New South Wales Supreme Court CITATION : Stephens v Abigroup Contractors Pty Limited & Anor [2005] NSWSC 133 HEARING DATE(S) : 28/02/2005, 01/03/2005, 02/03/2005 JUDGMENT DATE : 3 March 2005 JUDGMENT OF : Hoeben J at 1 DECISION : Judgment for the plaintiff in the sum of $156,171.20. CATCHWORDS : Causation - whether injury to wrist caused by explosion. Remoteness of damage - recoverability of legal costs incurred as a result of representation before Coroner. LEGISLATION CITED : Crimes Act 1900 Habib v Nominal Defendant (1995) 22 MVR 454 CASES CITED : Kavanagh v Akhter (1998) 45 NSWLR 588 Nader v Urban Transit Authority (1985) 2 NSWLR 505 Robert Leslie Stephens - Plaintiff PARTIES : Abigroup Contractors Pty Limited - First Defendant Josef & Sons Contracting Pty Limited (in liquidtion) - Second Defendant FILE NUMBER(S) : SC 020006/00 Mr M Perry - Plaintiff COUNSEL : Mr R Stanton - 1st and 2nd Defendants Taylor & Scott - Plaintiff SOLICITORS : Ebsworth & Ebsworth - First Defendant Hunt & Hunt - Second Defendant LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Thursday, 3 March, 2005 20006/00 – Robert Leslie STEPHENS v Abigroup Contractors Pty Limited & Anor JUDGMENT 1 HIS HONOUR: The plaintiff's claim arises from an incident, which occurred on 4 December, 1995. The matter has proceeded as an assessment only. Liability has been admitted by both defendants and as between themselves, they have agreed apportionment. Factual background 2 The plaintiff was born on 22 April, 1966. He is now thirty-eight years of age. He completed his schooling at Grantham High School to the HSC level, but did not obtain his HSC. He completed an apprenticeship as a spray painter over four years and thereafter worked in that occupation for another two years. 3 The plaintiff had always wanted to be a policeman, but had not been able to engage in that occupation because of his lack of the HSC. He applied to join the Police Service on 29 July 1990 and was accepted on the basis of having completed his spray painting apprenticeship. He graduated from the Goulburn Police Academy on 25 January 1991. He commenced as a probationary constable in the general duties section of the Police Service and was stationed at Kogarah. 4 His employment with the Police Service was not without its difficulties. In 1993 he was involved in a pub brawl with two detectives as a result of which he was charged and convicted of assault. No conviction was recorded under the provisions of s556A of the Crimes Act 1900. As a result of that incident, he significantly reduced his alcohol consumption and ceased socialising with other police after hours. He was also convicted of an internal departmental offence in that he failed to properly report the receipt of a wallet which had been handed in. These were the only blemishes on his record as a policeman up to the events of 4 December 1995. 5 It was the plaintiff's evidence, which I accept, that as of 4 December 1995 it was his intention to continue in the Police Service and that he had ambitions to rise as high as he could. He was confident of reaching the rank of sergeant and hoped that in due course he might reach commissioned rank as an inspector. 6 On 4 December 1995 the plaintiff and another police officer attended a call to a possible gas leak near Kogarah Railway Station. Upon arrival, the plaintiff immediately smelled gas. Inquiries revealed that the gas was leaking from a mains pipe, probably disrupted by an excavation near the railway station. Attempts were being made by the workmen to control the leak. 7 The plaintiff appreciated that the situation was potentially very dangerous. He moved a short distance away from what he believed to be the source of the gas leak, and used his radio to contact his station. Whilst he was in the process of doing this, an explosion occurred. The plaintiff estimated that approximately two minutes had elapsed between him arriving in the area and the explosion. 8 The explosion came from the plaintiff's right rear. He recollected what he described as "a wall of blue flame", followed by intense heat. His next recollection was looking up from the gutter approximately a metre from where he had been standing. He was lying on his back. 9 He remained in that position for about five to ten seconds, got to his feet and broadcast over the police radio what had happened. He remembered looking at his hands which "looked like overripe peaches where the skin had burst". He did not feel any pain at that time and felt somewhat remote from what was happening. He tried to organise the injured. Specifically he noted that the road was blocked preventing a fire truck getting though, and he took steps to unblock the road. 10 The plaintiff had a clear recollection of a man sitting on the footpath. He initially thought he was a dark skinned person, but then noticed that this was not the natural colour of his skin and that he had been burned. His hair had been burned away, as had the front of his shirt. He subsequently learned that this person had died from his injuries. 11 After a short time, he started to feel pain in his face and arms. He remembered that a hotel across the road had a shower, and he went there to obtain cold water. He was eventually taken by ambulance to the St George Hospital. The extent of the plaintiff's burns was clearly depicted in a series of photographs taken over ensuing weeks, and which comprised exhibits B and C. 12 The plaintiff was discharged from St George Hospital on 11 December 1995, but continued to attend the out patients' department of that hospital for hand physiotherapy for another six weeks. The plaintiff suffered what was described as superficial burns to his face and both arms and hands. Dressings and cream were applied to the burns. 13 While in hospital, the plaintiff was treated by Dr Giles, a plastic surgeon. Following his discharge from hospital, he continued to see Dr Giles. His last visit was on 22 February 1996. As of that date, Dr Giles noted that his burns had healed, although the skin was fragile and he had developed a couple of small ulcers. 14 One of the issues in the trial was whether or not the plaintiff had suffered an injury to his left wrist and thumb in the fall which followed the explosion. I will deal with that question in more detail in due course. It was, however, common ground that while in hospital and while attending the out patients' clinic, the plaintiff received physiotherapy in relation to both his hands. 