Fuller v ACT

1. This is an assessment of damages following the remittal of these proceedings by the Court of Appeal.

2. The plaintiff attended the Canberra Hospital on 14 February 2020 in order to undergo a caesarean section. That involved the administration of a spinal anaesthetic. The administration of a spinal anaesthetic requires the insertion of a needle between the spinous processes of the vertebrae and then the injection of local anaesthetic into the subarachnoid space. In the plaintiff’s case, while the doctors were attempting to correctly insert the needle, it broke. The broken needle had to be surgically removed.

3. The plaintiff brought proceedings against the Australian Capital Territory alleging that it was vicariously responsible for negligent conduct of its doctors. The plaintiff failed at first instance because the primary judge was not satisfied that the plaintiff had proved that, in the circumstances, the duty owed to her had been breached: Fuller v Australian Capital Territory [2022] ACTSC 361. The primary judge did not accept that, having made a number of unsuccessful attempts to insert the needle, the needle should have been replaced. The primary judge also made some additional, contingent, findings in relation to damages, most significantly as to whether she suffered ongoing problems as a result of lower limb radiculopathy. On that issue, the primary judge preferred the evidence of the expert witness called on behalf of the defendant, whose evidence was to the effect that the plaintiff’s ongoing symptoms were relatively mild and caused by somatic referral of pain to the buttocks and lower limbs rather than radiculopathy.

4. The plaintiff appealed to the Court of Appeal, which overturned the finding that negligence had not been established, concluding, on the evidence, that it had: Fuller v Australian Capital Territory [2024] ACTCA 19. The Court of Appeal also overturned the finding that the plaintiff did not suffer radiculopathy, concluding that the evidence established that the plaintiff was suffering radiculopathy as a result of the spinal needle event. The Court of Appeal remitted the proceedings to the Supreme Court for an assessment of damages on the basis that the scope of liability included radiculopathy.

The incident

5. The plaintiff attended the Canberra Hospital with her husband on the morning of 14 February 2020. There were a number of procedures before hers and, when her turn came, she was taken to the anaesthetic bay. She met the two anaesthetists, Dr Abeygunasekara, who had recently commenced as a registrar, and Dr Stephens, an experienced consultant anaesthetist.

6. Dr Abeygunasekara made three attempts to insert the needle, and then Dr Stephens made her own attempt. During that attempt, the spinal needle broke, leaving a portion of the needle inside the plaintiff’s body.

7. After that, Dr David McDowell, a consultant neurosurgeon, performed a midline dissection in order to remove the retained portion of the needle. It was carefully withdrawn and the wound irrigated.

The plaintiff’s background

8. At the time of the hearing before the primary judge, the plaintiff was 38 years old. She is now 40. She lives on a 40 acre property at Hoskinstown, NSW with her husband and two children, one born in 2014 and the other immediately following the incident in 2020.

9. She grew up in Queanbeyan, attending Queanbeyan West Public School and Karabar High School. She completed high school at the end of 2002 and worked at KFC Queanbeyan immediately thereafter, becoming a team leader. She completed a Certificate II in security and, at 18 years of age, commenced work for Chubb Security. She worked in a number of roles for Chubb, including at the British High Commission, and other Commonwealth buildings.

10. When she was 21, she got a job in the Australian Public Service (APS) as an ASO3, working at the National Library of Australia. When she was 28 (about 2012), she moved to the Department of Industry, Innovation and Science. Her first child was born by caesarean section in March 2014. In 2017, she transferred to the Department of Defence as a physical security adviser. In 2019, she was promoted to an Executive Level 1 position, responsible for the security of buildings, assets and employees. She continued with the Department of Defence for about two years. Her second child was born in February 2020, immediately after the incident giving rise to her negligence claim. She spent eight months on maternity leave, returning to work full-time in October 2020. From 24 June 2021 until 6 July 2022, she worked as the manager of security and fire safety at the National Museum of Australia. From 8 August 2022, she worked at the Australian Maritime Safety Authority (AMSA) with an AMSA Level 6.4 classification. She moved to this position because it involved less physical activity than her earlier job, and this reduced her back pain.

11. As at February 2020, the plaintiff and her husband also ran chickens at their property, which she referred to as “Paradise Hill Egg Farm”. They sold eggs at local markets. Sometime after February 2020, they ceased running chickens and instead began running sheep, as that was less labour-intensive and the plaintiff was less able to perform the physical activities required to run the chickens. Lay evidence as to the consequences of the incident

12. Following the removal of the broken needle from her back, the plaintiff was given a general anaesthetic and her child successfully delivered by caesarean section. That was contrary to the plaintiff’s and her husband’s intentions because the birth of her first daughter had involved an emergency caesarean which she did not witness, and it was important to her and her husband that she be awake to witness the birth of her second daughter. Instead, a midwife took some photos of the birth on the plaintiff’s phone.

13. The plaintiff gave evidence on 4 October 2022 that she has had constant pain in the lower back and also has right leg pain. By 20 May 2020, she reported to her GP that she had reached a breaking point and was having difficulty dealing with the pain. Physiotherapy, heat packs, electric blankets, hot showers and medication such as Nurofen were not helping. She was having difficulty lifting her daughter and putting her in her bassinet.

