New South Wales Court of Appeal CITATION : St Vincent's Hospital Sydney Limited v Ann-Maree Sweeney [2002] NSWCA 54 FILE NUMBER(S) : CA 40249/01 HEARING DATE(S) : 4 March 2002 JUDGMENT DATE : 14 March 2002 PARTIES : St Vincent's Hospital Sydney Limited (Appellant) Ann-Maree Sweeney (Respondent) JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Ipp AJA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT DC 2844/00 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER : COUNSEL : Appellant: P Menzies QC/ GR Waugh Respondent: ML Williams SC SOLICITORS : Appellant: William K Chambers Respondent: Carroll O'Dea CATCHWORDS : Negligence - appeal - quantum of damages - past economic loss - future economic loss - future care - assessment within discretion - judge's basis of reasoning revealed in reasons - appeal dismissed. ND DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40249/01 DC 2844/00 HANDLEY JA BEAZLEY JA IPP AJA Thursday 14 March 2002 ST VINCENT'S HOSPITAL SYDNEY LIMITED v ANN-MAREE SWEENEY Judgment 1 HANDLEY JA: I agree with Ipp AJA. 2 BEAZLEY JA: I agree with Ipp AJA. 3 IPP AJA: The respondent's claim for damages and the appeal 4 The respondent was employed by the appellant as a registered nurse. She brought proceedings against the appellant, claiming that - in the course of her duties - the appellant had negligently caused her to be exposed to tubercular bacilli. She asserted that the appellant thereby caused her to contract pulmonary tuberculosis and to suffer psychiatric harm. 5 Sorby DCJ upheld the respondent's claim and assessed damages in the sum of $753,584.00. He granted judgment in her favour in that amount. 6 The appellant appeals in respect of three heads of damage that were part of the total sum of $753,584.00 assessed by His Honour. These are $80,000.00 in respect of the costs of future care, $120,053.00 in respect of past economic loss, and $324,743.00 in respect of future economic loss. The history of the respondent's complaints until the diagnosis of tuberculosis 7 The respondent was born in June 1968. She was 32 years old at the date of the trial (which was held in March 2001). In 1988 the respondent obtained a nursing diploma and in 1989 she commenced working as a registered nurse. 8 By 1990 the respondent was employed as a nurse at St Vincent's Private Hospital. At that time she began to conduct sputum tests on patients suspected of having tuberculosis. She carried out this work for intermittent periods until at least June 1993. 9 In 1993 the respondent developed a cough, her weight decreased and she experienced sweats and night sweats. She became tired and despondent and believed that she had "AIDS related burnout". She consulted a psychiatrist. 10 Despite various forms of treatment, the respondent's symptoms could not be alleviated. She continued to suffer over the years. She became progressively debilitated and by 1996 she had lost 8 kilograms in weight. 11 In June 1996 the respondent was so unwell that she resigned from her work and took six months off to travel overseas to rest and recuperate. Her partner, Maria Azzopardi, accompanied her and cared for her during this period. 12 The respondent's condition did not improve on her trip. She returned to Sydney in December 1996. She felt seriously ill with a chronic cough, fever, chest pain, night sweats and weight loss. 13 In March 1997, the respondent was under financial pressure and in consequence, despite the fact that she was still feeling ill, she commenced part time nursing work (for 16 hours per week) with an environmental medicine practice known as Omnicare. 14 In September 1997 she travelled overseas for six weeks with her partner who cared for her, generally. Her condition remained the same. 15 In January or February 1998 the respondent commenced part time work for 20 hours per week at the St Vincent's Private Hospital. It seems that, at this time, she worked for both St Vincent's and Omnicare. By March 1998, however, her employment with Omnicare was being "wound down". 16 In June 1998 the respondent commenced part time employment (eight hours per week) with the Travel Medical Vaccination Centre. Her position was described as a "desk job". It is not clear whether she was then also working in a part time capacity at the St Vincent's Private Hospital. 17 In September 1998 the respondent again travelled overseas under her partner's care. In fact her partner had been caring for her throughout the year driving, cooking and performing general domestic duties. During the September 1998 trip the respondent was constantly ill. 18 From October 1998 to December 1998 the respondent worked for two months as a "nurse educator" at Sydney University. 19 In December 1998 the respondent and her partner separated for a period of four months. The respondent's physical condition remained the same but by now she was feeling depressed, she lacked motivation, her libido had decreased and she believed that her professional career had been ruined. Tuberculosis is diagnosed 20 At the beginning of May 1999 the respondent was feeling so ill that she was "unable to get off the lounge for a month". In June 1999 the respondent stopped work because of her condition. 21 At this time she noted the onset of left sided chest pain. An X-ray revealed a left pleural effusion with changes at the apex of the lung. She subsequently underwent a thoracotomy and it was discovered that she had tuberculosis. 22 After the diagnosis of tuberculosis, the respondent thought she was dying, felt very angry and was depressed. She was in isolation for three weeks at the hospital and felt that her nursing care was not good. She cried "the whole time" during this period. 23 According to Dr Davies, a psychiatrist, it was at about this time that the respondent "started to become depressed". As I have indicated, there is evidence that she was depressed earlier but in mid 1999 her depression seems to have become a significant illness. 