15 The plaintiff discharged himself as quickly as he could from hospital since his first child was due to be born at the time. That child (Ty) was in fact born on 27 December 1995. After his discharge from hospital, the plaintiff was not able to do a great deal for himself. It was agreed between the parties that assistance was provided for the plaintiff by his wife in the weeks following his discharge from hospital and that the value of that assistance was $1,200. 16 The plaintiff's recollection of events in the months following his discharge from hospital was somewhat vague since he was taking significant quantities of medication. It was only when that medication ceased that he became more conscious of particular pains which he was experiencing. His evidence was that he initially noticed pain in his left thumb and left wrist. In relation to the left thumb, the physiotherapist had provided him with a splint. That splint was subsequently put into evidence as exhibit J. Although there was a dispute as to whether or not a splint had been provided for the plaintiff's left thumb, and as to whether exhibit J was in fact that splint, I accept that to be so. 17 It was the plaintiff's evidence that he had continued to experience on an intermittent basis pain in his left wrist and left thumb from the date of the explosion until the date of trial. Symptoms had become much more noticeable and intrusive, particularly in relation to the left wrist in 2003-2004. Whether or not symptoms had commenced in the left wrist and left thumb from the time of the accident and had continued until the time of trial was a matter of significant controversy between the parties. In that regard it was common ground that in April 1981 when aged fifteen, the plaintiff had suffered a fracture to his distal radius in the left wrist while playing rugby. His wrist had been in plaster for six weeks. The plaintiff said he had not experienced any subsequent problems in relation to his left wrist until after the explosion. 18 In early January 1996 the plaintiff's wife (who was a qualified nurse) noticed that he was developing psychiatric symptoms and as a result of her urging he sought psychiatric assistance. He commenced seeing Dr Chee, a psychiatrist, in February 1996 and continued to see him on thirteen further occasions until 4 March 1997. Dr Chee diagnosed the plaintiff as suffering from an acute post-traumatic stress disorder of moderate severity. 19 The plaintiff returned to police work on restricted duties at reduced hours on 11 April 1996. He returned to full normal duties on 25 April 1996. The plaintiff had difficulty in continuing to work from the Kogarah Police Station, which was approximately one hundred metres away from the site of the explosion. The proximity to the explosion site upset him and made him extremely anxious. Included in the medical reports, tendered on behalf of the defendant, was a report from a Dr Donsworth, psychiatrist, of 19 June 1996. That report made it clear that the plaintiff was having difficulty at that time in performing his normal police duties. Dr Findlay, whose notes were in evidence, was the plaintiff's GP. Those notes supported problems with insomnia in July 1996 and problems with anxiety in October 1996. On 4 March 1997, Dr Chee noted that "He still had a predisposition to anxiety and significant insomnia when re-exposed to reminders of his previous trauma. There was evidence of psychomotor agitation when talking about the inquest. He had successfully ceased Prothiaden at the time." The plaintiff was transferred to Bondi on 22 September 1996. 20 On 28 April 1997 the inquest into the explosion commenced before the NSW Coroner, Mr Hand. For the first three days of the coronial inquest the plaintiff was separately represented. Thereafter, counsel for the Police Service represented all officers involved. Since the legal costs associated with the coronial inquest formed part of the plaintiff's claim for damages, I will deal with this as a separate issue. 21 In 1998 the plaintiff applied for a position in the Forensic Services Group of the Police Service. That application was successful and he was appointed to the Forensic Services Group on 22 August 1999. He continues to work as part of that group. His particular speciality is that of Crime Scene Investigation (CSI). 22 The plaintiff's duties since August 1999 involve technical assistance to operational investigators in relation to investigating scenes of crimes. Where the crime is murder, the plaintiff might form part of a group of two or three CSI specialists. In lesser crimes such as sexual assault, the plaintiff usually carries out the crime scene investigation on his own. 23 As of the date of trial, he has almost completed a university diploma in forensic crime scene investigation. He anticipated that he would successfully complete that diploma course by the end of 2005. He was performing well in the course and gaining distinctions and credits. At the date of trial the plaintiff was classified as a Detective Senior Constable. 24 The plaintiff was able to carry out his work without difficulty provided he was not required to lift heavy weights with his left hand. As the plaintiff put it, he was a police officer first and a forensics expert second so that he was required, if necessary, to act as a qualified policeman. If this meant having to cock his Glock service pistol he would at the present time have difficulties in doing so because of the problems he was experiencing with his left wrist and hand. 25 In relation to progression through the Police Service, as of the date of trial the plaintiff had obtained a Certificate of Authority and had completed an internal exam for sergeant, the results of which he did not know. He was confident that he had passed that examination. With his experience in the CSI field, and with those two qualifications, ie the Certificate of Authority and a successful exam result, he would be able to apply for a sergeant's position in the CSI area, should a vacancy become available. He pointed out that there was a lot of competition for such a position and he would assess his chances as being fifty-fifty. Injury to left wrist and thumb 26 The plaintiff's claim in relation to his left wrist was not made until 2004. Despite legal proceedings being commenced in December 1998, this amendment to the Part 33 r 8A particulars was not sought until June 2004. On behalf of the defendants I have been asked to draw an inference that the plaintiff's legal advisers were not told about any left wrist problem until 2004. 