District Court New South Wales Medium Neutral Citation: Kelly Rutland v Robert De Marco [2017] NSWDC 140 Hearing dates: 29 – 31 May 2017 Decision date: 09 June 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict and judgment for the plaintiff. For Orders see [146] Catchwords: Nervous shock; mitigation of damages. Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Cases Cited: Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328 Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34 ECS Group (Australia) Pty Limited v Hobby [2014] NSWCA 193 Fazlic v Milingimby Community Inc [1982] HCA 3; 150 CLR 345 Kallouf v Middis [2008] NSWCA 61 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nominal Defendant v Lane [2004] NSWCA 405 Sampco Pty Limited v Wurth [2015] NSWCA 117 Category: Principal judgment Parties: Kelly Rutland (Plaintiff) Robert De Marco (Defendant) Representation: Counsel: I Roberts SC with M Inglis (Plaintiff) D Hanna (Defendant) Solicitors: Commins & Hendricks Hall & Wilcox Solictors File Number(s): 12/286449 Publication restriction: Nil Judgment Introduction 1. The plaintiff claims damages for psychological injury she suffered as a result of the death of her sister, Rebecca Rutland, in a motor vehicle accident in Wagga Wagga on 24 April 2009. It was not in dispute that the plaintiff suffered a recognised psychiatric illness, as required by s 31 of the Civil Liability Act 2002 ("CLA"). The trial proceeded by way of an assessment of damages, however, those damages did not include damages for non-economic loss as the degree of whole person impairment of the plaintiff as assessed by a Review Panel on 30 March 2016, was not greater than 10%. Thus, pursuant to s 131 of the Motor Accidents Compensation Act 1999 ("MACA"), no damages could be awarded for non-economic loss. 2. It should be noted that the administration of the plaintiff's claim, and in particular, the assessment of her whole person impairment, had taken a tortuous route. Following an MAS assessment by Dr Alan Jagar on 29 October 2013, the plaintiff had been assessed as having a whole person impairment of 14%. Following assessment by a Review Panel on 14 March 2014, that assessment was revoked and the plaintiff was assessed as having a WPI of less than 10%. The plaintiff appealed that assessment in the Supreme Court where she was successful in having the Review Panel Certificate set aside, and the matter referred to a new Review Panel for assessment. The defendant then appealed to the Court of Appeal, which appeal was dismissed on 20 October 2015 (see Allianz Australia Insurance Limited v Rutland [2015] NSWCA 328). A further Review Panel assessed the plaintiff's WPI on 30 March 2016 as 6%. 3. The plaintiff's claim for damages was therefore confined to the following heads of damage: 1. Past economic loss 2. Future economic loss 3. Past treatment expenses 4. Future treatment expenses 5. Past care and assistance, and 6. Future paid assistance. 1. There was no real issue between the parties in respect of past economic loss, past treatment expenses and future treatment expenses. 2. This judgment has been prepared without the benefit of a transcript. The evidence, however, was of fairly narrow compass. The summary below encompasses my findings of facts, as none of the history is in dispute. The parties diverge on the assessment of damages on the remaining heads of damage, and whether the plaintiff has failed to mitigate her damages. The plaintiff's evidence 1. The plaintiff's mother, Mrs Judith Rutland, gave evidence that the plaintiff was born on 27 September 1973, and her sister Rebecca was born on 19 February 1982. From the time the plaintiff was three or four years of age, the family lived in Wagga Wagga, and in 1990 when the plaintiff was 16 years of age, she joined the RAAF. The plaintiff and her sister had a close relationship, described by Mrs Rutland Snr as, "Kelly was like a mother figure to Rebecca. They loved each other". 2. The plaintiff married at a young age and her son Nicholas was born in 1992. The plaintiff was subjected to domestic violence during the marriage which lasted for 2 years. She subsequently formed a relationship with Mr Douglas Grierson, who was also employed in the RAAF. Upon posting to Wagga Wagga, they purchased a home together and there were three children of the relationship, namely, Taylor born 1998, Reece born 2000 and Connor born 2003. 3. Mrs Rutland Snr gave evidence that her daughter was highly motivated at work and her house was always in immaculate condition. She was aware that her daughter took time off from work in September 2008 on workers compensation because of bullying at her workplace, and that she saw a psychologist during that period. After a few months, she described the plaintiff as "a lot better" and it was when she was about to return to work when her sister Rebecca was killed in a motor vehicle accident on 24 April 2009. 4. Mrs Rutland Snr gave evidence that the plaintiff was involved in the funeral arrangements that followed. She gave evidence that within two to three months thereafter, the plaintiff "started to unravel". Her observation was that the plaintiff could not handle any argument or confrontation with her children and within three to six months of Rebecca's death, she observed the plaintiff's home to be very untidy and not kept in the meticulous fashion that she had previously kept it. The plaintiff said to her: "Mum, I just can't handle it any more. I can't do the cleaning. Looking after the house is too big a job." 1. Mrs Rutland Snr observed the plaintiff to be yelling at her children and not listening to them. When she visited the plaintiff's home to help her, the plaintiff would be embarrassed at the state of her home. Mrs Rutland Snr told the plaintiff that she would have to 'try and get through this", and to assist her, she took the two younger sons, Reece and Connor, every Tuesday and Thursday night to look after them. On those occasions she would feed the boys, wash their clothes, oversee their homework and make sure they were ready for school the next day. She would then take them to school on the following mornings. Mrs Rutland Snr and her husband would also take the children out for dinner or to the movies. 2. When asked why she provided this assistance, Mrs Rutland Snr said: "I have to, it helps Kelly so much … I can't watch her unravel." 1. Mrs Rutland Snr and her husband continued to care for the two younger boys until she was diagnosed in 2016 with cancer. Thereafter, she had to travel to Melbourne for treatment on a weekly basis, and was too ill to look after them. She was asked what she observed about her daughter's house recently, and she described it as "bedlam". Whereas previously the plaintiff had kept the home spotless, there were now occasions when dishes were not done for a week and the condition of the home was "indescribable". 2. The plaintiff's partner, Doug Grierson, had been working in Canberra since July 2011. Initially he returned home each weekend, but now returned home less often, and did not help in the house. Mrs Rutland Snr's husband, did all the gardening. 3. From about six weeks following Rebecca's death, Mrs Rutland Snr gave evidence that she and her husband would spend three to four hours per week cleaning up at the plaintiff's home. She would attend to the inside of the home and her husband would attend to the outside. They did this for between three and half and four years. They had never done this before Rebecca's death. 4. Mrs Rutland Snr gave evidence that the plaintiff frequently broke down. She had observed that the plaintiff had become forgetful and was unable to concentrate. She felt she was not doing a good enough job looking after her own children. 