14. Since then, in the period up to her giving evidence before the primary judge, she continued to suffer a constant ache in the right lower back. The pain went up and down. Activities like household chores, putting on the dishwasher, bending over or sitting down on the floor all aggravated the pain and made it worse. She suffered from fluctuating pins and needles in her feet and leg. She said that she limped most of the time. The limp commenced straight after the incident. She would wake up at night with dreams about being back in the surgical room — or her pain would wake her up. She had seen a physiotherapist at Vibe Rehabilitation on numerous occasions who treats her lower back, buttock and leg. She sometimes had difficulties putting on her underwear and pants because of pain or difficulties with balance.

15. Prior to the incident, she was able to participate in farm work with her husband, building things, erecting fencing, digging holes, concreting and riding a quad bike. Following the incident, she had difficulty with these activities and had given up riding the quad bike out of fear that she might hurt herself further.

16. Although she did not have difficulty driving, she did have difficulty straightening up when getting out of the car after a period of driving. The same difficulty occurred when she did certain things for a period of time, like sitting on the floor with her daughter. She said she had given up having baths because she found it hard to get out of the bath. She said that she feels like “a little old lady”.

17. Her sexual relationship with her husband had been affected because of the pain in her back and her psychological state. Her husband described it as “nearly non-existent”. When asked to describe any psychological change as a result of the epidural needle incident, her husband said: Yes, well she’s definitely not the person I married. Like its – if you had to say be chalk and cheese from a very outgoing person that would try anything to now being, what’s the word, too scared to move certain ways because she’s worried about hurting herself.

18. At the time of the hearing before the primary judge, some two and a half years after the incident, she was still seeing her physiotherapist every four to six weeks.

Expert evidence

19. The expert evidence as to the physical effects of the incident upon the plaintiff was principally given by Dr Patrick and Dr Gorman.

20. Dr Patrick, a general, vascular and trauma surgeon and “Medico-Legal Specialist” (instructed by the plaintiff), recorded a medical history of the plaintiff, conducted an examination of her and recorded his opinions arising from that examination. He only saw the plaintiff once and did so by audiovisual link. He referred to some muscle wasting in the plaintiff’s right lower leg and the difficulty that she had with elevating her right toe. He expressed the opinion that there was “likely L5 radiculopathy”. He then expressed some opinions about the consequences of that radiculopathy, which are examined in more detail in the next section of these reasons. His opinions as to loss of earning capacity and early retirement were not admitted by the primary judge. Following this, his report included a number of general statements which commenced with “I do believe”, or similar. The generality of these statements means that little weight can be placed upon them. He was cross-examined about his conclusion that there was radiculopathy, and this was the subject of the finding by the Court of Appeal.

21. Dr Gorman, a consultant general physician, pain management physician and medical oncologist (instructed by the defendant), took a history from the plaintiff and conducted a physical examination. He recorded his findings. His opinion that the ongoing symptoms were relatively mild, caused by somatic referral of pain to her buttocks and lower limbs, was rejected by the Court of Appeal, which concluded that the cause of this pain was radiculopathy. He recorded that the scarring from the incision to remove the needle was clear. He expressed the opinion that the plaintiff’s level of fitness and daily activities do contribute to the perpetuation of the disability because deconditioning and fear avoidance are well-recognised factors in perpetuating chronic pain. He was not cross-examined at the trial. His evidence as to her prognosis cannot be relied upon, having regard to the conclusion reached by the Court of Appeal.

22. Evidence of ongoing psychological injury is derived from the reports of Dr Oldtree Clark, Dr Parmegiani and Ms Abbott.

23. Dr Oldtree Clark’s report was admitted without objection and he was not cross-examined. Dr Oldtree Clark (instructed by the plaintiff) is a consultant psychiatrist. His report, dated 6 August 2021, was based on a consultation with the plaintiff the previous day. He described that the plaintiff had a prior psychiatric history of General Anxiety Disorder, experiencing panic attacks with bouts of anxiety. As a result of the incident in 2020, she had a specific fear of injections. He made a diagnosis of Persistent Depressive Disorder and said she has many characteristic symptoms of Post-Traumatic Stress Disorder. He described the symptoms of depressive disorder as including insomnia and anxiety. In terms of the relationship between her prior mental health condition and her then-current condition, he said: Her traumatic experience during her second Caesarean caused an aggravation of her pre-existing anxieties and depression. This was the main contributing factor to her Persistent Depressive Disorder, which had features of a Major Depressive Disorder at that time.

24. He said that she had reached “maximum medical improvement”. However, he then went on to say that, “normally”, psychiatric disorders involve a recovery period of two to three years after the patient has reached some form of stability over a 12 month period beforehand. Therefore, one would expect the total time for treatment to be up to four years. The relationship between the concept of “maximum medical improvement” and the statement as to likely recovery times is not clear. He said it was unlikely that she would have to retire early as she had returned to work. He said she should continue to see a psychiatrist.

25. Dr Parmegiani’s report (prepared at the request of the defendant) was dated 9 December 2021 and prepared after a video link assessment conducted on 2 December 2021. He recorded a very detailed medical history which included that, upon being told that the needle had broken inside her, she was “petrified” and feared that she would not walk again. She was particularly anxious because she had a nephew who was wheelchair-bound and she immediately thought of him. During the procedure to remove the broken needle, she did not feel anything because the area had been numbed by local anaesthetic.

26. Dr Parmegiani made a diagnosis of: (a) Post-Traumatic Stress Disorder in partial remission; and (b) Adjustment Disorder with Mixed Anxiety and Depressed Mood in remission.