27 The plaintiff's solicitors are very experienced in personal injury matters. Had they been informed of such a claim at an earlier point in time, I am sure that they would have made the amendment at that time. Accordingly, I do infer that the reason for the late amendment is because the plaintiff's legal advisers were not informed of such injury and its relation to the December 1995 explosion until 2004. 28 The plaintiff's evidence was that he had been experiencing symptoms in his left wrist and left thumb since shortly after the explosion. The pain in his thumb was a deep kind of pain and different to the pain which he felt in his left hand from the burns. 29 The plaintiff was not able to give any direct evidence as to an actual fall onto his left hand, wrist or thumb on 4 December 1995. All that he was able to say was that at one point in time he was standing and that shortly thereafter he was lying on his back in the gutter. It was quite possible that he may have fallen onto his left hand and wrist in the course of reaching that position, but he was unable to describe the exact mechanism whereby this had occurred. 30 The plaintiff's evidence was also to the effect that the medication which he was taking during the first couple of months following the explosion made it difficult for him to recall with any precision exactly when and where he experienced symptoms. His clear recollection was, however, that he was receiving physiotherapy in relation to both hands and that this physiotherapy included his left thumb, and that a splint had been given to him by one of the physiotherapists from the St George Hospital in relation to that left thumb. 31 The plaintiff did not think the symptoms in his left wrist, which he experienced after the explosion, were as intense as the pain which he had experienced in 1981. He described the pain after 1995 as being "there but something in the background". 32 During the succeeding years, until approximately 2003, the pain in the left wrist was not continuous, but came and went. As the burns to his hands resolved he noticed that he had much less strength in his left hand than in the right. From about 2003 the pain in his left wrist became more constant and more intrusive so that eventually he was forced to do something about it in 2004. 33 The plaintiff was referred to Dr Jennifer Green, a hand micro-surgeon, by his general practitioner in May 2004. She was given a history of the 1981 injury when the plaintiff fell onto his outstretched left hand when tackling another player. She was also told in relation to the December 1995 incident that: "He does not recall the incident only coming conscious after the event and finding himself to be lying on the ground looking up at the sky. Since that time he has been aware of persistent left dorso-radial wrist pain that he describes as both stabbing and aching in nature. The pain has deteriorated over the past twelve months." Dr Green concluded: "It would be my strong opinion that Mr Stephens' wrist problem originated from his original football injury rather than from the injury sustained on 4 December 1995." 34 Some months later in answer to an inquiry Dr Green modified that opinion as follows: "The clinical and the radiological findings suggest that you have had slowly developing arthritis from a rupture of your scapho-lunate ligament for more than ten years as it takes at least fifteen to twenty years for this degree of arthritic change to develop. It is my impression that the fall onto your wrist at the time of the explosion may have made your previously asymptomatic early arthritis become symptomatic. The fall was not the cause of the arthritis but it has made it become painful whereas prior to the injury you had no pain." 35 The plaintiff sought a second opinion from Professor Bruce Connolly. Professor Connolly was told that the plaintiff had in some way injured his left hand when he was thrown to the ground at the time of the explosion. "With respect to his left hand and arm he told me that he had a painful stiff left wrist. He feels this occurred when he was thrown to the ground during the explosion. He told me that for a while he had pain in his thumb and wrist extending up his arm. These symptoms had remained. If his hand was knocked it hurt." 36 Professor Connolly thought that a fall to the ground such as the plaintiff described could well cause the injury which he suffered. He diagnosed that injury as "a scapho-lunate ligament injury". Professor Connolly did not consider that the 1981 injury had contributed to the present problem with his left wrist and thought that it was entirely due to the incident of 4 December 1995. 37 The plaintiff had been referred to Dr Scougall, who proposed to operate on his left wrist on 18 March 2005. The first step would be to carry out arthroscopic examination to identify the precise pathology and then a partial fusion or a carpectomy. 38 Dr Connolly gave oral evidence in the plaintiff's case. He expanded on his reasons for attributing responsibility for the present wrist problem to the explosion of 4 December 1995. The source of the plaintiff's present wrist problem was damage to the ligaments in his left wrist, which had resulted in the development of arthritis. He did not think such damage would have occurred in a fifteen year old boy. He also pointed out that an injury of that kind may not become symptomatic for many years and consequently the lack of early or continuous complaint was not of particular significance. 39 Under cross-examination Dr Connolly was asked to assume that the plaintiff's only complaints from the date of the explosion had been in relation to his left thumb and that he had not made any complaint about his left wrist. He was then asked to reconcile that history of complaint with his opinion. Dr Connolly pointed out that the ST thumb joint was located in the wrist, although he did concede it was some distance in anatomical terms from the site of the arthritic changes. He would also have expected there to have been some symptoms in the wrist and for the pain not to have been isolated to the thumb, particularly at the MP joint, ie the second thumb joint. 