King v Greater Murray Area Health Service & Anor

King v Greater Murray Area Health Service & Anor - [2007] NSWSC 914 - NSWSC 2007 case summary — Zoe

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The District Court proceedings 11 On 9 November 2004, Naughton DCJ handed down judgment. At the outset Naughton DCJ stated that the plaintiff's claim was one for personal injury. It arose out of alleged assault and battery of the plaintiff while a patient in an isolation room within the intensive care unit at Albury Base hospital. It was alleged that on several occasions between 19 August 1999 and 16 September 1999 the second defendant (Carman) slapped the plaintiff, and that on one occasion he left a chemical fluid bag, with fluid in it, on the plaintiff's face without making any attempt to remove it. Carman was a male registered nurse employed by the hospital. 12 The plaintiff's case against Carman was framed both in trespass to the person, and in negligence for alleged breach of duty "to ensure that reasonable care was taken to safeguard the physical and mental wellbeing of the plaintiff whilst he was a patient at the said hospital." The intentional torts that were pleaded were assault and battery. 13 The claim against the hospital was framed in negligence and vicarious liability for the intentional torts committed by Carman. Senior Counsel for the plaintiff in final submissions stated that if the plaintiff succeeded in his claim based on alleged assault and battery against Carman and his claim based on vicarious liability against the hospital, for those causes of action the plaintiff would not require the trial Judge to consider the negligence claims. The plaintiff did not make any claim for past or future economic loss, but limited his claim for non economic loss to psychiatric damage together with aggravated and exemplary damages. 14 His Honour recorded: "Because the statement of claim was filed before 6 December 2002 several amendments to the Civil Liability Act 2002 which came into force on that date do not apply to the plaintiff's claim. A copy of the Act in the form agreed by all counsel to be in force for the purposes of this case became Exhibit "4A". Section 9 (2) (a) of the Act excludes from operation Part 2 of the Act ("Personal injury damages", ss 10-22), awards of damages for assault and battery. Damages for those causes of action are therefore at large." 15 Naughton DCJ found that on at least four or five occasions between 29 August 1999 and 8 September 1999, including on 31 August 1999, Carman assaulted and battered the plaintiff by slapping him on the wrist and face, but none of the hits were productive of any physical damage. 16 In relation to the liability of the hospital, His Honour stated "that Carman's (somewhat minor) assaults and batteries upon the plaintiff were so connected with his job of caring for the plaintiff, who was Carman's own designated ICU patient, that the assaults and batteries are to be regarded as modes, although improper modes, of doing his job." Thus, both Carman and the hospital were held to be jointly and severally liable. 17 In so far as damages were concerned His Honour found that the plaintiff suffered short term humiliation, insult, anguish, fear and anxiety, and loss of self respect and that they were minor in extent but deserving of compensation. As previously stated, general damages of $10,000 were awarded to the plaintiff against both defendants. His Honour declined to award aggravated or exemplary damages. 18 While Naughton DCJ at the outset of his judgment referred to the plaintiff's claim as being one of personal injury, I do not take it that His Honour meant to say that the damages fell within the definition "personal injury damages" under the CLA.

