, the plaintiff progressively recovered from the stoma reversal surgery. Her need for personal cares dissipated over the first few weeks. She was gradually able to perform more around the house. She remained limited in the performance of all heavier domestic tasks and still struggled with even some of the lighter ones. Her mental health continued to be problematic and impacted on the level of domestic assistance required. The struggles with her mental state are again corroborated by her continuing attendances on medical practitioners over this time, complaining of mental health symptoms, including anxiety and depression. She was commenced on Lexapro and there were adjustments to the dose to provide maximal benefit to the plaintiff. In August 2016, she requested a referral to a psychologist but did not end up acting on it, as she found it too confronting having to focus on the subject events.
  1. [156]
    I am satisfied that by the commencement of the third period that the plaintiff had recovered physically from the stoma reversal surgery. I am satisfied that it is the maintenance of the plaintiff’s adjustment disorder that has necessitated a requirement for ongoing care. The features of this condition include her ongoing depression (including fatigue) and her almost debilitating fear that she will re-injure her abdomen. This is causing her to be overly cautious in functional movements involving bracing her abdominal muscles, which in turn has led to physical deconditioning. I am cognisant that the three hours per week that I have allowed is significantly lower than the plaintiff’s estimates of weekly care that are detailed in paragraph 144 above.  
  1. [157]
    In addition to the caveats with respect to the weekly care estimates explained in paragraphs 145 to 147 above, there are a few other points to be made.   I am not convinced that absent the subject events, the plaintiff would have continued undertaking all domestic chores.  This is because there has been a substantial increase in her working hours when compared to her pre-injury employment.  The plaintiff and her husband now work approximately the same number of weekly hours.  Further, not only has there been an increase in the plaintiff’s work hours, but her husband is now regularly home from work by 3pm or 4.30pm.  This contrasts with the pre-injury period, when he was working full time as a storeman at Bunnings, and a daily shift could start from any time as early as 6am and finish any time up until 10 pm.  Mr Chapman conceded that it was his expectation that he would have been contributing more to the household if the plaintiff’s work hours increased.  Further, the plaintiff’s desire to perform all domestic chores prior to the subject events seems to have been driven to a large extent by her desire to be the homemaker in the context of her family.  Her three children are now adults and have progressively moved out of the family home, with the last of them having moved out in April this year.  
  1. [158]
    In arriving at the allowance of three hours per week, I am mindful that this is an hour less per week than the estimate provided by Ms Howard in August 2019 of the ongoing care required for the plaintiff. Ms Howard’s allowance is comprised of three quarter of an hour for domestic assistance, two and a quarter hour for gardening and mowing, and half an hour each for handyman and car cleaning. She adjusted this to six hours per week to account for minimum call out rates. She also allowed $12 per week for grocery home delivery.
  1. [159]
    I accept some of Ms Martyr’s reservations in relation to these estimates. She observed that the plaintiff does not access a grocery home delivery service as the supermarket where the plaintiff routinely shops does not offer such a service. She also thought that it is more realistic for the plaintiff’s car to be cleaned fortnightly, rather than weekly and that 26 hours for the plaintiff’s share of home maintenance would be reasonable. Having said this, I do not accept all of Ms Martyr’s reservations. For example, given the plaintiff’s fear of reinjuring herself and associated caution when performing activities requiring her to reach out in front of her, I am satisfied that this is likely to mean that she cannot vacuum or mop. The plaintiff’s reluctance to also perform other movements for fear of reinjury would also impede her ability to, for example, perform even some lighter cleaning tasks and some cooking. Her ongoing symptoms of her adjustment disorder, including depression are also likely to be having some ongoing impact on her ability to undertake some of the house related chores.
  1. [160]
    Based on the hours of care that I have allowed over the three periods at the agreed rate of $38 per hour, the total is approximately $47,100. Pursuant to s 60(1)(b) of the Act, a court cannot award interest on damages for gratuitous services.