40 Mrs Stephens gave evidence in relation to this issue. She had obtained her general certificate in nursing at the Royal North Shore Hospital in 1993, had a certificate in psychiatric nursing, had completed a Masters of Midwifery and at the time when she gave evidence, was working as a Perinatal and Family Drug Health Director. 41 Her evidence was of complaints by the plaintiff of pain in his left thumb, following the explosion. She confirmed that a splint had been provided by a physiotherapist from the St George Hospital to the plaintiff in respect of his left thumb. Over the years he had complained from time to time about his left thumb. That complaint was usually made if he had knocked his hand. Her recollection was that he may have complained a couple of times a year over the last ten years, but that in recent times the complaints had become more frequent. 42 Although Mrs Stephens supported the plaintiff's evidence as to continuing complaints in relation to the left thumb, her evidence did not support any complaint in relation to the left wrist. Because of her medical knowledge and experience, her observations carried greater weight than those of an untrained person. 43 There was no reference to any left thumb or left wrist pain in the St George Hospital notes. There was no reference to any such pain in the notes of the general practitioner, Dr Findlay. Dr Giles, the treating plastic surgeon, reported: "In the physiotherapy discharge summary, his status on discharge was recorded as follows: "Full range of movements (of hands and fingers), grip strength right hand almost equals that of left (average 25 kgs). Nil functional difficulty."" 44 None of the psychiatrists who had seen the plaintiff over the years, made any reference to his left wrist or left thumb. The earliest reference in any report was that of Dr Curtin, a plastic surgeon, who saw the plaintiff in May 2000 and reported: "He complained of some minor persistent soreness in his left thumb which was apparently injured when he fell over at the time of the accident. On examination, the area of minor discomfort is confined to the MP joint of the thumb which appears to be quite stable." 45 That particular passage was referred to Dr Connolly in cross-examination. The following exchange took place (T.85.1-22): "Q. If we assume that it was that part of the thumb which had been troubling Mr Stephens, it would be unlikely, wouldn't it, that those thumb symptoms had anything much to do with the serious problem involving the scaphoid-lunate? A. You get the pain up and backwards, and people who have an ST arthritis pain may have radiating pain but it wouldn't be the predominant symptom, no. They would have symptoms and signs down from that MP joint as well, they wouldn't just have it just there. Q. So if at that stage and for some period before Mr Stephens had minor discomfort confined to that joint, that would suggest, wouldn't it, that the undoubted left wrist problems that Mr Stephens regrettably has at the moment have come about subsequently? A. I did say that it takes some years for scaphoid-lunate ST things to become obvious, so that's the only problem I have with that question. If he had only symptoms and signs of the MP joint, I would be surprised if he didn't have symptoms and signs a bit beyond the ST joint." 46 It should also be noted that the defendants had referred Mr Stephens to Dr Faithfull for a medico-legal examination. Dr Faithfull is a well known hand specialist. No report from Dr Faithfull had been served by the defendants. The plaintiff asked me to conclude that there was nothing which Dr Faithfull could say which would assist the defendants' case. I agree and I do so find. 47 The defendants referred me to exhibit 2, which was a document entitled "Medical Declaration Form" which was undated but appears to have been completed some time in the middle of 2003 and certainly after 20 May 2003. On the first page of that document, the following question was asked "Have you had any joint injuries since last medical or recruit medical?" The box next to that question was ticked 'yes' and the following was inserted. "Left wrist. 1/2003 cleared by GP". On page 3 of that same document, the following question was asked: "During your career, have you had any work injuries? If 'yes', please explain naming year and injury". The following response was made: "2nd and 3rd degree burns. L hand and R hand and arm. Face and neck. 1995. Left wrist 2003. Burning splash R eye 2002". 48 The plaintiff was cross-examined in relation to that document. It was suggested to him that he had suffered a separate injury to his left wrist in January 2003. He denied that proposition and explained the entries in the document as indicating that in January 2003 the symptoms in his left wrist had first become markedly painful. The defendant submitted that I should not accept this explanation by the plaintiff but conclude that he had in fact suffered a separate injury to his left wrist in 2003. 49 I am not prepared to make such a positive finding but it is odd that the left wrist problem is dealt with in the form quite separately from the effects of the 1995 explosion. One would have thought that if at that time the plaintiff regarded the left wrist problem as a direct consequence of the explosion, he would have included it with those injuries which he specifically related to the 1995 explosion. 50 An MRI scan was taken of the left wrist on 3 June 2004. It reported as follows: "MRI showed appearance of a chronic complete tear of the scapho-lunate ligament. There is degenerative arthrosis at the radio-scaphoid articulation. Moderate synovitis at the volar side of the radio-carpal joint. Tubular shaped volar radial wrist ganglion, apparently arising from the STT joint, decompressing distally into the carpal tunnel without marked mass effect. Deformity of the ulnar styloid probably related to trauma. Suspected prior peripheral tear of the articular disc of the TFCC, with moderate surrounding synovial thickening scar tissue." 