27. He considered that the injury itself was the trigger for the Post-Traumatic Stress Disorder, whereas the onset of the mood symptoms labelled as Adjustment Disorder was more insidious, not clearly linked to a specific date, but likely to have occurred during the six months that followed the injury.

28. So far as prognosis was concerned, he considered that to be favourable, noting that she had made considerable progress even though she had not received “appropriate and assertive treatment”. She had responded well to three sessions of psychological counselling, and returned to work and to caring for her family. She had not been treated with psychotropic medication. He said that “her prognosis will be most favourable, especially if [she] can have access to a more formal course of psychological treatment”. So far as her condition prior to the incident was concerned, he did not consider that a diagnosis of Generalised Anxiety Disorder was warranted prior to the incident.

29. He said that he generally agreed with the diagnosis by Dr Oldtree Clark of Post-Traumatic Stress Disorder. However, he did not agree that she suffered from Persistent Depressive Disorder, but rather considered that she no longer fulfilled the criteria for that condition. Although she had some residual symptoms of anxiety related to the physical consequences of the accident, they were not “pathognomonic of a Persistent Depressive Disorder”. “Pathognomonic” means characteristic of a particular disease. He said it was “unlikely that she will experience future complications or deterioration in her psychiatric symptomatology”. He expected her to improve gradually and improvement would most likely be enhanced by access to a more formal psychological treatment plan. He made recommendations about that and provided cost estimates. Dr Parmegiani was not required for cross-examination.

30. Ms Kerrianne Abbott prepared a report dated 15 April 2022 (at the request of the plaintiff). She was not required for cross-examination. She was asked whether a possible explanation for the plaintiff’s ongoing complaints was a somatic pain disorder. She said that it was because the trauma surrounding the epidural needle breaking was the trigger for the pain disorder that she was suffering. She made two diagnoses: (a) Somatic Symptom Disorder with severe, persistent and predominant pain; and (b) Post-Traumatic Stress Disorder.

31. She described in general terms the nature of a Somatic Symptom Disorder and Post-Traumatic Stress Disorder. She referred to the plaintiff feeling ongoing and significant emotional distress as a result of the earlier incident, feeling terrified of being paralysed. Since the incident, the plaintiff has struggled with pain in her back and ruminations about the incident which have led to sleep disturbance. She said that the plaintiff requires psychological intervention for the symptoms of trauma and PTSD that she is experiencing. She gave a recommendation and cost for treatment by way of Eye Movement Desensitisation Reprocessing.

Conclusions as to consequences of the incident

32. The finding of the primary judge immediately prior to the challenged finding about radiculopathy was as follows (at [86]): I accept Mrs Fuller’s testimony as to her physical difficulties and the fact that those physical difficulties were not present prior to February 2020. The incident was traumatic and Mrs Fuller suffered physical and psychological injuries as a result of it. Included in these injuries is the additional operative procedure to her spine to extract the needle and its sequela. Her quality of life has been diminished and her plans to have a child by caesarean section, which were important to her, were frustrated. On the basis of the medical evidence, which I accept, it is likely that Mrs Fuller will make a good recovery. However, that is not assured and some amount for future medical and employment contingencies could be made on any assessment. Mrs Fuller’s past medical and employment related matters were proved.

33. Because the Court of Appeal overturned the primary judge’s finding in relation to radiculopathy, the conclusions reached in the above quoted passage need to be reconsidered. There is little material to indicate the significance of a finding of radiculopathy. Dr Patrick said: Bronwyn Fuller is suffering the ongoing problems which arise from a lower limb radiculopathy. Progress MRI will be indicated and does need to be reviewed by neurosurgical or orthopaedic spine surgeon. She continues on Codeine medication and also antidepressant amitriptyline as well as ibuprofen. She is a non-smoker and rarely consumes alcohol. … As mentioned, she should be reviewed by [a] neurosurgical or orthopaedic spine surgeon. … The prognosis ongoing is for likely some degree of withering of right lower extremity and it may be the case that she might come to require into the future surgical intervention at L4/5 level at lumbar spine just as necessary, subsequent to the relevant consultations. She will also have some degree of problematic right lower extremity in view of the radiculopathy. I would emphasise that progress MR imaging of lumbar spine is indicated in that there are some limitations with the telehealth consultation, but I believe there is sufficient evidence here to indicate that the major problem resulting from this unfortunate episode is the back and right lower extremity.

34. Of significance in this opinion is the tentative nature of the prognosis, very much deferring to future progress, MRI scanning and review by neurosurgical or orthopaedic spine surgeons. The likelihood of some future surgical intervention is put no higher than a possibility, dependent upon future specialist consultations. “[S]ome degree of withering” is a non-specific prediction likely to be primarily based upon measurements taken in August 2021 when he saw the plaintiff. At the hearing before me, counsel for the plaintiff indicated, consistent with the plaintiff’s evidence in 2022, that she would not undergo any surgery. That resolves the issue of surgery but does not address the likely prognosis, having regard to the existence of radiculopathy, as distinct from suffering the same symptoms as a result of somatic referral of pain. There is no evidence before the court as to whether the “muscular wasting of the right lower extremity” observed by Dr Patrick exists three years and eight months later.

35. Thus, while the opinion of Dr Patrick was, for the reasons set out by the Court of Appeal, sufficient to result in the finding that her pain and other symptoms in her right leg were the result of radiculopathy, the prognosis for that condition is not established by the evidence. I do not accept the submission made by the plaintiff that she has a “poor prognosis”.