24 In June 1999, the respondent commenced treatment to combat the tuberculosis. She gained weight, her fever stopped and she stopped coughing. By September 1999 her physical symptoms had improved significantly and her lung function was within the normal range. Her depression, however, had become worse. 25 In a report dated 6 December 1999, Professor Bryant, an associate professor of medicine, said that the respondent's tuberculosis was responding to treatment but she continued to experience symptoms of marked anger, anxiety and depression. He referred her to a psychiatrist. 26 Eventually, the respondent came under the treatment of Dr Davies. When he first saw her (which seems to have been in about August 2000) he said: "She had been almost crying, all of the time, and had not been able to concentrate on her studies. She was unable to sit at her desk and read or concentrate on material. She was waking at about 4am and would get up and walk around before going back to bed. She had had some suicidal ideation and her life was devoid of excitement, creativity and libido". He prescribed anti-depressant drugs which had varying degrees of success. 27 According to Dr Davies, the respondent improved following his treatment in August 2000, but had had a relapse in February 2001 which required him to make a house visit to examine her. 28 In a report dated 12 February 2001, Dr Davies expressed the opinion that the respondent was suffering from a major depressive illness. He stated that her depressive illness had become worse and he expressed the view that she might require a further increase in the dosage of her antidepressant drug and "perhaps the addition of an antipsychotic agent". He was then of the opinion that the respondent required hospitalisation. 29 At the time of the trial (in March 2001) the respondent said that her condition was worse than it had been before. She was depressed, exhausted and not able to work. The assessment of past economic loss 30 The appellant's essential complaint in respect of the award of $120,053.00 for past economic loss was that Sorby DCJ had made no allowance for what was said to be the respondent's retained working capacity during the period from the time the respondent contracted tuberculosis to the date of the trial. 31 As I have set out, during the relevant period the respondent worked intermittently - mainly on a part time basis. Her testimony, in effect, was to the effect that, by reason of her physical and mental condition, she was unable to work for any longer periods. She was in financial need and had worked as much as she possibly could. 32 Sorby DCJ accepted that, over the relevant period, the respondent had worked as much as she could. This led to the finding that, as regards past economic loss, she had no retained earning capacity. These were factual findings that were open to his Honour and are not open to challenge. I would dismiss the appeal under this head. Future economic loss 33 At trial, the parties agreed that the current wage rate for a registered nurse was $650.00 per week. Sorby DCJ assessed the respondent's loss as being $450.00 per week, discounted over her working life of 32 years. In other words he accepted that she had a retained working capacity of $200.00 per week. His Honour thereby arrived at the sum of $324,743.00, which he awarded to the respondent under this head. 34 Sorby DCJ found that it would be highly unlikely that the respondent would be able to return to her profession of nursing "in a patient contact basis". It is implicit in his Honour's reasons that he accepted that the respondent might be able to undertake nursing on a more limited basis, that is, as Professor Boughton (an expert witness) suggested, nursing that involved sedentary duties, "e.g. clerical, counselling, administrative or similar". Sorby DCJ observed that retraining outside nursing was "obviously an option". His Honour referred to the respondent's plans "to perhaps write a book and to do something in the horticultural field" and it is implicit that he took them into account. He accepted that whatever work the respondent undertook in the future would have to be physically undemanding and would have to have regard to her psychological state. These are the main factors that led Sorby DCJ to allow for a retained earning capacity of $200 per week (which is of the order of 30%). 35 The appellant submitted that the respondent's retained working capacity was substantially higher than that found by His Honour. 36 The appellant pointed to the fact that physically the respondent had substantially recovered. It then sought to draw support from a report a report of Dr Lewin, a psychiatrist, dated 1 August 2000. Dr Lewin said: "It is my opinion that she will require psychiatric treatment on a weekly basis initially, perhaps over a period of three months. It is likely that she will require further ongoing treatment with reduced frequency over a six to nine month period approximately. If her condition worsens she may require inpatient treatment. This is not necessary at present. However I note that her condition has worsened in recent weeks and the possibility remains. Her treatment will be conducted with a combination of talking-based treatment and antidepressant medication." Dr Lewin stated further: "You also asked my comment regarding fitness for work. At the present time her psychiatric illness is of at least moderate severity and clouds her judgement. She is pessimistic and preoccupied with a range of negative things. She underestimates her capability and sees most things from a negative viewpoint. She is unfit for work on the basis of the psychiatric condition alone. I think it likely that she would have been unfit for work on this basis for most of the intervening period since June 1999. Her depressive illness is of at least moderate severity at the present time. It is very likely that she will respond well to conventional treatment such as I have outlined above. In this context one could expect a significant degree of recovery within about three months. It is likely that she will be fully fit for work within about three to six months approximately. Once her depressive mood has lifted, there is a fair degree of likelihood that her attitude to the profession of nursing will change … in my opinion it would particularly premature to express any opinion regarding permanent impairment" 37 Relying on the observation by Dr Lewin that "[I]t is likely that she will be fully fit for work within about three to six months approximately", the appellant argued that future economic loss should have been calculated on the basis that the respondent would be able to work, without difficulty, in the near future. 