Kraus v Sartori

District Court of NSW|2016-05-31

Solicitors: Brydens Law Office (Plaintiff) Holman Webb Lawyers (Defendants) File Number(s): 2013/00197898

Judgment

The plaintiff was born in 1982. On 28 August 2010 he was a passenger in a motor vehicle involved in a one vehicle accident near Medlow Bath. The vehicle was being driven by a friend of the plaintiff (the first defendant). The vehicle was owned by the second defendant.
The plaintiff was so seriously injured that he required a tutor to pursue his claim. He blamed his injuries on the defendants. They accepted blame and admitted primary liability. However, due to the involvement of alcohol, contributory negligence was involved. The parties were able to 'settle' this aspect. Their agreement was approved by Olsson DCJ.
The matter therefore came before me for the assessment of damages. There was little dispute about the nature of the plaintiff's injuries. There was much dispute about the translation of the injuries into damages. The primary areas of disagreement were economic loss and future care.
The assessment of damages is governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The plaintiff exceeded the threshold set by Section 131 and is therefore entitled to non-economic loss. An early indication of the severity of the plaintiff's injuries was the parties' respective statement of the level of non-economic loss. The plaintiff said $400,000. The defendant said $300,000. This level of non-economic loss is an early indicator of the severity of the plaintiff's injuries.

The plaintiff's background

It can be seen from the chronology (Exhibit F) that the plaintiff was born in Sydney but after the separation of his parents moved to the Blue Mountains. He was a keen and competent sportsman and completed Year 12 at the Blue Mountains Grammar School.
The plaintiff was married in 2002. One daughter was born of the relationship. The plaintiff separated from his wife in early 2010 although they were still sharing their house when the accident occurred. Exhibit C shows the plaintiff and his wife on the date of purchase of their house.
The plaintiff did have some medical issues prior to the accident but none were of significance and certainly did not impact upon his post-accident condition. It does seem that the plaintiff perhaps drank too much alcohol and from time to time consumed illicit drugs. Medical opinion in the case has excluded these issues as being responsible for his current mental health state.
The plaintiff did not pursue any tertiary education following completion of the HSC. He was however able to obtain customer support work with Optus, as I understand it, on a contract basis. This is the work that he was carrying out when the accident occurred. He was working part-time, and from home, to allow him to assist with the care of his daughter. His wife was then in full-time employment. He was earning about $340 net per week.
The plaintiff was said to contribute at home, he was a keen handyman and he took care over his appearance and dress.

The accident

The plaintiff was a front seat passenger. The first defendant was intoxicated. He lost control. The vehicle rolled over a number of times. The plaintiff needed to be cut out of the wreck. He suffered a number of rib fractures, an undisplaced fracture of his sternum, a fractured left hip, a pulmonary collapse, a whiplash injury to his neck and, most significantly, a head injury.
The plaintiff was transported to Westmead Hospital where he remained for about five days. He discharged himself and returned home. He was then in a great deal of pain and able to do very little for himself.

