Frangie v South Western Sydney Local Health District trading as Liverpool Hospital

The treatment that Mr Frangie received whilst in hospital

1. The case in negligence against the defendants relies upon omissions - there is no real dispute as to the treatment that Mr Frangie actually received from the defendants.
2. On 13 November 2016, Norman Frangie was at home in the company of his son, Michael. In the evening he complained to Michael that he was hot and sweaty. As he was preparing to go to bed, he stumbled, hit his head on the door and fell on the floor. The ambulance arrived not long afterwards. Norman Frangie presented to Liverpool Hospital on 13 November as being 'bradycardic', that is, with a slow heart rate. The ambulance detected that he was having a heart attack and was in cardiogenic shock.
3. He was subject to a coronary angiogram; a non-invasive examination of the heart. This revealed diseased anterior descending artery (up to 70% narrowing); diseased circumflex artery (up to 50% narrowing); and totally occluded right coronary artery (100% narrowing). Mr Frangie had suffered a ST elevation myocardial infarction (STEMI). This occurs where the blood flow decreases or stops to part of the heart; thereby damaging the heart muscle. One of the heart's major arteries was blocked. This is a profoundly life-threatening medical emergency; usually associated with coronary artery disease. Symptoms include chest pain and dizziness.
4. On 14 November he was first seen by Dr Leung, the staff specialist in the Cardiology ward of the Hospital. Dr Leung had regard to clinical notes by other doctors, a report of a coronary angioplasty, ECGs and blood test results. This informed her that Mr Frangie was 70 years old, had multiple comorbidities (diabetes, nerve damage, high cholesterol, high blood pressure), had pre-existing kidney disease and high blood sugar. Dr Leung surmised that Mr Frangie was very sick, having suffered a very serious heart attack affecting both parts of his heart, which attack had gone on for at least a day. On her taking of his history, she had inferred (by the next day) that he had had presented 'late' - a circumstance which, Dr Leung explained, meant that his prognosis was poor: there is a 9% increase of death for every hour of delay coming to a hospital. Dr Leung said his condition affected her thinking on treatment - his poor kidney function, high potassium level and poor sugar control meant that she had to be cautious in her selection of prospective medications.
5. Dr Leung said she told Mr Frangie and members of his family that he had had a heart attack, told him about the treatment that she had used and would be used to help his heart to recover. At this point he was attached to a cardiac telemetry, a form of cardiac monitoring of the heart rhythm and the heart rate.
6. Dr Leung performed two non-overlapping drug stents to the right coronary artery; with the intention of reducing fibrosis. A temporary pacing wire (a pacemaker) was also implanted.
7. At the time Dr Leung saw Mr Frangie on 14 November, his heart rate had improved, his blood pressure had improved significantly, but he was dehydrated. Dr Leung discussed with him a management plan which consisted of giving him fluids intravenously, withholding pre-existing medications, for him to have a heart ultrasound and to fix another of his blocked arteries. She discussed with him the findings of the angiogram, mentioning that the hospital had fixed the blocked artery but that there was another artery that would need to be fixed after he had recovered from the current heart attack. On the same day, his pacing wire was set at a rate of 50. Records showed improvement - though he had the pacemaker, he was not actually relying upon it in order for the heart to effectively pump for itself. It was therefore backup.
8. Dr Leung next saw Mr Frangie on 15 November. Of most significance, she reviewed the results of an echo and heart ultrasound. She prepared a worksheet, based on the images of the heart in the heart ultrasound. The purpose was to assess how much blood was being pumped out. This was relevant to assessing the strength of the heart, and guided the choice of therapy and identified risks. Dr Leung made an assessment of Mr Frangie's heart function by measuring his left ventricular ejection fraction (LVEF). In order to measure the LVEF, Dr Leung looked at the ultrasound image on the computer screen and did a tracing of the heart in a relaxed state, and pumping state. In this way she could assess how much blood was pumped out each heartbeat and how well the heart was pumping in general. The method she used is what is known as the "Simpson's biplane rule". She did two measurements of an "EF Biplane", being 51% and 63%, which produced an average of 56%. Dr Leung explained that more than one measurement was undertaken since the volume of blood injected each heartbeat is never exactly the same. In Mr Frangie's case, he had an irregular heartbeat and that circumstance is even more likely to cause beat-to-beat variation in the amount of blood injected. By doing more than one measurement, the regression to the mean provided a close estimate of what his LVEF was likely to be. Dr Leung opined that the LEVF was not poor.
9. This pacing wire was removed on 16 November 2016 and an echocardiography was performed. This is a sonogram of the heart which is used to create images of the heart so as to elicit information, such as the size and shape of the heart, the pumping capacity and blood flow. The plaintiffs emphasise that the echocardiography indicated multiple wall motion abnormalities of the left ventricle. The left ventricle is one of two chambers towards the bottom of the heart that collects and expels blood received from the atrium. It pumps blood into the systematic circulation through the aorta. The hospital emphasised that the echocardiography indicated that there was no left ventricular dilation, with normal left ventricular dimensions.
10. Dr Leung did not see Mr Frangie on 16 or 17 November. She received communications from Professor Leung, another cardiologist, who was a more senior colleague. On 16 November, Professor Leung reported to Dr Leung that Mr Frangie was doing well, that he was stable, and no longer needed the pacing wire. There were no material events on (cardiac telemetry) monitoring. They discussed taking out the temporary pacing wire.
11. On 17 November, Professor Leung spoke to Dr Leung again. He reported that Mr Frangie was stable and said that he could re-commence his antihypertensive prior medications. He was expected to be soon fit to go home.
12. Dr Leung reviewed Mr Frangie again on 18 November. The ECG tracing did not show anything unexpected. She had regard to telemetry testing, his blood tests and blood pressure, medical notes and heart rate in formulating a discharge plan for him.
13. With the removal of the pacing wire, Mr Frangie was placed on dual anti-platelet agents (aspirin and the ticagrelor) to stop the stent blocking up. He was to receive Stiolto for his atrial fibrillation, Atacand to help his heart function improve and medicines for his diabetes. There were other recommended drugs for post STEMI treatment. This included, first, a beta-blocker. This beta blocker blocks receptor sites for adrenaline; thereby weakening the effects of stress hormones. Secondly, Mr Frangie was to receive an angiotensin receptor blocker ('ARB') which served to block activation of angiotensin, a major stress hormone. Thirdly, the deceased received statin therapy; being a class of lipid-lowering medication to lower cholesterol. Fourthly, the deceased received Xarelto, an oral anticoagulant medication; which served as a blood thinner to prevent blood clots. Dr Leung emphasised the importance of Mr Frangie taking his medications and refraining from smoking.
14. Dr Leung was generally challenged about her recollections of her conversations with Mr Frangie during his hospital admission. I expect that, to some substantial extent, these were affected by her review of the documentation, but I generally accept her account of those conversations.
15. I received various accounts from some of the plaintiffs as to their observations of the deceased whilst he was under the care of the hospital. The gist of their evidence was that the deceased did not appear to improve during his stay, that he was yellow and weak. Some of the plaintiffs said in evidence that they were surprised when the deceased was discharged on 18 November 2016. It was put to Dr Leung that family members had expressed dissatisfaction about his discharge that day; a proposition she denied.

Duty of Care

1. It was undisputed that the Hospital owed Mr Frangie (the victim) a duty of care. However, as was noted by Garling J (in dissent on this point) in McKenna v Hunter & New England Local Health District [2013] NSWCA 476, arguably any duty of care to the victim's family members to prevent psychiatric illness is not completely synonymous with the duty to the victim to prevent personal injury (Vella, Annotated Civil Liability Act (3rd ed), [3.30.040]).

Section 5O

1. In my view, the authorities require me to consider the possible application of the special defences, contained in s 5O of the Act, before I consider whether or not the hospital breached its duty of care to the deceased by reference to the considerations in s 5B: see Sparks v Hobson [2018] NSWCA 29 [1] at [18], [326].
2. In light of the Court of Appeal's recent decisions in South West Sydney Local Health District v Gould [2018] NSWCA 69 and Sparks v Hobson [2018] NSWCA 29 it seems to me that the following propositions emerge: 1. the defendant bears the onus of establishing the various elements of s 5O: Gould at [30]; 2. it remains the position, [2] following the Court of Appeal's earlier decision in McKenna v Hunter & New England Local Health District [2013] NSWCA 476, that the defendant has to establish, first that what it did conformed with a practice that was in existence at the time the medical service was provided and, secondly, establish that this practice was widely (although not necessarily universally) accepted by peer professional opinion as competent professional practice; and 3. if the defendant establishes the putative peer professional opinion, then this will effectively determine the standard of care. This indicates that it is appropriate to deal first with s 5O, rather than the usual calculus of considerations indicating the standard of care referred to in s 5B of the Act: Sparks at [69], [326]; Gould at [117]-[129]. (In Gould, the Court of Appeal determined the appeal by reference to s 5O, without inquiry into s 5B).

Breach: s 5B considerations

1. If the defendant's 'defence' under s 5O fails, it is necessary for the plaintiffs to establish: 1. that there was a foreseeable risk of harm from the conduct the subject of the claims; 2. the risk was not insignificant; and 3. a reasonable person in the defendant's position would have taken precautions to safeguard against the risk (requiring the plaintiff to identify the precautions that should have been taken).
2. Section 5B requires a reasonable response, by way of the taking of precautions, to a not insignificant foreseeable risk of harm - it does not require the elimination of risk: Swain v Waverley Municipal Council (2005) 220 CLR 517 at [5]. The mandatory (but not exhaustive) considerations which a Court is required to take into account in determining whether a reasonable defendant would have taken precautions against the risk of harm are set out in s 5B(2), being: 1. the probability that the harm would occur if care was not taken; 2. the likely seriousness of the harm; 3. the burden of taking precautions to avoid the risk of harm; and 4. the social utility of the activity that creates the risk of harm.
3. I do not regard the last of these considerations as having salience in this case.
4. It is also relevant to consider, in the fluid environment of medical treatment, the unintended effects or consequences of taking a precaution to deal with one concern, but creating other harmful risks (s 5C(a)). It is also important to resist the temptation to proceed to reach an inevitable finding of negligence simply on the basis that a not insignificant risk of harm was foreseeable and could have been prevented. In the context, here, of medical treatment, where there may be multiple courses of action available, in particular, due weight must be given to the providers of the medical treatment to consider and weigh the advantages and disadvantages of the different courses of treatment (s 5C(b)). In this regard, and as was emphasised recently by Matthews AJA (in dissent in the result but not in relation to this point) in Sparks at [321], in order to deal with the specific complaints of the plaintiffs against the Hospital's conduct in this case, it is inconceivable that they can seriously be addressed without reference to industry practice (even if the existence of such practice may not be determinative of the standard of care).

Causation

1. It is also necessary for the plaintiff to establish both the requirements of factual causation and the 'scope of liability' under s 5D (and 5E) of the Act. The former imports the 'but for' test.

The Plaintiffs' complaints about the medical treatment and management

1. As between the expert cardiologists called (Dr Helprin for the plaintiffs and Associate Professor Adams, for the defendant) it was common ground at the trial that: 1. due to various comorbidities, the deceased was a "high-risk" patient; 2. when he presented on 13 November, it was after he had suffered a moderate heart attack; 3. the echocardiography had correctly reported a mild to moderate left ventricular impairment; and 4. the deceased's LEVF was 56%.
2. Dr Leung accepted that, at the point of discharge, Mr Frangie had sustained significant damage to the heart muscle and had a high risk of mortality.

The parties' position on medical issues

1. The plaintiffs' complaints about Mr Frangie's medical management are threefold: 1. upon discharge, Mr Frangie should have received a recommendation to utilise a wearable defibrillator; 2. Mr Frangie should have been supplied with the drug Eplerenone; 3. prior to being discharged, Mr Frangie should have received further assessment in the hospital by way of a cardiac MRI study.
2. In the statement of claim, other particulars of negligence were said to be the hospital's failure to follow up in a timely manner with Mr Frangie after his discharge and, more generally, a failure to provide medical treatment with due care and skill. These were very general particulars and were not pursued. The issues of breach that were in contest are as I have described above.
3. The plaintiffs' complaints are supported by the expert evidence of Dr Gary Helprin, a consultant cardiologist. They are all refuted by the evidence of the hospital's expert, Associate Professor Mark Adams. Dr Helprin says that by taking each of these suggested steps, on the balance of probabilities, Mr Frangie's death could have been prevented. Associate Professor Adams also refutes these contentions.
4. An initially disputed circumstance relevant to these complaints concerned the assessment of the deceased's LVEF. This did not appear on the final echocardiography report or discharge summary. Dr Helprin says that knowledge of the LVEF is of extremely major importance so as to guide therapy and add to risk management. He says that this omission to record the LVEF was contrary to a 'Class 1 Recommendation' in a 2013 ACCF/AHA Guideline for the Management ST-Elevation Myocardial Infarction; and that because this was not done an inappropriate fractional shortening was used to assess the LVEF which led to a false result. The debate was curtailed when, after the experts conferred in conclave, results of the ECG became available and an indication of Mr Frangie's LVEF was in fact ascertained.
5. Another matter of significance, when considering these complaints, is that even if the most likely cause of death was a sudden cardiac arrest, neither expert was able to specifically identify a reason as to why the deceased experienced a sudden cardiac death. Dr Helprin thought that it might have been a fatal arrhythmia due to ventricular tachycardia (VT) or ventricular fibrillation (VF) (which he said was treatable). An arrhythmia arises when the heart does not beat properly because of abnormal electrical activity. Professor Adams said he thought there were a range of possibilities, including ventricular arrhythmias and cardiac rupture, stent thrombosis and haemorrhage.

Zoll Defibrillator Vest

1. This vest continuously monitors a patient's heart, and, if a life-threatening heart rhythm is detected, the device delivers a treatment shock to restore normal heart rhythm. The treatment shock usually occurs in less than a minute. The device is marketed as something that is worn by patients at risk for sudden cardiac arrest (SCA).
2. I am not convinced that Dr Leung considered the utility of a defibrillator vest. When giving evidence, in retrospect, she postulated that if she thought the LVEF was poor, then it might have been considered. She added that when deciding to discharge Mr Frangie, she was influenced by the circumstances that he had very good blood pressure, no further chest pain, no arrhythmias on the cardiac telemetry, his potassium levels were not a dangerous level but were normal. She noted, though, that his kidney function would need to improve. Dr Leung accepted that Mr Frangie was at a high risk of mortality upon discharge.
3. In his report, Dr Helprin said that a wearable defibrillator should have been used in circumstances which included that there was an impairment of the deceased's LVEF, that the QT interval was prolonged on the echocardiography, which was a risk factor for sudden death and ventricular arrhythmias; and that the deceased had multiple comorbidities increasing the risk of death.
4. When giving evidence concurrently, Dr Helprin said that he thought the defibrillator was particularly helpful in the vulnerable period between Mr Frangie's discharge and the period in which a permanent defibrillator could be obtained: it was a temporary measure.
5. Had it been utilised, Dr Helprin considered that on the balance of probabilities, that it would have prevented the deceased's death: the vest has been proven to be effective in circumstances where death is caused by ventricular tachycardia (VT) and ventricular fibrillation (VF) and the vest study that he had read (albeit that it was not published until after the deceased's death) did show improvement in total mortality.
6. Professor Adams disputed that there was robust evidence to support the use of this device and the situation. He said that the device was still somewhat experimental. He said that there were no guidelines for this device within Australia as it was only used in extreme circumstances of no application to the deceased, as his LVEF was only mildly reduced and was likely to improve with time, following the successful stenting procedure. He said there was no evidence to suggest that the vest would have improved the prospects of survival if the LVEF was less than 40%. To the extent that Dr Helprin had cited certain studies to support its usage in the circumstances, Professor Adams noted that such data had been published only after the deceased had passed away.
7. Professor Adams said that even in the probable event that the cause of death was ventricular arrhythmia, recent clinical trial data on the use of this device had shown no reduction for death caused in this way. A randomised controlled test, whose results were available in September 2018, generally showed a 36% reduction in overall mortality; suggesting that on the balance of probabilities the vest would not have prevented the deceased death.
8. When giving evidence concurrently, it was put to Dr Helprin that there were no recognised guidelines which indicated the desirability of the use of a defibrillator for a patient within five days of STEMI and with a LVEF of 56%. Dr Helprin was referred to an article by a Swiss electrophysiologist, Sven Reek, which Dr Helprin had appended to his primary report. That report described the defibrillator as a useful tool to bridge until an implantable defibrillator could be inserted, or until the arrhythmic risk subsided. Specifically he was referred to Table 1 of that report, which indicated the typical categories of circumstances in which a person had been fitted with a defibrillator. Subject to a qualification, none of those categories were applicable to Mr Frangie's position. The qualification, according to Dr Helprin, was the possibility that Mr Frangie had suspected inherited arrhythmia syndrome. This, Dr Helprin, linked to a concern about Mr Frangie's prolonged QT. But I accept Professor Adams' view that Mr Frangie's final QT was well within limits. Accordingly, Mr Frangie did not fall within any of the categories in Mr Reek's report for whom this treatment could be appropriate.
9. Dr Helprin was also cross-examined upon another study annexed to his primary report, being the Sharma Report published in the European Heart Journal in 2017 (subsequent to the events in this proceeding). This study appeared limited to the use of defibrillators for patients with an LVEF of less than 35%. Again, the study was not applicable to Mr Frangie.
10. Dr Helprin was then taken to the Puccini report; which essentially amounted to recommendations from the American Heart Association. There was no reference; much less recommendation, in that report pointing to the desirable use of a defibrillator vest for anyone whose LVEF was greater than 50%.
11. Dr Helprin was generally asked whether any of his studies upon which he relied indicated better outcomes for persons whose LVEF was greater than 50%. Initially, Dr Helprin referred to a September 2018 article published in the New England Journal of Medicine (again post- dating the events in this proceeding), but it also became clear that this study was not applicable to a person with Mr Frangie's LVEF. Indeed, the conclusion to the study showed that even among patients with a defibrillator, there was no significantly lower rate of the primary outcome of arrhythmic death. In answer to this, Dr Helprin said that the study did not exclude the possibility that the vest might benefit someone like Mr Frangie. I consider that this is an instance where, as I later observe, Dr Helprin's evidence strayed into advocacy.
12. In terms of his own experience, it was put to Dr Helprin that he had never recommended a vest for patients post-STEMI and with an LVEF greater than 50%. He accepted that as correct. He also accepted that the practice was not usual; albeit that he suggested that it was an option. He had no understanding or knowledge, one way or the other, whether anyone from Liverpool Hospital had recommended this form of treatment in these circumstances. Professor Adams was asked whether such device would be recommended to a patient in such circumstances at the Royal Prince Alfred Hospital and he said no.

Eplerenone

1. Eplerenone is a medication that is capable of being used alone or in combination with other medications to treat high blood pressure. It works by blocking the action of aldosterone, which is a natural substance in the body that raises blood pressure. It comes as a tablet and can be taken by mouth once or twice a day with or without food. It can control high blood pressure but does not cure it.
2. Dr Leung was challenged as to the extent of her consideration of this drug as a viable form of treatment and its appropriateness for Mr Frangie. I am less than convinced that Dr Leung did in fact consider this form of treatment. She could not recall, when, within the chronology of her treatment of Mr Frangie, such consideration had taken place. There are no notes of it.
3. Dr Leung emphasised, more in retrospect, why this medication was inappropriate for Mr Frangie's circumstances. She explained that it is indicated when the LVEF was less than 40% and 3 to 14 days post-infarction (not Mr Frangie's position). Mr Frangie was not in heart failure when he went home. Further, she said, its use may have adversely affected a pre-existing problem with impaired kidney function, or in particular, high potassium. Eplerenone, she said, can dehydrate a patient and may raise potassium to dangerously high levels. She noted that this treatment was not recommended in the 2013 ACC/AHA Guidelines for management of patients with ST-elevation myocardial infarction (STEMI). Further, Mr Frangie had high potassium levels which also made this treatment unsuitable.
4. Dr Leung was challenged as to the validity of her concern about Mr Frangie's kidney function. In cross examination, Dr Leung was referred to blood tests performed over the first few days after Mr Frangie's admission, and in particular the estimated glomerular filtration rate (EGFR). Dr Leung considered that an EGFR of less than 90 was abnormal. The records indicate that the EGFR varied somewhat and reached the level of 90 on 17 November. It exceeded that level on 18 November, when Mr Frangie was discharged. When it was suggested that Mr Frangie's kidney function had revived or been restored, Dr Leung maintained that it was still not normal.
5. Dr Leung was also taken to the absence of a record of the LVEF. She disputed the proposition that the LVEF would normally appear in hospital notes.
6. The suitability for using Eplerenone was debated between the expert cardiologists. In his primary report Dr Helprin says that this drug was indicated by Mr Frangie's LVEF (thought to be around 40%) and could have been administered within a short period of the heart attack. He says it could have been organised before the deceased's discharge. He says the use of this drug is approved in Australia and been subsidised on the Pharmaceutical Benefits Scheme. He referred to a 2003 study; [3] revealing a reduction in the rate of sudden death following the use of this drug. Dr Helprin said this could be given in a lower dosage to enhance safety.
7. In his reports, Professor Adams disagreed with the use of this drug in the circumstances. He said that it does not have robust evidence for its use (unlike some of the other medications that were prescribed post-STEMI in this case). It carries a B grade level of recommendation and only for patients who have a LVEF of less than 40% with symptomatic heart failure. It also carried risks in situations of renal impairment and high potassium levels. Professor Adams referred to Mr Frangie's history of renal impairment and high potassium during his admission; which may well have made the drug dangerous.
8. At any rate, Professor Adams referred to a study [4] which showed that for patients with acute STEMI, without heart failure, but with an LVEF of less than 40%, there was not shown to have been significant improvement in survival. It was not in his view, likely to have had a significant chance of preventing Mr Frangie's death.
9. When giving evidence concurrently, Professor Adams said that there were no absolute contraindications to the use of this drug as a form of treatment. He noted that Mr Frangie had diabetes and had significant renal impairment. Professor Adams noted that there was a lack of reserve in Mr Frangie's kidney function. It was put to him that although this drug was not recommended in the 2013 ACC/ AHA guidelines those guidelines did not amount to some prohibitive command. Professor Adams said that he thought it was "foolhardy" to use the drug for someone who was not borderline LVEF. In response, Dr Helprin said that he did not think there were any contraindications, the drug could have been prescribed in a low dosage (25mg) and that in relation to Mr Frangie's potassium levels, these could have been monitored by a GP. The benefit of the drug was that it could interfere with scarring of the heart which was a cause of arrhythmia. He later said that he could not think of one instance where the drug had been prescribed for persons with less than 50% LVEF.
10. Under cross-examination, the 2003 New England Journal of Medicine article (Pitt et al), upon which Dr Helprin relied upon in endorsing this drug, revealed that it only looked at patients with less than 40% LVEF; a cohort which would not include Mr Frangie. Dr Helprin responded to this by saying that the study was only a guide to doctors and that he could not exclude the prospect that Mr Frangie may have benefited from the drug. Again, I consider that his evidence in this regard amounted to advocacy and was not useful. Moreover, it was apparent that patients with issues concerning their potassium levels were excluded from the study.
11. It was also put to Dr Leung that, as a substitute for Eplerenone, another drug, (a similar potassium-sparing diuretic) Spironlactone could have been given. It was not clear whether Dr Leung had considered this alternative treatment (it was not suggested that it had not been) but, at any rate, Dr Leung explained that this drug had similar side-effects to Eplerenone.

Cardiac MRI study

1. It was put to Dr Leung that in the circumstances where: 1. discharge should only have been decided when it was safe or reasonable; 2. Mr Frangie had sustained a severe heart attack (and had a late presentation in that regard); and 3. that he had comorbidities, further assessment was appropriate for him before being discharged. Dr Leung disagreed.
2. It was suggested to Dr Leung that such further assessment should be in the form of a cardiac MRI. Dr Leung accepted that such assessment was available, and conceded that it was not considered by her at the time, but says that it was not required for all STEMI patients. She referred to the 2013 ACCF/AHA Guidelines (updated in 2017). She said it was not standard treatment for patients.
3. In his report, Dr Helprin said that in the absence of identifying the LVEF, it was necessary for the hospital to conduct a further assessment of the deceased, prior to discharge, and in this regard, he suggested that a cardiac MRI study should have been performed. With reference to an international study conducted by Klem et al, [5] Dr Helprin said that even if Mr Frangie, had a low to normal LVEF, he still had a high risk for early mortality. He said that had Mr Frangie should have been kept in hospital for a cardiac MRI, his high-risk situation would have been identified with subsequent beneficial intervention. He said that given it would normally take between five and seven days for a cardiac MRI to be administered, whilst he remained in hospital, resuscitation would have been more likely than not to have saved him.
4. It is fair to say that the subsequent indication in the ECG of Mr Frangie's LVEF substantially undercut Dr Helprin's opinion about the need for a cardiac MRI. It was put to him in cross-examination that for a patient five to seven days after STEMI with a LVEF of 56%, it was not usual to order a cardiac MRI. Dr Helprin's only riposte was that it would depend upon practical circumstances, such as the hospital at which the patient was at. I do not regard that evidence as persuasive. Dr Helprin did not know of any cardiologist who would have advised this procedure for patients in the particular circumstance. Professor Adams, on the other hand, who had seen 300 such procedures, had never seen the procedure applied to a person like Mr Frangie with his level of LVEF.
5. When giving evidence Professor Adams said a cardiac MRI was totally unnecessary in the circumstances. This was because there was good evidence from the ECG that the LVEF was normal; the basis of both measurement and visual assessment. Professor Adams regarded a rate of anything over 50% as being normal. What was of concern would have been a rate of less than 35%. He acknowledged that an MRI was very useful for imaging, but said that it was very expensive and required a lot of expertise with good CMR experience. He noted that MBS guidelines suggested only a very few indications for a rebate through its use.
6. In reply, Dr Helprin noted that cardiac MRIs were available in the hospital; that there were trained radiologists at the hospital and that the level of MBS funding was irrelevant.
7. Under cross-examination, Dr Helprin was referred to the article in his final report, being the study by Klem et al, titled "Prognostic Value of Routine Cardiac Magnetic Resonance Assessment of Left Ventricular Ejection Fraction and Myocardial Damage". Dr Helprin accepted that this study had not been translated into any guideline. At any rate the study did not look at patients having this form of assessment procedure with STEMI and therefore could not make any recommendations at the applicability of this procedure for such patients. Dr Helprin responded that an MRI could still be beneficial as it may help to differentiate between a bad prognosis and a good prognosis. This idea was not developed.

CONSIDERATION

1. It was not disputed that it is necessary to the success of their claims that the plaintiffs establish that the Hospital breached its duty of care to the deceased, and that such negligence caused him to suffer the foreseeable and not insignificant risk of harm. I will deal with these issues first, before considering the requirements of Part 3 of the Act, for claims for mental or nervous shock. In my view, for reasons that follow, these issues are dispositive.

Section 5O and the standard of care

1. In McKenna, Macfarlan JA (with whom Beazley P agreed) noted that in the cases in general law which had considered the Bolam standard of peer professional opinion, the standard (or 'defence') did not arise where, in substance, all that the defendant had established, was that the relevant treatment administered to a patient in the particular circumstances accorded with peer professional opinion. His Honour noted that in an early decision in relation to s 5O, Dobler v Halverson (2007) 70 NSWLR 151 an omission to cause an ECG to be carried out and an omission to refer the patient to a cardiologist did not give rise to any defence under the provision; since it did not involve any particular 'practice'. In McKenna, the psychiatrist's impugned decision to discharge a patient similarly did not involve any 'practice'; resting as it did on a variety of considerations not likely to re-occur in any given situation. Macfarlan JA noted (at [165]) that in those circumstances, the defendant was unable to identify features sufficiently in common in a variety of situations such that it could be said that there was a 'practice' which could be deployed by a professional to deal with a given situation.
2. Bound, as I believe I am, to apply the construction given to s 5O by the Court of Appeal in McKenna, the question is whether there was a professional practice, or practices, in existence at the time of the hospital's treatment and management of Mr Frangie: 1. whether or not to recommend the drug Eplerenone; 2. whether or not to utilise a vest defibrillator; and 3. whether or not to administer a cardiac assessment prior to discharge of a patient.
3. In my view, as at November 2016, the evidence did not disclose any such 'practices' that the Hospital conformed to. What happened was that Dr Leung, with the assistance of Professor Leung and other members of her team, developed a management plan for Mr Frangie, consisting of a number of miscellaneous components, to deal with his peculiar circumstances. I agree with the plaintiffs' submission that this must involve an individualised inquiry. The defendant then urged the Court to accept that peer professional opinion, (widely held) would accept the decisions about what choices were made in that plan were reasonable. That, in my view, is insufficient to enliven s 5O. Applying the construction in McKenna, s 5O does not arise; and does not modify the ordinary standard of care.

Section 5B and the issue of breach of duty

1. In light of my conclusion about s 5O, the standard of care is not modified, but is to be assessed by reference to the typical considerations in s 5B of the Act. In practical terms, this means that it is up to the plaintiffs to establish the content of the duty of care and whether or not it was breached. The latter requirement has been described in the common law, which (unaffected, as I have found, by s 5O) was described as the "ordinary skilled person exercising and professing to have that special skill": Rogers v Whitaker (1992) 175 CLR 479 at [487]. In this context, the standard of care is determined by the Court, which is informed or influenced, but not concluded, by the evidence of skilled medical practitioners in the relevant area: Rosenberg v Percival (2001) 205 CLR 434 at [7].
2. The relevant questions are: 1. whether there was a risk of harm that was foreseeable; 2. whether the risk was not insignificant; and 3. would a reasonable hospital in the defendant's position have taken precautions to safeguard against the risk.
3. In their pleadings, the plaintiffs do not identify the relevant 'risk'; or, indeed, other matters identified in s 5B of the Act.
4. Counsel for the defendant, in her submissions, identified the 'risk' of harm as being the risk that the deceased would die of VF or VT. These were risks capable of management by the defendant. Counsel conceded that such risk of harm was both 'foreseeable' and 'not insignificant'. Counsel for the plaintiffs adopted those submissions. I proceed on the basis that this is the relevant risk of harm for the purposes of s 5B(1) of the Act.

Findings on the medical evidence

1. Having heard both Professor Adams and Dr Helprin give evidence concurrently, I accept that both were qualified and the opinion that they expressed arose from their specialised knowledge as cardiologists. My general observation of Professor Adams was that he gave very informative answers to questions, sometimes exceeding what was asked of him. Nevertheless, he gave appropriate expressions of assent when he agreed with what Dr Helprin had said whilst, at the same time providing an articulate explanation where there was disagreement. It became clear during the period in which expert evidence was given concurrently, that Dr Helprin was somewhat perturbed by the circumstances that the opinion he had previously expressed, such as the desirability of a defibrillator vest being recommended, may have been based upon assumptions and instructions that were later invalidated. I speak here of the information concerning Mr Frangie's LVEF. It seemed to me that in some instances, Dr Helprin tenaciously clung to opinions that he expressed in the face of contrary information; and this created an impression that sometimes he was conscious of advocating for the interests of the plaintiffs; and at least in some instances, his answers were not responsive to the questions that were asked of him. It also became apparent, when weighing the evidence of the experts, that Dr Helprin did not have the experience or acquaintance of working in a hospital of the same type as Liverpool Hospital, a large teaching hospital. This led him, in some instances, to express opinions as to what practices should have been deployed in Liverpool Hospital simply on the basis of his perception as to its greater resources than other hospitals with which he was acquainted. Professor Adams, on the other hand, was affiliated with Royal Prince Alfred Hospital; a hospital in a similar position to Liverpool Hospital. To that extent, I formed the view that Professor Adams was more qualified than Dr Helprin.
2. For these general reasons, where there was a conflict in the evidence between the experts, my general predisposition was to prefer the evidence of Professor Adams.
3. I will deal with each of the three breaches seriatim having regard to the factual narrative referred to earlier.
4. It is important to emphasise that the issue of what precautions the hospital should have reasonably taken is connected to the identified "risk". It is not disputed that Mr Frangie had a high risk of mortality upon discharge. The issue, however, is what was reasonable to deal with the risk he might suffer a fatal arrhythmia. Professor Adams said the things that could be done to deal with that risk were: 1. providing medications with a beta blocker; 2. assessing the LVEF; and 3. (if the LVEF was less than 30%) consider placement on an implantable defibrillator in 6 weeks' time.
5. As to the alleged breach for failure to prescribe Eplerenone, the plaintiffs submitted that with the exception of his LVEF, the 2013 ACC/AHA guidelines (which posited a need for a "global assessment") suggested that the drug was appropriate for Mr Frangie. It was said that the drug was not harmful, but was cheap and effective and was appropriate for Mr Frangie's circumstances, given his high risk of mortality.
6. The defendant submitted that this drug was suitable only for persons with an LVEF of less than 35% and, at any rate, the drug was contraindicated having regard to Mr Frangie having a potassium level of over 5. It also relies upon Professor Adams' opinion that the drug was likely to be harmful.
7. In my opinion it is not necessary for me to determine whether or not the ingestion of this drug would actually have been harmful to Mr Frangie. I do not regard the hospital's failure to prescribe this drug as amounting to an unreasonable failure to take a precaution against the identified risk of harm. The omission was not contrary to, but rather consistent with applicable guidelines for the management of STEMI. On the other hand, the studies I was referred to by Dr Helprin yielded no confidence in me that Eplerenone was suitable for the deceased's circumstances. Indeed, and this is a matter of significant weight, there was at least a real potential for the drug to be unsuitable for a person in the deceased's position, having regard to his LVEF and his high potassium level; and possibly renal impairment to his kidney such that there could be no confidence that any anticipated benefit might offset other risks that might arise.
8. I reject this particular of negligence.
9. As to the defibrillator vest, it was said that there was no question that such vests were not available. Beyond that, the plaintiffs submitted that I should accept Dr Helprin's evidence as to the utility of this device.
10. The problem for the plaintiffs is, as the defendant submitted, there was no basis in the studies Dr Helprin relied upon to support the application of this device to patients with an LVEF of greater than 50%; nor, was there evidence that either expert could point to of anyone with that level of LVEF receiving this form of treatment. Further, I accept the evidence of Dr Leung (which was emphasised by Professor Adams) that visual assessment of the deceased's left ventricular function indicated it was only mildly reduced. As with the suggested use of Eplerenone, there would be, I think, a significant element of experimentation with this device for a person in the deceased's circumstances.
11. I am accordingly, not persuaded that the failure to recommend this device could amount to an unreasonable failure to take a precaution against the risk of harm. Accordingly I reject this particular of negligence.
12. The final particular of negligence concerns the failure to administer a cardiac MRI. As I have indicated, Dr Helprin's evidence about the desirability for such procedure was substantially predicated upon uncertainty as to the level of Mr Frangie's LVEF. As against that, I was referred to the final discharge report of the hospital, indicating mild or moderate left ventricular impairment as warranting further enquiry. But I accept Professor Adams' evidence, borne out through experience and the absence of any clinical studies to the contrary, that the main driver of a prognosis rests in the rate of LVEF and an MRI would be more appropriate to a 'borderline' case, which is not applicable to Mr Frangie. I also prefer his view to Dr Helprin, when he said the MRI would be more suitable for patients (unlike Mr Frangie) with a LVEF of about 35% or so.
13. Thus I find that this particular of negligence is not made out either.
14. The plaintiffs generally submitted, and I accept, that when he was discharged from the hospital, Mr Frangie was at a high risk of mortality. Putting the risk at that level, however, does not assist with the determination of what was a reasonable response to the identified foreseeable and not insignificant risk of Mr Frangie dying of a VT or VF. I accept, generally, Professor Adams' view that there were certain long-term risks after Mr Frangie's discharge (diabetes, atrofibrillation and hydration) and more immediate risks likely to result in arrhythmic death. On the basis of the evidence before me I am not persuaded that the Hospital's failure to recommend, implement or adopt the precautions suggested by the plaintiffs was unreasonable.
15. In summary, I find that the suggested precautions which the plaintiffs say should have been undertaken by the Hospital to safeguard against the relevant risk were not established to be suitable for the deceased's particular circumstances, and for that matter, did not appear to be supportable more generally, at least in this country. Indeed, I do not think it is an exaggeration to say that the application of these precautions would, in the case of Mr Frangie, have verged upon the experimental. It cannot be said that the hospital's failure to take those precautions was unreasonable.
16. I therefore conclude that the plaintiffs are unable to establish that the Hospital breached its duty of care to Mr Frangie.

Findings on causation

1. If I am wrong on the question of breach, it would be necessary for the plaintiffs to establish that the omission to take the three suggested precautions caused the deceased's death.
2. In satisfaction of the element of 'factual causation', this would require the plaintiffs to show that Mr Frangie would not have suffered the risk of foreseeable and not insignificant harm (dying of VF or VT) if those precautions had been taken.
3. There are at least two aspects to this question. It was common ground (at least in the joint expert report) as between the cardiologists that it was most likely that Mr Frangie died from a sudden cardiac arrest. I note, however, that after subsequently reviewing the ECG images, Professor Adams became more ambivalent in this regard. Assuming this was the cause, however, it was unclear what may have produced it. Following the evidence, Counsel for the defendant submitted that the two main possibilities were that Mr Frangie suffered from stent thrombosis; or VT or VF. Professor Adams, after reviewing information not previously available to him, thought that the prospect of stent thrombosis was more likely than he had initially thought. He also said that after having seen the pictures of the ECG, he thought the risk of fatal arrhythmia to be "pretty low". Dr Helprin referred to studies that show that cardiac patients who suffer a sudden death usually die from arrhythmia. In my view, in the absence of an autopsy, it is difficult to say that either of these causes was more likely than the other. On that basis alone, the plaintiffs have a difficulty in making out factual causation. But I consider that the plaintiffs' problem with causation is more fundamental than that.
4. It is necessary to consider the likely causal effect of taking each of the suggested precautions. In this regard, it is not sufficient for the plaintiffs to establish that by taking any or all of these precautions, Mr Frangie lost the chance of obtaining a better outcome (in this case, survival): Tabet v Gett (2010) 240 CLR 537. Rather, they need to show that any or all of them would likely have prevented his death (by VT or VF).
5. As to the precaution of a defibrillator vest, I was referred to Dr Helprin's opinion in his 15 March 2018 report, however that report said that the vest study (which he had not identified) did not cut sudden death within one week of hospital discharge. At its highest, the opinion was that there was a possibility of beneficial effect. In his report of 13 November 2017 Dr Helprin asserted, without elaboration, that if a vest had been provided to the deceased the chance of preventing death would have been between 15 and 20%. But as I have said, merely to prove the chance of a better outcome is not sufficient to establish causation. Other parts of Dr Helprin's evidence, to which Counsel for the plaintiffs referred me, tended to reinforce Dr Helprin's opinion without further elaboration.
6. Professor Adams' evidence was that whilst a vest may be good for a single shock it is not designed to deal with recurring VT or VF; and it is therefore difficult to say that it can prevent arrhythmia. Further, in circumstances, where there is no evidence that the vest is particularly suitable for someone in Mr Frangie's position (with an LVEF of over 50%) it is difficult to conclude that such a vest could have been effective in Mr Frangie's circumstances.
7. In the joint expert report, Professor Adams had noted that in the only randomised clinical trial, although the use of the vest did not show any reduction in arrhythmic death, it did show a 36% reduction in overall mortality. In the circumstances, I do not regard the evidence as sufficient to prove that the use of the vest was more likely than not likely to prevent the deceased dying from VT or VF.
8. As to the precaution of the Eplerenone, even in the instance of patients with an LVEF of less than 40% (that is, patients in a worse position than Mr Frangie), a 2014 European study was not shown to have any significant improvement in survival with this drug. I was referred to Dr Helprin's first report in which a bare assertion was made that Eplerenone helped to prevent sudden death and could have been prescribed. I do not understand this assertion was made with regard to Mr Frangie's particular circumstances. I was also referred to Dr Helprin's evidence in the joint expert report, in which he placed reliance upon the 2003 New England Journal of Medicine report. As previously indicated, that report dealt with patients only with an LVEF of less than 40%. This reference does not support the plaintiffs' case in this regard. Counsel for the plaintiffs also referred me to Dr Helprin's reference to the use of the drug as being approved in Australia and being subsidised on the PBS. That does not tell me anything about likely effect of the drug on Mr Frangie to prevent the risk of death through VT or VF. I am not satisfied that the implementation of a recommendation to take this would have prevented the risk of harm.
9. Finally, as to the question of performing a cardiac MRI it was submitted to me that the MRI should have been performed after the ECG, prior to the discharge. That is, it should have been administered in the period from 15 to 18 November. Dr Helprin gave some evidence that there is usually a 5 to 7 day wait for a cardiac MRI. In my view, it is not clear what, if anything, a cardiac MRI would or could have revealed that would relate to the probability of the risk of the deceased dying from VT or VF that was not already apparent from the existing procedures that had been administered. I consider it speculative to think otherwise.
10. Accordingly, even if I am wrong in my findings that there was no breach of the duty of care to Mr Frangie, the plaintiffs are still unable to satisfy the factual test for causation in s 5D(1)(a) of the Act. The parties did not address me on the 'scope of liability' element and in the circumstances I do not consider that element any further.

THE CLAIMS FOR DAMAGES FOR MENTAL OR NERVOUS SHOCK

1. Because of the view I have formed on breach and causation, the plaintiffs' claims fail. But if I am wrong, it becomes necessary to determine whether the hospital owed each of the plaintiffs' a duty of care.

Statutory Provisions and Principles

1. The plaintiffs identify themselves as being close members of the family of Mr Frangie, within the meaning of s 30(5) of the Act: notwithstanding her separation for a considerable period before his death, Jane qualified as a spouse of Mr Frangie (the defendant did not contend to the contrary); Linda, Michael and Yasmin are all children of the deceased. The defendant did not contend that any of the plaintiffs lacked eligibility as being 'close members' of Mr Frangie's family.
2. The plaintiffs all claim that they have suffered "pure mental harm", which means mental harm other than mental harm that is consequential from a personal injury (s27). 'Mental harm' itself means impairment of a person's medical condition.
3. The defendant submitted, amongst other things, that the plaintiffs were not entitled to damages as none of them actually saw the Mr Frangie die. The submission was that none of the plaintiffs had 'witnessed' the deceased being killed, but only saw the aftermath of the alleged negligence. The defendant's Counsel's submission was directed to s 32(b), but reliance was placed upon the High Court's decision in King v Philcox (2015) 255 CLR 304. That decision, was directed to s 53(1)(a) of the Civil Liability Act 1936 (SA), which, as the High Court noted (at [25]) was analogous to but significantly different from s 30 of the Act. Unlike the South Australian provision, s 30(2) of the Act does not make it a pre-condition to entitlement to damages for mental or nervous shock that the plaintiffs (the former spouse and children of the deceased) witnessed him being killed, injured or put in peril, but rather, it is sufficient that they were close members of the deceased's family. It remains the case that, pursuant to s 32(2)(b), the circumstance of a plaintiff witnessing an event is relevant to the issue of foresight, and I shall consider that later, but the High Court's decision in King did not turn upon the application of that particular consideration. I note, for completeness, that the circumstance that a close family member did not see the victim's death (or its aftermath) but was only told about it later did not bar liability for psychiatric illness in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (especially per McHugh J at [46]-[51], 288-289); and see also Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 at [18].
4. In order to be eligible to recover damages pursuant to s 30 of the Act , the plaintiffs must prove two things: 1. they suffered a 'recognised psychiatric illness' (s 31); and 2. the defendant should have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken (s 32(1)).
5. The former requirement relates to proof of mental harm. This requirement may sometimes lead to difficult questions as to whether or not a plaintiff has truly suffered a psychiatric illness or has suffered something less, such as emotional distress and suffering (Tame v New South Wales (2002) 211 CLR 317). A 'recognised psychiatric illness' includes the aggravation of a pre-existing recognised psychiatric illness: Harris v Commissioner for Social Housing [2013] ACTS 186 at [215]. In the latter case, Master Mossop said, and I respectfully agree, that the purpose of the limitation in a cognate provision to s 31 of the Act was to disqualify recovery of compensation where what was suffered was, at most, distress not amounting to a recognised psychiatric illness.
6. Section 32(1) goes to the question of the defendant's duty of care. This latter requirement must be considered before the question of the eligibility for damages (Wicks v SRA (2010) 241 CLR 60 at [22]).
7. In Tame, Gleeson CJ referred to the concept of 'normal fortitude' (in general law) and observed that sometimes a plaintiff may have a particular vulnerability or susceptibility, which would make it unreasonable to require a defendant having contemplated that the plaintiff may suffer a psychiatric injury - that is, there are persons who, unknown to a defendant, are already psychologically disturbed. The defendant relied upon this proposition. I raised with Counsel for the defendant whether, according to the reasoning, it would ever be possible for a person with a pre-existing psychiatric illness to fall within the description of a person of normal fortitude under s 32(1). The response was that it would be possible, say, if a person with a pre-existing illness witnessed a truly shocking event involving the death or injury of a close family member. That submission effectively elevates in a hierarchy the consideration in s 32(2)(b) over the other considerations I am required to consider, which I refer to below.
8. The cases that have reviewed this requirement do not provide a great deal of assistance, as the factual circumstances have varied considerably. I was referred by Counsel for the defendant to the Court of Appeal's decision in Panagiotopolous v Rajendram [2007] NSWCA 265 and, in particular, the observations by Basten JA (with whom Tobias and McColl JJA agreed) that for "..most people, the death of a close and loved relative or partner may cause emotional distress: however, it is not common experience that such distress will progress to a psychiatric illness. Were it otherwise, one would expect much of the population to suffer psychiatric illness..". Basten JA went on to emphasise that, absent knowledge of a particular susceptibility, foreseeability is to be judged by the person of normal, reasonable or ordinary fortitude. But although the standard of 'normal fortitude' is generally objective, an important contextual circumstance is that an event may have special significance for a person or class or persons - such as a close family member. In Jaensch v Coffey (1984) 155 CLR 549, Brennan J (at [568] - [569]) held that reasonable foresight must be decided in the light of the heightened susceptibility, which the special significance of the phenomenon would be expected to produce.
9. I note that, for the purposes of s 32(1), it is not necessary that the defendant foresee the particular psychiatric illness sustained; merely that any psychiatric illness was foreseeable: Vella, Annotated Civil Liability Act (3rd ed) [3.32060], pp 474-475. I also consider that, in s 32(1), the word "might" has work to do: it is enough that the defendant has foresight that a person or normal fortitude "might" suffer psychiatric illness - not that it is probable that s/he will do so.
10. Section 32(2) sets out a non-exhaustive list of the circumstances of the case, for the purposes of the inquiry in s 32(1), including: 1. whether or not mental harm was suffered as a result of a sudden shock; 2. whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril; 3. the nature of the relationship between the plaintiff and the person killed, injured or put in peril; and 4. whether or not there was a pre-existing relationship between the plaintiff and the defendant.
11. As the High Court noted in Wicks (at [23]), s 32 does not assign any particular hierarchy to this list of circumstances, nor any other consequence flowing from their presence or absence in any given case. The authorities which have reviewed these considerations provide some limited assistance. It is clear that the presence (or absence) of any such consideration in the case is not decisive: Wicks at [31].
12. The High Court in Wicks considered (at [30]) the concept of 'shock'. It referred to a "sudden and disturbing impression on the mind or feelings, usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion (occasionally) joy and tending to occasion lasting depression or loss of composure". The Court emphasised that it is not right to assume that in all cases of death, injury or being put in peril, the event(s) must begin and end in an instant, or even that it or they necessarily occupy only a time measured in minutes (at [44]). In Tame, the consideration of 'sudden shock' (s 32(2)(a)) tended to be wrapped up in other requirements, such as the relationship between the plaintiff and the defendant (per Gleeson CJ) or the response of a person of ordinary fortitude (per Hayne J).
13. In relation to the consideration of direct perception (s 32(2)(b)), as noted, in the case of close family members, direct perception is neither an essential precondition for the existence of duty under s 32 nor the recovery of damages under s 30. I have noted above, the defendant's reliance upon King v Philcox which, as I say, appeared more directed to the equivalent South Australian provision to s 30(2) than s 32(2)(b). I do not accept, therefore, that s 32(2)(b) implicitly requires the plaintiffs to have been witnesses at the scene of the deceased's death, or that it is insufficient that close family members only saw the aftermath of his death. There was no such requirement found in Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (see Gleeson CJ at [36], [41] and Gummow and Kirby JJ at [236]).
14. As to the nature of the relationship between plaintiff and victim (s 32(2)(c)), it is the actual closeness and affection of the relationship - not its legal status - which is significant; although the relationship between parent and child is one in which it may (in the absence of evidence) be presumed that a close and loving relationship exists (Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 per McHugh J at [48]-[49]). In its submissions, the defendant made no reference to this consideration. Plainly it is a matter that weighs in favour of all the plaintiffs.
15. As to the last consideration (s 32(2)(d)), it was an influential consideration to finding a duty of care in Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, that there had been communications between the defendant and plaintiff, and in particular, an assurance given by the defendant to the plaintiff that the deceased would be well looked after. Counsel for the defendant referred me to the Court of Appeal's decision in Optus Administration Pty Ltd v Wright [2017] NSWCA 21 to submit that there was no recognisable legal relationship between the hospital and Mr Frangie's family members, whether in contract or, perhaps, the relationship between rescuer and plaintiff. Whilst it is correct that plaintiffs sometimes have some status relationship to the wrongdoer (e.g. employment or professional services) in my view a relationship, for the purpose of s 32(2)(d) may be broad enough to embrace less formal dealings. In particular, as Annetts illustrated, the concept can import prior communications, including representations made and expectations engendered during the course of those communications.

The Expert Psychological/Psychiatric Evidence

1. For all the plaintiffs, reliance is placed upon the expert opinions of Dr Paul Pusey, a clinical and forensic psychologist. Dr Pusey had over 13 years of experience in the diagnosis and treatment of psychological and psychiatric disorders. He holds a doctoral degree in clinical psychology and a Masters degree in forensic psychology.
2. The defendant relied upon the evidence of Dr Rees, a consultant psychiatrist, in relation to all plaintiffs save for Yasmin. In relation to Yasmin, the defendant relied upon a report of Dr Gemma Edwards-Smith, a psychiatrist based in Perth.
3. Dr Pusey and Dr Rees conferred and produced a joint expert report in relation to all plaintiffs save for Yasmin. Dr Pusey separately conferred with Dr Edwards-Smith and produced a joint report in relation to Yasmin.
4. Doctors Pusey and Rees were separately cross-examined (it was not possible for them to give evidence concurrently). I was generally impressed with both Doctors Pusey and Rees when giving evidence. They sensibly acknowledged differences of viewpoint, which they partly attribute to their different specialties, but also somewhat dissimilar histories of the plaintiffs that they had been provided with. Differences of opinion apparent in their primary reports had narrowed in their joint report. Both tried their best to assist the Court. That said, to my observation, Dr Pusey was more open to reconsidering opinions, when challenged, than Dr Rees, who was somewhat more cautious and who was reluctant to consider variations on opinions contained in her reports. Dr Edwards-Smith was not required to attend for cross-examination.
5. The defendant did not cavil with the proposition that all plaintiffs had satisfied the prerequisite of s 31.

Recognised Psychiatric Illness

1. Dr Pusey saw Jane just over a year after Mr Frangie's death. The symptoms that Jane described were consistent with diagnoses of a Major Depressive Disorder and Post-Traumatic Stress Disorder (in accordance with DSM5 classification). Deploying a 'complicated grief assessment' Dr Pusey found that Jane's experience was consistent with a severe prolonged grief disorder. She had disclosed to Dr Pusey a premorbid history of psychiatric pathology arising from her son, Michael's motor vehicle accident in 1999.
2. Dr Pusey considers that Jane would likely have met the diagnostic criterion for a Mood Disorder in the immediate aftermath of the deceased death and continues to do so.
3. Dr Rees similarly saw Jane soon after the first anniversary of Mr Frangie's death. Dr Rees considered that there would have been a mild aggravation to Jane Chronic Major Depression and chronic PTSD related to the loss of Mr Frangie, in the context of a grief reaction. Dr Rees considered that her grief reaction was fairly normal and would have been but for underlying psychiatric issues that were slightly aggravated.
4. In the joint expert report it was common ground that Jane had had a long history of pre-existing psychiatric illness which was not attributable to the deceased's death. She had been under the care of a psychiatrist, Dr Younan, for a considerable period of time (since 1999) before the death of the deceased. She had been diagnosed with both having a Major Depressive Order and Post Traumatic Stress Disorder (PTSD).
5. It was also common ground from the joint expert report that her pre-existing psychiatric illness was aggravated by the death of her husband, as well as the death of her mother (and to some extent also the litigation on foot).
6. The hospital put to Dr Pusey that, on the basis of certain (necessarily incomplete assumptions) that what Jane had experienced in the year up to her interview with Dr Pusey were merely the various stages of a normal grieving process (including depression); which, implicitly meant that no recognised psychiatric illness had in fact been suffered. Dr Pusey said he did not discount this, but only as a possibility. I prefer the view, jointly expressed by Doctors Pusey and Rees in the considered confines of a joint conference, that Mr Frangie's death had caused the aggravation of pre-existing recognised psychiatric illness. This suffices, in my view, to establish that Jane suffered a recognised psychiatric illness so as to satisfy the requirement of s 31 of the Act.

The Duty Question

1. Jane had been divorced from Mr Frangie for many years prior to his death, but her evidence, which I accept, was that she retained close contact with him. Her daughter, Linda, later described her mother and late father as continuing to be "best friends". She said that virtually every day in the lead up to his death, she did housework for him (washing and cooking). She did not live far away. She plainly retained close affection for him.
2. In relation to s 32(2)(a), Jane saw for herself Mr Frangie sitting dead in the bathroom. Nobody had informed her of the circumstance that Mr Frangie was already dead when she found him. I accept that upon learning of her former husband's death, she fell into shock and that it badly affected her. She said she did not like to go out, or eat much. On the other hand, the defendant cited certain objective indications that cast doubt as to the nature or extent of the shock or how 'sudden' it was. First, Jane had protested to the hospital about the timing for the discharge of the deceased from the hospital only about 3 days' before his death. She believed that, based upon her observations of him as being "yellow" and lacking energy, he should not have been discharged when he was. She did not say that his position had improved in these respects from the date he was discharged until the day he died. Second, she had believed that a 'massive' heart attack had been sustained. Third, although Jane expressed her sadness to Dr Younan soon after the deceased's death, there was no change to her existing medication; nor any additional medication prescribed for her.
3. Notwithstanding these features, I am satisfied that discovery of her late husband appearing dead in the bathroom was such as to be likely to have caused 'sudden shock'. This discovery was significant. She was not just informed about it. It was the hospital's discharge of Mr Frangie which led to the situation where he was left in a position of vulnerability if it had not acted with due care - the foreseeable and not insignificant risk of dying from VT or VF. Those, like Jane and other close family members in close temporal proximity to the deceased, were themselves exposed to mental harm if that risk to Mr Frangie materialised. In that sense, Jane was exposed to direct perception of his death.
4. Section 32(2)(b) is not, by its terms, applicable to this case. That said, for a close family member to see Mr Frangie dead in the bathroom (in the aftermath of hospital treatment) does not, in my view, materially mitigate against the risk of shock.
5. Also, in relation to s 32(2)(c), although divorced for a long period, I am satisfied that Jane retained a very close and affectionate relationship to Mr Frangie. This consideration (applicable also to the other plaintiffs) is, as noted in Gifford, a powerful indicia of a duty of care.
6. In relation to s 32(2)(d), although there was no recognisable pre-existing legal relationship between her and the hospital, Jane was plainly privy to some communications with the hospital prior to her husband's discharge. She gave evidence that she was told "Take him home, and he'll be alright". I am not convinced that those precise words were actually said, but I accept that Jane had an expectation, based upon the fact of discharge, that her husband was not likely to die three days later. She was, in other words, entitled to believe that the hospital would not have discharged Mr Frangie if it felt that he was at imminent high risk of impending mortality arising from his heart. Dr Leung accepted, in cross-examination, that she knew that if something happened to Mr Frangie after he had been discharged, this would carry the real potential to cause stress and anxiety to Mr Frangie's family. In this regard, the evidence was not clear as to what Jane was informed about her late husband's prognosis.
7. Certain matters were put to Jane about what she was told by hospital staff at about the point of discharge in cross-examination, but they were not the subject of evidence in the hospital's case. Although the circumstances may not have risen quite to the level of the case in Annetts, when specific and positive assurances were provided to the parents of the victim about the defendant's care, Jane had a reasonable expectation that the treatment and management plan administered by the hospital would be effective; or, put negatively, she would not have expected her husband to die so shortly after his discharge. I would not regard her reaction as being either extreme or idiosyncratic.
8. I interpolate here that I was impressed, in the case of all the plaintiffs, that they shared the sincere expectation that Mr Frangie would not have been discharged had the hospital discharged its duty of care in its treatment of him.
9. I think that what is particularly significant on the question of the hospital's foresight is the relatively close proximity between the date of the discharge and the date of Mr Frangie's death. When giving evidence concurrently, the expert cardiologist, Professor Adams indicated that, having regard to the treatment plan provided to Mr Frangie on discharge, he himself would likely have been shocked that Mr Frangie had died.
10. Although there was always a risk of Mr Frangie's looming mortality, a hospital in the defendant's position should have foreseen that a person of normal fortitude might, in the circumstances I have referred to, suffer a recognised psychiatric illness if reasonable care were not taken in the recent and ongoing management of Mr Frangie's health.
11. I also accept that there is some force in the submission that when evaluating the hypothetical person of "normal fortitude", that one of the plaintiffs - Yasmin - did not have any pre-existing psychiatric illness, but suffered a psychiatric illness after the deceased's death. This is not an indicator that the reactions of the other plaintiffs, who did have an established susceptibility to shock, were extreme or idiosyncratic. A hospital treating a patient for heart attack, then discharging him or her without clear prognosis being disclosed to close family members ought foresee that those close family members, even if of normal fortitude, might suffer a psychiatric illness if it did not apply reasonable care. I am satisfied that it was reasonably foreseeable that a person of normal fortitude in the circumstances might suffer a recognised psychiatric illness.
12. In the circumstances, I find that the hospital owed a duty of care to Jane so as to satisfy the requirement of s 32 of the Act.

Quantum

1. A claim was made (by all plaintiffs) for non-economic loss under s 16 of the Act. Section 16 falls within Part 2 of the Act which generally regulates (and substantially limits) the recovery of personal injury damages. 'Personal injury damages' are damages relating to the death or injury of a person. 'Injury' (in s 11) includes any impairment of a person's (physical) or mental condition. This is the same definition of personal injury that appears in Part 3 of the Act, which conditions recovery of damages for mental harm. Part 3 of the Act itself provides no limitation of recovery of damages for pure mental harm.
2. Section 16 imports the 15% threshold of severity. Jane Frangie puts her level of severity at 28% of a most severe case. The defendant submits that she does not reach the threshold. The parties differ on the significance to be ascribed to the aggravation of her pre-existing illness: the plaintiff says that the hospital had to take her as it found her; the defendant says it cannot be responsible for the continuation of treatment administered for psychiatric illness or other consequences not ascribed to the events in this proceeding.
3. Non-economic loss, is to be assessed on the hospital's role in aggravating or exacerbating the plaintiffs' pre-existing illnesses. In Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518, the Court's assessment of non-economic loss differentiated the harm, in the form of nervous shock, arising from the deceased's death in that case, and the plaintiff's pre-existing psychiatric problems before the deceased death (at [454]-[457] and [658]-[661]). Nevertheless once a duty has been found and it is further found to be breached, a defendant's responsibility embraces the non-economic loss associated with an aggravation, however abnormal: this being a manifestation of the maxim that a wrongdoer must take his or her victim as s/he finds him or her (Tame v New South Wales per Gleeson CJ at [16]).
4. In the assessment of quantum for this head of damages, I have had regard to the principles for the evaluation under s 16 of the Act referred to in cases such as Hollier v Sutcliffe [2010] NSWSC 279, and (on the construction of "a most extreme case") Dell v Dalton (1991) 23 NSWLR 528.
5. After her former husband's death, Jane said she could not go out, did not like to brush her hair or "wear something", and her eating was affected. She told Dr Pusey that Mr Frangie used to do a weekly Sunday barbeque for the family, which she misses. She also said she went to the cemetery to visit her former husband's grave every Sunday. I accept this (unchallenged) evidence. Both Dr Pusey and Dr Rees, when considering Jane's prognosis (which they identify as remaining 'poor'), both attribute greater significance to the pre-existing psychiatric concerns. Nevertheless, I am satisfied that based upon the severity of her illness in the period of just over 2 years since her husband's death, Jane would have been entitled to non-economic loss at the level of 25% of a most extreme case and I would have awarded damages at that proportion.
6. Doctors Pusey and Rees differed on the question whether Jane required future treatment. Dr Rees did not consider any real need for treatment beyond what Jane had received in late 2017. Dr Rees considers that such further treatment as she may need related to her pre-existing condition. Dr Pusey thought that a brief period of treatment counselling (4-6 sessions) would be beneficial. I prefer Dr Pusey's view in this regard. I do not accept that any ongoing requirement for treatment can be purely attributed to psychiatric illness not attributable to the deceased's death.
7. As to out of pocket expenses, the parties agreed that the appropriate aggregate sum (for past and future expenses) is $1,996.25.

Recognised Psychiatric Illness

1. Michael reported symptoms to Dr Pusey which were consistent with a diagnosis of a Major Depressive Disorder (per DSM-5) and also PTSD. The CGA undertaken by Dr Pusey indicated that Michael was experiencing severe prolonged grief disorder. He would likely have met the diagnostic criteria for a Mood Disorder in the immediate aftermath of father's death. The PTSD would have developed within the first month following his father's death; in response to the perceived catastrophic impact of Mr Frangie's death upon Michael's functioning and well-being.
2. Dr Rees conducted a psychiatric assessment of Michael just over the first year anniversary of his father's death his father's death. Dr Reid accepted that Michael had PTSD and depression, arising from his motor vehicle accident, as pre-existing psychiatric illness prior to the death of his father. She said that she thought the PTSD symptoms may well have been aggravated. Absent any other physical cause, she considered that his chest pain signified an aggravation of his PTSD. She generally believed that the symptoms were best accounted for as an adjustment disorder with an anxious and depressed mood. In her view the pre-existing psychiatric condition of PTSD have been slightly aggravated. These diagnoses were further aggravated, in her view, by the death of Michael's grandmother.
3. It is common ground in the joint expert report that Michael had sustained a pre-existing psychiatric illness which was not attributable to the death of his father. He had suffered post-traumatic stress disorder (PTSD); in large part contributed to by his involvement in a motor accident when his girlfriend had been killed.
4. Both experts also agreed in the joint expert report that Michael had sustained a recognised psychiatric illness as a consequence of Mr Frangie's death. Since his initial report, Dr Pusey became aware of the circumstances (of which he was ignorant in November 2017), that Michael's grandmother had passed away not long before his examination by Dr Pusey. The experts agree that he had suffered an Adjustment Disorder; although they differed to some degree. Dr Pusey believed that Michael had suffered a Major Depressive Disorder and PTSD; and that he suffered from mixed anxiety and depressed mood. Dr Rees diagnosed an adjustment disorder with low mood did not consider that his PTSD was contributed to by this case. Dr Pusey did not regard this difference of opinion as to diagnosis as being substantial. Nor do I.
5. Under cross-examination, it was put to Dr Pusey that he had not been informed about certain matters, including: a ten-year period of unemployment after the motor vehicle accidents, Michael's own involvement in that accident and his previous treatment for mental health issues; and that his diagnosis may have changed had he known of these matters. Dr Pusey persuasively responded that this was not necessarily the case and that the diagnosis he made in 2017 was (primarily) based upon Michael's current functioning and less upon certain historical facts. Dr Pusey rejected the suggestion that his opinion was affected by Michael's lack of insight into his own position. I accept that opinion.
6. I am satisfied that the requirement in s 31 has been met in Michael's case.

The Duty Question

1. Michael was 37 at the time of his father's death. He was living with him at the time of the events the subject of this proceeding. Michael had experienced a significant life event when in 1999, he was involved in a motor vehicle accident (which he was driving) in which his girlfriend was killed. He thereafter received treatment for psychological issues. He told Dr Pusey that it was his father that had "kept us (the family) all together and helped me out" after that accident.
2. Michael was with his father on the day he was admitted to hospital. He saw his father hit his head on the door and the wall at home and fall on the floor. It was he who phoned the ambulance. This must have been very distressing and alarming for Michael.
3. Michael's care and concern for his father was evidenced by his daily visits to him whilst in hospital. It appeared that to him as something of a surprise when his father was to be discharged. He said he was not happy with this decision. He recalled that his father had looked pale the whole time. He recalls being told that his father had had a major heart attack and that he would need a pacemaker. Michael says he was told by hospital staff that his father was going to be going home. His response was that he wanted the hospital to assure him that he was "100% before he goes home". He was told that his father would have a follow up in a week or two, and would go and see a specialist.
4. Upon his return home, Mr Frangie continued to look pale and weak. This was, according to Michael's evidence, different to how Mr Frangie looked before he had been admitted to the hospital on 13 November.
5. Michael heard about his father's death when he received a telephone call from his brother, Peter. Upon hearing this news, he cried. He returned to the home he had shared with his father to see him dead in the bathroom. His susceptibility to being shocked by seeing his dead father was (unlike Jane's position) somewhat cushioned by being informed of his death before discovering the dead body for himself. Nevertheless, I am satisfied that he was shocked and, moreover, a person of normal fortitude in Michael's position would have been shocked by what he saw.
6. When cross-examined, it emerged that Michael had seen his GP during the period his father was admitted to the hospital. His father's admission had caused him stress and anxiety.
7. Michael saw Dr Leung on 14 November, the day after Mr Frangie's admission to hospital. He was informed that his father had suffered a major heart attack and would need a pacemaker. It was put to him that Dr Leung had informed him about other matters (a guarded prognosis, that he was significant risk of a further heart attack and it had delayed presentation and he would need further procedures) but Michael did not recall these things being said. Dr Leung did not herself give evidence about her providing such information to Michael and in the circumstances, I do not accept that Michael was so informed.
8. I find that Michael knew of the reason for his father's admission to hospital on 13 November. He was dissatisfied, if not sceptical, as to why his father should have been discharged when he was. But I do not consider that Michael had any real understanding or appreciation of the continuing risks to his late father after the discharge. Accordingly, I accept that the hearing of news of his late father's death and shortly thereafter seeing his father's dead body for himself, caused sudden shock. It also struck me that Michael was particularly close to and loved his late father. Further, I am not satisfied that the nature and extent of the ongoing risks to his late father's health and his prognosis, upon discharge, was clearly brought home to Michael. A person of normal fortitude would likely have been shocked when a non-disclosed heightened risk of his father's death followed shortly after Mr Frangie's discharge.
9. What I have said above in relation to Jane's circumstances (at [134] - [137] above) is, in my view, also applicable to Michael (and, generally also the other plaintiffs). In the circumstances, I am satisfied that in the circumstances of the case, the hospital ought to have foreseen that a person of normal fortitude might suffer in the circumstances a recognised psychiatric illness as a consequence of any negligence; such that the hospital owed Michael a duty of care pursuant to s 32(1).

Quantum

1. A claim is made for non-economic loss; pitched by the plaintiff at a level of 29% of the most extreme case. The defendant submitted that no allowance should be made.
2. Both Dr Rees and Dr Pusey noted in their joint expert report that an Adjustment Disorder is not typically prolonged. Neither could comment whether Michael continues to suffer a current psychiatric illness. Both differed as to the requirement for future treatment. Dr Rees did not think that psychological intervention was likely to be beneficial. Dr Pusey thought that it might be useful if Dr Rees' recommended medication treatment was implemented by him.
3. Michael says his father's death affected him in a lot of ways. Compared to what he felt after his death, before his father's death, he worked more and socialised more, slept and ate better. He told Dr Pusey, close to the first anniversary of his father's death, that he still could not accept that he was gone. He said in evidence that he still misses him.
4. Having considered the evidence from the health professionals and in accordance with my own observation of him when giving evidence, particularly when describing the effects of his father's death, I am satisfied that Michael's adjustment disorder was severe following his father's death and has not yet settled. If it were necessary, I would have assessed non-economic loss at the level of 25% of the most extreme case.
5. To my observation, I consider that Michael would need future treatment. In relation to future out-of-pocket expenses the parties agree that the sum of $1,110 is appropriate.

Recognised Psychiatric Illness

1. Linda presented to Dr Pusey just over a year after her late father's death. The symptoms she described to Dr Pusey (including daily fatigue, disturbed sleep, diminished ability to concentrate, depressed mood, change in appetite) were consistent with her having a diagnosis of a Major Depressive Disorder (as per DSM5). Dr Pusey considered that Linda would likely have met the diagnostic criteria for a Mood Disorder in the immediate aftermath of her late father's death.
2. Dr Rees saw Linda on 16 November 2017. She reported that she found that Linda had presented with a long history of mental health problems. Notwithstanding this she had never attended psychiatric or psychological intervention until 2017. Dr Rees diagnosed a mild aggravation of her pre-existing psychiatric condition of Chronic Depression. She also diagnosed a chronic Panic Disorder; although did not regard this as being significantly aggravated.
3. In the joint expert report, Dr Rees considered that Linda Frangie had a long-standing pre-existing psychiatric illness, in the context of low self-esteem with symptoms of depression and anxiety disorders and a part history of postnatal depression. Dr Pusey did not rule out the possibility that she had suffered a psychiatric illness that was not attributable to the death of her father. I accept Dr Rees' view on this point. The experts were slightly at odds on the pivotal question as to whether or not Linda had sustained a recognised psychiatric illness as a consequence of her father's death. Dr Rees accepted that there was some evidence of slight aggravation of her chronic and underlying depression and anxiety symptoms related to the grief reaction to her father's loss; but also pointed to a more recent grief reaction due to Linda's loss of her grandmother.
4. Counsel for the defendant challenged Dr Pusey as to whether he adhered to his diagnosis that Linda had sustained a Major Depressive Disorder by reference to identifying certain things that Dr Pusey had not been told: such as the proximity between the death of Linda's grandmother and her interview with Dr Pusey; her long-standing undiagnosed depression previous heart palpitations; and the stresses related to the care of her three children. Dr Pusey accepted that knowledge of those circumstances would have impacted upon his diagnosis - other diagnoses may need to be considered. But what such other alternative diagnoses may have been was not further explored.
5. I find that Linda had sustained an aggravation of her chronic and underlying depression and anxiety symptoms. Accordingly, I accept that Linda also satisfies the requirement of s 31 of the Act.

The Duty Question

1. In November 2016, Linda was 39 years of age, and was single-handedly responsible for the care of 3 children. Nevertheless she lived near her father and went to his house every day. When her father went to hospital, she visited him. She later told Dr Rees that she thought he would he would be okay. According to her evidence, she was ambivalent about hearing that her father had been discharged from the hospital - relieved in one sense, but sceptical as to whether he had been discharged too soon. Over the last weekend, after discharge, she observed that her late father seemed weak and tired. She learnt of her father's death when Jane had rung her in the morning.
2. She came to the deceased's home after hearing that he had passed away. She went to the bathroom to see the deceased. She said she touched his cheek and found it cold. She says, and I accept, that she was shocked and froze; and was "heartbroken". She said the passing of her father had hurt her a lot; and says she continues to be sad. She says she has become very unsocial. Her evidence was unchallenged in these respects and I accept it.
3. Linda was, however, challenged in cross-examination as to the level of her surprise at the news of her father's death, having regard to what she saw of him whilst in hospital. She refuted that challenge. I accept that evidence. She knew that her father had suffered a massive heart attack, had had diabetes, a previous stroke, vascular disease in his blood vessels and a recent amputation of his toe. She denied being told that her father had had a late presentation of a heart attack, or that that his prognosis was not good. In light of there being no evidence from the defendant as to when and by what means this information was conveyed to her, I accept her denials in this regard.
4. I find that her pre-existing psychiatric illness was aggravated as a result of shock which followed the discovery of her dead father. She saw, and had not just heard about, her father dead in his bathroom and was in a close and loving relationship with her father.
5. As to the relationship between Linda and the hospital, it did not appear to me (unlike the position of other family members) that Linda had any direct communications with the hospital relating to her father's discharge. Linda heard the news from her mother and other family members. The circumstance that family members were, in effect, conduits for information disclosed by the hospital does not materially alter Linda's position from others who did directly communicate with the hospital. I also note that Linda (unlike Jane but similar to other siblings) had been cushioned with the news of her father's passing before seeing him in a deceased state.
6. Although her position may have differed from other plaintiffs to this extent, on balance, in the circumstances I have described, it was foreseeable that a person of normal fortitude in the circumstances might suffer a recognised psychiatric illness. Accordingly, a duty of care was owed by the hospital to Linda in satisfaction of s 32 of the Act.

Quantum

1. Linda makes a claim for non-economic loss, put on the basis of 20% of a most extreme case.
2. Since her father died, Linda told Dr Pusey that she survived on coffee and cigarettes; and constantly thought of her father's death. She felt disconnected from social relationships and had trouble concentrating. The experts in their joint expert report appeared to agree that Linda's prognosis, in relation to the psychiatric reaction to her father's death was good. But both also agreed that further brief psychological intervention relating to that illness was warranted. Having regard to their evidence and my observation of her when giving evidence, if it was necessary, I would have accepted the plaintiff's submission that non-economic loss would be at a level of 20% of a most extreme case.
3. In respect to the question of future treatment, the experts agree that it would be expected that there would be no further aggravation of Linda's pre-existing psychiatric condition after November 2017, the first anniversary of Mr Frangie's death. In relation to the grief reaction relating to her father, at least, her prognosis was good (although the prognosis for her recovery from her illness that was unrelated to the loss of her father, the prognosis was much poorer). Both experts consider that a brief psychological intervention related to the grief arising from loss of her father was reasonable and this was estimated to be approximately 10 sessions with a psychologist at a rate of $124-$220 per session.
4. As to her out of pocket expenses (past and future), the parties agreed that the sum of $2,967 is appropriate.

Recognised Psychiatric Illness

1. Yasmin saw Dr Pusey (by Skype facility) in October 2017. She described symptoms consistent with a Major Depressive Disorder (including guilt, daily fatigue, sleep disturbance, diminished ability to concentrate and variable appetite) as well as PTSD (including intense and prolonged distress after exposure to traumatic reminders, severely reduced interest in pre--traumatic activities, increased feelings of irritability and hypervigilance). The PTSD would have developed within the first month following her father's death. In the immediate aftermath of the father's death, she would have met the diagnostic criterion of a Mood Disorder.
2. Dr Edwards-Smith saw Yasmin not long after the first anniversary of her father's death. She detected a pre-existing vulnerability to anxiety. She considered that with the news of her father's heart attack, and death not long after, that Yasmin had developed features of a bereavement response. She disagreed with Dr Pusey as to a diagnosis of PTSD. Dr Edwards-Smith explained, and this was confirmed later when Dr Pusey gave evidence, that a Persistent Complex Bereavement Disorder had not yet been considered as appropriate for clinical use under the DSM-5, but it was a useful description of a condition featuring an individual experiencing the death of someone with whom s/he had had a close relationship, with symptoms for at least 12 months of persistent longing for the deceased, intense sorrow, emotional pain and a preoccupation with the circumstances of the death of the deceased; with additional symptoms of bitterness or anger. If her condition had to be labelled under the existing categories of DSM-5, Dr Edwards-Smith identified the condition of a Major Depressive Episode.
3. In their joint report, the experts (Dr Pusey for the plaintiff and Dr Edwards-Smith for the hospital) agreed that Yasmin did not appear to suffer from a psychiatric illness that was not attributable to Mr Frangie's death. Both agreed that Yasmin had sustained a psychiatric illness and consider that to be, most accurately, in the order of a 'Persistent Complex Bereavement Disorder; although her condition was more appropriately categorised as a 'Major Depressive episode' within the terminology of DSM-5. Asked in cross-examination what were the symptoms that led to Dr Pusey's identification of a persistent complex bereavement disorder (which was endorsed by Dr Edwards Smith), Dr Pusey identified the following factors: difficulty, if not bordering on bitterness, in accepting the circumstances of Mr Frangie's death; numbness, an absence of purpose and meaning in life, the time elapsed since death and a description of ongoing functional impairment.
4. I find that Yasmin has established the requirement in s 31.

The Duty Question

1. Unlike the other plaintiffs, in November 2016, Yasmin resided in Perth, living with her husband and four children. She assisted her husband in running a tiling business. Despite the geographical distance between them, Yasmin identified a close relationship with her father: he "meant the world to me". Prior to November 2016, the last time she had seen him was back in September after she had heard about the amputation of his toe.
2. Yasmin had been aware that her father had previously suffered from diabetes, and had had a previous stroke.
3. She learnt that her father had suffered a heart attack by a telephone call from the sister. She promptly flew to Sydney and visited her father for the first couple of days, before returning to Perth due to family commitments on 16 November. When in hospital, she saw that he was weak and pale. She only learned that he was going to be discharged when that occurred. She thought the timing of the discharge was too soon given that her father had had a serious heart attack.
4. She continued phone contact with her parents after being informed of the discharge of her late father on 18 November 2016. She had learned of her father's death by receiving a telephone call at 4 am (Perth time) from her brother, Peter. She says she felt devastated when she heard of the news and flew back to Sydney that night. She saw the deceased after he had been placed in an open casket. She said that she had been sent a photograph of her dead father being found in the bathroom.
5. Similar considerations pertain to her that applied to her sister, Linda (see [175]), in respect to her level of perception of the aftermath of the deceased's death, but I am satisfied that the hospital also owed her a duty of care pursuant to s 32(1).

Quantum

1. The plaintiff submitted that she should receive damages for non-economic loss at the level of 28% of a most extreme case. Yasmin told Dr Pusey near the first anniversary of her father's death that she lacked motivation to work, and had felt traumatised by his death. She told him that her relationships with her siblings, whilst still close, were not the same. She felt more emotional and disconnected. Assessment of Yasmin's position is simplified as a result of the experts' agreement that there was no pre-existing psychiatric illness prior to the deceased death. Neither expert considered that, by way of long-term prognosis, it was likely that Yasmin would suffer any permanent psychological disability; although both agreed that future treatment was desirable. If it were necessary, I would have assessed her non-economic loss at a level of 23% of a most extreme case.
2. As to the future, in the joint expert report, the experts questioned whether the severity of Yasmin symptoms may have been affected by the approach of the current litigation. Neither had personally reviewed Yasmin and both were unable to comment as to whether or not she currently suffered from a diagnosable psychiatric illness. Both considered that the resolution of the litigation was likely to reduce the intensity of the symptoms of her psychiatric illness. Both agreed that her long-term prognosis was that she will not suffer any permanent psychological disability.
3. The experts also agreed upon desirable future treatment for Yasmin. They recommended a course of an SSRI for a period of six months of psychological treatment with a clinical psychologist (at the rate of $251 per hour). The parties agreed that for out-of-pocket expenses (past and future), $4,480.80 is the appropriate sum.

ORDERS

1. For the foregoing reasons, I make the following orders: 1. In proceeding 2017/232865, there be Verdict and Judgment for the defendant with the plaintiff to pay the defendant's costs. 2. In proceeding 2017/232876, there be Verdict and Judgment for the defendant with the plaintiff to pay the defendant's costs. 3. In proceeding 2017/232884, there be Verdict and Judgment for the defendant with the plaintiff to pay the defendant's costs. 4. In proceeding 2017/265026, there be Verdict and Judgment for the defendant with the plaintiff to pay the defendant's costs. 5. Exhibits are to be returned to the parties.

Endnotes

1. The High Court refused the application for special leave from this decision
2. In Sparks, Basten JA considered he was not bound to follow McKenna. Macfarlan JA adhered to the position he took in McKenna and Matthews AJA felt constrained to follow McKenna (notwithstanding her expressed reservations as to its correctness). For criticism of the decision, see Vella, Annotated Civil Liability Act (3rd ed) p 246. This division of opinion was not resolved in the Court of Appeal's subsequent decision in Gould, per Leeming JA at [114] (with whom Basten JA and Meagher JA agreed).
3. Pitt et al, 'Eplerenone, a Selective Aldosterone Blocker, in Patients with Left Ventricular Dysfunction after Myocardial Infarction' New England Journal of Medicine (NEJM), Vol 348 (14) April 3, 2003
4. Early Eplerenone treatment in patients with acute ST-elevation myocardial infarction without heart failure: the Randomised Double-Blind Reminder Study, European Heart Journal, 2014, Vol 35, pp 2295 to 2302
5. "Prognostic Value of Routine Cardiac Magnetic Resonance assessment of left Ventricular injection fraction and Myocardial Damage', published in Circulation Cardiovascular Imaging 2011, Vol 14, pp 610-619, appended to Dr Helprin's report of 19 February 2019. 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: 07 March 2019