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The decision of the Costs Review Panel 26 On 13 September 2006, the Costs Review Panel gave written reasons. It relevantly stated that s 9 of the CLA did not make any mention of costs but simply referred to an award of personal injury damages. The Costs Review Panel said that in fact the limitation on costs comes not from the Civil Liability Act but from the Legal Profession Act in force at that time namely the LPA 1987, Division 5B headed "Maximum Costs in Personal Injury Damages Matters". 27 At the relevant time, personal injury damages had the same meaning as s 3 of the CLA. 28 That definition of personal injury damages as enacted was omitted from the Civil Liability Amendment (Personal Responsibility) Act 2002 ("the Amending Act") and the following definition of personal injury damages inserted as Section 11 of the CLA. 29 Part 2 of that Act originally contained ss 9 and 10, but both of those sections were repealed on 6 December 2002 and s 11 came into operation. Sections 9 and 10 of the Act were the sections which applied at the time of filing the statement of claim. 30 Section 3B lists a number of intentional torts. The plaintiff submitted that removing intentional torts from application of a Part entitled "Personal Injury Damages", defined by later amendments to the Act removes intentional torts from the definition of personal injury damages, and accordingly, ss 198C and 198D have no application in a cause of action of this nature. Section 198C of the LPA 1987 defines "personal injury damages" as having the same meaning as in the CLA. It does not define personal injury damages as having the same meaning as that contained in Part 2 of the CLA. 31 It is my view that the reasoning of the Costs Review Panel is correct. Section 9(2) does not remove intentional torts from the definition of "personal injury damages" but excludes intentional torts "from the operation of this Part". This Part is the part that applies to and in respect of an award of personal injury damages. The definition of "personal injury damages" that had application is the general definition contained in s 3 of the CLA. That is, personal injury damages are those damages that relate to the death or injury to a person caused by the fault of another person. It is that definition that applied to ss 198C and D of the LPA 1987. 32 The plaintiff further submitted that, as the plaintiff's case is framed in trespass to the person, and as the case against the first defendant is for the vicarious liability for acts of the second defendant, that the damages cannot have been personal injury damages as the damages were not for an impairment of a person's physical or mental condition. This is not the correct test to be applied, as the words "impairment of a person's physical or mental condition" were included in a subsequent version of the CLA. At the relevant time personal injury damages were defined in the CLA as "damages that relate to the death of or injury to a person caused by the fault of another person". The definition of "injury" in the Act included "psychological or psychiatric injury". 33 Naughton DCJ at page 24 of his judgment stated:

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"The plaintiff's case was put on the basis of psychological damage done to a psychologically damaged person who was peculiarly susceptible to further psychological damage." 34 The psychological injury fell within the definition of "personal injury damages". 35 The plaintiff submitted that His Honour limited the plaintiff's claim for non-economic loss to psychiatric damage together with aggravated and exemplary damages (which were subsequently dismissed). The plaintiff referred to the test in Jaensch v Coffey (1984) 155 CLR 549, and stated that Naughton DCJ specifically rejected the evidence that the plaintiff had suffered from a diagnosable psychiatric injury. The plaintiff therefore submitted that His Honour could not have awarded damages in respect of a mental impairment. 36 The first defendant submitted that the claim was with respect to the plaintiff's mental condition. 37 The second defendant referred to State of New South Wales v Ibbett (2005) 65 NSWLR 168, which concerned an interpretation of provisions of the current version of the CLA. The Court of Appeal held that the definition of "injury" in s 11 of the current CLA did not apply to the meaning of s 3B(1)(a) of the CLA (which is the equivalent of s 9 of the former Act). The facts in Ibbett were that the State had been found vicariously liable for assault and trespass to land as a result of the conduct of two police officers. An issue on appeal was whether aggravated and exemplary damages were available on each cause of action. 38 The structure of the current Act is such that the definition of "Injury" applied only to that "Part" of the Act, whereas in the former Act, the definition of "Injury" applied to the whole of the Act. The Court of Appeal therefore concluded that "injury", not being defined in that Part of the statute, should be given its natural and ordinary meaning. 39 Spigelman CJ and Basten JA in Ibbett clarified this statement by stating that the concept of injury would not be restricted to, although it would include, personal injury (see Basten JA at [218]). Ipp JA went further, stating, at [124]-[125]: "In my view, anxiety and distress would be an 'impairment' of a person's mental condition in accordance with the ordinary meaning of 'impairment', as the word is used in s 11. In my opinion, irrespective of whether the ordinary meaning of the word is attributed to 'injury', or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress." 40 It is my view that the plaintiff's damages were personal injury damages. The definition of "personal injury damages" in the CLA at the relevant time applied to the whole Act, which partly distinguishes it from Ibbett. The definition of "injury" at the relevant time included "psychological or psychiatric injury", upon which the plaintiff's claim was based. Even if the correct definition of "injury" is defined by giving it its natural and ordinary meaning, in light of the decision of Ibbett, injury is a word wide enough to encompass anxiety, stress and other impairments of a person's mental condition. The result is that the appeal fails.

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