36. Taking account of the lay and expert evidence, the consequences of the negligence for the plaintiff that are most significant for the purposes of assessing general damages are as follows: (a) the terror experienced when things were going wrong and the doctors were working out what to do; (b) the need to have the surgical procedure to remove the needle and the consequent scarring; (c) alteration in her expectations about witnessing the birth; (d) back and right leg pain and the consequent limitations on movement and life satisfaction; (e) fear and anxiety about needles; (f) fear of certain activities which she thinks may exacerbate her back and leg pain; (g) stiffness when getting up from driving or from the floor; (h) loss of enjoyment with outdoor rural property related activities; (i) loss of sexual pleasure; (j) waking due to pain or intrusive thoughts about the incident; and (k) the mood effects of all of the above, described in different terms by the experts.

37. Issues arising in relation to the limitations on the evidence for the assessment of damages and the consequences in relation to particular heads of damage are addressed in the following sections. Evidentiary issues in relation to damages

38. There are three significant issues that apply generally to the assessment of the damages to which the plaintiff is entitled.

39. First, there was no attempt by the plaintiff to update the evidence from that which was presented to the primary judge in October 2022. As a consequence, there is simply no evidence before the court as to what has occurred between the date of the hearing before the primary judge and today. The plaintiff gave evidence before the primary judge on 4 October 2022. That was two years, seven months and 21 days after the incident. The hearing upon remittal from the Court of Appeal occurred on 30 January 2025, two years, three months and 27 days after the hearing at which the plaintiff gave evidence. Further, in relation to the report of Dr Patrick, upon whose evidence the plaintiff placed significant reliance for the purposes of her claim for damages, he saw the plaintiff once by telehealth on 13 August 2021. That was one year and six months after the incident and three years, five months and 18 days prior to the hearing on 30 January 2025. The absence of evidence as to the plaintiff’s progress since she gave evidence means that there is a significant gap in the evidence as to whether there are any ongoing consequences of her injuries. The following list summarises the most recent evidence in relation to various aspects of the evidence significant for the assessment of damages: (a) Damien Ramsden (exercise physiologist) Workplace Assessment: 4 August 2021; (b) Dr Oldtree Clark (psychiatrist) interview: 5 August 2021; (c) Dr Patrick (surgeon) audiovisual assessment: 13 August 2021; (d) Nancy Stephenson (occupational therapist): audiovisual assessment: 7 October 2021; (e) Dr Parmegiani (psychiatrist) audiovisual assessment: 2 December 2021; (f) Dr Gorman (physician) assessment: 18 January 2022; (g) Ms Abbott (psychologist) interview: 25 February 2022; (h) general practitioner notes: up to 2 June 2022; (i) the plaintiff’s evidence: 4 October 2022; and (j) the plaintiff’s husband’s evidence: 4 October 2022.

40. Second, notwithstanding the fact that no additional evidence was put before the court for the purposes of the assessment of damages, the claim that was articulated in written submissions was substantially inflated from that articulated in the statement of particulars which was before the primary judge and which formed the basis upon which the case was run. The total claimed in the written submissions provided for the purposes of the assessment of damages was $1,123,219. That contrasted with the claim as articulated in the statement of particulars before the primary judge which resulted in a total claim of $562,509. Having regard to the fact that the statement of particulars provided the basis upon which the case was run and articulated the case to which the defendant addressed itself, that represents the basis upon which the assessment of damages should occur. At the hearing on 30 January 2025, the proposition that the plaintiff was bound by the way she put the matter at the trial was accepted by senior counsel for the plaintiff. However, he emphasised the need for some flexibility as to the precise methods of calculation articulated in the statement of particulars, and that the oral submissions made at trial differed in some respects from the manner in which the claim was articulated in the particulars. The dramatic increase in the claim made by the plaintiff and its inconsistency with the earlier statement of particulars served to draw attention to the burden of proof which lay upon the plaintiff to establish each component of the damages claimed.

41. Third, a number of the submissions made by the plaintiff placed reliance upon the opinion of Dr Patrick and emphasised the acceptance of Dr Patrick’s opinion in the Court of Appeal’s judgment. In my view, it is significant that the Court of Appeal was not addressing the question of whether Dr Patrick’s opinion should be accepted in its entirety. Rather, it was addressing a very specific issue as to whether his opinion that the plaintiff was suffering from radiculopathy should be accepted in preference to that of Dr Gorman. In my view, the opinion of Dr Patrick going to the plaintiff’s prognosis must be considered in light of all of the evidence in the case, and not unquestioningly accepted on the basis that the Court of Appeal accepted his evidence on the existence of radiculopathy. Further, although this was not reflected in the plaintiff’s written submissions, significant aspects of Dr Patrick’s report (relating to loss of earning capacity and early retirement) were ruled inadmissible by the primary judge and are therefore not before the court now.

General damages

Plaintiff’s submissions

42. The plaintiff pointed to the assessment of damages in Ryrie v Tanner (No 2) [2020] ACTSC 104; 92 MVR 27 which involved an award of general damages of $160,000 and my decision in Lewis v Woolworths Limited [2018] ACTSC 200; Aust Torts Reports ¶82-407, which involved an award of damages of $170,000.

43. She submitted that an award of general damages of $170,000 would be appropriate, apportioned half to the past and half to the future.

Defendant’s submissions.