After the accident

Most of the evidence about the plaintiff came from his sister (and tutor), Ms Zoya Kraus and from his mother, Mrs Marilyn Kraus. They had both lived near to the plaintiff before the accident and saw him and his family frequently. After the accident they were his primary carers. They were well placed to give 'before and after' evidence about the plaintiff. Their credit was not challenged. As a general statement little of their evidence was called into question and I have no hesitation in accepting them. They never exaggerated the extent of the plaintiff's problems, they never put forward exaggerated hours of care and they conceded all of the periods when they were not involved with the plaintiff, for example when he was living in different parts of New South Wales.
In addition Ms Zoya Krauss said that she had her own family, and I gather some major personal issues, to deal with, and she never suggested that she gave preference to the plaintiff over her own circumstances.
A point of great significance that was made by both Ms and Mrs Kraus was that when the plaintiff spoke to doctors he did not always tell them the full extent of the psychotic delusions that he was experiencing. They were not challenged on this evidence. The importance arises because a prime facie reading of the medical reports might suggest that the plaintiff had periods when he seemed to be making significant strides of recovery.
The evidence of Ms and Mrs Kraus was that the plaintiff told them, in particular his sister, of the very severe paranoid delusions from which he was suffering. These involved voices and visions suggesting to him that his daughter was in danger, that he was in danger and that spirits were pursuing him even through mundane events such as having a shower.
I accept the evidence from Ms and Mrs Kraus that absent their prompting and their assistance the plaintiff was reluctant to wash his clothes, to wash himself and to maintain an appropriate standard of dress. In addition I accept that the plaintiff has put on a lot of weight, probably because he eats only 'takeaway' food and does not prepare appropriate meals for himself.
As the chronology shows, the plaintiff has had numerous admissions to psychiatric institutions. Other than the first admission to the Blue Mountains Mental Health Unit in November 2010, the rest of the admissions have not been voluntary, rather they have been as a result of the plaintiff being 'scheduled' under the Mental Health Act.
There have been periods when the plaintiff's condition has been more severe. One of these seems to have been following the departure of his wife and daughter for Switzerland in April 2011 where his wife was taking up with another man. She has since returned with her new family and lives in the Blue Mountains. She does not however associate with the plaintiff.
The plaintiff has left the Blue Mountains on a number of occasions, sometimes simply to travel to faraway destinations like Brisbane, Melbourne or Adelaide and at other times to live with a friend. One of these friends is "Yossi" who lives at Kincumber on the Central Coast. The plaintiff has also lived in a hostel in Newtown and a boarding house in Byron Bay.
When he is away from his mother or sister the plaintiff lives in a dishevelled state without care for his personal hygiene or the cleanliness of his attire.
The plaintiff's present circumstances illustrate the severity of his condition. The "granny flat" where he has been living is no longer suitable for him. He has found that the spirits which infect his life have driven him out. He has been sleeping either in his motor car or on his mother's couch.
The plaintiff is presently compliant with having a monthly Depot (slow release) injection of Paliperidone, an anti-psychotic medication. He is however sent reminders of the need to be available for the injection. There have been periods when he has not complied with his medication regime. I also note the plaintiff said the injections were not helping. A Community Treatment Order has just expired so that there will be a greater need to monitor his wellbeing.
The Plaintiff also gave evidence. I was originally informed that he would not do so; however, the position changed. The plaintiff described his physical pains and his mental issues. He said the spirits inflicted a "non-stop bombardment" upon him. The plaintiff was an obviously honest man but his evidence needs to be assessed in the light of his condition. For example, he said that he did take care of his hygiene but this is inconsistent with the evidence of his mother and sister.
The plaintiff described the work he had done since the accident. He said he felt he could be a courier driver again but this must be subject to his evidence about the demons influencing his driving. He said on one occasion his vehicle was in reverse gear but the demons switched it into a forward gear leading to a collision with another vehicle.
