Loss of future earning capacity.
153 In determining the damages to be awarded for loss of earning capacity, a comparison must be made between the amount which the plaintiff would probably have earned but for injury, and the amount he is now capable of earning.
154 In addressing the top line of the calculation (what he probably would have earned, but for injury) Dr Locke, at worst, would have remained a career medical officer, working in a hospital emergency department. He would have progressed through the grades under the award. Although he may not have continued to do multiple double shifts (as before the birth of the twins), he probably would have undertaken shift work and overtime, so that his earnings would have been the award plus 20 percent (supra para 139).
155 However, for the reasons stated (supra paras 134 to 138), I think it unlikely that Dr Locke would have remained a career medical officer. I believe he would have qualified as a specialist in emergency medicine (conservatively a 75 percent chance).
156 The calculation of the plaintiff's loss, in these circumstances, should reflect the principle stated in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, per Deane and Gaudron and McHugh JJ at 642-3; and Norris v Blake (1997) 41 NSWLR 49. Luntz, "Assessment of Damages for Personal Injury and Death" (4th Ed) stated the principles in these terms (omitting references): (at 322-333)
"Where plaintiffs would probably have improved their position, eg been promoted, received regular increments on a scale or perhaps become successful entrepreneurs, allowance must be made for increases in earnings in the calculation of what the earning capacity would have been. These should be calculated from the date of the probable increase, with an allowance for contingencies according to whether the chances favour the increases at an earlier or later date. Where the plaintiff had various possible career paths open, it is mistaken to calculate a 'weighted average' of only some of them; calculations should be made on the basis of earnings in the most probable one and adjustments made upwards or downwards according to the chances of the alternative yields of earnings ." (emphasis added)
157 The earnings of a specialist in emergency medicine were stated by Dr Sammut to be $180,000 per annum gross (T151). Dr Raftos, who practised as a specialist, provided his taxation returns. For the year ended 30 June 2003 his gross earnings were $258,550. The plaintiff submitted that the figure suggested by Dr Sammut and the earnings of Dr Raftos should be averaged. However, Dr Raftos is a senior and experienced specialist. His earnings reflect that seniority. Nonetheless, the award (Ex M) suggested progression through grades and seniority. Indeed, the upper limit may exceed the current earnings of Dr Raftos. I think it reasonable to assume that, had Dr Locke qualified as a specialist, and worked in that capacity until the age of 65, he would have earned about $200,000 per annum gross throughout.
158 In respect of what I have called the top line of the calculation, therefore, the following principles should be applied:
· First, the earnings as a specialist would not begin until 1 January 2006. Before that date Dr Locke's earnings should be calculated by reference to his earnings as a career medical officer, as set out above.
· Secondly, for the same reasons, the calculation of the likely earnings to age 65 at the higher rate must reflect the postponement.
· Thirdly, the comparison is between Dr Locke's probable earnings as a specialist (averaging $200,000 per annum gross to the age of 65 as a broad brush figure), and the earnings he would have achieved as a career medical officer (including overtime). On my estimate he had a 75 percent chance of reaching the higher figure. That difference represents the top line of the calculation, that is, what he would have earned but for injury. I am conscious of the fact that the $200,000 estimate to some extent incorporates increases which would have accrued during his time as a specialist, as he became more senior. Comparing that sum to his present earnings as a career medical officer to some degree inflates the difference. Nonetheless, the figures stated are conservative and, given the nature of the estimate, the calculation upon that basis is, I believe, reasonable.
159 What is Dr Locke now capable of earning? It was common ground between experts, and ultimately accepted by Dr Locke himself (T249), that he should leave emergency medicine. Dr Locke also appeared to accept that he would ultimately return to work full time in some capacity. The issue is what work is within his capacity.
160 There were broadly two possible career paths, and alternatives within each. One possibility was to remain in medicine, in which case Dr Locke may pursue clinical or non-clinical alternatives (or a combination of the two). The clinical alternatives involve dealing with patients face to face, and managing their problems. The other broad possibility was that Dr Locke would leave medicine, in which case he may choose many different paths.
161 Before considering the likelihood of these alternatives, it is perhaps helpful to set out the conclusions offered by various doctors as to his likely work future. Dr Galambos, the treating psychiatrist, said this: (Report 23.5.03 Ex A: p518)
"The current timeframe for his return to full-time work is September 2003. I believe Dr Locke is attempting to identify alternative work to conduct, in addition to the part-time emergency department shifts, that will bring his hours up to full-time that will be less likely to cause PTSD symptom exacerbation.