44. The defendant submitted that the plaintiff does not require surgery and, even if recommended, her evidence was that it was not something she would consider. So far as the two cases referred to by the plaintiff are concerned, the defendant pointed out that Ryrie involved a plaintiff whose study and working life had been significantly curtailed. The defendant pointed out that, on exactly the same evidence, the plaintiff had submitted to the primary judge that an award of $150,000 was appropriate. The defendant submitted that, in the circumstances, an appropriate award of damages was $120,000.

Decision

45. The plaintiff suffered what she found to be a terrifying incident. The principal consequences for her are listed above. There is no evidence as to the continuing physical or psychological effects as at the date of the hearing for the assessment of damages. As a result of her injuries and conditions, the pleasure of her rural life has been affected and her work has been made more difficult. Once again, there is no current evidence of her condition which would provide a reliable basis for the assessment of her condition in the future. Given the nature of back injuries which have some nerve involvement (the radiculopathy referred to by the Court of Appeal), it is likely that she will continue to suffer some discomfort in the future, but the likely extent and duration cannot be assessed. I assess damages at $140,000 with $110,000 for the past.

46. This gives interest of $11,462 ($110,000 × 2% × 5.21 years).

Loss of earning capacity — past

Plaintiff’s submissions

47. In relation to past economic loss, the plaintiff tendered her leave history and gave evidence that it related to the medical assistance that she had since the incident. The schedule gives a total of $11,896.09. The plaintiff submitted that this represented a net loss of about $6,542, being $11,896.09 less a 45% tax rate. She submitted that she is also entitled to interest on that amount. She claimed interest at 9% based upon the rate adopted in the decisions in Lee v McGrath [2018] ACTSC 173; Aust Torts Reports ¶82-391 at [122] and Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 at [298].

48. The plaintiff also claimed loss of superannuation at the rate of 15.4% of gross income, and as a result claims $1831 ($11,896.09 × 15.4%). Defendant’s submissions

49. The defendant accepted that the plaintiff required time off work to attend appointments. The schedule in evidence indicates that she used “flex” and personal leave. She gave evidence that this was a mixture of paid and unpaid leave. The defendant’s submissions accepted that “she is entitled to recover the entitlement to utilise personal leave” and accepted that “it is reasonable to award half of the amount claimed ($11,896) namely $6000”.

Decision

50. The leave schedule describes the different types of leave taken as “TOIL/Flex Leave” or “Personal Leave”. For those acclimatised to public service jargon, “TOIL” is Time Off in Lieu, and is applicable where time beyond ordinary hours has been worked. “Personal Leave” includes sick leave. The method of calculation — by reference to paid leave — indicates that the plaintiff has not in fact suffered any direct loss. She has been paid by her employer pursuant to the entitlements of her employment for the time that she has spent either sick or attending medical appointments. She would only suffer a loss if, because of her use of her sick leave as a result of the negligence, she ran out of sick leave at some point in the future in circumstances when she would not otherwise have run out. Many long-term public servants accrue very large personal leave balances which are never used. So long as a person does not exhaust their sick leave entitlement, they would not suffer any loss as a result of having to take it due to negligence. The entitlement to damages would be dependent upon showing that a plaintiff had not been on paid personal leave, or upon the chance that at some point in the future they might run out of sick leave and, hence, incur a loss that they would not otherwise have incurred: Cressy v Miloriad [2016] ACTSC 303 at [83]-[84]; Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390 at [114]-[115]. See also, Kiiver v King [2013] ACTSC 142 at [126]; Dow v Elbarbary [2017] ACTSC 418; (2018) Aust Torts Reports ¶82-370 at [138]; Ryrie at [127].

51. In a single answer in cross-examination, the plaintiff said that the time off was a mix of paid and unpaid leave. That answer was not reconciled with the documentary evidence put forward or the manner in which the claim was articulated in the statement of particulars.

52. In the present case, neither party argued the point in the manner that I have articulated it above. The plaintiff assumed that the after-tax value of the sick leave taken was recoverable as damages (giving a figure of $6,542). The defendant relied upon the answer given in cross-examination that indicated that she was paid for some of the time and allowed approximately half of the claimed amount (giving a figure of $6000).

53. Given the manner in which the matter was (or was not) argued, I will make no award of damages for loss of sick leave, but will grant liberty to the plaintiff to make further submissions on this issue if so advised.

Loss of earning capacity — future

Plaintiff’s submissions

54. The plaintiff emphasised that the compensable loss is not a loss of income but a loss of capacity to earn income. As a consequence, the assessment of the loss does not depend on calculating income from a particular career which is no longer possible but calculating the damage to capacity to carry on various careers. It is thereby an exercise in the estimation of possibilities, not proof of probabilities. As articulated in the written submissions, the claim for future economic loss had two components: (a) Loss of earnings from chicken farming: This was said to result from the inability of the plaintiff to do the heavier work associated with raising chickens for eggs. The claim was put on the basis that the plaintiff is entitled to damages for the loss of the chance of building a successful chicken farm business. Based upon a working life on the farm of more than 30 years, the plaintiff submitted she is entitled to a claim for loss of future earning capacity of $50,000. However, in oral submissions, senior counsel submitted that the specific figure of $50,000 was not pursued, but that the inability to engage in chicken farming should be considered as part of the plaintiff’s loss of capacity. (b) Loss from salaried income: This component of the claim is based upon different scenarios involving between six and 10 weeks of lost income per year for 30 years, as well as the potential for early retirement at the age of 60 rather than 67. Further, the plaintiff submitted that there is a risk of a total loss of future income. Having regard to these various scenarios, the plaintiff submits that she is entitled to a “modest buffer” for loss of future earning capacity of $250,000.