51 An analysis of the MRI scan seems to show three areas of pathology. There is degenerative arthritis at the point of the radio-scaphoid articulation. There is a wrist ganglion arising from the STT joint (ie at the base of the thumb in the wrist). There is deformity of the ulnar styloid probably related to trauma. That last finding clearly relates to the 1981 injury. The origin of the other two areas of pathology is not clear. 52 On the basis of the evidence available to me, I am not satisfied that the plaintiff suffered an injury to his left wrist at the time of the 1995 explosion. There is no history of such an actual injury. It can only be surmised from the fact that the plaintiff ended up on his back in the gutter. The only evidence of an actual injury to the wrist comes from the plaintiff and to some extent that history is associated with the left thumb and perhaps confused by that association. Most importantly, a left wrist injury at that time with symptoms is not confirmed by the plaintiff's wife. 53 I do find that the plaintiff suffered some injury to his thumb which was a direct consequence of the 1995 explosion. It is not clear whether that injury was due to a blow to the thumb, a fall or some complication arising from the skin contractures of the left hand brought about by the burns. A problem with the thumb, however, is confirmed by the evidence of Mrs Stephens and the history recorded by Dr Curtin in May 2000. I place considerable weight on the history recorded by Dr Curtin since at that time the plaintiff would not have been aware of any significant problem with his wrist or the need for an operation. 54 As Dr Connolly pointed out, although the reason for the wrist pain is known, ie degenerative arthritis following a scapho-lunate ligament tear, a more precise identification of the site and extent of that injury will depend upon arthroscopic examination. What is clear, however, is that this diagnosis does not relate to the left thumb. The ST joint although located in the wrist, is some distance in anatomical terms from the ligaments about the scaphoid. 55 The only evidence which I have relating to left thumb pathology is the presence of a ganglion, which may or may not be causing problems. If it is causing problems, it is not possible for me on the basis of the evidence as it presently stands to determine the extent of those problems. I propose to have regard to the plaintiff's problem with his left thumb in my assessment of general damages. Otherwise I do not propose to make any specific provision in relation to it. 56 For the reasons set out I do not accept that the problem in the plaintiff's left wrist, in relation to which he proposes to undergo an operation in March 2005, is causally related to the explosion in December 1995. I do not know whether the cause of that wrist problem is the injury of April 1981 or even some injury in January 2003 which is suggested by the defendants. It is not necessary that I identify the cause of the left wrist problem. All that I can say is that I am not satisfied that the present left wrist problem and the need for an operation is due to the explosion of December 1995. Accordingly, I do not propose to have regard to the left wrist problem when assessing general damages, economic loss or any allowance for future out-of-pocket expenses. General damages 57 The physical injuries suffered by the plaintiff were the burns to his face and arms. These were potentially very serious. His recovery has been quite remarkable. Nevertheless, he has been left with some very real, residual problems. He no longer perspires adequately in the burned areas. His arms and face are particularly sensitive to heat and the sun. 58 The plaintiff gave a vivid illustration of the problem which he experiences when he is the driver of a car in such a way that the sun falls directly upon him. He experiences significant heat sensitivity in right arm on those occasions. The same sort of sensitivity is brought about by other heat sources when his arms and face are subjected to them. 59 I have already referred to the plaintiff's left thumb. Whatever be the problem in relation to that digit, he has been experiencing it intermittently over the last nine years since the date of the explosion. It seems to be more of an invitation than a disability. 60 The description by Dr Curtin of the immediate aftermath of the explosion is helpful: "It is clear that this man sustained a significant partial thickness at the time of his injury. This injury and its immediate aftermath would have caused considerable pain and discomfort and I note from the hospital record that he required multiple doses of narcotic analgesics during his hospital stay." 61 The plaintiff also suffered psychiatric consequences. It is useful to set out the various psychiatric diagnoses and prognoses in the order in which they were made. 62 Dr Donsworth, 19 June 1996: "From his history, the symptoms of the PTSD have been very minor. He had some agitation, some racing thoughts and some intrusive memories of the explosion and some insomnia. None of these symptoms were severe. They have responded well to the psychotherapy and medication. … I consider that there are no significant residual psychological effects from the gas explosion and that his prognosis regarding the effects of the gas explosion is good from a psychological point of view." 63 Dr Chee, 4 March 1997: "Diagnostically he had a post traumatic stress disorder, acute, of moderate severity. Symptoms of an irritable and anxious mood, the flashback and nightmares which intruded into his life, the struggle between the different feelings of guilt, anger and fear as well as constant re-examining of the events are consistent with this. There was also evidence of repressing certain memories of the event. … His prognosis is guardedly optimistic. However his recovery remains brittle and would be likely to be influenced by any future stressors he may be exposed to." 64 Dr Lovell, 22 March, 1998: "He was treated for symptoms of a post traumatic stress disorder by a psychiatrist for twelve months. He experiences residual symptoms of a post traumatic stress disorder that include avoidance, hyperviligence and intermittent nightmares when exposed to cues which remind him of his original trauma. It does not meet the full criteria for a DSM (IV) of a post traumatic stress disorder. He is best described as suffering some phobic anxiety about gas. He believes that his personality style has changed with hyperviligence and irritability now being constant features. His current symptoms should be regarded as ongoing and chronic. I relate them directly to the accident of 4 December 1995." 