In my opinion, Dr Locke will be capable of finding a work regime that will suit him - that will trigger minimal symptoms. This will likely involve his working full-time in a non-clinical role or a combination of part-time clinical and part time non-clinical duties.
I do not think he will need to limit himself to part-time non-clinical duties. Dr Locke has in the past been attracted to high-pressured medical work, but he will need to adjust to his redefined limitations, which he is identifying through trial and error."
162 Dr Lisa Brown, the psychiatrist qualified by the defendants, said this: (Report 31.7.03: Ex 1)
"I would therefore also concur with Dr Galambos' suggestion that this gent may have difficulty in returning to full-time clinical work as a medical practitioner but would also agree that he is likely to seek full-time work in the longer term, possibly with him gaining some form of non-medical work. Dr Locke suggested teaching as one possible option and there may be other arenas which are less clinically based and which he will be able to adapt to over time. His willingness to seek out rehabilitation options for transferring his skills and the importance of work in this man's self-esteem suggest that he will ultimately return to some form of full-time work. There is a possibility that he will not return to full-time clinical work, particularly given that he does not appear to have any personal interest in medical areas which might be less threatening to him."
163 The solicitors for the defendants sought clarification of that view. Dr Brown provided a further report of 11 August 2003, in which she said this:
"However, as to the comment contained within this report that Dr Locke is likely to have an ongoing permanent impairment in return to fulltime clinical work, this comment would refer to him having limitations in returning to accident and emergency type work only. However, such a difficulty would not impair this gent from returning to fulltime clinical work, if he were willing to work in areas where there was less likelihood of him being required to perform resuscitation techniques. For example, there are a number of sub-specialties in which such a situation is unlikely and although Dr Locke was expressed a lack of interest in such options, his condition would not preclude him from working in these capacities. Moreover, he would also be able to work in non-clinical areas such as teaching, administration, medico-legal work and other allied settings such as occupational health and safety.
I would therefore alter comments made in the prior report of Dr Locke having an ongoing impairment to return to fulltime clinical work, excepting that he is likely to have such an impairment if he continues to work in his current role."
164 Plainly a number of areas of clinical work are now unsuitable because they periodically and regularly give rise to situations of emergency, which are likely to trigger or exacerbate symptoms. Surgery, cardiology, anaesthetics and intensive care are examples.
165 The defendants suggested, nonetheless, that there were many areas which were well within Dr Locke's capacity. He could, for instance, perform ward work in a hospital or, alternatively, could pursue specialist qualifications in some other area. They suggested radiology or dermatology, psychiatry or rehabilitation. At the very least Dr Locke could, according to the defendants, enter general practice. Dr Locke dismissed each of these alternatives. He characterised many as boring or mundane. They were areas of medicine in which he had no interest.
166 The defendants submitted that I should be unimpressed by such an attitude. Regrettably, as I have remarked, the hearing of this matter coincided with Dr Locke's realisation that he was no longer suited to emergency medicine. He had not yet had the opportunity to think deeply about alternatives. I have no doubt that his rejection of each alternative in cross examination was an honest reaction to each suggestion as it was made. However, that reaction is not determinative, even taking account of Dr Locke's fragility, and his vulnerability to depression should he not find a path to his liking. Dr Galambos said this: (T158)
"Q. Would he still be exposed to the problem of depression if it wasn't the work that he wanted to be doing?
A. Absolutely."
167 Although work outside emergency medicine may strike Dr Locke as boring at this point, that may change. Dr Locke gave the following evidence: (T257/258)
"HIS HONOUR: Q. Are there aspects of emergency medicine even before this accident which didn't hold your interest, in other words?
A. Emergency medicine in total was certainly my passion. There is certainly aspects of emergency medicine which are of less severity than others.
Q. I mean, all jobs involve certain mundane routine tasks?
A. Yes.
Q. Hasn't it been your experience in life that when you start something it may not seem interesting, but the more you go into it, the more interesting it becomes and, ultimately, it becomes a passion?
A. Certainly in my own experience that has been the case, in emergency medicine, specifically. But, given my path so far, I have really excluded the things that I do not have a passion for, if that answers it, your Honour. Certainly passion grows from experience within, but also the recognition of no passion also does that. But certainly in the path of medical training and working in medicine, I know the things that I do not have a passion for."