5. In cross-examination, Mrs Rutland Snr acknowledged the special relationship she had had with Reece since he was a baby. Before Rebecca died, Reece would stay with his grandparents every second or third weekend. She observed Mr Grierson to help a lot with the children when he and the plaintiff first returned to live in Wagga Wagga, however, he had not done so following Rebecca's death. He would only do minor maintenance around the home. 6. Following Rebecca's death, Mrs Rutland had tried to encourage the plaintiff to undergo treatment. The plaintiff told her that she did not like taking anti‑depressant medication and described it as 'like being in a cloud". She told her that she knew she needed help but could not afford it. 7. As well as taking the children to school, they were taken to dancing lessons and their grandparents dropped them off and picked them up. 8. Mrs Rutland Snr agreed that all of the family had been affected by Rebecca's death, and that she herself had put in a claim which settled out of court. She herself had learnt to cope with her grief. She was now no longer looking after the boys on Tuesdays and Thursdays because of her chemotherapy treatment. She was, however, aware of the plaintiff's problems in the workplace. She had always been a teacher and was now employed by BAE Systems at the RAAF base. She acknowledged that the plaintiff had done well at work, however, said it was "not without a struggle". When asked whether she intended to continue to work, she answered: "She would like to". However, she said, "I'm struggling to see how she can". 9. She went on to say that physically the plaintiff was capable of working, but emotionally, she could not. 10. In describing how the plaintiff had had trouble coping with the death of her sister, she said that "she unravelled", whereas beforehand she was always doing everything for her family in the house, now, these things were neglected. 11. In re-examination, Mrs Rutland Snr agreed that the boys now came to visit them on the weekend, or would go to the trots with their grandfather on Saturday nights. 12. The statement of Mrs Judith Kay Rutland became Ex 1. It set out in terms, the effect of her daughter Rebecca's death on her and her husband. 13. The plaintiff gave evidence of her background. She left high school after year 10 and joined the RAAF as an apprentice in January 1990. She went on to train in explosives and in 1991 was posted to the Central Ammunition Depot at Kingswood. She described her relationship with her sister Rebecca as "very close despite the age gap" and that Rebecca "felt more like my daughter than my sister". They played sport together. 14. The plaintiff was subsequently posted to RAAF Base Williamtown where she was subject to a sexual assault by a superior officer. Her son, Nicholas, was born on 31 May 1992 and she married his father in 1994. It was not a happy marriage and she was subjected to domestic violence. In 1996, after she had been posted to the Tindal RAAF Base, Northern Territory, she left her husband, and subsequently commenced a de-facto relationship with Doug Grierson. 15. The plaintiff gave evidence that thereafter she was enjoying life. In 1998 she was posted to Forest Hill as an instructor and was promoted to Corporal. Doug Grierson was also posted to Forest Hill and their daughter Taylor was born in 1998. In 1999 they purchased a home in Wagga Wagga and subsequently Reece was born in 2000, and Connor in 2003. 16. In January 2000, the plaintiff left the RAAF and joined TAFE as a civilian contractor. Doug Grierson was also employed by NSW TAFE doing the same work at this time. 17. The plaintiff had developed dermatitis as a result of her handling of explosives, however, in due course she developed an immunity to that condition. She was responsible for the day to day running of the house and did all of the gardening, washing, cleaning, and cooking. She did not do the lawn-mowing, however, she described her partner as doing "not a lot". The plaintiff gave evidence that she was very particular about the home, and everything had to be in its place. Because of her military background, it was important that her children were always dressed exactly as needed. She was very house proud. The plaintiff also gave evidence that she had an active social life with friends in Wagga Wagga. She saw her sister a lot, a number of times each week, and played sport with her. 18. The plaintiff had a full time contract with TAFE, however, her mother and father did help looking after the children. Her mother had a close relationship with the plaintiff's son, Reece, and helped with the school run. 19. The plaintiff gave evidence that in 2008 she went off work on workers compensation, following a bullying episode where she felt uncomfortable working with a RAAF employee in explosives. She considered him to be unstable, and her immediate supervisor was pushing her to work with this person. She considered him not safe, and therefore she felt unsafe at work. She said she often "did not know whether she would be coming home", which made her feel sick. The RAAF employee was erratic and not consistent in his work, dealing with detonation processes and detonators. She was on workers compensation from September 2008 until April 2009. During that time, she saw Leah Dodsworth, psychologist, who helped her understand that she could get past this problem, and that her work with the RAAF employee was only temporary. She was prescribed anti-depressants, Arapax and Murolex, which she took for a few months, but as she felt "like a zombie" on them, she stopped taking the medication. At home, she was still doing everything and her relationship with Doug Grierson was still good, although not perfect. She was still able to care for her children for the most part, and did her best to do so. 20. The plaintiff was due to return to work following Anzac Day in 2009, and was looking forward to going back. She was somewhat apprehensive about her return to work, but was otherwise feeling well. She was still socialising at that time with friends, her sister and parents. 21. On Friday 24 April 2009, the plaintiff received a phone call whilst at home from her mother. Her partner had to take over the call, however, she learnt that her sister had been killed in a motor vehicle accident. She first went to the accident site, however, the road was blocked, and then went to her parents' home. The police were there and told her that Rebecca had died at the scene. She then went to the morgue to identify the body. On leaving the morgue, she was physically sick, however, over the next several days she focussed on the funeral arrangements and went through all of her sister's photographs. She said she felt numb during both the funeral and internment at the cemetery. She was off work for a further six weeks and continued to see Leah Dodsworth, psychologist, until the end of 2009. She described herself upon her return to work as being "in survival mode". She did what she had to do, but found no enjoyment in her work. There were periods when she was unable to do her job and she would try to get someone to cover for her, or, she would break down in class and go home. 22. The plaintiff gave evidence that her relationship with Doug Grierson deteriorated, due to what she perceived was his lack of support and understanding. She tried to carry out her domestic duties but had no energy to do so. She said she felt exhausted all of the time, and therefore just did the "essentials". 23. The plaintiff gave evidence that she did not give the children what she thought they needed. Her parents started to assist her, not long after Rebecca's death. Her father would do the gardening and her mother would do the washing, cooking, and would take the children. It became a permanent thing that the two younger boys stayed at her parents' place on Tuesday and Thursday nights. 24. The plaintiff described herself as being exhausted during the first year or so. She did not think she had slept more than three or four hours on any one night during that time. She kept seeing her sister in the morgue, or in a dream, when she saw her with other people. She said that her sister did not understand why she was so upset, and would not let go. 25. The plaintiff felt guilty about her two sons staying two nights per week with her parents. She had no interest in the house, and had only occasional help from her partner. She believed that her parents would come to the house when she was not there and do housework. 26. She continued to see Leah Dodsworth until the end of 2009, but did not seek treatment elsewhere. She eventually was prescribed anti-depressants by her GP, but they made her feel numb again. She felt emotionally and physically exhausted all of the time. 27. The plaintiff obtained legal advice and in October 2010 she was examined by Professor McFarlane. Asked how she felt about recounting the circumstances of her sister's death, she said, "It breaks my heart having to go through it". She said that she really struggled having to relive that day again. When asked why she continued to work, the plaintiff gave evidence that she did not have a choice. Her children needed a home to live in. 28. In July 2011, the plaintiff's partner went to work in Canberra. In the two years following Rebecca's death, they had fought all the time. He told her, "to get over it", and their intimate relationship became very infrequent, and only "if he pushed". She had no libido and he did no housework. 29. The plaintiff gave evidence that if she had to go to a doctor's appointment to discuss the case, she could not stop crying or shaking. At work she kept to herself and she did the minimum required of her at home. She started to buy takeaway food for her children which became a regular thing. Her parents continued to come to clean her house, garden and do the laundry and cooking. 30. In March 2013, New South Wales TAFE lost the contract to the RAAF, and BAE Systems took over that work. The plaintiff continued to do the same work and was told that she would be made a permanent full-time employee. However, she continued to work as a casual, and was not made full-time. In July 2013, there was an incident at work, where, having been told that she had to attend another medico-legal examination, the plaintiff broke down whilst teaching, in front of her superiors. She started crying, was shaking and very upset. Shortly thereafter, she was employed on a part-time basis. During 2013 and 2014, her relationship with Doug Grierson broke down further. He could not understand why she was not "over it" and told her to "just smile and make everyone else feel comfortable around her". 31. The plaintiff gave evidence that her two younger children went to her parents two nights per week, and to their great-grandmother one night per fortnight. Otherwise, she could not work because she was putting everything into work just to pay the bills. 32. The plaintiff had no social life at all. She took her children to attend dance classes, but did not talk to other people. She tended to isolate herself. 33. In October 2014, the plaintiff was appointed full-time permanent work by BAE Systems, and has remained full-time since then. Her mother had become ill and had stopped taking the boys each week in early 2017. This change in routine meant there was a lot more strain in the house, and a lot of fighting between her and her children. She described herself as being "back to survival mode". She struggled to get things done and occasionally had to bring work home. She suffered loss of concentration, so that her work took a lot longer to complete. 34. When asked what the future held, the plaintiff said 'I can't keep this up". She gave everything to work to maintain the position, however, at home she "had nothing". She had no enjoyment of life and just tried to get through each day and pay the bills. 35. She had a constant battle with her children to tidy their rooms, and identified the rooms in photographs attached to the report of an occupational therapist, Ms Geach, dated 28 June 2016 (Ex A.17). 36. When asked about her present condition, the plaintiff said she felt exhausted at the beginning of each day. Friday was the worst day of the week, and on weekends she would try to catch up, however, she struggled with sleep. 37. At work, the plaintiff described having lapses where she was unable to explain things to her students. She would forget words or what she was talking about. 38. The plaintiff gave evidence that essentially, she was teaching the same material she had for a number of years, and it was "second nature". She could not learn a new course if required to teach it. 39. The plaintiff said she was now able to sleep between five and six hours each night, but woke up more than once having dreams of her sister. These dreams interfered with her getting back to sleep. 40. Previously, she had a wide range of friends, but not now. She did attempt to present well at work because of the strict dress regulations at the base. She did not dress well on weekends, where she wore what was most comfortable. Before her sister's death, the plaintiff described herself as "house proud". Now she was disinterested and had no energy. She felt very ashamed that she required help, however, if she was able to pay someone to provide assistance by way of cleaning, gardening and food preparation, she would. 41. The plaintiff was asked whether she would accept the opinion recently given by a psychiatrist, that she would benefit from a period of hospitalisation. She said that she could not afford it, and did not want to go through the circumstances of her sister's death again, but would probably have to do that as an inpatient. If the advice was that the treatment may assist her, she would undergo it. 42. The plaintiff also gave evidence that she had recently thought that "if I was not here, it would make everyone better off". She started thinking that last year. 43. If she was unable to continue her employment with BAE Systems, she gave evidence that she would have to take a job in a supermarket. Her position was very specialised, whereas she went to the supermarket as little as possible, and did not want to talk to people. In August 2014, she had done nightshift for some time, but found it hard. 44. In cross-examination, the plaintiff confirmed that, at the time of the incident, her son Connor was aged 5 years (now 13), Reece was aged 8 years (now 16), and her daughter Taylor was aged 10 years (now 18). Nicholas, her son by her marriage, was aged 16 years at the time of incident, and was now 24 years. All the children were living at home at the time of Rebecca's death. At that time, the plaintiff did all of the housework including cleaning all of the children's rooms. She also did most of the commuting the children to and from school. She did all of the housework and looked after the garden. Her partner cooked occasionally. 45. The plaintiff came under the care of Leah Dodsworth, psychologist, on referral from the workers compensation insurer. She felt unsafe at work because of the conduct of a co-worker, but also because her superior officer failed to act on her complaint. She was not concerned whether the claim reflected badly upon her partner, because they did not have the same boss. 46. Following Rebecca's death, the plaintiff, who was due to return to work, was off work for a further six weeks, returning to work in June 2009, having been certified fit to do so. She continued with her rehabilitation with Ms Dodsworth until the end of 2009. Following her return to work, she did not have to work with the same co-worker who had made her feel unsafe. 47. The plaintiff acknowledged that she had not seen any psychiatrist or psychologist for treatment since the end of 2009. She still saw a general practitioner at the local medical practice. In July 2013, she had seen a Dr Gurgis, who had prescribed an anti-depressant, Cymbalta. She said taking the medication made her feel "like a zombie". She had taken no medication for depression since 2014. 48. The plaintiff acknowledged that she had seen a number of psychiatrists for medico-legal purposes, but did not like raking over "old wounds". She acknowledged that her counselling by Ms Dodsworth for her stress claim had improved her condition and got her back on the right path to some extent. When asked why she did not continue with counselling in respect of her sister's death, she gave evidence that after each session she got "a massive migraine", and the worse thing for her was to have to pay to go through that pain again. 49. When asked, the plaintiff admitted that she understood the insurer had admitted that the other driver was at fault, and was obliged to make payments for treatment, however, she replied "Why have they refused?" 50. When asked why she did not seek treatment in Wagga Wagga, the plaintiff gave evidence that there were very few psychiatrists there, and they had big waiting lists. She had also been told that they were "not very good". 51. The plaintiff had not sought to have the dispute over her treatment resolved by MAS. 52. When asked whether she would focus on her treatment once her case was finalised, the plaintiff said: "I can try. However, even your psychiatrist said I may never get better." 1. The plaintiff went to say: "I don't have much of a life left … I have lost everything … you have made it worse." 1. It was then put to the plaintiff that she had not seen any psychiatrist since 2010, and she was asked when she would start. She answered "When I can afford it". 2. The plaintiff was examined on her understanding of the report of the occupational therapist, Ms Geach, dated 28 June 2016 (Ex A.17). In relation to [14.1] thereof, she said that parts of the report were wrong, as it was embarrassing for her to say how incompetent she was at looking after her children. She acknowledged that she had said, "My family would be better off without me", however, she could not recall when she first said that. 3. It was put to the plaintiff that with her children's after-school dance commitments, she was "on the go" from 8am to 8pm each day, and she was asked whether she accepted that she just did not have the time to attend to her home duties. She replied: "I did it all before my sister was killed." 1. In recent times, her mother had stopped assisting her because of her diagnosis with cancer. Her sons had tried to help by doing some cooking and food preparation. When asked whether her children were responsible for cleaning their own rooms, she answered that the state of those rooms showed her "what a failure she had become", and that she felt that she was not doing her job. 2. In respect of her employment, the plaintiff gave evidence that her status changed in October 2014 from casual to that of a permanent employee on a fixed term contract. She was employed as an "Instructor/Armaments" and paid $62.50 gross per hour. She had become permanent on 1 July 2015, and this was the first time that she became a permanent full-time employee of BAE Systems. There was no change to her pay rate. 3. The plaintiff was cross-examined on two performance appraisals carried out on her, the first dated 12 August 2015. She acknowledged that it was a good report, however, she challenged the methodology behind it. Another assessment was carried out on 15 March 2016. It was put to her that the report was "glowing" of her performance, however, she said that it covered material that she had been teaching for 17 years. 4. The plaintiff was also asked about being nominated for an award for Trade Person of the Year in April 2015. She said she was nominated, but not awarded that title. 5. It was put to the plaintiff that the reports noted that she had built a strong rapport with her students. She replied that she struggled to get through every day, and not like she used to do. It was put to her that the truth was that her position was entirely secure. She answered, "Not at all". She acknowledged that she was the only female employed by BAE Systems and that the Defence Department wanted females to be employed. She was asked whether that would give her a competitive advantage, and she responded, "Yes, until I can't handle it". 6. In the future, the plaintiff said she had no plan to change her employment. She planned to stay in the family home and provide a home for the children. 7. The work appraisals in 2015 and 2016, and the plaintiff's nomination for Team Leader of the Year, became Ex 4. 8. In re-examination, the plaintiff confirmed that each time a new project manager was appointed, her employment position was reviewed. She had been employed as a casual/part-time employee, a full-time/casual employee, and a permanent full-time employee. The plaintiff's medical evidence 1. The plaintiff was examined by Professor A McFarlane AO, psychiatrist, on 18 October 2010. In a report dated 1 June 2011, Professor McFarlane diagnosed the plaintiff as suffering from a prolonged bereavement reaction, Post Traumatic Stress Disorder ("PTSD"), and Co-Morbid Major Depressive Disorder. Professor McFarlane noted the plaintiff's prior history of depression relating to a work-related bullying matter, however, found that she had substantially recovered from that at the time of sister's death. While she had continued to work, her symptoms had been a significant impairment to her. 2. In a subsequent report dated 3 May 2013, Professor McFarlane was of the opinion that the plaintiff continued to suffer from an ongoing prolonged bereavement reaction, PTSD and Co-Morbid Depressive Disorder. The severity of her disorder had progressively increased with the passage of time. It was his opinion that the plaintiff had a significant degree of impairment in the workplace. He opined: "The fact that she has continued full-time employment is a measure of her substantial motivation and determination. At the present time, she is barely coping in these circumstances … The disturbance of her memory and concentration has made it very difficult to organise this activity. This has led to an increasing sense of anxiety and panic. However, the precarious nature of her financial situation, in part due to the increased hours she was given under her previous contract, having been powerful motives for her to continue to attempt to cope. However, she is marginally coping in the workplace and this has been at considerable expense to both her quality of life and capacity to function in the home environment. Hence, her current capacity to remain employed is highly fragile, and in my opinion, there is a significant risk that she will not be able to continue to work at the current level she is." 1. Professor McFarlane was of the opinion that the plaintiff's mood disturbance and ongoing PTSD symptoms required urgent treatment. 2. The plaintiff was assessed by Dr R Gertler, psychiatrist, on 12 November 2010. In a report dated 22 November 2010, Dr Gertler was then of the opinion that the plaintiff was suffering from an adjustment disorder with depressed mood. He was of the opinion that she would benefit from treatment, and set out the treatment required. He also opined: "The prognosis for the adjustment disorder with depressed mood remains guarded in the absence of appropriate treatment. It is likely to continue for the foreseeable future, decreasing slowly, if at all, with the passage of time and continuing to have an adverse effect on Ms Rutland's quality of life and her ability to cope on a personal, social and occupational level." 1. Dr Selwyn M Smith, consultant psychiatrist, examined the plaintiff on 17 August 2016, having reviewed the medical evidence then available, including two reports relied on by the defendant of Dr Lewin, dated 22 March 2012, and 18 June 2015. He was of the opinion that the plaintiff had developed diagnostic criteria for the following psychiatric disorders: 1. Post-Traumatic Stress Disorder, chronic in duration 2. Major Depressive Disorder, chronic in duration, and 3. Complicated bereavement reaction 1. Dr Smith was of the opinion that the plaintiff's capacity for work had been significantly reduced. He noted that she had been frequently absent from work. 2. In a separate report dated 19 August 2016, Dr Smith opined that the plaintiff was in need of ongoing psychiatric and psychological treatment. She had been resistant to engage with such treatment and had attempted to maintain a stoic stance. She had also experienced adverse effects from prescribed anti‑depressants. Dr Smith was of the opinion that the plaintiff was a candidate to undergo psychiatric hospitalisation which would assist her to receive intensive treatment. At the time of that report, Dr Selwyn Smith also opined that the plaintiff was assessed at 15% whole person impairment ("WPI"). 3. In a further report dated 6 February 2017, Dr Smith commented on the more recent report of Dr Robert Lewin, relied on by the defendant, dated 23 November 2016. He noted that Dr Lewin had found evidence of a complicated bereavement (pathological grief reaction), a recurrent unipolar major depression with melancholia, and had no difficulty accepting a diagnosis of PTSD. Dr Smith opined that, given the provision of treatment services in Wagga Wagga was limited, that it would be more appropriate for the plaintiff to be admitted to a psychiatric facility for treatment. 4. The plaintiff relied on a report of Ms Tracey Josling, occupational therapist, dated 7 June 2011. That report set out costings of ongoing treatment and in relation to a domestic assistance claim of 7 hours per week for a period of 12 months from the date of the report. On 28 June 2016, the plaintiff was assessed by Ms Amy Geach, occupational therapist, who provided a report dated 28 June 2016. The report detailed the impairment the plaintiff alleged in respect of her various domestic duties by comparison to her capacity prior to her sister's death, and included photographs of all areas of the home. Ms Geach provided costings for ongoing treatment, together with various services for domestic care and assistance, that in her opinion the plaintiff required. They included the following: Lawnmowing – 1 hour per week at $55 per hour Nanny services until Connor turns 18 – 21 hours per week at $30 per hour Domestic assistance – 2 hours per week at $45 per hour The defendant's medical evidence 1. The defendant relied on four reports of Dr Lewin, psychiatrist (Exs 5.1 to 5.4). In his first report dated 22 March 2012, Dr Lewin diagnosed a complicated bereavement, with symptoms continuing for almost 3 years following the death of her sister. He also found evidence of a psychiatric condition, and concluded there was ongoing evidence of a Major Depression. That condition encompassed a number of post-traumatic symptoms of anxiety, however, they were insufficient to diagnose a Post-Traumatic Stress Disorder, although that condition may have been present at an earlier stage. 2. Dr Lewin was of the opinion that a process of psychotherapy should be undertaken, together with anti-depressant medication prescribed for the plaintiff. However, he noted that there were significant difficulties accessing expert psychiatric services on an out-patient basis in Wagga Wagga. 3. In his report dated 18 June 2015, Dr Lewin was of the opinion that as at June 2015 there was evidence of a persisting chronic depression which he diagnosed as recurrent unipolar Major Depression. He was of the opinion that the plaintiff's condition was beyond normal grieving and was caused by her sister's death. 4. Dr Lewin was also of the opinion that the plaintiff was vulnerable, having an obsessional character trait. He went on to state: "The vulnerability factors are contributing factors, I note Ms Rutland had the same personality make-up in the years prior to the death of her sister, without developing this particular complex of symptoms. The personality vulnerability was neither necessary nor sufficient to precipitate psychiatric illness. When considering apportionment of the disability, I attribute the psychiatric condition entirely to the emotional response to the death of her sister, Rebecca Rutland." 1. Dr Lewin went on to recommend a comprehensive specialist psychiatric assessment at the Prince of Wales Hospital, Sydney. 2. In a report dated 23 November 2016, Dr Lewin opined that there was no change in his diagnosis since 2015. He was of the opinion that should the plaintiff undertake psychiatric treatment, there was a reasonable likelihood that her depressive symptoms would respond. However, given the seven years that had elapsed since the death of her sister, the trauma symptoms suffered by the plaintiff were unlikely to change dramatically. 3. Dr Lewin was of the opinion that the significant psychiatric symptoms suffered by the plaintiff appeared to impair her capacity to work to a limited degree. He stated: "To the extent that she continues to attend work, she remains fit for work. The psychiatric condition does not prevent her working because there is no impairment in her judgment. She is not delusional. However, it is evident that the effort required to maintain full-time work is part of the burden of difficulty Ms Grierson suffers at the present time. Once again, I note that engagement in treatment is likely to relieve that distress. With appropriate treatment I feel she will be fully fit to work." 1. Finally, in a letter dated 27 April 2017, Dr Lewin stated that he remained of the opinion that the plaintiff had a treatable psychiatric condition, and having been provided details of two treating psychiatrists practising in Wagga Wagga, was now of the opinion that the initial treatment was not required in Sydney, but that appropriate care was available in Wagga Wagga. 2. Exhibit 5.5 was a letter from Dr A Adesanya dated 5 April 2017, advising that she had consultation rooms in Wagga Wagga and Canberra, and that there was a three month wait list for her services as a consultant psychiatrist. Submissions of the defendant 1. The defendant conceded the following damages: Past treatment expenses $2,430.65 Past economic loss $5,970.24 Future Treatment Expenses $23,500.00 1. With respect to the Defence filed by him, the defendant did not press [1] thereof and withdrew the denial contained in [2], namely, that the plaintiff had suffered a psychiatric injury, as required by s 31 of the CLA. 2. Learned Counsel for the defendant submitted that a significant issue was the failure by the plaintiff to mitigate her damages by seeking appropriate treatment after the end of 2009. Whilst he had not pleaded s 136 of MACA, it was submitted that the issue of mitigation of damages was "in play", that it was an open issue, and that there was no prejudice to the plaintiff in the court determining that issue. Further, the issue of mitigation affected all heads of damages to be assessed by the court. 3. It was submitted on behalf of the defendant that since the admission of liability by the defendant, the insurer had been obliged to pay all reasonable treatment expenses of the plaintiff. Notwithstanding there was correspondence in which the defendant refused to pay for inpatient psychiatric care, that dispute could have been resolved by the MAS, but the plaintiff had made no application to do so, until one week before the hearing. 4. It was submitted that the plaintiff had used various excuses for not seeking treatment, for example, that she did not like the anti-depressant medication prescribed for her, that she did not like going over the details of the accident, and further, that there was no appropriate psychiatric care available in Wagga Wagga. 5. On the question of inpatient treatment, Dr Smith first raised this following his examination in 2016. Dr Lewin, who examined the plaintiff on behalf of the defendant first in 2012, disputed whether such treatment was reasonable and necessary. 6. The defendant submitted that in respect of the plaintiff's claim for domestic care and assistance, the test was whether there was a "reasonable need for the services to be provided", as required by s 15(2)(a) of the CLA, relying on Sampco Pty Limited v Wurth [2015] NSWCA 117. 7. It was submitted that the plaintiff had gone untreated for a period of some 8 years, whilst the evidence established that there was a need for future treatment by way of counselling and medication. Provided the plaintiff undertook appropriate treatment, there was no need demonstrated for domestic care following that treatment. 8. It was submitted that the plaintiff's claim for care was not supported by evidence from any of her children. The plaintiff's own evidence was described as 'tearful and defiant", and there was no support in the medical evidence for such a claim. In relation to the claim for damages pursuant to s 15B, an award should only be made in respect of the past. Properly mitigated, the plaintiff would have been seeking treatment by late 2013 and would have recovered capacity to care for her children from that point. The defendant therefore advocated that any award of damages would be for a closed period until the end of 2015. Further, the plaintiff had claimed 36 hours per week, but such a claim could not include time when the children were sleeping. Services provided by the plaintiff's mother, was, for the time when the children stayed with her, cooking, laundry, outings and supervision during their waking hours. 9. It was submitted that whilst that care had been helpful, the evidence had not established that there was a need for it, but rather, that it was part of the "give and take of family life". Thus, there could be no future claim for domestic assistance or pursuant to s 15B of the CLA. 10. In respect of the plaintiff's claim for future economic loss, the defendant submitted that there was no independent evidence of her work performance. The court had to rely on the plaintiff's own evidence as to how she was coping with work, and would treat that evidence with caution. The psychiatric evidence established that the plaintiff had a negative self-perception which led to her exaggerating her capacity as a mother and at work. 11. In fact, the plaintiff had a very stable work pattern. She had transitioned between two employers, and had worked as a full-time employee, as a casual employee, and as a permanent employee. The work appraisals tendered in evidence, were the only objective evidence as to how she was performing at work. The plaintiff's own evidence was that she put everything into her job, and in cross-examination, she said her work would continue, as female employees were favoured by the Department of Defence. It was submitted that she was a valued employee who volunteered to do extra work out of hours when required. The court would not accept the plaintiff's negativity as to the question of whether her position at work was "precarious". 12. Pursuant to s 126 of MACA, the court was required to make factual findings as to the plaintiff's most likely future circumstances, but for the accident. Those circumstances were, on the evidence, her existing work hours and pay. She had not lost either her judgment or faculties that enabled her to do the work required, and even though the work stressed her and made her more fatigued, that did not sound in damages. It was therefore submitted that it was not open to the court to allow a cushion for diminished employment capacity. 13. The delay in seeking treatment which based the defendant's submission for a reduction for her failure to mitigate her damages, also evidenced a good work record in the intervening years. The evidence was that she had not lost any money, and therefore no award should be made for future economic loss. The plaintiff's submissions 1. Learned Senior Counsel for the plaintiff submitted that the defendant had not pleaded a failure to mitigate damages as required by s 136 of MACA, and therefore the defendant should not allowed to allege a failure to mitigate so as to reduce the plaintiff's damages. It was denied that this had "had always been in issue". 2. It was submitted that the defendant had conducted its case up until 2016, maintaining that the plaintiff had not suffered a psychiatric condition. In doing so, the defendant had failed miserably with respect to its statutory obligations as a third party insurer. 3. It was submitted on behalf of the plaintiff that the defendant's contention that she had made "a litany of excuses" for not seeking treatment, had not been made out. It was submitted that it was "excruciating" for the plaintiff to rake over the history of her sister's death. Further, the court could accept her evidence that she would undergo treatment, as it was never put to her that she would not undergo it. 4. It was submitted that the defendant submission that the plaintiff's damages claims were destroyed by her failure to mitigate, would not be accepted. The question was, assuming she underwent treatment, what would then happen? It was submitted that Dr Lewin had given support to the plaintiff's claim for damages for future economic loss, when, in his report dated 23 November 2016, by reference to the opinion set out above, that "the effort required to maintain full-time work is part of the burden of difficulty [the plaintiff] suffers at the present time". 5. The plaintiff relied on the following schedule of damages, which was marked MFI 1: Damages Subtotal Total Past Economic Loss $5,970.24 $5,970.24 (i) Initial period for 6 weeks post-accident $995.00 net per week x 6 weeks Future Economic Loss (i) To attend inpatient treatment (3 weeks) $5,671.50 $155,671.50 $49.75 per hour x 114 hours = $49.75 x 38 = $1,890.50 net per/week $150,000.00 (ii) Buffer Past Treatment Expenses $698.15 $2,430.65 a. Medicare b. Section 83 expenses $1,732.50 Future Treatment Expenses $12,600.00 (i) Hospitalisation - $600 per night x 21 nights $6,500.00 $23,500.00 (ii) Consultant Psychiatrist – 20 sessions x $325 per session $4,400.00 (iii) Psychologist – 20 sessions x $220 per session Past Assistance (i) Griffiths v Kerkemeyer $36,400.00 8 hours per week x $25 per hour = $200 x 3.5 years (182 weeks) $105,625.00 $143,025.00 (ii) Past section 15B claim 12.5 hours per week x $25 per hour = $312.50 x 338 weeks Future Paid Assistance (i) 2017 – 2022 (5 years) $62,505.00 6 hours per week x $45 per hour = $270 per week x 231.5 (5 years multiplier) $45,595.87 $108,100.87 (ii) 2022 – 2041 (19 years) 2 hours per week x $465 per hour = $90 x 506.62 (Multiplier) (19 year multiplier 646.2 x 0.784 5 year deferred multiplier) Total $437,698.26 1. There is no issue as to the claims made for past economic loss, past treatment expenses and future treatment expenses. In respect of past assistance, the plaintiff claimed damages pursuant to s 141B of the MACA on the unequivocal evidence that the plaintiff required 8 hours per week gratuitous assistant over a period of 3 and half years. 2. The claim for damages pursuant to s 15B of CLA, was confined to 12.5 hours per week for the past only. Although Ms Geach had assessed that claim as amounting to 36 hours per week, it was pressed for a period of 12.5 hours only for the time the two boys spent in the care of their grandmother and great‑grandmother. 3. It was submitted on behalf of the plaintiff that the need for care had been amply demonstrated on the evidence. Mrs Rutland Snr had described the plaintiff as "unravelling" following her sister's death, and she required the assistance to maintain her employment. 4. For the future, she would require 2 hours assistance per week to age 67. 5. Further, whilst her condition would be ameliorated by appropriate treatment, there was an ongoing need for some assistance in the house on the basis of Dr Lewin's opinion that her trauma symptoms would continue. 6. In support of the plaintiff's claim for future economic loss, learned Senior Counsel submitted that the plaintiff's ongoing symptoms would be productive of financial loss. Those symptoms caused her to be exhausted, she had difficulty concentrating, suffered loss of memory, and experienced flashbacks and guilt following her sister's death. The evidence established that she had a negative view of herself and perceived a lack of self-worth. All of this meant that her condition would be productive of financial loss. 7. While she now had a different employer, and her employment was permanent, there were no guarantee it would remain so. The evidence established that the plaintiff would find new learning difficult and she relied on her longevity in the instructor role to carry out her work. 8. The objective evidence here established that there was a risk of her employment being terminated, and it was not put to the plaintiff that she was making that up. Therefore, the plaintiff's claim for future economic loss had been calculated over a period of 24 years, with a 5% multiplier. It was an appropriate case for an award of damages by way of a lump sum. 9. Finally, the plaintiff formally applied for an order pursuant to s 62(1)(b) of the MACA to refer this matter back to MAS for re-assessment of the plaintiff's whole person impairment, based on Dr Smith's latest report that she should be assessed at 15% of a WPI. Submissions in reply 1. Counsel for the defendant submitted that the past Griffiths v Kerkemeyer claim should be confined to that pleaded, namely, three hours per week, otherwise the defendant had been taken by surprise in the trial, which explained why the plaintiff was not cross-examined in respect of that head of damage. Determination 1. I note that there is no dispute that damages should be awarded for the following heads of damage: 1. Past treatment expenses - $2,431.00 2. Past economic loss - $5,970.00 3. Future treatment expenses - $23,500.00 1. The only two witnesses who gave evidence in the matter were the plaintiff's mother, Mrs Judith Rutland, and the plaintiff. Mrs Rutland Snr was an impressive witness who gave telling evidence on the effect of her daughter Rebecca's death on the plaintiff. She did so in a dignified manner which was not overstated at all. Clearly the loss of her daughter had an impact on her and the rest of her family, however, she had identified soon after the event, that the plaintiff was, in her own words "beginning to unravel'. Her evidence established clearly the need for the provision of the domestic services that she and her husband provided to the plaintiff thereafter to make up for the plaintiff's own loss of capacity to look after her house and children. She did so until she herself was diagnosed with cancer, and commenced treatment, which thereafter prevented her from assisting the plaintiff in the same way. 2. I do not accept the defendant's submission that the plaintiff's evidence could be characterised as "tearful and defiant". That description ignores, or at least glosses over, the medical consensus between the parties that the plaintiff suffered a major depressive illness, for which the defendant had admitted liability. The plaintiff did demonstrate emotional lability in giving her evidence. It was clearly stressful for her to rehearse the circumstances in which her younger sister had been killed, and her identification of the body. Having read the medical evidence prior to the plaintiff giving evidence, it was clear that some latitude should be given to her, given the circumstances of the case. By the same token, the court must approach questions of reliability and credibility impartially. To the extent that part of her evidence displayed some defiance, that defiance was, without criticism to leaned Counsel who was cross‑examining, understandable. Given the nature of the case, I found the plaintiff to be a truthful witness who, notwithstanding her desire to avoid reopening her psychological wounds, did not exaggerate her evidence in any deliberate way. The defendant's contention that the plaintiff failed to mitigate her damages 1. The defendant did not plead a failure to mitigate damages by the plaintiff. Section 136 of the MACA provides as follows: "136 Mitigation of damages (1) An injured person is under a duty to mitigate his or her damages. (2) Accordingly, in assessing damages in respect of a claim, the court is to give consideration to the steps taken by the injured person to mitigate those damages and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. (3) Those steps include the following: (a) Undergoing medical treatment. (b) Undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program), (c) Pursuing alternative employment opportunities, (d) Giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the above matters. (4) In proceedings before the court, the onus of proving that an injured person has not mitigated his or her damages as required by this section lies with the person who makes that allegation. (5) In proceedings before the court, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person. (6) If any dispute arises over an alleged failure by the injured person to mitigate his or her damages, the court is to give consideration to and take into account any evidence that the insurer failed to assist in mitigating damages." 1. Before considering the application of s 136, it is pertinent to take into account Rule 14.14 of the Uniform Civil Procedure Rules, which provides as follows: "14.4 General rule as to matters to be pleaded specifically (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) That, if not pleaded specifically may take the opposite party by surprise, or, (b) That the party alleges makes any claim, defence or other case of the opposite party not maintainable, or, (c) That raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality." 1. It has long been held that statutory defences pursuant to the CLA and the MACA, must be pleaded by parties. In Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34, Beasley JA (as she then was, Whealy JA and Sackville AJA agreeing) said, in relation to a failure to plead s 43A of the CLA: "23 Any statutory provision that provides a complete, even if defeasible, defence to a claim, if not pleaded, would take a party by surprise. Any such defence is required to be pleaded: see r 14.14 (2)(a). In any event, s 43A was required to be specifically pleaded because it raised a defence, which if successful, would make the claim of the plaintiff not maintainable; r 14.14(2)(b). The appellant's defence, therefore failed to comply with the pleading rules. 24 A failure to comply with the rules of court, including the pleading rules, is not necessarily fatal to a party's right to rely upon the unpleaded matter. The court has power to dispense with its rules: see Civil Procedure Act 2005, s 14. It has also been long accepted that a party may litigate an issue notwithstanding a failure to comply with the pleading rule. However, the entitlement of the party to do so is dependent upon a favourable exercise of the court's discretion if objection is taken by the opposing party. The exercise of the discretion is predicated upon fairness to the parties." 1. Here, the issue of the plaintiff's failure to mitigate her damages was first raised when the court intervened during her cross-examination, to enquire whether the purpose of the question went to that issue. There had been no objection by learned Senior Counsel for the plaintiff to that question. A failure to mitigate damages, if made out, would not have the effect of making the plaintiff's claim not maintainable. The court's discretion to allow the defendant to make the contention is therefore reliant upon an exercise of the court's discretion, having regard to issues of fairness to both parties. The plaintiff submitted here, that it was taken by surprise. However, having regard to the following matters, the plaintiff's legal representatives must have been on notice that the defendant would contend that she failed to mitigate her damages: 1. Exhibit 2 – A letter from the plaintiff's solicitors to the defendant's solicitors referring to Dr Selwyn Smith's report dated 19 August 2016, recommending that the plaintiff undergo psychiatric hospitalisation and confirming that the plaintiff had indicated that she would attend such treatment. The letter requested that the defendant's solicitors obtain the insurer's instructions to meet the cost of the treatment. 2. By letter dated 13 December 2016, the defendant's solicitors advised that the insurer would not pay for the hospital treatment, but would approve the cost of a psychiatric assessment with a psychiatrist in Wagga Wagga to determine an appropriate treatment plan. The letter went on to state: "If your client is not agreeable to this and wishes to pursue hospitalisation, we recommend you attend to lodging an MAS treatment dispute." 1. Exhibit 3 – By letter dated 20 December 2016, the plaintiff's solicitors wrote to the defendant's solicitors setting out certain difficulties in obtaining psychiatric services in Wagga Wagga, and invited the insurer to reconsider its position. 2. By letter dated 21 December 2016, the defendant's solicitors advised the plaintiff's solicitors that Dr A Adesanya, psychiatrist, was available to take appointments in Wagga Wagga. That was confirmed in Dr Adesanya's letter, Ex 5.5. 1. Pursuant to s 136(6), the court is to give consideration to, and take into account, any evidence that an insurer failed to assist in mitigating damages. In the context of this case, it is relevant that in 2015 Dr Lewin, on behalf of the insurer, recommended that the plaintiff be assessed at the psychiatric unit at Prince of Wales Hospital, Sydney. He subsequently changed his recommendation. The insurer's failure to pay for what is clearly necessary treatment for this plaintiff, i.e. psychiatric hospitalisation, and to insist that she seek treatment by way of outpatient assessment in Wagga Wagga, when there were reasons which made it unreasonable for her to do so, would warrant the court refusing to exercise its discretion to allow the defendant to allege a failure to mitigate by the plaintiff, and I would therefore decline to do so. 2. If I am wrong in so finding, I would not have found that the plaintiff had failed to mitigate her damages in any event. In Fazlic v Milingimby Community Inc [1982] HCA 3; 150 CLR 345, the High Court said at p 350: "Any assessment of the reasonableness or otherwise of a worker's refusal of treatment must depend on the worker's state of knowledge at the relevant time. This accords both with good sense and with authority. A worker's choice cannot be said to be unreasonable because he has failed to give effect to factors unknown to him. In the case of complex medical or surgical procedures, he will know little except what he is told. In the present case, he was told very little indeed." See also ECS Group (Australia) Pty Limited v Hobby [2014] NSWCA 193 at [37] and [38]. 