Future care

  1. [161]
    The plaintiff’s claim for future care is based on five hours per week at $58 per hour for the remainder of the plaintiff’s life expectancy, being a period of 40 years. Applying the five percent discount rate for the present value of this future loss is said to give a figure in the order of $266,000. In my view this approach is plainly unrealistic.
  1. [162]
    Ms Howard estimated the plaintiff’s ongoing care requirements to be six hours per week when accounting for minimum call-out rates. I do not accept this for the reasons detailed above. Ms Martyr considered that it would be difficult to provide an estimate in the absence of an opinion from a general surgeon. She considered that with treatment and improvement in the plaintiff’s psychological symptoms, there would be an improvement in the plaintiff’s motivation to perform domestic activities unassisted.
  1. [163]
    The hourly rate claimed by the plaintiff for future care is $58. This is sourced from Ms Howard’s report dated 30 July 2022. It has been provided by Blue Care and is based on a survey of current service providers within the Wide Bay Burnett region. It says nothing about other care providers in the region, let alone non-agency care providers. The defendant contends that the appropriate hourly rate should be no more than $52. This is the current NDIS rate. It is said that this rate properly accounts for the likelihood that some care providers will be less than the NDIS rate and some will be more. In my view it is appropriate to adopt the rate of $55 per hour.
  1. [164]
    I propose allowing three hours per week for the next two years to enable the plaintiff to receive the treatment detailed above. This results in a figure of about $16,335.
  1. [165]
    If the treatment that I have allowed for is successful, the plaintiff is not likely to have any need for assistance thereafter. The treatment may not be entirely successful and that chance is not so small that it can be disregarded. The plaintiff’s life expectancy is 40 years. For the remainder of the statistical life expectancy, I will assume a continuing need after two years at about one hour per fortnight. This equates to approximately $22,495.
  1. [166]
    The total allowance for the future component of care is $38,830. Given the artificial precision of this calculation, I allow $40,000.

Summary of damages award

Head of damage

Award

General damages

$21,780

Past economic loss

18,100

Interest on past economic loss

2,225

Past loss of superannuation

1,820

Future economic loss

43,200

Future loss of superannuation

4,750

Special damages

14,895

Interest on out of pocket expenses

400

Future out of pocket expenses

7,500

Past gratuitous care and assistance

47,100

Future gratuitous care and assistance

40,000

Total

$201,770

Orders

  1. [167]
    There will be judgment for the plaintiff against the defendant for $201,770.
  1. [168]
    I direct that any submissions in respect of costs (not to be longer than four pages), or alternatively a proposed draft order if the parties are agreed, be filed within seven days.

Footnotes

[1]Dr Mathew considered the plaintiff was suffering a significant emotional disturbance at this time.

[2]For example, para 246 of the defendant’s written submissions.

[3]Purkess v Crittenden (1965) 114 CLR 164; Schneider v Smith & Anor [2016] QSC 47 at [124] per McMeekin J.

[4]Malec v  JC Hutton Pty Ltd (1990) 169 CLR 638.

[5]Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Phillips v MCG Group Pty Ltd [2013] QCA 83.

[6]T1-30, ln 15.

[7]T2-35, ln 29. 

[8]Exhibit 1, pg 3.

[9]Exhibit 1, pg 6.

[10]Exhibit 4, pg 3. 

[11]Exhibit 6, pg 2. 

[12]Exhibit 8, pgs 4 & 6.

[13](1990) Aust. Torts Reports 81-013.

[14]National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569; Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 at [205]-[214] per Malcolm CJ.

[15]T1-55, ln 43-46 to T1-56, ln 1-4.

[16]Exhibit 11, pgs 15 & 16.

[17]Qantas Airways Limited v Fisher [2014] QCA 329.

[18]Graham v Baker (1961) 106 CLR 340 at 347, per Dixon CJ, Kitto and Taylor JJ.

[19]Exhibit 20, pg 2.

[20]Exhibit 11, pg 16.

[21]T1-84, ln 36-39.

[22]Paul & Anor v Rendell (1981) 35 ALR 569 at 571 per Lord Diplock; Little v McCarthy & Anor [2014] QSC 274.

[23]Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264.

[24]Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211.

[25]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 per Deane, Gaudron and McHugh JJ.

[26]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.

[27]Sutton v Hunter & Anor [2022] QCA 208 at [94] per Bond JA; Nucifora v AAI Limited [2013] QSC 338; Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211.

[28]T1-29, ln 19-35.

[29]Kars v Kars (1996) 187 CLR 354.

[30]Kriz v King & Anor [2006] QCA 351 at [18] per McMurdo P; Shaw v Menzies & Anor [2011] QCA 197 at [53].

[31]Exhibit 22.

[32]T3-48.

[33]See for example Nunan v Gerblich (1974) 10 SASR 39 at 52 where Bray CJ suggested estimating at “the most exiguous figure consistent with the acceptance of the appellant’s evidence…”.

[34]Minchin v Public Curator of Queensland [1965] ALR 91 at 93 per Barwick CJ.

[35]T3-52, ln 20-22.

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Editorial Notes

  • Published Case Name:

    Chapman v Wide Bay Hospital and Health Service

  • Shortened Case Name:

    Chapman v Wide Bay Hospital and Health Service

  • MNC:

    [2022] QDC 271

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    02 Dec 2022

Appeal Status

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