The plaintiff said he would like to have help at home and to live in a house. His current problems however may make long term residence in a house (or flat) unlikely. As noted above spirits have driven him from his current abode.
The plaintiff said he preferred takeaway food and was not interested in a healthy diet. He said he would like assistance from independent persons because he wanted his mother and sister "to get on with their lives". He also said he would like help with organising his daily activities. He said he could manage his finances. He is now on a pension.
His opinion on financial management must be treated cautiously. The medical evidence is plain to the effect that he requires financial assistance with large sums. Dr Sachdev, for the defendants stated: "However if he were to receive a large payment, it should be managed by a public guardian as it cannot be established that he will be able to suitably invest these funds for the future." (Exhibit 1, report of 10 September 2015)

Medical reports

I do not propose to analyse all of the reports in great detail, in particular because there is so much commonality between the respective opinions on each side.
Dealing first with the plaintiff's physical condition, the most serious ongoing problem concerns his hip. Dr Conrad, a general surgeon, felt that the plaintiff should continue with conservative treatment but have restrictions on lifting. Dr Conrad suggested an MRI scan of the left hip but this does not seem to have occurred.
Dr Giblin, an orthopaedic surgeon has seen the plaintiff periodically since 2011. He placed a work restriction of avoiding repetitive bending and heavy lifting. He did not see any need for surgical intervention but did think physiotherapy might be of some assistance. He maintained his opinion through to his most recent report in February 2016.
Dr Berry, a general surgeon, is the only practitioner who suggests a future hip replacement due to the potential arising from the development of osteoarthritis.
On the defendants' side Dr Barrett, an orthopaedic surgeon, did not envisage any further treatment and thought the plaintiff had an unrestricted capacity for employment. Notably the plaintiff was working as a labourer when he saw Dr Barrett so that one can understand the doctor's view having regard to the plaintiff telling him that he was coping with the work over 40 hours per week. I note this employment did not continue, although it is a little unclear why it ceased. The plaintiff did however say that he experienced pain in his hip on prolonged sitting, walking (especially on uneven ground) and standing.
In relation to the plaintiff's mental state he relies primarily on the views of Dr Klug, a psychiatrist who has been reporting on him since November 2011.
Following his first consultation Dr Klug said: "His chronic major depressive disorder, intermittent panic attacks, and mild specific phobia for car travel, all appear to be directly caused by the accident and its consequences".
It would seem that the depressive disorder has mostly resolved so that it is the psychotic symptoms that are now most relevant.
In 2014 Dr Klug noted that the psychosis appeared to be in full remission as did the depressive disorder and panic attacks. This opinion is inconsistent with the lay evidence that I heard. As already noted Ms and Mrs Kraus were of the view that the plaintiff did not always disclose to medical examiners the full extent of his psychosis. The improvement that Dr Klug refers to in August 2014 must be seen in the light of the continuing problems that the plaintiff has suffered.
Notwithstanding the improvement he recorded, Dr Klug, in October 2014, said the plaintiff is "a severely and chronically psychiatrically ill man whose state is likely to deteriorate over time". He went on to describe the prognosis as being "poor" and he used the same word to describe the plaintiff's capacity for work.
In December 2015 Dr Klug expressed his opinion in this way: "My opinion is that Mr Kraus suffers from the following: A schizophrenic illness A chronic major depressive disorder Alcohol abuse/dependence in remission Polydrug abuse/dependence in remission. He no longer presents with a history of intermittent panic attacks or a specific phobia for car travel. These diagnoses above are in the context of a closed head injury and probable traumatic brain injury in the relevant accident associated with multi-trauma which I have detailed elsewhere, as have others."
In February 2016 Dr Klug expressed his agreement with the views of Professor Sachdev, a neuropsychiatrist retained by the defendants. Professor Sachdev's reports are in Exhibit 1. He first saw the plaintiff in February 2013. He provided a comprehensive statement of his reasoning which led to his conclusion that there was a causal relationship between the head injury and the plaintiff's psychotic condition.
By May 2015 Professor Sachdev had noticed a decline in the plaintiff's level of functioning and described him as "continually psychotic". This is consistent with the plaintiff's perception of hearing voices and seeing visions "24/7".