168 Ward work may be within Dr Locke's capacity. Managing a ward is less stressful than working in an emergency department. Much of the work is routine. It may fairly be described as "boring". However, patients in a ward are there because they are sick or have a problem. They may deteriorate rapidly, such that the doctor in charge must intervene. They may, for instance, suffer cardiac arrest and require resuscitation. They may become critically ill. They may suffer a fit. It may take some time for the emergency team to arrive (T104). Dr Galambos expressed the following opinion about the suitability of such work for Dr Locke: (T158)
"Q. Just one other thing, Doctor, supposing he were to continue working in a hospital environment, with the potential that he has per se, but is not in an emergency ward, or department I should say, but nonetheless in ward situations where he is exposed from time to time to critical situations, do you see any real possibility that he could do meaningfully more shifts than he is doing now for example?
A. If he was conducting work in a lower stress environment, a non-emergency department?
Q. Yes, but which still had the potential for time to time stressors, for example on night shift without support for crisis management?
A. I think it's possible that he could work in that setting but it certainly would not be without its risks.
Q. I'm asking more about the quantum of work he could do there, would it in reality be likely that he could work more shifts than he is doing now or not?
A. Yes, it is likely that he would be capable of working more shifts than currently in a lower grade stress environment with less triggers.
Q. Would he still be exposed to the problem of depression if it wasn't the work that he wanted to be doing?
A. Absolutely."
169 Ward work must be viewed therefore as a possible but unlikely alternative.
170 The defendants suggested that there were a number of alternative specialties which Dr Locke could pursue. He had, after all, won the prize in dermatology. Surely, it was argued, that was a speciality open to him, where patients were unlikely to be in crisis. He could earn the same, or more, than he would have earned had he successfully completed his specialist qualification in emergency medicine. The defendants tendered a number of letters prepared by practitioners in each area of speciality. They identified the qualifications required, and the work performed. They also indicated the salaries which they earned which, in every case, were comparable to those earned by Drs Sammut and Raftos (Exs 4, 5 and 6).
171 I do not believe, however, that any of these specialities offer a realistic career path for someone in Dr Locke's position. First, Dr Locke now finds it difficult to concentrate. He has problems with his memory. He doubts his ability to undertake the study required to obtain post graduate qualifications (T99; 243). I accept that it would be difficult.
172 Secondly, Dr Locke is now 45 years old. Each suggested alternative involved an area of medicine in which he has not practiced and in which he presently has no interest. Whilst he may develop an interest, that is likely to take time. Each course involved at least five years study and training. Some required experience before undertaking the course. Whilst Dr Locke would have been a latecomer to emergency medicine, there is a world of difference between the situation he faced in the year 2000, when he contemplated that specialty, and the situation he now faces. In 2000 he had experience and a passion for his area of interest. Four and a half years on, he is fragile and has neither experience nor interest in the areas suggested.
173 Two other alternatives were suggested which cannot so easily be dismissed. The first was administration. Dr Locke, according to Dr Jagger, demonstrated some flair for administration when he undertook discharge work at the Canterbury Hospital (supra para 68).
174 Dr Locke, however, did not believe that he had any aptitude in administration (T237). He had no wish to be a public servant or a hospital administrator (T231). Hospital administration would require a Masters Degree in Health Management, which is a two year course full time, although typically studied part time over six years (Ex 6). Members of the Royal Australasian College of Medical Administrators require a minimum of three clinical years and three years in a position appropriate to the specialty of medical administration (Ex 6). Dr Locke doubted his ability to complete the study necessary to obtain a Masters Degree (T238). His expressed lack of interest in administration had some basis in experience. Given his age, the study, and his lack of interest, it appears an unlikely although possible career path.
175 The other alternative was general practice. Dr Locke already has the qualifications to undertake work as a general practitioner. He could, if he wished, embark upon further study to become a Fellow of the Royal Australasian College of General Practitioners. Were he to do so, he would receive a higher Medicare rebate for consultations he undertook. There is a shortage of general practitioners. Dr Locke acknowledged that he would have no difficulty in finding work in that area (T140). A general practitioner typically earns between $80,000 and $120,000 per annum gross (after payment of all overheads) (T210). They may earn more, especially if they are prepared to practice what was termed "revolving door" medicine, involving a large number of short consultations.
176 Dr Locke was less than enthusiastic about general practice as a career. Indeed he said this: (T142)
"Q. Dr Locke, do you have the slightest intention of exposing yourself to the type of stressors you described to his Honour if you were to be plunged into general practice?
A. Absolutely not."
177 Dr Locke had a number of objections to the suggestion of general practice. First, as a general practitioner he believed it likely he would be confronted by emergencies of the type that he had found himself incapable of dealing with in the emergency department. He said this: (T137)
"... what comes through the emergency department or comes through a GP's door; people with heart attacks, people who have chest pain, fluid on their lungs. That walks through a GP's office the same as it does walk through the door in an emergency department."