38 For a number of reasons, I do not accept the appellant's argument. 39 Firstly, the respondent did receive treatment (from Dr Davies) as a result of Dr Lewin's suggestions. The respondent was not cured in consequence of that treatment (as forecast by Dr Lewin). In fact she suffered a serious relapse. Dr Davies' views, as the treating psychiatrist, and as the psychiatrist who last saw the respondent, must have greater weight. 40 In any event, close examination of Dr Lewin's report reveals that his views as to the respondent's future working capacity were guarded and he recognised that her condition might worsen even to the extent that she might require hospitalisation as "an inpatient". 41 Dr Davies said that he would not regard the respondent as "absolutely barred" from returning to nursing. Generally, however, he was of the view that it was unlikely that the respondent would be able to return to nursing work of the kind she previously had undertaken. 42 When asked how often he anticipated seeing the respondent in the future, Dr Davies said that the respondent should see a psychiatrist on a "fairly regular basis". He went on to say that the respondent should be seen "monthly, if she's stabilised, that's not unreasonable." He also said that the respondent would need continuing medication for some time. The inference from Dr Davies' evidence is that the treatment by way of monthly consultation would last indefinitely while the treatment by way of medication would last for a shorter period. 43 It is to be noted that Dr Davies "hoped" that in the longer term the respondent would improve. He said that improvement seemed to be "about several years down the track, if she's in other respects reasonably well". Dr Davies said that, by reason of her experiences with tuberculosis, the respondent had a greater disposition to further breakdown in comparison with the average person. 44 Professor Boughton was of a like mind. He said that "nursing is a very physically and emotionally demanding job" and he thought it would be unwise for the respondent to undertake the same kind of work that she did before she became ill. He said, "there's possibly a role in administration". He counselled against the respondent returning to active ward practice. When asked whether she could go back into nursing work at all he replied "I think that's entirely up to her. She is a committed nurse, there's no doubt about that…but I wouldn't suggest that she goes back into active ward practice for instance. She has done counselling and she has done teaching, there's possibly a role in administration. I think something which is essentially sedentary. Nursing is a very physically and emotionally demanding job. I think it would be unwise for her to go back into the full frenzy of that." 45 Professor Boughton recognised the possibility that the respondent might be able to return to nursing work in the future but, like Dr Davies, expressed this more in terms of "hope" than any realistic possibility that she would improve to the requisite extent. 46 Sorby DCJ said, "No doctors say she can return to her old job, although other jobs with no contact may eventually be within her capability". This finding was criticised but in my view there is no substance in the criticism. 47 Plainly, the respondent's prospects of working again - in any capacity - depend on how she responds to psychiatric treatment and the doctors generally accepted that the prognosis in this regard was uncertain and speculative 48 In summary, the general consensus of medical opinion was that the respondent is suffering from a major depressive state. While she has from time to time shown improvement there have been lengthy periods of several months where she has relapsed to the extent that she has been unable to work at all. Sorby DCJ found that this was likely to recur in the future, probably for the rest of her life. Generally, his Honour was of the opinion that "the future for her … both professionally and personally, is bleak". These findings were open to the learned judge. 49 The appellant then referred to the fact that in late 1998 the respondent worked at Sydney University for two months as a nurse educator. During this period she earned as much as she had earned as a nurse. It was submitted that the respondent would be well able to obtain a position in education and Sorby DCJ had paid insufficient regard to this. 50 The difficulty with this submission is that the evidence on which it was based was vague in the extreme. The respondent said that she had worked "part time" as a nurse educator and that was "like a secondment". She said, "St Vincent's Private gave me the time off to do it". She described the work as "very demanding". It involved "about seven hours a day" for four or five days a week. 51 In her evidence in chief the respondent only referred briefly, in the terms I have set out, to her work as a nurse educator and she was not cross examined in regard to the evidence she had so given. No other evidence was led on this issue. There was no evidence as to whether work as a nurse educator remained available and there was no evidence as to the respondent's prospects of obtaining such work. Her description of the work as "very demanding" was a strong indication that in the light of her psychological state she would not be able to handle such work on a full time basis. 