Damages

It is clear from the medical evidence that the plaintiff's mental condition is serious, severe and likely to deteriorate. There is no reasonable prospect of improvement let alone cure. The best that the plaintiff can hope for is stabilisation through continued medical care and maintenance. He is plagued by demons and spirits. He thinks that witchcraft is real and surrounds him. He hears unwelcome voices and sees unwelcome visions.
In addition the plaintiff still has a degree of suffering from his physical injuries. Even if he does not come to surgery on his left hip it would seem that he will suffer aches and pains from time to time in particular with more physical exertion. I think the range set by the parties reflects the proper width of the appropriate damages for non-economic loss. I think $350,000 is a fair figure.
Past out of pocket expenses were agreed at $4,912.84.
The plaintiff claimed $200,000 for future out of pocket expenses. The defendants suggested $50,000. The defendants accepted that there would be a need for psychiatric consultation as well as a continuing need for medication. The defendants however disputed the plaintiff's claim for institutionalisation because this was likely to occur in a public hospital. The defendants pointed out Dr Klug's observation that there are no available private chronic psychiatric hospitals (Exhibit B, report of 14 May 2015).
Dr Klug's final estimation of medication was in the order of $200 per month. He had however provided an earlier range of $50 to $200 per month. The plaintiff now very rarely takes Panadeine and he has the monthly Depot injection. I think the lower figure of $50 per month for medication is therefore more appropriate. I will translate this figure into a weekly sum of $12.50. The plaintiff's life expectancy is 51 years. On the 5% tables the calculation is 980.6 x 12.5 = $12,257.50.
I accept Dr Klug's suggestion of 4 psychiatric consultations per year which equates to about $27 per week. Again on the 5% tables the result is $26,476.20. The total so far is $38,733.70. I think some allowance must also be made for occasional physiotherapy sessions as well as further treatment, even if not surgery, for the plaintiff's hip over the remainder of his life. Adding an element for these factors into the total I think the defendants' suggestion of $50,000 is appropriate.
Turning now to past economic loss the parties agreed that the plaintiff's earnings as at the date of the accident were about $340 net per week. They also agreed that there had been 235 weeks since the accident during which time the plaintiff has not worked. The defendants' approach was to continue the $340 per week over the 235 weeks to produce a total figure of $79,900.
The plaintiff said that it was unfair to use the base figure of $340 per week for a number of reasons. Firstly the plaintiff was working part-time as at the date of the accident in order to assist with his daughter. Taking into account that his wife and daughter left him (for reasons not related to the accident) it is likely that he would have gone on to full time work. Secondly, it was pointed out that when the plaintiff worked for Telstra in 2011 his net wage was in the order of $788 net per week (Exhibit G). This showed that he had at times worked for a higher wage than $340 and although he generally lacked capacity it was an indication of what the loss should be. I note here that the defendants did not suggest, for the past, that the plaintiff had any retained capacity to work other than during the times he had been in employment.
I think there is considerable force in the plaintiff's approach and I agree with what I think is a reasonable net loss of $500 per week over the 235 weeks. The figure takes into account the plaintiff both staying in part-time work and also moving to full-time employment sometime after his wife left him. $500 per week for 235 weeks produces a figure of $117,500. Lost superannuation benefits at 11% are $12,925.
For future economic loss the plaintiff said that he should be treated as having no capacity to work and that a base figure of $850 net per week should be used. The defendants allowed a base figure of $600 per week but suggested a higher than normal deduction for vicissitudes of 25% to take into account a residual earning capacity.
My first task is to make findings in accordance with section 126 of the MACA. I am satisfied that but for the accident the plaintiff would have continued to work until normal retirement age in the type of employment he was pursuing at the time of the accident, although he would have had the capacity to move to different fields of work. I am satisfied that other than for periods when he may have combined part-time work with child-minding that he would have generally worked on a full-time basis. I note that other than for the two years before the accident his general employment history was one of full-time work.
While he may have made the above lifestyle choices which from time to time would have seen him engage in part-time, rather than full-time, employment I do not think the 'normal' vicissitudes of 15% would have been inappropriate.
In my view the plaintiff does not have any measurable residual earning capacity. Although he might find the odd job from time to time he is unlikely to keep it and in the one profession where he considers himself capable, namely courier driving, he is subject to the very dangerous influence of the spirits which may dictate his ability to drive safely. My conclusion is primarily based on the plaintiff's mental health condition but his physical disabilities also play a part.
Dr Klug said the plaintiff's "capacity and fitness for work in general is negligible". Dr Sachdev did seem to allow for some basic employment on a part time basis. Dr Glozier generally agrees with Dr Sachdev. Notwithstanding this agreement I am of the view that the plaintiff's incapacity is so affected by the voices and visions that he sees that the likelihood of him not being able to hold down a job effectively renders him unemployable.
I will however allow for the possibility of some retained capacity and short intermittent periods of employment by applying a higher level of vicissitudes, but not to the extent suggested by the defendants. I will make a 20% deduction.
In relation to the starting rate, as I have pointed out, the plaintiff has shown a capability of earning $788 per week net, as far back as May 2011. Accordingly I think the plaintiff's suggested figure of $800 per week is fair. $800 per week for 34 years less vicissitudes of 20% on the 5% tables produces a figure of $554,176. Lost superannuation benefits on this amount, at 11%, are $60,959.36.
Past gratuitous care was agreed at $30,000.
In respect of future care the claim was for paid care at an agreed rate of $40 per hour. The plaintiff suggested $1,000 per week (which is 25 hours) whereas the defendants submitted 7 hours per week was sufficient. The defendants agreed that paid care was appropriate but did say the plaintiff's mother and sister would still contribute in 'keeping an eye on the plaintiff.'
I think the suggestions of both sides are outside the appropriate range. I first of all note that the plaintiff did not rely on Exhibit A, the occupational therapist's report, but rather on an overall submission about the various needs the plaintiff would have. It was submitted that he would need a domestic cleaner, a handyman from time to time, a person to prepare his meals and generally be a housekeeper and also a person to supervise his activities if only in a general sense of monitoring him from time to time and suggesting things he might do.
The plaintiff pointed out that he wanted to live in a house and he should be entitled to receive damages on this assumption.
In my view the evidence does not support a probability that the plaintiff will live in a house at least not for any extended periods of time. Although he is generally compliant with requests from other persons his disabilities are likely, as has been the case recently, to force him to move to different locations as well as spend time in alternate accommodation including boarding houses and perhaps even, hopefully rarely, his motor car.
While I think he would benefit from overall supervision I think this is likely to be provided by his mother and sister. They do both have their own lives to lead but it is clear from their devotion to the plaintiff to date that they are unlikely to not have an input into his activities, if only on a periodic 'check-up' basis.
I think the plaintiff does need someone to clean whatever accommodation he is in as well as to perhaps do some washing and provide general occasional maintenance assistance. In my view an average of 15 hours per week would achieve these purposes. On the 5% tables, for the balance of the plaintiff's life expectancy, the resulting figure is $588,360.
A summary of the damages I have allowed is as follows: Non-economic loss $350,000.00 Past out of pocket expenses (agreed) $4,912.84 Future out of pocket expenses $50,000.00 Past economic loss $117,500.00 Past lost superannuation benefits $12,925.00 Future economic loss $554,176.00 Future lost superannuation benefits $60,959.36 Past gratuitous care (agreed) $30,000.00 Future paid care $588,360.00 Total $1,768,833.20

Before entering judgment the above total must be adjusted to take into account the agreement on contributory negligence, the Section 83 payments ($1,094.34) and the addition of funds management. I note here the defendants accepted the need for funds management.
The parties requested me to give my reasons on the assessment of damages and to allow them the opportunity to agree on the above adjustments.
The appropriate costs order is that the defendants should pay the plaintiff's costs. I will however hear the parties if any other costs order is sought.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2016

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Judgment (9 paragraphs)

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