178 Indeed, because of delay in emergency departments, some patients with life threatening problems chose to present at the surgery of a general practitioner rather than a hospital (T137). Secondly, general practice involves the running of a small business, with the stress that involves. Dr Locke had never worked as a general practitioner. He did not want the stress of running a business (T137).
179 Thirdly, Dr Locke said that if he were to become a general practitioner, he could not operate the sort of practice described by Dr Walsh, a general practitioner called by the defendants. Dr Walsh did not work after hours. He referred his patients to an after hours service. Dr Locke said this: (T241)
"A. Certainly I - I don't think that I would practise the way Dr Walsh does.
Q. Could you? I mean could you permit yourself to?
A. No, I don't believe so.
Q. And why is that?
A. Certainly in, say, regards to his after hours arrangement, I would feel that if it was my practice and a sole practice, then I would be obliged to have some sort of personal after hours care, not sending them to a hospital or a joint practice or somewhere else, if they were my patients.
HIS HONOUR: Q. Although it is a common arrangement, isn't it?
A. I - it is a common arrangement. But certainly a lot of hospital presentations are - there is a lot more hospital presentations because of it, as opposed to dealing with patients who would ring up to their practice. I would say that if you looked at it as the old time general practitioner who did house calls, et cetera, that's gone, and for me to do general practice, I would think I would need to provide that service. I think that's a part of being a general practitioner.
WILLIAMS: Q. How would you feel, for example, if you were able to practise in general practice if you had that sort of structure and, for want of the sort of attention you are talking about, a patient died?
A. I think if I was put in that position and because of my current situation that happened, I would never live with myself."
180 Dr Walsh was a sole practitioner. He had a family practice at North Annandale which he had operated for 14 years. He gave the following evidence: (T209)
"Q. And in the course of that 14 years how often has an urgent medical emergency presented itself?
A. Never.
Q. Do patients come into your rooms complaining of chest pains which they think may be a heart attack for example?
A. Yes, approximately once per month.
Q. And what do you do with those patients?
A. In most cases I would refer them to the hospital. If they appear high risk I might send them by ambulance to hospital.
Q. Have you ever had an experience of a patient going into fits in your surgery?
A. No.
Q. Have you had any experience with patients who have suffered some kinds of injuries such as a serious workplace or serious car accident injury coming into your surgery?
A. No.
Q. What happens to those sorts of patients?
A. They bypass general practices and go directly to hospital emergency departments I believe."
181 The plaintiff, responding to Dr Walsh, tendered a letter prepared by Dr Eric Fisher. Dr Fisher was a general practitioner of long standing and a Fellow of the Royal Australasian College of General Practitioners. He had been appointed a representative on the New South Wales Medical Board Tribunal and to the Professional Standards Committee. Commenting upon Dr Walsh's evidence, he said this: (Ex K)
"In over some 53 years I have never worked in a general practice either as a locum or a principal where an emergency has never presented."
182 The explanation for the difference between the experience of Dr Walsh and that of Dr Fisher lies, in part, in the definition of an emergency. Dr Fisher, referring to chest pains, drew attention to the following passage from a book, "General Practice" by Murtagh 1998 (2nd Ed): (p337)
"The presenting problem of chest pain is common yet very threatening to both patient and doctor because the underlying cause in many instances is potentially lethal."
183 On balance I believe that, with adjustments, Dr Locke probably could undertake the work of a general practitioner. He would need to practise with others, so that there was some back-up in the event of an emergency. It is likely that he would be employed rather than in partnership, which may limit his potential and his earnings. In respect of after hours work, he may need to compromise. He would ordinarily receive from the patient or their relative a description of the problem. He would need to recognise his limitations. Depending upon his assessment, he may choose to deal with the problem himself or summons an ambulance or suggest an alternative service. Operating within these limitations would still involve the risk of relapse. However, Dr Locke's present work in the emergency department, even with back-up, still carries risk. The risk, nonetheless, is thought to be manageable and by and large has proved to be such. Similarly, it seems to me that general practice along the lines described could be carried out without undue risk.
184 The defendants also suggested a sub-specialty of either orthopaedic medicine or general practice, namely, sports medicine. However, a practitioner from that specialty was not called, nor other material tendered which would enable a realistic appraisal of Dr Locke's potential to pursue it. Little can be said beyond the fact that it coincided with Dr Locke's interest in sport and fitness, and presumably the patients would be relatively fit and young, and unlikely to present as an emergency. However, I am not able to say whether such a specialty really is open to Dr Locke and, if so, what he would earn were he to pursue it. Like teaching and research, it is a possible career path within medicine. On the information available, it appears to be a remote possibility.