65 Dr Maguire, 25 July 2001: "The explosion and its aftermath would have been a significantly frightening event for Mr Stephens. Based on the history he gave me and the information in Dr Lovell's report I believe he developed a post traumatic stress disorder. There would also have been some associated depressive symptoms in response to the accident especially his initial physical problem. On the basis of his current history and presentation Mr Stephens is no longer suffering from PTSD. However he has some residual sensitivity to becoming anxious and distressed when exposed to burnt bodies in his work as a Crime Scene Investigator and this is not surprising under the circumstances. Despite this Mr Stephens is psychologically fit to continue with his work in general. He might benefit from a number of sessions with a psychologist to have him develop strategies to deal with the inevitable necessity of being exposed to fire scenes in his work." 66 Dr McClure, 10 February 2003: "The post traumatic stress disorder has been caused by this event. Mr Stephens describes ongoing symptoms including sleep disturbance, vivid readily "triggered" memories of the incident, concentration difficulties, "distance" from family members and former friends, and moderate alcohol use." I would regard your client as in a partial remission. Because of his ongoing functional difficulties (eg in relationships and in certain aspects of his work) I estimate that he has an ongoing "whole personal impairment" of the order of 5-10% and this is likely, now, to be persistent. Where post traumatic stress disorder is established, symptomatic recurrences are often readily "triggered" by stimuli that resemble "often quite obliquely" the original trauma. Potential complications include substance abuse/dependence, relationship failure, loss of employment, secondary depression and in extremus suicide. Mr Stephens has a general mild reduction of his quality of life and is less satisfied with life than he previously was. Your client would probably benefit from a series of ten-fifteen further sessions of cognitive behavioural therapy from a psychiatrist or clinical psychological at an estimate cost per session of $160-$220. Nonetheless, because of the chronicity of his symptoms, his prognosis must be considered guarded." 67 The plaintiff's evidence did not indicate problems at the level described by Dr McClure. He clearly has problems with gas appliances, even barbeques which are powered by gas. On occasions the stark images with which his work is associated do bring about nightmares. Mrs Stephens in her evidence referred to some personality changes, particularly relating to how the plaintiff now gets on with people and socialises. She thought he was about seventy five percent improved now compared with how he had been in the years following the explosion. 68 It seems to me that the opinions of Doctors Donsworth and McClure adopt rather extreme positions in either direction. Doctor Donsworth is out of step in her opinion that any post traumatic stress disorder was minor and had completely resolved by the time she saw him. On the other hand, Dr McClure seems to be unduly pessimistic in his assessment of the plaintiff's prospects. 69 Dr McClure gave oral evidence. He was of the opinion that as persons became older they became less resilient in how they dealt with psychological trauma. He was of the opinion that the combination of the plaintiff's post traumatic stress disorder with the pressures created by his work, which would often involve distressing observations, increased significantly the likelihood of the plaintiff once again developing post traumatic stress disorder in the future. 70 The better opinion seems to be that of Drs Chee, Lovell and Maguire. They all agreed that the plaintiff did develop post traumatic stress disorder and that some features of it are still continuing. Their opinions seem to be fully consistent with the evidence of the plaintiff and Mrs Stephens. I propose to assess the plaintiff's entitlement to general damages in accordance with their opinions. 71 Although the psychological/psychiatric sequelae of the explosion are no longer of major significance for the plaintiff, he is still suffering their effects. It is clear from the report of Dr Chee that for at least twelve months following the explosion they had a major effect on the plaintiff. This is confirmed by Mrs Stephens and she would extend the period beyond one year. The problems still continue but at a relatively low level. 72 There is always the risk, however, that the plaintiff could experience problems in the future. While I am not prepared to place the risk as high as did Dr McClure, the risk must exist given the nature of the plaintiff's work in visiting what must often be very confronting crime scenes. 73 Taking into account the psychiatric consequences of the explosion, together with the physical consequences to which I have already referred, I assess the plaintiff's entitlement to general damages at $75,000. Most of his problems are already behind him and accordingly I attribute $50,000 of those general damages to the past and award interest accordingly. Economic loss 74 The claim for past economic loss was agreed between the parties at $11,212. Counsel for the plaintiff also conceded that he was not making any claim for economic loss due to chances of promotion being lost in the past. 75 The dispute between the parties related to future loss of earning capacity. 76 It was submitted, on behalf of the plaintiff, that I should accept the opinion of Dr McClure in relation to the future. On that basis it was submitted that there was a likelihood with increasing age and reduced resilience combined with the nature of the plaintiff's work that he would have a relapse and develop PTSD again at some time in the future. By that stage it was suggested the plaintiff would probably be at the rank of an inspector. Having calculated the earnings of an inspector over the next 26 years, it was submitted that there is a twenty five percent chance of those earnings being diminished by 25% which produces a figure for future economic loss of $58,677. 