52 Sorby DCJ appears to have discounted substantially the prospects of the respondent being employed in the future as a "nurse educator" and, in my view, on the evidence he was entitled to take that approach. 53 The evidence that the respondent intended to write a book or to be involved in some horticultural occupation was also very vague. She had undertaken a horticultural course but, at the time of the trial, had not completed it. She still had a year to go. There was no evidence as to what kind of work would be available to her once she obtained her qualification and what her income would be. 54 Sorby DCJ made express reference to the writing of a book and the potential for some horticultural work but it seems from his Honour's remarks that he did not regard these as particularly reliable potential sources of income. Again, in my view, the evidence justified such an approach. 55 As I have mentioned, the respondent appears first to have become depressed to any significant degree in mid 1999. While, prior to this, she had worked fairly regularly for intermittent periods, thereafter she worked only for a short period of about two months (that is, from October to December 1999) on a part time basis. This is indicative of the debilitating effect of her depression. 56 The best prospects the respondent has of obtaining work in the future is as a nurse carrying out sedentary work, without having to perform the onerous duties she was undertaking prior to becoming ill with tuberculosis. It is reasonable to assume that her potential for earning in such an occupation would be less than it was before she became disabled through her illness. Additionally, significant regard must be had to the fact that the respondent is likely to suffer relapses relating to her depressive illness and this will seriously hamper her working capacity. 57 Taking all these matters into account, I consider that the assessment made by Sorby DCJ in respect of future economic loss was within his discretion and I would dismiss the appeal against it. Future care 58 Sorby DCJ assessed the loss of future care as being $80,000. 59 The appellant complained that Sorby DCJ had failed to disclose his reasoning as to how the sum of $80,000.00 was arrived at. 60 At trial, the commercial rate for care was agreed at $25.00 per hour and the respondent claimed $173,425.00 under this head based on the need for care for one hour per day for the period of the respondent's life expectancy. It is apparent that His Honour allowed slightly less than half that figure, the inference being that he considered that the respondent would require future care for the rest of her life on the basis of an average of slightly less than half an hour per day. 61 Underlying the assessment of $80,000.00 is the finding by Sorby DCJ that the respondent "will suffer exacerbations or recurrence of her anxiety state well into the future". 62 There was ample evidence that justified this finding. His Honour referred to Dr Davies' evidence of the relapse suffered by the respondent in August 2000 that had continued to the date of the trial in March 2001 and Dr Davies' view that the respondent had greater disposition to break down in the future because of her condition. The respondent has experienced significant periods of depression and anxiety in the past. These have sometimes lasted for several months at a time. During these periods the respondent has been unable to care properly for herself and has needed assistance in respect of virtually all aspects of domestic life. 63 The appellant adduced no evidence to contradict the medical testimony led on the respondent's behalf and there was no evidence that suggested that the respondent's account of her inability to care for herself in periods of past depression was false. Indeed, the learned Judge accepted the respondent as a credible witness. 64 In my view, the basis of his Honour's reasoning is adequately revealed in his reasons. 65 I have pointed out that the assessment of $80,000.00 is based on the requirement of care for an average of slightly less than half an hour per day. This is the equivalent of three and a half hours per week or roughly 175 hours per annum. 66 Dr Kidd, a general practitioner, who had treated the respondent since July 1999, described the kind of care that would be needed. She said, in a report dated 24 February 2001: "Ms Sweeny has had assistance with cleaning and cooking since I have known her. However her requirements for assistance have markedly increased since the commencement of her TB treatment. She had needed help with personal care on discharge from hospital post thoracotomy. She continues to rely on her family for daily cooking, cleaning and shopping and may need ongoing assistance in the future, related to her tiredness and ongoing depression, anxiety." 67 It is not unreasonable to assume that the depressive and anxiety states to which the respondent is prone will recur for at least two to three months in each year (the pattern in the past being significantly more than that). Over such a period, the respondent, in such a state, would probably require care for more than three hours each day. On that basis the allowance made by Sorby DCJ of 175 hours per annum was justified. 68 In my view the award of $80 000.00 was within his Honour's discretion and I would dismiss the appeal in respect of it. 69 In summary therefore I would dismiss the appeal with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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