Defendant’s submissions

55. The defendant submitted that there was no evidence that the plaintiff, as a career public servant, was in other than secure employment. It submitted that she had not given any evidence of a pre-injury plan that she had as to likely retirement age, and that the court could not find that her working life has been curtailed. It pointed to the evidence of Dr Gorman who said, on the basis that she was working full-time when he saw her, that her future capacity for employment has not been affected. It pointed out that Dr Patrick’s evidence as to loss of earning capacity and early retirement was not admitted. It pointed to the evidence of Dr Oldtree Clark and Dr Parmegiani that her earning capacity was not affected by her psychological or psychiatric conditions.

56. In relation to the chicken farm, the defendant submitted that there was no evidence to show that the plaintiff’s egg business made any money. The defendant pointed to the evidence of the plaintiff and her husband as to the reasons why the egg business stopped. Further, the defendant submitted there was no evidence as to what amount the business would have been expected to earn in the future.

Decision

57. The manner in which this claim was particularised in the statement of particulars was that the plaintiff required six weeks off per year as a result of flareups and to accommodate treatment. This was formulated as a net loss of $189.52 per week with a multiplier of 30 years, giving a loss of $196,740.71. A reduction of 15% for contingencies gives a figure of $167,229.60. In oral submissions before the primary judge, the plaintiff articulated the claim as being for a buffer of $200,000. Having gone to trial on the basis of this particularisation of her claim, and the defendant having conducted its defence on that basis, I do not consider it now open for the plaintiff to recast the claim as involving a wider range of scenarios, including the possibility of a total loss of income over a 30 year period, giving rise to a buffer higher than the amount earlier claimed.

58. If the plaintiff has an ongoing condition, that may result in a loss of earning capacity. A more limited range of work would be available to her than would otherwise be the case. However, the question is whether that loss of capacity would be productive of economic loss. In this case, the evidence does not justify that conclusion.

59. Given the absence of evidence as to the plaintiff’s current condition, it is not possible to determine that there is a risk that she will require further time off from work in the future. There is no evidence to indicate that she is likely to leave the APS, having made a successful career there from modest beginnings. Insofar as there is the possibility that, whatever her current condition is, she might at some time in the future require further time off work as a result of her condition, such as because of an aggravation or flare up of her condition, there is no evidence that this will be productive of economic loss. There was insufficient evidence to indicate that there is a risk that her sick leave entitlements in the APS will not be adequate to cover whatever her needs are in the future. The existence of those sick leave entitlements means that, unless they are exhausted and she is required to take unpaid leave, her employer will bear the loss caused by her injury rather than her.

60. There was no evidence as to the profitability of the egg business. There was no evidence as to how that profitability compared to the profitability of the approximately 90 sheep of which the plaintiff gave evidence. Although she gave evidence of two cows, four pigs and two dogs, I have assumed that they were not income earning animals. As a consequence, it has not been proven that any loss of capacity reflected in the inability to do the physical work associated with raising chickens will be productive of economic loss.

61. For these reasons, no award of damages for loss of future earning capacity is appropriate.

Domestic assistance — past

Plaintiff’s submissions

62. In relation to past domestic assistance, the plaintiff relied upon Dr Patrick’s opinion that the plaintiff had a requirement for domestic assistance, and upon her own evidence that she had difficulty caring for her daughters, doing the dishwasher, shopping, transporting her children to childcare, and feeding and getting them to bed. The plaintiff also relied upon her evidence and the evidence of her husband that her mother-in-law gave assistance. The plaintiff’s husband also gave evidence that she had difficulty washing and was less able to assist with the chickens, leading to the change from chickens to sheep. The plaintiff points to the fact that her husband was not cross-examined by the defendant on that evidence.

63. The plaintiff claimed that the commercial rate of $51.09 for domestic assistance should be accepted because the court accepted that rate in Maher v Russell [2022] ACTSC 297 at [202]-[208].

64. The plaintiff also relied upon the evidence of the occupational therapist, Nancy Stephenson, whose report was admitted and who was not cross-examined by the defendant. That report, dated 22 October 2021, recorded the plaintiff’s then-current disabilities. It also assessed past domestic assistance provided since 14 February 2020 as being: (a) cleaning, laundry and childcare: eight to 10 hours per week; and (b) transport: one to two hours per week.

65. Based upon a figure of nine hours per week, the plaintiff makes a claim of $63,453 for the period up to the date of the hearing before the primary judge (nine hours per week × $51.09 per hour × 138 weeks).

66. In relation to interest, the plaintiff relied upon the decision of Crowe AJ in Seselja v Reardon [2020] ACTSC 167; 93 MVR 28 at [349] which identified that, where an award of damages for domestic assistance is made in current dollars, the relevant rate of interest is 4% rather than the amount otherwise set under the Court Procedures Rules 2006 (ACT).