185 One then comes to the second broad alternative, which is that Dr Locke may leave medicine. The plaintiff's counsel, in written submissions, suggested that it was a real possibility. It was said that, outside medicine, Dr Locke could only hope to earn average weekly earnings for males working in New South Wales (Plaintiff's Submissions 27.2.04: p27). The defendants rejected that suggestion, making the following submission: (Defendants' Submissions 2.3.04: p7)
"The suggestion that the plaintiff might work completely outside the medical field is a proposition that took flight only during the case itself: see, eg, T246.25ff and cannot, it is submitted, be treated seriously."
186 It is not accurate to suggest that the possibility of leaving medicine only arose during the hearing. Dr Lisa Brown, the psychiatrist qualified by the defendants, adverted to the possibility in her report of 31 July 2003 in the passage already set out (supra para 162) which, for convenience, I repeat:
"I would therefore also concur with Dr Galambos' suggestion that this gent may have difficulty in returning to full-time clinical work as a medical practitioner but would also agree that he is likely to seek full-time work in the longer term, possibly with him gaining some form of non-medical work ."
(emphasis added)
187 When cross examined, Dr Locke gave the following evidence: (T246)
"Q. What was asked of you on 27 August was this, at page 105 of the transcript: 'Do you see the possibility that you may have to seek employment outside medicine?' Your answer was: 'That is certainly a possibility'?
A. Yes.
Q. But what I am suggesting to you is that you have been saying to Dr Galambos consistently before you gave evidence in these proceedings that you had hopes of returning to full time medicine after this case was determined?
A. It has always been my wish to attempt to do that.
Q. That remains your wish?
A. I would always like to work in emergency medicine."
188 Counsel then explored possibilities within medicine, other than emergency medicine. Dr Locke agreed that he had invested "an awful lot of time and energy" in obtaining his medical qualifications. He suggested that perhaps he would use that knowledge and those skills in some new endeavour, yet to be identified. Nonetheless, during cross examination the plaintiff responded as follows: (T255)
"Q. Now, wouldn't you agree that it is in truth highly unlikely that you will give up medicine altogether?
A. I think it is highly likely."
189 For the reasons already stated, at the time of the cross examination (and partly as a result of the process) Dr Locke had only just accepted that he would not return to emergency medicine, so that his response, although honest, is not necessarily the final word. He has yet to examine in depth the alternatives.
190 Greater insight is provided by the evidence of Dr Galambos. He drew attention to the loss of trust by Dr Locke in the medical profession and the "system" (T99, supra para 104). Dr Galambos gave the following evidence, being the perspective of someone who had been treating Dr Locke as his psychiatrist for a number of years: (T168/9)
"Q. Doctor you were asked about your perception as regards the future, whether Dr Locke would get back to some form of full time work and supposing, as appears to be your view, he won't be able to get back to full time emergency work, do you believe he will stay in medicine?
A. I think that there's a reasonable chance to say he may not. That's my opinion but it's based on impression not on actual, not on any specific discussion with Dr Locke.
Q. But that's your personal feeling about what will happen?
A. I think there's a good chance of that happening."
191 There is a high chance, falling short of a probability, that Dr Locke will leave medicine. He is plainly a man of intelligence, with significant qualifications and experience in a number of areas. Doing the best I can, in an area of great uncertainty, I believe the plaintiff now has the capacity to earn $80,000 per annum gross, taking account of his probable earnings, were he to remain in medicine, or his likely earnings were he to work outside.
192 That figure takes account of the possibility of periods of incapacity, where periodically his post traumatic stress symptoms may flare and become disabling, or he may suffer from depression.
193 The calculation of the amount to be awarded to the plaintiff for his loss of earning capacity should reflect these reasons. I have expressed figures as gross figures because I do not have available the corresponding net amount. The gross figures should, of course, be converted to net figures in order to calculate the appropriate difference. The amount to be awarded should also reflect the following findings and principles:
· First, that Dr Locke would, but for injury, have worked to age 65.
· Secondly, he should have the present value of the difference between what he probably would have earned, calculated by reference to para 139 above, and what he is now capable of earning, calculated by reference to para 191 above, applying the 3 percent tables.
· Thirdly, there should be an allowance for vicissitudes of 15 percent.
194 The parties should, within 14 days of this judgment, confer and agree, if possible, upon those amounts which I have not calculated, in respect of which I have endeavoured to make appropriate findings and identify the guiding principles.