77 On behalf of the defendants it was submitted that over nine years have elapsed since the explosion. The plaintiff has been in fulltime employment as a police officer for eight and a half years. He has been working in the CSI area for the last five and a half years. Although Dr McClure did not agree with this proposition, it was submitted that this relatively long period of working without difficulty was a strong indicator that it was unlikely that the plaintiff would have psychiatric problems in the future. The defendants point to the relatively minor residual problems identified by Drs Lovell and Maguire and also to the evidence of the plaintiff himself. 78 I gained a distinct impression from the way in which the plaintiff gave his evidence that he enjoys his work despite the fact that from time to time it does bring about intrusive recollections, particularly if burns are involved. He is clearly good at his job and is ambitious to advance within that field. The good results he has been achieving in his diploma course is indicative of his enthusiasm and dedication to his work. 79 It was nowhere suggested or to be inferred from the plaintiff's evidence that he was finding his present work a burden and did not know for how long he would be able to continue performing it. The impression was quite otherwise. He was looking forward to and hoping for promotion within this select and specialised field. 80 As indicated, I am more inclined to the views expressed by Drs Maguire, Lovell and Chee. Their opinions seem to conform more closely with the evidence of the plaintiff, particularly in relation to his work and any problems which he might be experiencing with his work which can be related to the explosion. Nevertheless, I cannot exclude the possibility that the plaintiff may have some relapse in the future in relation to his post traumatic stress disorder. It remains a real chance and as such some value has to be given to it. 81 There is another consideration. The burns which the plaintiff suffered to his face and arms, and which give rise to significant heat sensitivity when he is exposed to direct sunlight or to a heat source, would make it very difficult for the plaintiff to work in any outdoor job if he ceased his employment as a police officer, or was moved within the Police Service from the CSI area to an area where he had to work for long periods of time in sunlight. In that regard the plaintiff has suffered a real loss of earning capacity. The only question is to what extent that loss of capacity is likely to be productive of economic loss. That would only occur if the plaintiff moved out of the CSI area. There is no certainty or likelihood of that occurring, but it remains a chance and as such a value has to be given to it. 82 It does not seem to me to be useful to engage in some kind of quasi mathematical calculation based on anticipated earnings as an inspector in seeking to quantify the value of the chance that the plaintiff may suffer economic loss in the future as a result of the injuries, both physical and psychiatric, which he suffered as a result of the explosion. It is preferable, in my opinion, to calculate a financial buffer by reference to the plaintiff's net earnings. It is also necessary to have regard to the fact that any such losses are not likely to be immediate but will be deferred, perhaps for many years. There is also a chance that no loss will ever be incurred. Such an approach it seems to me would be more in line with the authorities referred to Heydon JA in State of NSW v Moss (2000) 54 NSWLR 536. 83 The plaintiff is earning approximately $45,000 net per annum in his present classification. That will of course increase if he is promoted to sergeant and ultimately to inspector. If the plaintiff does have a relapse and again develop a post traumatic stress disorder there is nothing to suggest that this would prevent him permanently from working although it may have an effect on his ability to work in the short term. It also needs to be kept in mind that the plaintiff has another 26 years before he is likely to retire at 65. 84 Taking all those matters into account, I propose to allow the sum of $50,000 for the plaintiff's future loss of earning capacity. That figure would include any loss of superannuation. Out-of-pocket expenses 85 The real contest between the parties in relation to out-of-pocket expenses arose from the question of whether or not the left wrist problem was caused by the explosion. Having found that it was not, that aspect of the plaintiff's claim falls away. 86 I have, however, found that the plaintiff does have a problem with his left thumb which was caused by the explosion. The evidence did not enable me to separate any future costs which may be related to the left thumb from the costs claimed in relation to the proposed wrist operation generally. It seems to me, however, not unreasonable to anticipate that some costs may be incurred in relation to the left thumb in the future. I propose to allow $500. 87 In relation to future psychiatric treatment, both Dr Maguire (who was qualified on behalf of the defendant) and Dr McClure suggested future counselling sessions of between ten and fifteen. I accept the submission of the plaintiff in that regard and propose to allow twelve sessions of treatment at a cost of $190 per session, ie $2,280. That figure, together with the $500 figure in relation to the thumb, produces an amount for future out-of-pocket expenses of $2,780. Coronial inquest costs 88 Included in the plaintiff's claim was an amount of $11,584 being the costs incurred by the plaintiff in being separately represented at the coronial inquest for the first three days. The relevant evidence on this issue was as follows (T.63) "Q. What were the reasons why you sought legal representation before Mr Hand? A. There was some speculation in relation to police being the cause of the accident. Q. Putting it bluntly, you thought there might be some personal liability, somebody was trying to fix on you? A. It was suggested to me, yes, that I cover that aspect, yes. … Q. At that stage, the detail of the concern was that someone was canvassing the possibility that the radio that you had used might have somehow ignited the gas? A. Yes, the static charge released by the use of the portable radio could have ignited it, yes." It was common ground that the Police Service was represented. 