Alsuleiman by her tutor Haimour v George

District Court of NSW|2017-11-20|Before: Mr J

A. INTRODUCTION

Aisha Alsuleiman, barely one year old, was a passenger in a vehicle driven by her mother, Yasmine Haimour, which was involved in a car accident. Breach of duty is admitted by the defendant, Brett George, the other driver. Aisha by her tutor, Ms Haimour, claims damages.
Aisha was assessed by a Medical Assessment Service ("MAS") assessor as being under 10% whole person impairment, so no claim is maintained for non‑economic loss. The statement of particulars filed with the statement of claim identified separation anxiety disorder as the only injury received. No physical injury is alleged. The statement of particulars identified past and future medical care, past and future domestic assistance and attendant care, and a buffer for future economic loss as the heads of damages.
At the commencement of proceedings, Aisha provided a schedule of damages which sought past care up to the hearing date but sought "No allowance" for future care.
After the evidence and the defendant's submissions had concluded, in her closing submissions, Aisha sought to rely on a revised schedule of damages dated 9 November 2017, claiming five years of future care at the same rate as the past care, an amount which was by a significant margin the largest component of her claim for damages. The defendant objected to the new schedule.

C. BACKGROUND

The motor vehicle accident occurred on 14 June 2014 when Aisha was one year and two months old. She was in the back seat in a baby capsule. The car collided head on with the side of a truck and went under the truck. An airbag was deployed and Aisha's mother was injured.
Someone took Aisha out of the car. Shortly thereafter, Aisha's father came and found Aisha crying. He went with Aisha in an ambulance to St George Hospital. Aisha's mother was taken in a separate ambulance. Aisha stayed at the hospital for three hours and was found to have no physical injuries. At the hospital she ate and drank, interacted with others, played with toys, and was alert. Her mother remained in hospital for approximately five days.
Aisha was breast fed at the time, but that ceased as a result of the accident as Aisha's mother remained in hospital and was on medication. Aisha did not see her mother until her mother returned home after the five days. Thereafter, because of her injuries, Aisha's mother was unable to attend to Aisha's needs as readily as prior to the accident.

D. RECOGNISED PSYCHIATRIC ILLNESS

Section 31 of the Civil Liability Act 2002 ("CLA") provides that: "31 Pure mental harm - liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness."
Aisha alleged that she suffered a separation anxiety disorder.
On 19 January 2015 Dr Leonard Lee, child psychiatrist, reported being given a history of Aisha involving her being anxious when separated from her mother, waking several times per night screaming and clinging to her mother, restless, easily frustrated and crying, demanding attention, and that she "could make herself vomit". Dr Lee concluded that Aisha (Exhibit A, p 132, [7]): "is likely to suffer with separation anxiety disorder and possibly posttraumatic stress disorder (PTSD), which may be compounded by her mother's ongoing physical and psychological disturbance."
In January 2015, Aisha's treating General Practitioner ("GP"), Dr Kurdo Saeed, reported that Aisha was: "cooperative...alert oriented to time place and persons...no indication of thought disorder, delusions or hallucinations...speech was normal in value and rate. She also appeared to be depressed, anxious and having difficulty to concentrate."
Dr Saeed also reported that Aisha suffered from "withdrawal from social contacts...insomnia, lack of concentration, poor memory, low self esteem, lack of confidence". Some of this diagnosis seems inappropriate for a 20-month-old child.
Aisha was assessed by Dr Thomas Newlyn, child psychiatrist, on 5 May 2015. He noted that Aisha "cries at night for no reason," that since the accident, "she has wanted to sleep with her parents," and, "has to sleep with her mother". Dr Newlyn also reported that "she smashes things...hates the capsule [in the car] and may unbuckle herself". He recorded that after the accident, Aisha no longer wanted to stay with her grandmother as she had done three days a week before the accident.
Dr Newlyn diagnosed "Adjustment Disorder with Separation Anxiety", although he did not provide reasons for that diagnosis or the symptoms of that condition. He thought that no psychiatric care was needed for Aisha but that family therapy was advised. He thought that Aisha's symptoms "would lessen if mother were able to reliably parent her daughter".
Dr Saeed reported in July 2015 that Aisha presented to him many times crying, not eating properly, and not sleeping well and having tantrums. He suggested a diagnosis of post‑traumatic stress disorder.
Later that year, 28 October 2015, Dr Lee again saw Aisha. Aisha's coordination was reported to be unimproved, but she presented well to Dr Lee. Dr Lee noted: "I have seen [Aisha] on two occasions January 2015 and June 2015. On both occasions she presented as relaxed in her mother's presence. Hence the diagnosis is made on the basis of history provided by her parents which, if accurate, is consistent with separation anxiety disorder."
Like Dr Newlyn, Dr Lee recommended family therapy.
Dr Alex Apler saw Aisha on 8 June 2016 and prepared a MAS assessment report. The history given by Aisha's parents did not indicate improvement. Aisha would scream and hit her sister if she did not get her own way, she would scream if put in her capsule in the car or if she woke up at night and her mother was not present. She was prescribed medication to help her sleep. Dr Apler noted Aisha saying that she was happy in the car, at school, and liked sleeping with her father, and appeared calm, settled, and playful. Her father reported that she enjoyed child care, although initially she was reluctant to go.
Dr Apler reported on 1 August 2016 in the MAS assessment that although Aisha "had separation anxiety", that was a "normal phenomenon in children her age" and that she did not suffer separation anxiety disorder.
On 27 June 2017 Dr Lee again assessed Aisha. The anxiety resulting from separation from her mother was reported to be continuing, including when she awoke from sleep at night.
Dr Lee noted that Dr Apler considered that Aisha did not suffer a psychiatric disorder. Dr Lee commented (Exhibit A, p 138): "Comment: Separation Anxiety Disorder is a recognized disorder in DSM 5. It is characterized by developmentally inappropriate and excessive fear or anxiety concerning separation from those to whom the individual is attached: as evidenced in this case by 1. Recurrent excessive distress when anticipating or experiencing separation from her mother. 2. Persistent reluctance or refusal to sleep without being near her mother. 3. Persistent and excessive worry about possible harm to her mother. I disagree with Dr Apler's opinion that it is not a psychiatric disorder. It has persisted for many years and if it were not clinically significant, it would have improved by now."
However, Dr Lee again noted: "Aisha does not present as objectively anxious during the assessment although she sits very close to her mother, behind her chair. This is not unexpected because her mother is not separated from her. Her diagnosis is separation anxiety disorder and her prognosis is guarded."
Dr Lee again recommended family therapy.

E. ANALYSIS

Dr Newlyn's report, although no longer current, provides some support for Dr Lee's diagnosis of separation anxiety disorder. Dr Lee's report is based solely on the history provided by Aisha's parents and not on any direct observation of Aisha's behaviours characteristic of separation anxiety disorder.
Aisha's legal representative made attempts to secure the attendance at court of Dr Apler, but he was not a compellable witness and did not attend. As the plaintiff was denied the opportunity to test the evidence of Dr Apler, I should be cautious in accepting Dr Apler's evidence that there was no separation anxiety disorder.
Dr Lee assessed Aisha at least three times. He was consistent in his conclusions of the existence of the disorder. He identified the reasons why his conclusions differed from Dr Apler. I found his report persuasive, particularly that the anxiety suffered by Aisha when separated from her mother should have improved by now if it was not clinically significant. Dr Lee, however, conceded that his opinion was based largely on the history he was given.
Aisha's father would have been able to give evidence of Aisha's behaviour in the absence of her mother, but he was not called and no explanation for his absence was given.
Ms Haimour, Aisha's mother, gave evidence consistent with the history in Dr Lee's medical reports: that Aisha was crying a lot, not eating well, screaming at night, smashing plates, wanting to be breast fed, angry, and not wanting to sit in the car seat. Ms Haimour conceded that her medication sometimes affected her memory and that she had a "bad memory". The accuracy of Ms Haimour's memory, however, might be thought to be less significant when she is recalling the consistent behaviour of her daughter up to the date of trial.
Dr Newlyn's report implied that Ms Haimour was unable reliably to parent Aisha, presumably since the accident, a matter finding some support in Dr Lee's 19 January 2015 report (at Exhibit A, p 132). Whilst Ms Haimour may have been inclined mildly to exaggerate the antisocial features of Aisha's behaviour, her account of Aisha's behaviour is largely consistent with the history recorded by Dr Lee.
The matter is finely balanced. It might seem unlikely that a child with no memory of the incident and no physical injuries could nevertheless suffer a psychiatric disorder, but the accident caused a separation of the child from her mother for several days, and apparently terminated breast feeding abruptly and prematurely. The defendant has qualified no psychiatric expert to contradict Dr Lee. Despite the inferences available from Aisha's father's silence, the parenting and memory challenges of Ms Haimour, and the report of Dr Apler, I accept Dr Lee's diagnosis and find, on the balance of probabilities, that Aisha does have a separation anxiety disorder. Accordingly, the requirements of s 31 of the CLA for a recognised psychiatric illness are established.

F. ECONOMIC LOSS

A claim is made for future economic loss.
Dr Lee said Aisha was, "too young [for him] to make any meaningful assessment of this". There was no other evidence to establish any impact of the accident on the earning capacity of Aisha.
The defendant submitted that the plaintiff has chosen to bring the case forward for hearing at this time with no evidence of economic loss and that the Court should not speculate without evidence about loss of earning capacity.
I agree. Not only was there no evidence about any actual or potential loss in Aisha's earning capacity, there was no evidence about whether a separation anxiety disorder would likely persist through Aisha's educational years, or what, if any, impact such a condition might have on earnings. I am not persuaded that there is any loss to earning capacity attributable to the accident or the separation anxiety disorder which resulted.

G. OUT-OF-POCKET EXPENSES

Aisha claimed $8,102.65, but reduced this claim by $877.25 during submissions. The net amount of $7,225.40 comprises charges paid by Medicare of $961.40, charges of Dr Saeed of $3,539, of Dr Sheikh of $2,215, of Dr Newlyn of $350, plus $160 to "Wellbeing Greenacre".
The charges paid by Medicare are largely fees for a series of consultations with the psychologist, Ms Allan, which I allow.
Some of the charges of Dr Saeed involve other services unrelated to the accident, such as flu symptoms. I will allow $3,000 as an approximation of those related to the behavioural issues of Aisha.
Dr Sheikh is apparently a pain specialist who was consulted mostly from July 2014 to December 2015, which includes the period of Ms Allan's consultation. There was no report or evidence about Dr Sheikh's treatment. In the absence of a report, I am not satisfied that monthly consultations with a pain specialist are appropriate or reasonably necessary for a one-year-old child with no physical injuries, who is not alleged to be suffering from pain. I do not allow the amount payable to Dr Sheikh. The other amounts appear to be connected with Aisha's behaviour and are allowed.
Accordingly, out‑of‑pocket expenses of $4,471.40 (being $961.40 plus $3,000 plus $350 plus $160) are allowed.

H. FUTURE TREATMENT EXPENSES

Dr Lee recommends family therapy of 10 to 15 sessions at $300. Further family therapy is in part to assist Ms Haimour in her own parenting challenges since the accident. I will allow $3,000.
Aisha also claims for quarterly reviews from her GP and an annual visit to a psychiatrist, but there is no evidence from Dr Lee of this need, so I would not allow it.

I. PAST CARE

The defendant submitted that nothing should be awarded for past care on the basis that a child, one to four years old, would have required care in any event.
Aisha submits that she requires one hour per night because of her sleeping difficulties. The defendant submitted that there was no evidence of the need for care nightly for a period of an hour. Ms Haimour gave evidence as follows (T 30/48‑31/38): "Q. How long would you spend with her of an evening while you're trying to get her to sleep? A. A lot. Q. How long in terms of time? A. Until she's asleep? Q. Yes. A. Yeah. Maybe sometimes one hour, maybe - maybe more. Like yesterday I sleep before her. Q. If she wakes up during the night - sorry, firstly, when she wakes up during the night, how often does that happen? A. A lot. Q. When you say a lot, can you-- A. Like three times a night or - yeah, three or two, yeah. Q. A night? A. A night, yeah, in the night and because-- Q. What will happen then? A. Yeah. She wants me to sleep next to her. She wants to sleep next to me on the couch or she wants me to get next to her in her bed. Q. What would you do? A. Like I screamed at her because she screams so loud in the night and - yeah, and sometimes I sleep next to her just to make her quiet. Q. Are you able to estimate how much time of a night you spend with her doing these things? A. Like a lot because she wakes me sometimes - like if I move from next to her she wakes up. Q. Are you able to give an estimate in terms of hours? A. Sorry-- Q. Are you able to estimate hours a night that you would spend doing this? A. Like I can't - like I can't tell you exactly because like - sometimes like if she sleep for 20 minutes and I sleep like in my - like in my bed or anywhere else, not next to her, and she feel I'm not next to her, yeah, she wake up."
I accept that this evidence of an hour or more for Aisha to get to sleep and that she wakes "a lot", two or three times a night, provides some evidence of the seven hours per week of care claim arising from the nightly attention.
Ms Haimour maintained that Aisha had no behavioural and sleeping difficulties prior to the accident. The defendant relied on the medical records which evidenced that there were times when Aisha was not sleeping well prior to the accident. But those records relate to a period when Aisha was only a few months old. The records do not indicate that this difficulty continued up to the date of the accident, whereas after the accident, "not sleeping well", was a continuing complaint.
However, I am not persuaded on the evidence that this sleeping problem has continued every night since the accident. Moreover, some sleep disturbances might be expected with a young child. As the threshold level for damages requires an additional six hours of care weekly for six months, any six-month period comprising weeks involving less than six hours of additional care would not be compensable. I will allow two years at six hours per week or 104 x 27 x 6, namely $16,848.

J. FUTURE CARE

Future care was claimed in the particulars of damage at the commencement of proceedings. However, the effect of Aisha providing to the Court and to the defendant at the start of the trial a schedule of damages, expressly making no claim for future care, amounts to an abandonment of that head of damage.
The plaintiff's submission that the provision of the schedule of damages is merely fulfilling a court requirement and is not at all analogous to a concession in opening is not persuasive. The defendant must be presumed to have conducted this case, including negotiations, cross-examination, and submissions, on the basis that no claim for future care was made. The claim could not be resurrected or reintroduced by an amended schedule of damages without an application. No application was made and no explanation for the change was provided.
The difficulties of the belated claim will not readily be solved by further evidence, both because "[c]ross-examination has a certain dynamic", [1] which has now passed and because I would infer that the effect of the abandonment of the head of damage went beyond cross‑examination. In my view, it was too late to reintroduce the claim during the plaintiff's closing submissions. I disallow any claim for future care.

K. SUMMARY Head of damages ($) Out-of-pocket expenses 4,471.40 Future treatment expenses 3,000.00 Past care 16,848.00 Total 24,319.40

L. COSTS

The parties have asked that costs be reserved.

M. ORDERS

The orders of the Court are: 1. Judgment for the plaintiff in the sum of $24,319.40. 2. Reserve costs to a date to be fixed. 3. Direct that the parties notify my associate by 5pm on 23 November 2017 of consent orders in respect of costs or alternatively, a list of alternative agreed dates for oral submissions on costs in the month commencing 26 February 2018 or the week commencing 11 December 2017.

Endnote

See Marcalongo v Mattiussii [2000] NSWSC 834 at [76], [85]. 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: 10 September 2018

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