1. Here, the plaintiff did continue her treatment with the psychologist, Leah Dodsworth, until the end of 2009. Her reason for not continuing that treatment was that the counselling caused her pain, namely, going over the details of her sister's death. She did not want to pay for that pain, and I accept her evidence to that effect. Thereafter, I also accept that her mother told her that she needed medical assistance. That was not advice setting out what that treatment would entail and what were the likely outcomes of it, whether it be by way of psychotherapy or medication. In fact, on the advice of her general practitioner, the plaintiff did take, in 2013, anti-depressant medication, but stopped taking it because it did not help her. Suffering a psychiatric injury is not the same as suffering a physical injury where the reasonableness or unreasonableness of accepting advice, for example, for surgical intervention, may be straightforward. It was part of the plaintiff's psychological impairment that, according to the doctors who examined her, she was placing all of her emotional resources into continuing to work so that she could properly provide a home for her children. Further, when an appropriate request was made by her solicitors for treatment by way of hospitalisation, it was refused by the insurer. For those reasons, I would not have held that the plaintiff failed to mitigate her damages in this case, in any event. 2. For past care and assistance, I accept that the need for such assistance has been established, and that the threshold in s 141B of the MACA has been met, namely, that the plaintiff required such assistance for more than 6 hours per week for a period of more than 6 consecutive months. I find the plaintiff's claim of 8 hours per week for 3.5 years following the accident, as reasonable, and I therefore award the $36,400.00 for that head of damages. 3. I also find that the plaintiff's claim for attendant care services pursuant to s 15B of the CLA has also been established on the evidence of the plaintiff's mother. I reject the defendant's submission that the assistance given amounted to part of the "give and take of family life". It went well beyond that, involving care for two of the plaintiff's children being given for two nights each week, and on one weekend night every fortnight, in addition to other assistance. The claim based on 12.5 hours per week up until the end of 2016, was reasonable, and I therefore award $105,625.00 for that head of damages. 4. The claim for future paid assistance is more problematical. The plaintiff will require assistance for the foreseeable future until she has undergone treatment. She will require assistance until her youngest child has finished his education, and it is reasonable to limit that claim to a period of 5 years, but allow the claim at 4 hours per week at $40 per hour. Applying the 5% multiplier, I allow $37,000.00 for that claim. I am not persuaded that she will require domestic care of assistance beyond that period of time, and therefore reject the plaintiff's claim for 2 hours per week for a period of 19 years, deferred by 5 years. 5. The plaintiff's claim for future economic loss comprised two components. The first was to attend inpatient treatment for a period of three weeks, which is reasonable, and I therefore allow the sum of $5,675.00 for that loss. The plaintiff also claims a buffer for the future for the plaintiff's loss of capacity to work. The plaintiff has an excellent work history to date, and has managed to work suffering a depressive illness since 2009. 6. Section 126 of the MACA provides as follows: "126 Future economic loss – claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages, it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relative percentage by which damages were adjusted." 1. The first finding of fact required is that the claimant's most likely future circumstances but for the injury was that she would have worked as an Instructor/Armaments at the RAAF base until her retirement. The question to be determined here, is whether the diminution of the plaintiff's earning capacity as a result of her psychiatric illness is or may be productive of financial loss – see Medlin v State Government Insurance Commission (1995) 182 CLR 1. The relevant principles were summarised by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [41] to [61]. At [47] the Court said: "47 Although it is loss of earning capacity and not of earnings that is the subject of compensation, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity. Expectation of working life is also an element in that assessment …" 1. Here, an assessment that there has been a loss of earning capacity is problematical. The plaintiff is in long-term employment, although she is now employed by a private contractor to the RAAF, and that employment is no more secure than any other employee in the workforce. She also has specialised skills which she has been utilising for some 17 years in that employment. 2. It is most unlikely the plaintiff could use those skills in any other occupation, and if her employment was terminated she would have to apply for unskilled work, e.g. in evidence she referred to working for Woolworths. That would be productive of financial loss. Further, the court has to take into account the possibility that her future treatment will not be successful. That would leave her with an ongoing psychological impairment which may well impact upon earning capacity, either in her present employment or on the open marketplace for work. In those circumstances, any diminution in the plaintiff's earning capacity will be productive of financial loss, and whilst it is necessarily an imprecise estimation, as the plaintiff is to be compensated in damages once and for all, she is entitled to a lump sum against that possibility – see Nominal Defendant v Lane [2004] NSWCA 405. I therefore propose to allow, given that the plaintiff is now 43 years of age, and has another 24 years of working life in front of her, a lump sum of $75,000.00 against these contingencies. There is no adjustment required to that sum pursuant to s 126(2) of the MACA. Application by plaintiff for further medical assessment 1. In his opening, learned Senior Counsel for the plaintiff flagged that an application may be made for the court to refer the matter back for further medical assessment pursuant to s 62 of the MACA, on the basis of Dr Selwyn Smith's assessment of whole person impairment. During his final submissions, learned Senior Counsel formally made that application. 2. Section 62 provides as follows: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) By any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) By a court of claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury, unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of the matter under this section is to be by referral to a member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the Proper Officer of the Authority). (2) A certificate as to the matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. 1. As outlined above, this matter already had a complex administrative history by way of assessment, first by an individual assessor, then by a Review Panel, followed by judicial review by the Supreme Court and Court of Appeal, following which, the plaintiff was re-assessed by a Review Panel. The mere fact that Dr Smith assessed the plaintiff at greater than 10%, does not mean that a Review Panel would come to the same conclusion. Both previous Review Panels had before them reports from psychiatrists to similar effect to that of Dr Smith, and reached differing conclusions. 2. Further, the plaintiff, upon receiving Dr Smith's assessment, did not seek a referral on the grounds of deterioration of her illness or additional relevant information about it. Rather, she was understandably anxious to finalise the proceedings. It would certainly not be in her interest to set off another round of assessment, review and judicial review, of which there is always a risk. Further, the objects of the Civil Procedure Act 2005, pursuant to s 56 thereof, to facilitate the just, quick and cheap resolution of the real issues between parties must be given effect. For those reasons, I refuse to refer the matter for further medical assessment pursuant to s 62. Summary of damages 1. I therefore assess damages as follows: Past treatment expenses $2,430.00 Past economic loss $5,970.00 Future Treatment Expenses $23,500.00 Past domestic care and assistance $36,400.00 Damages pursuant to s 15B $105,625.00 Future paid care and assistance $37,000.00 Future economic loss $80,675.00 Total $291,600.00 Conclusion and orders 1. I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $291,600.00. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits are to be returned forthwith. 4. Any application for a special costs order is to be made by Notice of Motion and affidavit evidence in support on 5 days' notice to the opposing party. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2017