89 It was submitted on behalf of the plaintiff that the expenditure of these moneys was a direct consequence of the explosion and that such expenditure was clearly foreseeable and not too remote. Reliance was placed upon the decision of the Court of Appeal in Habib v Nominal Defendant (1995) 22 MVR 454. 90 On behalf of the defendants, it was submitted that the decision in Habib was distinguishable on its facts from the present case. This case represented a further expansion of the law and was even more remote. In addition, the defendants submitted that there was a failure to mitigate on the part of the plaintiff in that his interests were adequately protected by the Police Service and that there was no need for him to be separately represented. 91 The facts of the Habib decision are important. Mr Habib was involved in a motor vehicle accident. He brought proceedings seeking damages against the nominal defendant. A person came forward who purported to be an eyewitness to the accident and who gave a version of events which if believed, indicated that the accident had not occurred in the way described by Mr Habib, so that he was making a fraudulent claim for damages. He was charged with making a fraudulent claim and went to trial. The first trial had a hung jury and in the second trial, he was convicted. That conviction was quashed on appeal to the Court of Criminal Appeal. Mr Habib was successful in his claim for damages for personal injury arising from the accident. Part of his claim included the legal costs which he had incurred in defending himself in the criminal proceedings to which I have referred. The trial judge rejected that aspect of Mr Habib's claim, but he was ultimately successful by majority in the Court of Appeal. 92 Kirby P approached the question of remoteness of damage by reference to what was said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. By referring to the relatively simple test of foreseeability there set out, his Honour noted that all that had to be foreseeable was the class of damage suffered, not the precise facts associated with that damage. Applying that approach to the facts in Habib, all that had to be foreseeable in his Honour's opinion was the possibility of criminal proceedings being brought against Mr Habib, not the precise sequence of events which actually occurred. 93 Kirby P also had regard to the fact that the criminal proceedings had arisen directly from Mr Habib's claim for damages. The very fact that he had made a claim for damages provided the basis for the allegation that he was making a fraudulent claim. For that reason as well, his Honour concluded that the legal expenses incurred by Mr Habib in defending the criminal proceedings brought against him were not too remote and therefore were recoverable in his claim against the nominal defendant. 94 Priestley JA agreed with Kirby P on the basis that this class of damage was readily foreseeable. 95 Powell JA was in the minority. He was prepared to accept that legal expenses incurred in defending a charge of negligent driving, which might arise from a motor vehicle accident were recoverable in a claim for damages arising from the motor vehicle accident. He regarded criminal proceedings for fraud as being in quite a different class and therefore not reasonably foreseeable and to be too remote to be recoverable. 96 Although I was referred in general terms to such cases as Nader v Urban Transit Authority (1985) 2 NSWLR 505 and Kavanagh v Akhter (1998) 45 NSWLR 588, it seems to me that the case which provides most guidance is that of Habib. 97 In my opinion, Habib v Nominal Defendant does represent the high water mark for cases where legal costs are sought to be recovered in a personal injuries action. An important fact in that case was that Mr Habib had no choice in the matter. He had been charged with criminal proceedings and had to successfully defend himself if he had any chance of progressing his claim against the nominal defendant. In this case the representation before the Coroner operated by way of a pre-emptive move to prevent either civil or criminal proceedings being brought against the plaintiff. 98 From a purely factual point of view, that places the costs in this case in a different class to those considered in Habib. It also, in my opinion, makes the incurring of those costs even more remote and less foreseeable than those considered in Habib. 99 In this case the class of costs which the plaintiff argued should have been foreseeable, were costs which might be incurred in order to prevent or discourage the bringing of subsequent criminal or civil proceedings against the plaintiff, rather than the actual costs incurred in defending such proceedings if in fact they were brought. It would also have to be foreseeable that these costs were to be incurred even though there was representation on behalf of the Police Service. 100 In my opinion that extra level of remoteness takes the legal costs claimed in this case outside the class of legal costs considered in Habib. 101 Applying the principles referred to in Habib, I am of the opinion that the cost of the plaintiff being separately represented in the coronial inquiry when there was also representation on behalf of the Police Service was not reasonably foreseeable in the sense referred to in Shirt's case and consequently is not recoverable in these proceedings. Summary of damages 102 In accordance with the above reasons, I assess the plaintiff's damages as follows: General damages $ 75,000.00 Interest on general damages $ 9,240.00 Past economic loss $ 11,212.20 Past out-of-pocket expenses $ 5,443.00 Griffiths v Kirkemeyer $ 1,200.00 Interest on Griffiths v Kirkemeyer $ 1,296.00 Future out-of-pocket expenses $ 2,780.00 Future loss of earning capacity $ 50,000.00 Total $156,171.20 103 Accordingly, I enter judgment in favour of the plaintiff against the defendants in the sum of $156,171.20. 104 I order the defendants to pay the plaintiff's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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