Defendant’s submissions

67. The defendant submitted that the plaintiff’s evidence was that she was able, with some difficulty, to do all domestic activities. It submitted that the involvement of the plaintiff’s mother-in-law was not necessarily the result of the plaintiff’s injuries. The defendant pointed to the plaintiff’s evidence that her pain levels do not stop her from actually doing activities, notwithstanding that she may feel some pain and discomfort afterwards. It submitted that any amount for future domestic assistance relating to the need to pick up the children will be lessened over time. It pointed to the absence of any evidence of current domestic requirements. It submitted that there could only be a buffer for domestic assistance in the past and that the amount particularised by the plaintiff in her statement of particulars of $10,000 was reasonable.

68. The submissions of the defendant pointed out that any opinion in Ms Stephenson’s report about loss of cognition was not admitted and her evidence as to care was admitted only in relation to costings, requiring the assumptions to be proved.

Decision

69. In relation to past domestic assistance, the evidence of the plaintiff was that she was very independent prior to the incident. Both the plaintiff and her husband’s evidence indicated that the plaintiff’s mother-in-law now provides significant assistance.

70. The plaintiff’s evidence was that her mother-in-law helps with “all the general duties such as cleaning toilets, bathrooms, bath, washing the floors, doing the clothes washing, hanging it out”. This has happened since her youngest child was born. Her mother-in-law comes out most weeks on a Thursday and Friday. Sometimes she even comes on a Wednesday. “It depends how she is feeling and … how she can fit it into her schedule.” She will be there for part or the whole of the Thursday, and on Friday. She will also look after the youngest child. The plaintiff will leave the washing to her so that she does not have to deal with it, because the front loader is down low, making it quite painful for the plaintiff to do the laundry. The plaintiff’s mother-in-law will hang it out, fold it and place it on the bed. The plaintiff’s husband also gave evidence that his mother did school and childcare drop-offs and pickups, leaving it uncertain as to how often the youngest child is booked into childcare. He also gave evidence that she did “administration/pick up duties” for his plumbing business. The evidence was not clear about whether she was a paid employee of the business.

71. A significant issue that arises is what the counterfactual comparator is. What assistance with childcare and domestic work would have been provided in the absence of the incident? There was no evidence specifically addressing this issue. However, the plaintiff’s claim was based upon the proposition that, but for the incident, no assistance would have been provided. It is not appropriate to draw that inference in the circumstances of the case. It still would have been the case that there were two young children in the family, two parents who worked full-time, and a mother-in-law who was no longer in the paid workforce. One child would still be of primary school age and one child requiring childcare. The nature of the relationships, motivations and daily movements of the individuals was not adequately explored in evidence to allow an inference to be drawn that, in the absence of the incident, a grandmother of the children would not have provided the care that she did. It would not be at all inconsistent with ordinary life that a grandmother who was prepared to assist her son in his plumbing business may wish to be involved in the lives of her grandchildren and be happy to help the family with caring for one or more of her grandchildren in circumstances where that care would otherwise have to be paid childcare which is not only expensive but would complicate the lives of working parents with full-time jobs. It is less likely that, in the absence of injury to the plaintiff, the mother-in-law would have been doing the household chores that the evidence disclosed that she did.

72. So far as the plaintiff’s husband was concerned, his evidence indicated that the division of household chores had changed from the 50/50 division before the incident. However, his evidence did not attempt to quantify the additional household chores that he did as a result of the plaintiff’s condition. He did say that he had to take time out of his business to address matters that the plaintiff could not.

73. Before the primary judge in November 2022, the plaintiff’s submission was as follows: So the domestic assistance in this case, and because she is so young, we put $10,000 for the past which is so conservative and that's because it was in the statement of particulars and we're bound by it. If it wasn't in the particulars it would be $100,000, your Honour, but we accept we're bound by the statement of particulars; it's $10,000.

74. At least in relation to a period of two years and nine months prior to this submission being made to the primary judge, it is appropriate that the plaintiff be held to the particulars that she had given, as that was the basis on which the trial was conducted. Having regard to the evidence, $10,000 was a modest and appropriate claim. Given the nature of the claim and the substantial agreement on the part of the defendant as to quantum, the hourly rate upon which it is based is not of great significance. However, to the extent that is relevant, one of the limited purposes for which the report of Ms Stephenson, the occupational therapist, was admitted was to give costings for various services. That report included various rates for different types of services. Before the primary judge, the plaintiff contended for a rate of $45 per hour. If it was necessary to fix a rate, then, having regard to the range of rates set out in Ms Stephenson’s report and the passage of time since the earlier hearing, I would have awarded damages for domestic assistance at the rate of $50 per hour.

75. In the approximately two years and six months since the submissions were made to the primary judge, there is no evidence of any domestic assistance being required. Having regard to the manner in which the claim was particularised up until the trial, I do not consider that it would be appropriate, in the absence of further evidence or any amendment to the statement of particulars, to award damages in a manner inconsistent with the earlier particularisation. However, I consider that, notwithstanding the absence of evidence about this period, the need for domestic assistance would not have ceased entirely but is likely to have been at a reduced level. Consistent with the earlier particularisation, I consider that a further buffer of $7,000 should be awarded for this period.

76. Having regard to the fact that damages for past domestic assistance for the different periods were assessed by way of buffers, it is not appropriate that there be any award of interest on that amount.

Domestic assistance — future

Plaintiff’s submissions

77. The claim for future domestic assistance is based upon the report of Ms Stephenson. By aggregating the figures in Ms Stephenson’s report, the plaintiff arrives at a figure of between 22.65 and 27.65 hours per week. The plaintiff accepts that the lower of these figures should be accepted by the court and that she should be awarded this for a period of five years. She then submitted that, for the following 35 years, she will need an estimated five hours per week. On this basis, she articulates a claim of $531,471 for future domestic assistance.

Defendant’s submissions

78. The defendant relied upon the submissions that are made in relation to past domestic assistance. It submitted that a similar buffer for the future of $10,000 is also reasonable. Decision

79. The claim now made by the plaintiff is in stark contrast to the claim that she particularised in her statement of particulars. That was a claim for four hours per week for 48 years based on a rate of $45 per hour. That gave a total claim of $240,858. She now claims more than double that figure.

80. Having regard to the absence of direct evidence of any need for domestic assistance since October 2022, it is not appropriate to make any award on a mathematical basis. The award for past domestic assistance for the period between the submissions made to the primary judge and this assessment of damages has been made because that period is likely to have involved some further assistance. Despite the absence of any direct evidence, I infer this on the basis that the earlier proved need is unlikely to have ended abruptly.

81. So far as the future is concerned, in the absence of any evidence of a current need for domestic assistance beyond that which would have been required in any event, it is only appropriate to make an award on a buffer basis, accommodating the possibility of some need in the future as a result of some aggravation of her physical or psychological condition. Particularly in light of the defendant’s submission that a buffer of $10,000 is appropriate, this amount will be awarded.

Out of pocket expenses – past

82. The plaintiff claims $7,711 for past out of pocket expenses, being $7,400 for treatment costs and $311 for medication costs. This is based upon the evidence in a tender bundle which included a variety of schedules and invoices. It is not clear from the plaintiff’s submissions how the claimed figures were arrived at from amongst the various figures in the schedules.

83. The defendant agreed with the claim for past expenses.

84. An award of $7,711 will be made for past out of pocket expenses. No claim for interest was identified in the plaintiff’s written submissions, consistent with the fact that most of the expenses appear to have been covered by Medicare or by private health insurance.

Out of pocket expenses – future

Plaintiff’s submissions

85. So far as the future is concerned, the plaintiff makes a claim of $35,543, made up of a variety of components. (a) In relation to weekly out of pocket expenses, the plaintiff made a claim for the cost of additional GP consultations, the antidepressant amitriptyline, and specialist consultations with an orthopaedic surgeon or neurologist. The claim was made for the weekly cost of those expenses over the balance of her remaining life expectancy, namely 50 years. (b) She also claimed one-off out of pocket expenses for her physical injuries based upon Dr Patrick’s opinion that she may require surgical intervention and Dr Gorman’s evidence that using a TENS machine and a sit/stand desk would be appropriate. On the basis of this evidence, she submitted that a lump sum of $5,000 for future one-off costs, including a buffer for future surgery, was appropriate. (c) The final component was a claim for counselling sessions from a psychologist and consultations with a psychiatrist, giving a total lump sum of $4,000.

Defendant’s submissions

86. In relation to future out of pocket expenses, the defendant submitted that the amount spent in the past would be an indication of what would be spent in the future. It therefore submitted that an amount of $10,000 would be reasonable in relation to future treatment expenses. It submitted that no evidence has been called, and therefore damages should not be awarded, in relation to the plaintiff wishing to undertake counselling.

Decision

87. In her statement of particulars, the plaintiff made a claim of $100,196, derived from the costs over 48 years of ongoing physiotherapy, ongoing psychology, consultations with a GP, and the cost of medication. As will be apparent, that claim has been significantly modified in the manner that it was put to the court for the purposes of the assessment of damages.

88. The difficulty for the plaintiff’s claim is that there is no evidence that she has incurred any medical expenses in the period since the trial. Further, there is no evidence that her psychological conditions diagnosed prior to the trial are still present and require further treatment. So far as her physical conditions are concerned, there is no evidence that she continues to suffer the effects of the radiculopathy referred to in the Court of Appeal’s judgment and no evidence as to the likely clinical course of radiculopathy of the type suffered by the plaintiff.

89. In those circumstances, having regard to the level of medical expenses incurred between the incident and trial, I consider that a buffer of $10,000 for the future for medication and treatment of physical and psychological conditions is all that can be justified.

Summary

90. A summary of the damages to be awarded is set out in the following table:

General damages $140,000 Interest on general damages $11,462 Domestic assistance — past $17,000 Domestic assistance — future $10,000 Out of pocket expenses — past $7,711 Out of pocket expenses — future $10,000 Total $196,173.00

91. The plaintiff also made a claim for post-judgment interest from the date of the judgment of the primary judge on 22 December 2022. That is not a claim which was available given that damages are being assessed at the present time.

92. There are, potentially, outstanding issues relating to past economic loss (see [53] above) and costs. The orders that I will make will allow the parties to be further heard on those issues if necessary. However, there may be no debate about costs and there may be no appetite for dispute about past economic loss in light of the reasons that I have given. In that event, the parties may provide agreed orders in order to avoid the costs of any further hearing.

Orders

93. The orders of the Court are: (1) The proceedings are listed on 12 May 2025 at 9.15am for the making of final orders and determination of any question of costs. (2) The plaintiff is to file and serve any written submissions (on past economic loss and costs) limited to not more than four pages, and any evidence in relation to costs, by 7 May 2025. (3) The defendant is to file and serve any written submissions (on past economic loss and costs) limited to not more than four pages, and any evidence in relation to costs, by 9 May 2025. (4) The parties have leave to provide agreed orders to give effect to these reasons and, in the event that those orders are made, the listing will be vacated.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: