Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital - [2017] NSWDC 372 - NSWDC 2017 case summary — Zoe

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Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital

[2017] NSWDC 372

District Court of NSW|2017-05-24

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-05-24

Catchwords

(2009) 260 ALR 628
(2009) 84 ALJR 19

Source

Original judgment source is linked above.

Catchwords

(2009) 260 ALR 628(2009) 84 ALJR 19

Judgment (85 paragraphs)

[1]

Counsel: Mr M Thompson (Plaintiff) Mr R Scruby (First Defendant) Mr G Gemmell (Second Defendant)

[2]

Solicitors: Gerard Malouf and Partners (Plaintiff) Kennedys (First Defendant) HWL Ebsworth (Second Defendant) File Number(s): 2014/00275827 Publication restriction: None

[3]

Judgment Introduction The Plaintiff's case The first defendant's case The Second defendant's case chronology re liability The Evidence The Plaintiff's Evidence Cross-Examination on behalf of First Defendant Cross-Examination on behalf of the Second Defendant Re-Examination of Plaintiff Janet Elizabeth Allan Annette Marie Easson Simon Connor Larissa Grund (the Psychiatrist) Evidence of the Experts The Experts' Reports Associate Professor Kennedy, Consultant Physician and Clinical Pharmacologist (for the plaintiff) Matthew James, Nurse Practitioner (for the first defendant) Professor Matthew Large, Psychiatrist (for the second defendant) Dr Christie, Pharmacologist (for the second defendant) Joint Report of Professor Phillips, Dr Teoh, Mr James and Professor Large Joint Report of Dr Kennedy and Dr Christie (Exhibit B, page 620 and following) Concurrent Evidence of Experts Analysis Application of Civil Liability Act 2002 (CLA) to the Facts The Accident Plaintiff's Submissions on Liability First Defendant's Submissions on Liability Second Defendant's Submissions on Liability Apportionment of Liability between the Defendants Contributory Negligence Assessment of Damages The Plaintiff's Evidence The Evidence of Terry John McKittrick The Expert Medical Evidence on Quantum Analysis of Evidence Regarding Quantum Actuarial Factors Heads of Damage Non-Economic Loss Past Treatment Expenses Future Treatment Expenses Past Economic Loss Future Economic Loss Past Domestic Assistance Future Domestic Assistance and Care Summary of Assessment of Damages Disposition Orders

[5]

The Plaintiff's case

After the hearing had concluded, the plaintiff was granted leave to rely upon a Third Amended Statement of Claim which was filed on 26 June 2017. It is alleged that at the time of her discharge from the Hospital the plaintiff was affected by a "lack of sleep including tiredness, drowsiness, cognitive impairment and sedation" (Third Amended Statement of Claim paragraph 5A). The evidence did not support a claim for cognitive impairment and that was not pressed.
The risk to which the plaintiff was exposed by the conduct of the defendants was said to be "the risk to a patient of the hospital taking a range of medications who was driving to Wyong whilst suffering tiredness, drowsiness, cognitive impairment or sedation of losing control of the motor vehicle and crashing and suffering personal injury" (Third Amended Statement of Claim, paragraph 10A).
The particulars of negligence alleged jointly against both defendants were: 1. failing to take an adequate history from the plaintiff; 2. failing to consult the plaintiff's clinical record; 3. failing to observe the effect on the plaintiff of the medication; 4. failing to monitor the plaintiff while taking the medication; 5. failing to observe the plaintiff's condition before discharging her from its care; 6. failing to ascertain the means whereby the plaintiff was journeying home from the hospital; 7. furnishing the plaintiff's car keys to her at the time of her discharge from its care; 8. inviting the plaintiff to operate a motor vehicle immediately upon her discharge from its care; 9. failing to warn the plaintiff that potential effects on her of taking the medication were cognitive impairment and sedation; 10. failing to warn the plaintiff that a potential effect on her of taking duloxetine was a seizure; 11. failing to caution the plaintiff not to attempt to operate a motor vehicle while under the effect of the medication; 12. failing to caution the plaintiff not to attempt to drive a motor vehicle from the hospital to Wyong while under the effect of the medication.

[8]

chronology RE liability

The clinical notes produced by the defendants were in evidence (Exhibit 1-D1 and elsewhere). They are records, which in the ordinary course, would have been created at a time contemporaneous to the events to which they relate. They were also business records and deserve the special status which such documents ordinarily attract.
Counsel for the first defendant, in part, relies upon the clinical notes as evidence of what occurred on the day of the plaintiff's discharge (First Defendant's Submissions) (FDS 27 and following).
It is submitted on behalf of the first defendant that the clinical records "are, by a large margin, the best evidence the Court has in relation to the events of the period" [FDS 30]. My attention was drawn to the comments made by the majority in Fox v Percy (2003) 214 CRL 118 at [30] to [31] where Gleeson CJ, Gummow and Kirby JJ in reference to a trend on the part of the trial judges and appeal courts to limit their reliance: … on the appearance of witnesses and to (instead) reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.
Counsel for the first defendant also referred to the decision of the Court of Appeal in Albrighton v Royal Prince Alfred Hospital [1990] 2 NSWLR 542 at 548 - 549 where Hope JA stated: Any significant organisation in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of part IIC [of the Evidence Act 1898 (NSW)] … No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, then in the recollection of persons trying to describe what happened at some time in the past. When what is recorded is the activity of the business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth.
The first defendant submitted that, the position is the same in relation to the Hospital records in this case (FDS [32]).
In the circumstances of this case, where just one treating nurse was called on behalf of the first defendant (Nurse Easson) and just one of the several treating psychiatrist (the Psychiatrist) called in respect of those who provided treatment to the plaintiff, I consider the Hospital notes to provide an invaluable insight into the events which occurred during the plaintiff's hospitalisation. Of course, given that the business records were not prepared in detail, with a view to litigation, they must be read in conjunction with the oral evidence from those witnesses called by the parties. This is particularly so in instances in which it is apparent that the notes do not provide a full account of all events.
Nevertheless, the records permit a number of findings which I believe ought to be made. Extracted below, is a table setting out material events derived from the Hospital notes together with findings which I make relying upon those notes, having regard to their contemporaneity, objectivity and apparent accuracy.
The following chronology is based on the documentary evidence (Exhibit 1-D1). Where there is a conflict between the record and other evidence or where witness evidence assists in shedding light on the chronology, comments have been added. Findings are highlighted in bold. Date Time Event (if known) Wednesday Consulted Dr Lim, GP, complaining of being suicidal. Referred to Wyong Hospital Emergency Department. 07.12.11 Admitted to the Wyong Hospital Mental Health Unit. Friday Transferred from the Wyong Hospital Mental Health Unit to the Hospital under the care of the Psychiatrist. The plaintiff drove herself between Hospitals. On initial assessment variable sleep disturbance was recorded. 16.12.11 Although admitted under the Psychiatrist, other medical practitioners were involved in the plaintiff's care over the initial holiday period. The Psychiatrist first consulted the plaintiff on 6 January 2012 and was the psychiatrist attending to the plaintiff's care from that date up until discharge. I find that the Hospital was aware that the plaintiff was suffering sleep disturbance from the time of admission to the Hospital on 16 December 2011. Further, as is made clear below, this continued during the plaintiff's stay at the Hospital. Saturday Nursing notes recorded the plaintiff's concern about sleep and pain during the night. 17.12.11 I find that the plaintiff's sleep disturbance continued after admission and that the Hospital was aware of same. Monday Examined by Dr Winter, Psychiatrist, who recorded that the plaintiff was over-sedated. Noted that she wishes there was something to make her less drowsy. Noted that Tramadol ceased due to drowsiness and affecting her kidneys. 19.12.11 I find that the treating psychiatrist considered the plaintiff over-sedated and drowsy as at 19 December 2011. Thursday Reviewed by Dr Lienert, Psychiatrist, noted ongoing insomnia - still requiring Stilnox most nights. 22.12.11 I find that on 22 December 2011, the plaintiff was suffering ongoing insomnia and required medication. Thursday 22.12.11 - Tuesday Reviewed by Dr Lienert - sleeping with hypnotic at night. 27.12.11 Thursday 05.01.12 Plaintiff asleep when psychiatrist arrived to review her in the afternoon. He, therefore, reduced her mane dose of OxyContin. By inference, I find that the plaintiff was suffering day time tiredness thought by the attending psychiatrist to be as a result of the medication. Friday 06:00 Plaintiff did not go to bed until approximately 01:30 hrs (sat at her desk) and states that she can't go to bed until she is really sleepy … "has appeared to sleep from approx 02:00 hrs". 06.01.12 I find that the plaintiff was suffering from insomnia as at 6 January 2012, two weeks after admission to the Hospital. First detailed clinical review by the Psychiatrist. Noted "disturbed sleep". Changes made to medications. Plan for discharge 17th or 19th January. I find that as at 6 January 2012 the plaintiff was continuing to suffer from disturbed sleep and that the Psychiatrist was aware of same. I also find that the Psychiatrist was, or ought to have been aware of the matters recorded in the plaintiff's clinical notes since admission. Saturday Permission given for plaintiff to trial 3 hours leave per day "where she can drive her car as long as she attends groups during the week" at the Hospital. 07.01.12 I find that on 7 January 2012, the Psychiatrist gave permission for the plaintiff to drive her motor vehicle without restriction on public roads. Sunday 06:00 Recorded that plaintiff had been up from 03:20 … has been in lounge room watching TV since 03:30 … slept very little overnight. 08.01.12 I find that the plaintiff's insomnia was continuing and that the plaintiff "slept very little overnight" on 7-8 January 2012. 13:45 Complained of feeling increased tiredness and has spent most of time resting on bed. I find that as at 8 January 2012 the plaintiff was suffering from increased tiredness during the day and that it was necessary for her to spend most of the time resting on her bed. 19:00 Plaintiff spent most of shift in bed, short periods spent in common area. I find that the plaintiff spent most of the day in bed on 8 January 2012 due to tiredness. Monday 09.01.12 01:30 Diazepam given on request for insomnia/agitation. I find that overnight on 8-9 January 2012 the plaintiff was unable to sleep and required medication to do so. 06:00 Appeared to sleep well from 02:00 hours. I find that the plaintiff was continuing to suffer insomnia. Missed 09:15 group as was still asleep however attended 11:00 and 13:30 group. I find that, as a result of insomnia, the plaintiff was tired and sleeping during part of the day on 9 January 2012. 18:45 Spent long periods in her room. 21:00 Plaintiff requested and given 20 mg Stilnox and 5 mg Diazepam before retiring to bed. Tuesday Up at 22:00 hours and sat in dining area with fellow clients and chatted until 23:00 hours. Plaintiff then went to her room and sat at her desk writing. Appeared awake intermittently overnight, although nil request for PRN. 10.01.12 06:00 I find that the plaintiff slept poorly on the night of 9-10 January 2012. (7 days prior to discharge) 18:30 Plaintiff complained of feeling very tired this afternoon - woken for dinner … ordered take-away for dinner. I find that one week before discharge, the plaintiff was continuing to experience day time tiredness of which the Hospital was aware. She had to be woken for dinner. Wednesday Plaintiff slept until 03:00. Requested Panadol and Diazepam 5 mg given … awake at 05:00. 11.01.12 06:00 I find that, as at 11 January 2012, the plaintiff has suffered disturbed sleep with an irregular sleep pattern at night. (6 days prior to discharge) 19:00 Plaintiff drove her car to the local shops. Thursday Plaintiff settled to sleep after 12 midnight with PRN sedation and Valium. Appeared to sleep well but was awake approximately 04:30 hours with back pain and discomfort. Requested and given Panadol and Valium 5 mg at 04:45 hours. 12.01.12 05:50 I find that, even after taking sedative medication, the plaintiff's sleep was disturbed during the night of 11-12 January 2012. (5 days prior to discharge) 11:30 Low mood and activity this shift. Friday 13.01.12 06:00 Plaintiff settled to sleep well after 10pm routine Panadol and PRN Valium. She has appeared to sleep well overnight. (4 days prior to discharge) 19:00 Plaintiff rested in bed majority of the afternoon. I find that four days before discharge, the plaintiff was continuing to suffer from day time tiredness of which the Hospital was aware. Saturday 14.01.12 06:00 Plaintiff watched a movie in dining area till 23:00 hours. Patient then went into her room but didn't fall asleep till after 01:00 hours and then appeared to sleep well. (3 days prior to discharge) Sunday 15.01.12 06:00 Plaintiff settled to sleep after midnight. (2 days prior to discharge) 18:00 Plaintiff has had continuous pain today and has remained controlled but distressed by same … Legs elevated and mostly resting on the bed early evening and afternoon. (Emphasis added). 23:00 Plaintiff requested and given 20 mg Stilnox and 5 mg Diazepam prior to retiring to bed. Plaintiff reported mood still low and hoping to get a referral to Hunter Pain Clinic. Monday 16.01.12 06:30 Plaintiff settled in room and appeared to sleep well overnight. (1 day prior to discharge) Reviewed by Dr Grund - first long consultation. She has spent most of today in bed. "I was concerned about her going home today in her current mental state but she assures me she is not suicidal but is very worried about falling into that frame of mind again …" Plaintiff agreed to see Dr Grund as an outpatient on Thursday at 3pm. Comment: the plaintiff's evidence demonstrated that the Psychiatrist's notes of this consultation were incomplete and omitted important information concerning a conversation between them as to the plaintiff driving home. See the discussion below. I find that, as at 16 January 2012: (a) that the plaintiff was experiencing elevated day time tiredness; (b) that the Psychiatrist was aware, or ought to have been aware of (a); (c) that the Psychiatrist had concerns about the plaintiff's discharge due to her current mental state; (d) notwithstanding (c), the Psychiatrist authorised discharge for the next day; (e) that between the consultation on 16.1.12 and discharge on 17.1.12 at 3pm, the Psychiatrist did not review the plaintiff or make any inquiries as to the plaintiff's welfare or fitness for discharge. 22:00 PRN Stilnox 20 mg and 5 mg Diazepam given on request to settle. Plaintiff appeared to be asleep on hourly checks. She also "talking in her sleep" on later morning checks. Tuesday Comment: the plaintiff gave evidence that she was woken by staff for breakfast at 8am. She fell asleep over her breakfast. She was then taken back to her room where she slept. Nursing staff tried to wake her on several occasions but she fell back asleep each time. 17.01.12 06:00 (Evidence of plaintiff at [T46.25-40]). (Day of discharge) Comment: eventually, the plaintiff had a cold shower to wake up. Others packed her bags and carried them to her car which had been moved from the car park to a position close to the Hospital (Evidence of plaintiff at [T48.18-31]). It is apparent that the Hospital's clinical notes did not accurately record the plaintiff's condition on the day of discharge. I accept the plaintiff's evidence as to these events. Plaintiff requested copies of pathology and doctors' letters stating that the Psychiatrist had approved the release of that information. The Psychiatrist failed to record this in notes. Phone call made by Nurse Easson to the Psychiatrist who gave verbal consent for the release of those documents. 11:30 Comment: there is no record of any conversation between Nurse Easson and the Psychiatrist about this telephone call. I find that despite contact being made between the Hospital and the Psychiatrist, the Psychiatrist did not enquire as to the condition of the plaintiff and the Hospital did not advise the Psychiatrist of same. Risk assessment performed by Nurse Easson "reports tiredness lately - Psych aware" I find that at the time of discharge the Psychiatrist and the Hospital were aware of reports of tiredness lately. HoNOS form completed by Nurse Easson. SA2 (self-assessment) form completed by Nurse Easson on behalf of plaintiff at discharge. In answer to question 3E - "did you have a lot of energy?" - "none of the time" was indicated. 14:00 In answer to question 3F - "have you felt down?" - "none of the time" was indicated. In answer to question 3G - "did you feel worn out" - "none of the time?" was indicated. In answer to question 3I - "did you feel tired?" - "none of the time". Those questions related to how much of the time during the past three days that the plaintiff had those feelings. Comment: The answers to these questions are at odds with other evidence about the plaintiff's presentation, as recorded in the Hospital's notes and observed by others. The answers given to a number of the questions are also irreconcilably inconsistent. I find that the self-assessment evidence is generally unreliable. Plaintiff discharged: Approx. Comment: After the risk assessment, the plaintiff was given the key and escorted to her vehicle where she was permitted to drive home alone. 15:00 Mood stable - denies suicidal ideation thoughts or intent. Is driving self home. Left ward at 14:30. Given discharge medication to take at home and copies of documents as above. Nursing entry by Nurse Easson - "Revalyn refused to take OxyContin 10 mg at am as felt she would be too drowsy - states she will take medication when she gets home". Comment: This entry is contrary to Nurse Easson's own note on the medication chart that the 8am medication was dispensed and the plaintiff's evidence that she took the medication at that time. I accept the contemporaneous notes and the evidence of the plaintiff and find that the plaintiff took OxyContin at 8am on the day of discharge. It follows that Nurse Easson's recollection is flawed. Approx. Accident occurred. 15:10 15:18 Ambulance called. 15:27 Ambulance at scene. Arrived at Wyong Hospital. 16.09 Ambulance Report Narrative: Posterior neck pain … driver of a vehicle that struck a sandstone block - the driver's side front wheel at low speed causing the steering arm to break. Admitted to Wyong Hospital. 16.10 Didn't make it home on discharge. Plan included re-admission to the Hospital. 21:00 Conversation between the Wyong Hospital Emergency Department and the Psychiatrist. "Would be happy to re-admit under her care but issue with workers comp insurer". Wednesday Called made at 01:17 by female from Wyong Emergency Department to the Mental Health Telephone Access Line in respect of the plaintiff. 18.01.12 "Request from Wyong ED for assessment. History of depression and previous suicidal ideation denies currently. Chronic pain issues. Discharged today as insurance would no longer cover her. MVA low impact. Denies suicide attempt". (1 day after accident) Reviewed by the Psychiatrist at the Hospital on re-admission. "She cannot recall what happened just a loud thump then losing control of the car". "She denies suicidal intent". "She was 2 minutes away from home when it happened". "Relates excessive sedation over the last 3-4 days which will require review". Accepting that clinical note and other evidence (below) I find that, as at 18 January 2012, the plaintiff had suffered excessive sedation over the last three to four days, including in the period immediately prior to discharge. This is from 14 or 15 January 2012 and includes the date of the last consultation with the Psychiatrist. SA1 form (self-assessment) completed by plaintiff on re-admission to Brisbane Waters Private Hospital in answer to question 3E the plaintiff indicated that during the past two weeks she had felt tired "none of the time". Given the overwhelming evidence to the contrary, I reject this representation and the suggestion that the plaintiff had not suffered from tiredness in the past two weeks. Again, I find that the self-assessment form completed by the plaintiff on admission to be unreliable evidence. Friday Reviewed by the Psychiatrist. 20.01.12 "Revalyn still shaken and over-sedated today". (2 days after accident) Letter by fax from the Psychiatrist to the WorkCover Case Manager: "Ms Revalyn Naidoo reports increased sedation over the last week, which succeeded her discharge from hospital. She related that she had 2 falls before she was discharged, of which I was not aware. Staff reports that she has been sleeping much longer than usual since her return to hospital and for the 2 days preceding her discharge. Ms Naidoo reported nocturnal enuresis on 18 January and found herself on the floor having fallen out of bed, she also reports that she has no recollection prior to losing control of the car she was driving when her accident occurred. These could be an indication of nocturnal seizures. Ms Naidoo's increased sedation may be due to the introduction of OxyContin which was increased to 15 mgs twice a day then decreased to 10 mgs mane and 15 mgs nocte. Lower doses did not control her pain". (Emphasis added). Letter from the Psychiatrist to Dr Graham, Neurologist: "Recently on driving home from hospital on 17.1.12 she had an MVA which she can't recall. 3 days prior to this she was excessively sedated and had some semi-falls". The Psychiatrist requested that an EEG be performed and sought the doctor's opinion regarding OxyContin "as this is probably the culprit". (Emphasis added). These letters dated 20 January 2012 contains a number of representations by the Psychiatrist as to factual maters which I accept as accurate and about which I make the following findings: a) the plaintiff had suffered increased sedation over the past week. That is from about 13 January 2012 (four days prior to discharge); b) the plaintiff was excessively sedated for the period several days prior to discharge; c) the plaintiff was excessively sedated on the day of the last consultation with the Psychiatrist, that is, 16.1.12; d) the Hospital's staff reported that the plaintiff had been sleeping much longer than usual in the two days prior to discharge; e) that the Psychiatrist was of the belief that OxyContin may have been the cause of increased sedation; f) for the three days prior to discharge, the plaintiff was extremely sedated and had some semi-falls. Wednesday Plaintiff examined by Dr John Graham, Neurologist on a referral by the Psychiatrist. 25.01.12 Thursday Plaintiff transferred from the Hospital to Gosford Private Hospital for rehabilitation. 16.02.12 Thursday Plaintiff discharged from Gosford Private Hospital to home. 01.03.12

[9]

The Plaintiff's Evidence

The plaintiff's evidence commenced with information contained in Exhibit B, the plaintiff's Chronology. Most of the events prior to the plaintiff's admission to the Hospital were not controversial. There are some aspects of the plaintiff's history which bear upon her claim for damages and will be dealt with in that context, below. For example, the plaintiff was not working at the time of the accident due to pre-existing conditions of a physical and psychiatric nature.
Prior to the admission to the Hospital, the plaintiff had begun to experience back pain and was terminated by her employer, Medibank Private, in October 2011 [T39.20]. She had consulted medical professionals in respect of her low back condition and also a psychiatrist, Dr Murray, for pain management and depression [T39.24]. The loss of her job made her very depressed [T39.39].
The plaintiff was feeling suicidal and consulted Dr Lim, GP, who arranged for her admission to the Wyong Hospital Mental Health Unit where she remained for about four weeks [T40.5].
On or about 16 December 2011, the plaintiff was transferred from the Wyong Hospital Mental Health Unit to Brisbane Waters Private Hospital. She described her feelings as at that time as being "feeling very low, feeling depressed, exhausted, tired" [T40.23]. This is consistent with the Hospital notes and the findings made above.
At the time of admission to the Hospital, the plaintiff was taking Cymbalta, Gabapentin, Diabex, Bical and Micardis.
The plaintiff's medical management was assigned to the Psychiatrist. The plaintiff did not see the Psychiatrist, however, until 6 January 2012 and had been treated by other psychiatrists at the Hospital prior to that time. In fact, prior to coming under the exclusive care of the Psychiatrist, the plaintiff had been treated by three other psychiatrists connected with the Hospital. They were not called to give evidence.
After admission, the plaintiff had experienced improvement in her suicidal ideation but had developed other symptoms. She described "I had trouble sleeping so I went in as well because I couldn't sleep, I was exhausted. I was tired and - but the pain, I couldn't settle" [T42.15]. This evidence is consistent with and supports the findings made in the Chronology above regarding disturbed sleep, tiredness and insomnia.
She further stated "the actual sleep problem that I had was that I couldn't fall asleep at night. And during the day it was at a certain time in towards the afternoon that I couldn't stay awake" [T42.25 - emphasis added]. This evidence is borne out by the medical records and by observations made by Ms Allan (see below).
The plaintiff told the Court how she would walk the corridors of the Hospital at night, unable to sleep and would on occasions be observed by Hospital staff doing so. Most nights were spent walking around the Hospital or sitting in the TV room. This evidence is corroborated by the Hospital notes and the evidence of Ms Allan who occupied the room next to the plaintiff.
Eventually, the plaintiff was prescribed Stilnox to assist in sleeping. She stated, however, it didn't really make her sleep, it made her more hyper, caused bizarre behaviour and what happens [T43.26]. The Hospital notes record a number of occasions of continued sleep disturbance after Stilnox being administered.
The plaintiff recalled how she first consulted the Psychiatrist on 6 January 2012 at night [T44].
The plaintiff also related a conversation which she had with the Psychiatrist the day before discharge on 16 January 2012: There was a question that I asked Dr Grund when she saw me the afternoon before my discharge. I asked would I be able to drive and how will I get home and she said it would be fine for me to drive and I said, "But I still feel drowsy and how will I manage that?" and her response was "You've been on these medications for over a month, your body would have adjusted to it and you should be fine to drive". [T44.34-41 - emphasis added].
Whilst this conversation was not recorded by the Psychiatrist in the Hospital's notes, the complaint of drowsiness is consistent with that record and the Psychiatrist's reference to over-sedation in her letter dated 20 January 2012. I accept the evidence from the plaintiff that this conversation with the Psychiatrist took place and accordingly, find that the day before discharge the plaintiff expressed concern about driving due to drowsiness to which the Psychiatrist responded "you should be fine to drive".
The plaintiff said that she was authorised to drive her vehicle prior to discharge: Because I would be asleep in the afternoon, there was a structured program where we attended through the day and in the afternoon was the time when we had free time and that was the time that we could drive if we wanted to and I used to fall asleep, I was drowsy and I used to go to sleep so the nursing staff used to come and wake me up and ask me to get up and go for a drive. [T45.30-35 - emphasis added].
In the period prior to discharge, the plaintiff drove on two occasions. One trip was around the block and on another occasion to the nearby shops, just two blocks away [T45.47]. Both trips occurred in the afternoon, as said by the plaintiff.
The plaintiff explained the process leading to the driving of the motor vehicle: The nursing staff had the car keys with them so we had to get their permission and get the keys off the nursing staff in order to take the car. [T46.5].
Upon returning, the keys would be handed back to the nursing staff who would lock them up [T49.9]. It was, therefore, not possible for a patient to drive without the co-operation of the staff of the Hospital.
On the two occasions on which the plaintiff drove her vehicle locally, she did so without incident.
On the day of the accident, 17 January 2012, the plaintiff was scheduled to leave the Hospital at 10am but did not leave until about 2.30 or 3.00pm: Because I was very sleepy and drowsy and the nursing staff woke me up about four times and each time they woke me up I kept falling asleep. [T46.27].
The staff woke the plaintiff up for breakfast about 8 o'clock in the morning. She stated: I fell asleep over my breakfast. I was taken back to my room and since then was the period of the nursing staff keep coming to wake me up and I kept falling asleep again. [T46.38].
I accept the plaintiff's uncontradicted evidence above and find that on the day of discharge: 1. the plaintiff was very sleepy and drowsy; 2. the nursing staff work her up about four times; 3. that each time they woke her up she kept falling asleep; 4. that she fell asleep over breakfast; 5. she was taken from breakfast back to her room where she fell asleep;
The plaintiff was then asked about the day before the accident, 16 January 2012. She said that she was the same on that day. This is supported by the Psychiatrist's note of increased or excessive sedation in that period. She attended the activities in the morning and then went to sleep [T47.1]. She stated: The activities start from the morning but I fell asleep at the in-service (should read dinner service) that I attended and there was another patient that actually tried waking me up from the in-service (dinner service). [T47.5].
The plaintiff described how on 16 January 2012 she fell asleep during a group activity in the presence of nursing staff: I don't - I just slept and the next thing when I woke up I found - I found two of the nurses around me and they were putting a blood pressure cuff on my arm checking my blood pressure and I asked is something wrong and they said, no so I just thought I had fallen asleep. [T47.30].
I accept the plaintiff's evidence in this regard and find that the day prior to discharge she fell asleep while at dinner and on another occasion whilst seated in a group therapy session. Again, such behaviour is consistent with the note of sedation made by the Psychiatrist after the accident but referrable to the period prior to it. I prefer this corroborated evidence to that of Nurse Easson (see below).
The plaintiff gave evidence about the drug regime she was under whilst in Hospital. She took OxyContin every morning for "break through pain" and most evenings [T48.1-16].
The plaintiff was asked about the events leading to her discharge on 17 January 2012. She said: I did not pack my bags, in fact when I was woken up at lunchtime the nurse said, "She's not leaving until I get up from bed and get into the shower". They needed the bed for another patient so while I was in the shower and got out, the bed was stripped and cleaned down. All my bags were packed, my car was brought to the door, closer to the hospital, and all my stuff was packed into my car. [T48.23-28].
When asked how she felt when she began to leave the Hospital that day, the plaintiff replied "I know that I was feeling tired and drowsy" [T48.35]. When asked whether she told anybody that, she replied "I felt that the fact that I couldn't get up that staff already knew how I was feeling" [T48.37]. I infer and find that the plaintiff did not tell the staff that she was tired and drowsy as she thought it was obvious from the circumstances. Further, I find that it ought have been obvious from the circumstances, the findings above and elsewhere in these reasons (see the evidence of Ms Allan).
At the time of discharge, the plaintiff was given OxyContin by Anna, a registered nurse [49.10]. The following evidence was given: Q: What did you say? A: I said to her "I'm already drowsy, this is going to make me more drowsy, can you please, if you don't mind, I am going to put this in my bag instead of taking it. I'll take it when I get home". Q: Do you recall as to whether on the 17 January 2012 you had taken OxyContin that morning? A: I definitely took it that day. [T49.17-24].
I have already made a finding in this regard. On this question there is a direct conflict between the evidence of the plaintiff which is supported by the contemporaneous notes made by Nurse Easson, on the one hand, and the evidence of Nurse Easson in Court. As stated, I prefer the former. Nurse Easson's attempt to administer OxyContin at the time of discharge was, to say the least, irresponsible.
The plaintiff was then given her keys by Anna and she proceeded to drive her car from the Hospital [T49.40-47].
The plaintiff's 40 minute trip home [T49.35] was interrupted by an accident when she was close to home. Q: Do you recall any event occurring in the journey? A: I remember turning into a street that runs parallel to my home and after I turned the corner I don't recall what happened because I blacked out. Q: What's the first thing you can recall after, as you describe it, blacking out? A: I remember waking up to my head hitting the roof and the car being airborne and I black [sic] out again. The next thing was when the ambulance was there scooping up the teeth - my broken teeth from my mouth. [T50.11-14 - emphasis added]
Following the accident, the plaintiff was taken to Wyong Hospital where she remained until the following day. She was treated for pain in her neck, head, right shoulder, lower back and left leg [T41.6]. A number of teeth were also damaged [T51.30].
The day after the accident, the plaintiff was transferred from the Wyong Hospital back to the Hospital where she again was placed under the care of the Psychiatrist [T51.52]. She recalled that she remained at the Hospital until about mid-February before being transferred to the Gosford Private Hospital for two weeks prior to discharge home [T52.49].

[10]

Cross-Examination on behalf of First Defendant

The plaintiff was initially cross-examined about versions of the accident provided to the Psychiatrist. The plaintiff could not recall telling the Psychiatrist that she was shocked to find out that she ran off the road and drove into a wall. At that time (on re-admission to the Hospital) the plaintiff did not remember that had happened: I remembered my head hitting the roof and I remembered the ambulance and that's as much as I remembered. [T72.10].
The plaintiff was told by police and the Psychiatrist that she had driven off the road and into a wall.
The plaintiff asked about a consultation with the Psychiatrist on 23 January 2012 in which the plaintiff apparently said that she did not remember feeling tired or drowsy when driving. She had no recollection of saying that [T72.26]. When asked whether it was true, however, that she was not feeling tired or drowsy when driving home on 17 January 2012, the plaintiff replied: I do remember feeling tired, I know I was tired. I was already drowsy and I had a cold shower trying to wake myself up so to me I felt that, you know, I'd be fine, I'd been given my keys, I'm definitely in a state to go and I am discharged and I wasn't at the time able to make a decision so I trusted my carers at the time and I left. [T72.30-34 - emphasis added].
Given the overwhelming evidence in support (including from the Psychiatrist, the Hospital, the contemporaneous notes leading to discharge, the observations of an independent witness and the notes/letters created after the accident), I find that the plaintiff was tired, drowsy and sedated at the time of discharge on 17 January 2012. I find that she was not in a fit state to make a decision about her capacity to drive and find that she relied upon her carers to advise as to whether or not it was safe for her to drive herself home and warn her of the risks of drowsiness.
She was then again asked questions about the conversation with Dr Grund on 23 January 2012 in which the plaintiff apparently stated that if she had become aware of being tired she would normally pull over but that she was very close to home [T73.15]. In the circumstances, this is not unreasonable.
The plaintiff had a poor memory for events upon her initial re-admission to the Hospital.
The plaintiff was then questioned about her consultations with Dr Graham, Neurologist. It was put to her that she told him that she could recall feeling drowsy on drugs for pain and depression, prior to discharge. She agreed [T77.40]. A discussion then took place with Dr Graham about whether it was drowsiness that might have caused the accident to which the plaintiff replied that she did not believe so as she was not all that sleepy at the time: Q: That was true, wasn't it, you weren't all that sleepy at the time of the accident? A: At the time of the accident, I didn't think I was asleep because I'm somebody that's a light sleeper, so I thought I would have awoken if I had fallen asleep at the time of the accident, I would have called (should be re-called) something, but I couldn't recall anything except when I came to and found the car airborne. I couldn't recall prior to that how I became airborne or what happened. [T77.45-49 - emphasis added].
The reasoning underlying that answer is unsound. First, it would take just a momentary lapse or micro sleep to lose control of the motor vehicle. Secondly, it is not uncommon for people involved in motor vehicle accidents to have a period of lapsed memory. Thirdly, the fact that the plaintiff said "when I came to" makes it clear that she did fall asleep or otherwise lose consciousness. Whilst she may have said that she did not think she was sleepy, that is contradicted by the preponderance of the evidence.
The plaintiff agreed that she told Dr Graham that she had suffered a sudden loss of consciousness [T78.5]. She agreed that she did not think that she had slowly fallen asleep. One minute she was fine and the next minute the accident had occurred. It was put to the plaintiff that it was not sleepiness that made her black out on that day to which she replied "I wouldn't think so" [T78.21]. She said "I didn't think I had dosed off" [T81.26]. The cross-examiner sought to draw an artificial distinction between a sudden loss of consciousness and falling asleep slowly. I do not consider that distinction (if it exists) is material. The plaintiff suddenly woke up on impact. It follows that immediately prior to that time she was asleep.
I also note the evidence provided in response to questions from the Court [T69.30-43]. That is, that it was a "daily routine" for the plaintiff to sleep in the afternoon around 4 o'clock. I note that this is approximately the time at which the accident occurred on 17 January 2012. Also, whether the plaintiff believed it was sleepiness, dozing off or something else that caused a loss of consciousness is immaterial. The fact is that there was a short period where the plaintiff's consciousness was compromised and, given her recent history leading to the accident and the records kept by the Hospital as to tiredness and the Psychiatrist as to sedation, I find the most likely cause was falling asleep due to tiredness, fatigue or excessive sedation. This finding is reasoned in more legalistic terms below.
The plaintiff was then shown an application which she completed for the purpose of applying for a sleep study recommended by Dr Graham (Exhibit 1-D1, page 473). It contained a self-assessment of situations in which the plaintiff may experience drowsiness. Her attention was drawn to a situation of dosing off in a car whilst stopping for a few minutes in traffic. The plaintiff indicated that such a chance to be "zero". She accepted that that meant that she just never dosed off in that situation. She agreed when it was put to her that she did not think that she had dosed off on the day of the accident [T81]. I repeat my comments above and place no weight on the plaintiff's belief in this regard. The plaintiff's evidence establishes a sequence of events as follows: 1. she was driving; 2. she "blacked out"; 3. she lost control of her vehicle; 4. she hit her head on the roof; 5. she woke up when she hit her head; and 6. the car was air borne.
In view of the recorded history of insomnia, tiredness and sedation I find that the most probable cause of the plaintiff blacking out and losing control of her vehicle was that she fell asleep.
The following challenge occurred in cross-examination: Q: Isn't this the position, you did have trouble falling asleep at night during this first admission, that's true, isn't it? A: I did have trouble falling asleep, yes. Q: You often asked for medication to assist you in falling asleep? A: I wouldn't say often asked. I have - I did ask on occasion if there was something to help me to sleep, but it wasn't something that I did on a regular occasion or regularly. Q: Although you had trouble falling asleep, you didn't usually fall asleep in the afternoon, did you? A: I did. [T84.37-48]
The plaintiff denied that she was exaggerating her evidence. I accept the plaintiff as a reliable, truthful witness. In fact, some aspects of her evidence were against interest which further added weight to the acceptance of her as a witness of truth.
Counsel for the first defendant then challenged the plaintiff's evidence concerning the events of 16 January 2012. The effect of the cross-examination was that the plaintiff maintained that she had fallen asleep during a group session in a conference room. Another patient had tried to wake her up unsuccessfully. She woke up to find members of the nursing staff applying the arm band to check her blood pressure. Apparently, the other patient called for nursing staff after his attempts to wake the plaintiff were unsuccessful [T85.4-23]. I accept the plaintiff's evidence that this occurred and find that this ought to have put a reasonable person in the position of the Hospital and the Psychiatrist on notice of the risk which led to the accident.
Questions were then asked about the use of the plaintiff's car after permission to drive had been provided by the Psychiatrist. The plaintiff maintained that she was "pressured by the nursing staff to drive" [T87.19]. When asked whether that annoyed her, she stated that "what annoyed me was that I couldn't stay awake and I was falling asleep instead of trying to meet their expectations" [T87.49 - emphasis added].
Referring to nursing staff, the plaintiff stated: Well, what they told me was that was the protocol of the hospital that this is what they normally do and I have to - they'll give me my keys when I'm ready to drive and I must drive around as much as I can. It will give me my confidence when I am ready to leave. That's how they put it to me. [T89.30].
Notwithstanding that encouragement, the plaintiff only drove her car on two occasions over short distances prior to her discharge from the Hospital.
After driving on those two occasions, the plaintiff returned to the Hospital and went to sleep [T90.46]. She stated: I remember giving in my keys and I remember signing for it because we had to sign out when we were given the keys and when we returned and went to my room, yes, and I went to sleep. [T90.48 - emphasis added].
The Hospital's protocol in this regard, endorsed by the Psychiatrist, combined with the plaintiff's level of fatigue after driving even short distances, provide the most likely explanation for the occurrence of the accident.
The plaintiff gave evidence about her understanding of the medications which she was prescribed. In, fact, it was put to her that she knew some of the drugs she was taking were drugs that made her drowsy. She agreed [T92.33].
The plaintiff was asked about the medication taken on the day of the accident. She stated that she took OxyContin at some time in the morning [T93.2]. The following exchange then occurred: Q: You didn't take it because you didn't want to feel drowsy? A: No. That's not true. Q: You knew that OxyContin could make you feel drowsy? A: Yes. Q: You knew that you were going to drive home on this day? A: Yes. Q: You wanted to make sure that you were sufficiently alert to drive home? A: Yes. Q: For that purpose you decided not to take your OxyContin? A: No. That's not true because the afternoon before when I asked Dr Grund about would it be safe for me to drive given that I'm on these medications and her response was I'd been taking it for over a month in the hospital and my body would have adopted or get used to the medication, so it would be fine. So for me I trusted that and I didn't think that I was going to have an accident or decline the medication in the morning. It was only the 2 o'clock as I was walking out that I didn't decline. [T93 - emphasis added].
The fact that the plaintiff took the OxyContin, as prescribed, in the morning of her accident is supported by the medications chart included in Exhibit 1-D1. I have already dealt with the conflict in the evidence involving the recollection of Nurse Easson. I prefer the chart and the evidence of the plaintiff. In view of that evidence, it is extraordinary that the plaintiff was even challenged as to that matter.
The evening dose of OxyContin was presented to the plaintiff around the time of discharge. It was put to her that she was given some medication to take home. She agreed. She further agreed that included her evening dose of OxyContin [T93.45]. It was suggested to the plaintiff that OxyContin was given to her at that time to take home. She responded: No. It was put in a medicine cup and it was given to me to take with a water. I took the tablet out of the cup and I said, "This will just make me feel more drowsy. I'm already drowsy. This will make it worse. I promise I will take it when I get home". That is what I said to Anna. [T94.2-5].
Further, the plaintiff stated: I said (to Anna) I was already drowsy, I didn't want to be more drowsy and that's the reason I didn't want to take it, "I'll take it when I get home". (Emphasis added).
I accept the plaintiff's evidence as to these events and that conversation which further supports the finding that the plaintiff was drowsy upon discharge and casts doubt over the reliability of the evidence of Nurse Easson as to her recollection of the circumstances surrounding the plaintiff's discharge. Frankly, it also casts doubt over the professionalism of the nurse.
The following evidence was then given in answer to questions posed by the Court: Q: When you left the hospital on the day of discharge and entered your vehicle, did you feel drowsy? A: I did feel slightly drowsy. Not as drowsy as I was earlier in the morning because I had just showered and gotten up and trying to keep myself awake. Q: What other alternatives were there for you to get home rather than drive yourself? A: If I was told I couldn't drive, I had transport that could have come and pick me up. I had a friend that used to come and visit me. He could have come, his sister could have come, friends could have come and picked me up, I could have taken a taxi. Q: Given your experience as a nurse, did you make an assessment yourself as to whether you were capable of driving or whether you were too drowsy to drive? A: I thought about that myself and wondered why didn't I think about this, but I wasn't in the state of mind to make that decision. [T94.13-29 - emphasis added].
I accept this evidence and find that if the plaintiff had been told that she should not drive or was warned of the dangers of doing so then she would have made other arrangements to get home. I also find the plaintiff's evidence that she was not in a state to assess her own fitness to drive and relied upon the defendants in that regard.
The plaintiff was further cross-examined by counsel for the first defendant as to her conversation with Nurse Easson prior to discharge: Q: What do you say you said to Anna Easson? A: I told her that I wasn't going to take the tablet immediately because she had the water and the tablet cup all ready, the tablet for me, and I said I will - I promised I would take it when got home because I was already drowsy. I didn't want to feel more drowsy taking the tablet. Q: There was no question of you taking OxyContin in the afternoon, was there, because you weren't prescribed OxyContin in the afternoon? A: That's true and at the same time I thought she was giving it to me because I was prescribed it because I was leaving the hospital for pain to go home, and I didn't think that this is going to impair my judgment while I'm driving, so it was trying to do the best I can under the circumstances, and at the same time I wasn't fully mentally able to make that judgment call for myself, because I had all those drugs on board. [T95.18-31 - emphasis added].
Again, I prefer the plaintiff's evidence over that of Nurse Easson.
The plaintiff went on to describe again how she had her breakfast on the morning of discharge and "fell asleep over breakfast" [T96.12]. It was put to the plaintiff that she did not have to be woken up on multiple times on the morning of discharge. She replied: I did have to be woken up several times and I kept falling asleep and when the nurse came to me and said to me "Discharge time is 10 o'clock. It's now lunchtime. You need to get up and get going. We need to get the bed washed and cleaned for the next patient" so I got up to have a cold shower to try and wake myself up. [T96.25-30].
The Hospital did not call any member of nursing staff to contradict this event. I accept the plaintiff's evidence and, accordingly, find: 1. that on the day of discharge, the plaintiff had to be woken up several times prior to lunch time; 2. that a nurse told the plaintiff that she had to get up and get going as they needed the room for the next patient; 3. that the plaintiff had a cold shower to try to wake herself up.
The plaintiff was then cross-examined about various documents completed around the time of her discharge, perhaps the night before. It was suggested to her that at the time of discharge she was very conscious about how she felt. She stated: I wasn't very conscious of how I felt on the day of my discharge. I wasn't very alert mentally, I wasn't very awake enough to make that decision, but the night before I was. I was clear-minded and I was able to fill out the forms. [T99-100 - emphasis added].
Further, the following exchange occurred: Q: At the time you were discharged, you must have asked yourself the question "Am I okay to drive"? A: I wasn't in a mental state to make that decision at the time I was leaving. Q: You definitely felt fine to drive, didn't you? A: I thought I was fine. Q: Because if there had been any problem in your mind about driving, you would have said so, wouldn't you? A: If I was aware of it and if I wasn't drugged up, I would have said so. [T100.8-17 - emphasis added].
Upon being asked further questions about the final moments of discharge, the plaintiff stated: On that day I was mentally not in a position to decision make for myself. I wasn't clear minded, that is true. [T102.39 - emphasis added].
Despite repeated and careful cross-examination the plaintiff, time and time again, maintained that she was not in any condition to assess her ability to drive a motor vehicle.
The plaintiff described how her bags were packed by Eddie Lau who although the plaintiff did not witness Mr Lau packing the bags as "I was in the shower when it was being done. When I came out, everything was in the car and he told me (that he) had me packed up" [T103.11].
It was suggested to the plaintiff that Mr Lau did not pack or take her bags to the car and that Simon Connor helped her carry her bags [T103]. The plaintiff denied those suggestions, relying upon what had been said to her by Mr Lau. I note that Mr Lau was not called to give evidence, allowing the Court to comfortably accept the plaintiff's evidence as to these events.
In respect of the plaintiff's evidence concerning whether she could assess for herself whether she was fit to drive upon discharge, I find: 1. that the plaintiff did not have sufficient awareness of herself to make that decision; 2. that she was not mentally alert; 3. that, in her words, she was not "awake enough to make that decision"; and 4. whilst she may have thought she was fine to drive, she was not in a mental state to make that decision.
The plaintiff was again cross-examined about the earlier driving journeys whilst at the Hospital. She stated that she was on a different regime of medication at that time which did not make her drowsy [T105]. This was not further explored.
She was then again asked whether she assessed her own fitness to drive prior to leaving the Hospital following discharge. She replied: I was uncertain about it and that's why I asked. I was uncertain about the driving because off [sic] the medications but then I was reassured that I have been on it for a while in hospital, which was true, and I had been taking it, my body should have adjusted. As to why I was still feeling drowsy and feeling as if I wasn't clear minded, I can't explain why I felt like that the next day. [T106.15-19 - emphasis added].
And: Q: You felt fine when you drove away from hospital, didn't you, on the 17th? A: When I started off, yes. Q: That didn't change, did it, during your journey home or towards your home? You felt fine during that journey? A: Basically I felt fine to drive. Because I've just felt that, yeah, I can trust the nurse, my carers. Q: You trusted your own feelings too, didn't you? A: Well I was in a state of where I needed to rely on my carers to help me make those judgment calls because of the depression at the time. And of course with my condition at the time it didn't - I wasn't making a judgment call and thinking clearly. I was relying on my carers to do that for me. [T106.21-34 - emphasis added].
These series of questions and answers makes it plain that the plaintiff's belief that she was "fine to drive" was based on the fact that the defendants permitted and allowed her to do so. She did not believe that she was in a condition to make that decision herself. I note my findings above in that regard. The plaintiff was in a vulnerable position and reliant upon the defendants by reason of the nature of her relationship with the Hospital and the Psychiatrist.
I further find that the plaintiff believed that she was fit to drive and that she was led into that belief by the conduct of the defendants. That is, by the defendants' failure to prevent the Plaintiff from driving or warn her of the risk of doing so.
In an attempt to explain the sequence of events leading to the accident, the plaintiff stated: One moment I was driving and then the next moment I woke up with the car being airborne, so I really don't know how it happened, what happened. I can't recall any of what happened prior to that. I don't know how I had the accident. All I know is I blacked out, I couldn't remember and when I got up I thought I was going to die when my car was coming down and I passed out again. Then the next time when I woke up I was in the ambulance and the ambulance guys were saying I mustn't fight, they were putting a collar on my neck. And I said, "There's stones in my mouth", and he scooped out my teeth. The broken teeth". [T107.15-24 - emphasis added].
That sequence of events makes it clear that the first occurrence was the plaintiff blacking out or falling asleep before losing control of the vehicle. I find that the plaintiff suffered injuries as a result of an accident caused by her falling asleep whilst driving and losing control of the car in circumstances where, by reason of her sedation, she ought not to have been driving a motor vehicle.

[11]

Cross-Examination on behalf of the Second Defendant

The plaintiff was asked questions about her attendances on Dr Murray, Psychiatrist from about June to October 2011. Dr Murray noted that the plaintiff told him that she had stopped taking Stilnox. Her reason was that "it was making me very drowsy and I didn't think that I would be able to work with it" [T140.33].
Dr Murray told the plaintiff that she was suffering from hypersomnia [T140.36]. It would seem, although the evidence is a little unclear, that the plaintiff did not tell the Psychiatrist or other psychiatrists at the Hospital about the hypersomnia during her first admission. In any event, difficulties sleeping at night were known or ought to have been apparent to Hospital staff who would have observed the plaintiff at night. The observation charts confirm that the plaintiff's night time sleeping was, at best, irregular. This was also a matter known to the Psychiatrist who, on her first review of the plaintiff noted, "disturbed sleep". It would seem that she told the Psychiatrist about the circadian rhythm problem on her second admission, resulting in the prescription of the Valdoxan [T141.12].
The second defendant tendered a consultation note by Dr Murray dated 2 August 2011 together with a letter from Dr Murray to the plaintiff of the same date (Exhibit 3-D2). Apparently, when the plaintiff saw Dr Murray on 3 August 2011 she told him that she fell asleep on the phone and that she had stopped Diazepam (also known as Valium) [T150.4-15]. The plaintiff's problem of spontaneously sleeping existed prior to her admission to the Hospital and continued during it.
It was put to the plaintiff and she denied that the variable sleep disturbance issue was brought under control after a few days in her first admission with the Hospital. Such a proposition is also inconsistent with the observation charts and notes made by the Psychiatrist regarding "disturbed sleep". In a confusing section of the cross-examination which commences at page 163 of the transcript, the plaintiff was asked a number of questions about conversations with the Psychiatrist on either 6 or 7 January 2012. It was suggested to the plaintiff that the Psychiatrist asked her how she managed driving as she was in pain and taking medication. The plaintiff denied that that was discussed at that stage. The plaintiff stated: She didn't really ask me about that, how would I manage driving. I asked her how would I manage driving with the medications. I was more concerned about the medications than my pain at the time. [T165.32-34].
It is unclear whether the plaintiff was referring to 6 or 16 January 2012.
Generally in relation to driving, the plaintiff stated: …. but in terms of the driving I didn't ask to drive, I didn't discuss the driving, when could I drive with her or when could I take my car. I didn't initiate the driving. Dr Grund did not ask me how will I drive with my back pain, but I know at my initial consultation I did discuss with her that there were times that I wasn't able to drive because of the medications and when I took certain medications, I knew that it makes me very drowsy and I shouldn't be on the drug, and with my pain medications I knew which ones made me feel more alert and I was able to drive, and I discussed that with her at my initial consultation. [T166.10-19].
Further, as to discussions between the plaintiff and the Psychiatrist regarding driving, the following exchange occurred: Q: I want to suggest to you that your recollection about the conversation about driving with Dr Grund occurring on 16 January is incorrect given that you drove your car on 11 January and 14 January, that's right, isn't it? A: If I was given permission, I would have driven immediately. Q: I am suggesting to you, ma'am, that there was discussion with Dr Grund on 7 January and Dr Grund indicated to you after discussion with you that you could trial three hours leave per day where you could drive your car? A: I recall the leave being given to me, I do not recall the driving of my car being discussed with Dr Grund. I do recall the driving of my car being discussed with the nursing staff telling me about it. Q: I want to suggest to you ma'am, that Dr Grund suggested to you on 7 January she advised you that if you were in pain not to drive, do you agree or disagree? A: I disagree. Q: Do you say that that conversation never took place with Dr Grund? A: I don't recall that conversation, no. Q: I want to suggest to you that on 7 January she also advised you not to drive if you were tired? A: No, I don't recall that. Q: I want to suggest to you that on 7 January you were quite emphatic with Dr Grund that you had been driving for a long time, do you agree or disagree? A: I disagree with that. Q: And that (you) were emphatic that you wanted to drive? A: I disagree with that. Q: Also on 7 January, Dr Grund advised you that if you took PRN medication or extra night time medication, not to drive immediately? A: I disagree with that. Q: She advised you not to drive first thing in the morning? A: I disagree with that. [T169.5-40]
The Psychiatrist failed to make any note whatsoever of the details of this conversation. The clinical note itself is ambiguous as to whether any conversation took place on 7 January 2012 with the plaintiff or with staff. I prefer the plaintiff's evidence in instances where it conflicts with the evidence of the Psychiatrist, particularly as, in most cases, what was allegedly said by or to the Psychiatrist, was not the subject of a record or notation made by the Psychiatrist.
There are a number of curious features to the Psychiatrist's note for 7 January 2012. First, it commences with the words "(with staff)" (Exhibit 1-D1, page 169). That would suggest that it was a record of a conversation the Psychiatrist had with staff of the Hospital or that staff were present when the Psychiatrist consulted with the plaintiff. There was no evidence from the Psychiatrist or any other person that a staff member was present.
Secondly, the event is not referred to as a "review" consultation as the two other attendances upon the plaintiff were described (that is, on 6 and 16 January 2012).
Thirdly, the note does not refer to anything said to or by the plaintiff. The note starts with the words "Discussed Revalyn", suggesting that the discussion was with a third person.
Fourthly, the note does not contain any reference to the detail of the conversation which the Psychiatrist said, in evidence, had occurred.
Fifthly, the note includes that "she settled well after debriefing with nursing staff". There is no suggestion that the Psychiatrist was involved in that or any other discussion with the plaintiff that day.
Next, the note contained an authority by the Psychiatrist to the Hospital staff to permit the plaintiff to drive on conditions.
Finally, 7 January 2012 was a Saturday and, according to the evidence of the Psychiatrist, not a day she would ordinarily work at the Hospital. She said that her contract with the Hospital as a Visiting Medical Officer required her to work at the Hospital on Monday, Wednesday and Thursday only.
For these reasons, I accept the evidence of the plaintiff that she did not see Dr Grund on 7 January 2012 and I make a finding in those terms. Further, I find that the only occasion upon which there was any discussion between the plaintiff and the Psychiatrist about driving a motor vehicle was on the day prior to discharge, 16 January 2012.
From page 170 of the transcript a series of propositions were put to the plaintiff, most of which were denied. For example, the plaintiff did not agree with the proposition that she did not say to Dr Grund that she was not up to driving. Instead, she said "I asked her how would the driving - the medications impact on my driving and would it be okay for me to drive".
Further, it was put to the plaintiff that the conversation with Dr Grund on 16 January in which the Psychiatrist stated that as the plaintiff had been taking the medication for over a month her body would have adapted so it would be fine to drive did not occur. The plaintiff maintained that that conversation did take place [T171.40]. The proposition put on behalf of the Psychiatrist is inconsistent with her letter to the insurer of 20 January 2012 in which she attributed the cause of the accident to "increased sedation", most likely due to OxyContin. Again, I prefer the evidence of the plaintiff.
Further, the plaintiff said that she was aware at the time of discharge that she could drive [T174.5]. That was qualified to some extent in a later answer in which she stated "I was aware that I could drive my vehicle and I was given permission to do so" [T174.14]. The plaintiff then said that she thought she was capable of driving her vehicle at the time of discharge [T174.19].
Again, as to the question of driving on the day of discharge, the plaintiff maintained under cross-examination that she was not awake or alert enough to decide whether to drive or not [T182.22 - emphasis added] and that driving was not her choice [T182.27]. That was explained by the following answer: I felt that I had reached my point of progress and my doctor was happy with me to leave and felt confident that I could drive myself and based on that I took the car keys and I felt it was okay to drive and I left. [T182.30].
The plaintiff told the Court that she chose to drive upon discharge because "I felt I could" and maintained that she was not in the state of mind to make that decision. Again, the plaintiff's evidence demonstrates reliance upon the Psychiatrist and Hospital staff in agreeing to drive home.

[13]

Janet Elizabeth Allan

Ms Allan was the plaintiff's work colleague at Medibank Health Solutions. Coincidentally, she was also an inpatient at the Hospital in January 2012, being treated for depression. She was admitted on 6 or 7 January and occupied the room next door to the plaintiff until the plaintiff's discharge on 17 January 2012. She was able to and did closely observe the plaintiff over those 10 days.
In her evidence-in-chief, she was asked the open question as to whether she observed anything particular about the plaintiff whilst at the Hospital during her first admission. Ms Allan replied: Her sleepiness during the day. She was in very deep sleeps, especially in the afternoon. She would often miss meals. I would take her meals into her room, try to wake her, but she'd just fall back to sleep again. [T210.48].
Ms Allan went on to say that this was a situation from about lunch time onwards and that she would become more and more drowsy.
Ms Allan also had the opportunity to observe the plaintiff during the night. She said that the plaintiff would be up a lot during the night. Sometimes Ms Allan would hear the plaintiff in her room and often saw her in the early hours of the morning walking around. She stated "so she was awake during the night but tended to sleep a lot during the day" [T211.10]. This was entirely consistent with the plaintiff's evidence and some of the nursing notes.
Ms Allan said that the plaintiff's habits of moving around at night would have been obvious to the night staff.
She was then taken to the day of discharge, which Ms Allan recalled. She said that the plaintiff was very drowsy. She said that the plaintiff would be "sort of sitting there and she'd sort of just sort of drop off a little bit, and I'd say, "Are you okay Revalyn, are you okay to go home?", "Yeah I'll be fine" [T211.28].
Ms Allan thought that that conversation occurred after lunch, probably about 1.00 to 1.30pm.
The final question in examination-in-chief and the witness' answer were: Q: Was there any discussion in relation to the way Revalyn was at that stage, in the early afternoon of the day of departure? A: All I just commented, and I commented, you know, when the staff was around, it was just a general content, I really don't think you should be going home, and you know it was obvious that she was tired. It took quite a bit of her getting up out of bed to even get ready to leave, and they were - they kept going into her room saying, Revalyn get out of bed, Revalyn get out of bed and they were getting very annoyed with her. [T211.35-42 - emphasis added].
In cross-examination, Ms Allan maintained that she had concerns about the plaintiff leaving the Hospital on that day. When asked why Ms Allan did not make sure that the plaintiff did not leave, her answer understandably was "it wasn't me as a patient being able to do that". She was then asked whether she told the staff that the plaintiff shouldn't leave to which Ms Allan replied, "I made the comment when one of the staff members was there. Yes. I sort of said, I really am concerned, you know, that she is going home now" [T212.5 - emphasis added].
Ms Allan was then asked general questions about the plaintiff's presentation on days other than the day of discharge. The effect of the evidence was that the plaintiff was sleeping most of the time during the day. "She'd get up for a while in the morning and attend one of the sessions that the therapist would put on, and quite often she would fall asleep in that session" [T216.8-10 - emphasis added].
Ms Allan maintained that there was no change in the plaintiff's condition of sleepiness in the afternoon in the time that she saw her at the Hospital [T220.27].
In an effort to understand the communication between Ms Allan and the Hospital staff, the Court asked a number of questions as to that matter. Ms Allan said that she "was concerned about her going home" and that she said that as a general comment when the staff member was there at the present time. She thought the name of the staff member was Anne [T221.34-47]. It is probable that it was Nurse Easson.
I unhesitatingly accept Ms Allan as an independent and truthful witness. Relying upon her evidence, I make the following findings: 1. the plaintiff would experience very deep sleeps in the afternoons; 2. attempts to wake her for dinner would be unsuccessful and she would fall back to sleep; 3. the plaintiff would become more and more drowsy from lunch time; 4. the plaintiff's night time sleep was disturbed; 5. on the day of discharge and on other occasions, Ms Allan observed the plaintiff falling asleep whilst seated in an upright position; 6. it was obvious to Ms Allan that the plaintiff was tired; 7. the nursing staff had problems waking the plaintiff and getting her out of bed on the day of discharge; 8. Ms Allan's concerns about the plaintiff being discharged in light of her condition were made known to Hospital staff.
If these matters were obvious to a fellow inpatient it defies common sense and belief that nursing staff on duty and trained to care for patients in all kinds of states would not have appreciated that the plaintiff was unfit to drive, probably unfit to be discharged and not in a position herself to make a reliable assessment as to same.

[14]

Annette Marie Easson

Nurse Easson was first registered in 1986 and has worked fairly continuously since then. She commenced at the Hospital at the end of 2008 or early 2009 as a casual registered nurse initially in the medical surgical unit. About three years later, Nurse Easson became a permanent part-time employee.
At the time of giving evidence in May 2017, Nurse Easson recalled the plaintiff and her admissions in December 2011 and January 2012.
On the day of discharge, Nurse Easson was asked by Simon Connor, the Nurse Unit Manager, to prepare a risk assessment in relation to the plaintiff's discharge. She was shown the document and recognised it (Exhibit 1-D1, page 78). The Nurse had also completed the Care Plan on the plaintiff's admission. The Care Plan was dated 17 December 2011 (Exhibit 1-D1, page 79). The witness also identified the HoNOS form dated 17 January 2012 (Exhibit 1-D1, page 88) and confirmed that she had completed the form on that date. That document was completed in consultation with the plaintiff in the foyer of the Mental Health Unit, adjacent to the Nurse's Station.
By reference to the document page 78, Nurse Easson was able to recall that the plaintiff had shown insight into her pain and medication. Precisely what insight was shown was not explained.
Nurse Easson was taken to the words "reports tiredness lately - psych aware" (Exhibit 1-D1, page 787). The Nurse was unable to recall precisely what caused her to write those words but confirmed that an answer was given which made her form the view that the patient was suffering from tiredness [T231.40] and that the Psychiatrist was aware of that condition. [T231.44].
Otherwise, Nurse Easson described the plaintiff as alert and co-operative without any impairment of judgment. In light of the evidence of Ms Allan and the plaintiff, I do not accept Nurse Easson's evidence in this regard.
Nurse Easson was aware that the plaintiff was leaving the Hospital by driving herself [T240.9] and said that the plaintiff presented "as though she would have been capable of driving" [T240.28]. It is not clear what the nurse meant by that comment or the basis for it. The fact that the accident occurred through loss of control of the vehicle after falling asleep brought on by the plaintiff's sedation or tiredness demonstrates that Nurse Easson was mistaken in her assessment.
I find that given the plaintiff's presentation and the report made by Ms Allan, it ought to have been apparent to Nurse Easson at the time of discharge that the plaintiff was not capable of safely driving a motor vehicle. Either her assessment of the plaintiff was flawed or she did not turn her mind to the question of the plaintiff's fitness to drive that being a matter already determined by the Psychiatrist. The risk posed was readily and quite reasonably foreseeable at the time of discharge.
Contrary to the evidence of the plaintiff and the Nurse's own note, Nurse Easson told the Court that the plaintiff told her on discharge that she had not taken OxyContin which had been dispensed to her that morning and that she would take it when she got home [T242.41]. Nurse Easson said that she was surprised to hear that as "I had witnessed - a common practise is to sight patients swallowing medications" [T244.2]. I have already made a finding on this matter but Nurse Easson's evidence is another reason to pause before accepting her recollection as accurate.
Nurse Easson had no recollection as to anything to do with the plaintiff's bags at the time of discharge or as to how the plaintiff came into possession of her car keys. She confirmed the Hospital protocol was that patients could only drive with the permission of the treating psychiatrist.
Nurse Easson shed some light on the Hospital document which appears on page 97 of Exhibit 1-D1. It revealed that at 8am and at 11am on the day of discharge, the plaintiff was in her room. There were no recorded observations of her during that period. The next time a record was created as to any observation of her was at 2pm. The purpose of the document is "to record the whereabouts of patients on the unit" [T245.2]. The document was, otherwise, uninformative and does not contradict the evidence of the plaintiff or Ms Allan.
The risk assessment on discharge was completed at 2pm (Exhibit 1-D1, page 78).
Nurse Easson was cross-examined by counsel for the second defendant about the Patient Leave Register (Exhibit 1-D1, page 96). Although she had no recollection of the fact, she read the document as indicating that on 26 December 2011, the plaintiff took leave from the Hospital and drove her vehicle, leaving at 1.30pm and returning at 6.00pm. Of course, this is a matter disputed by the plaintiff. The Leave Register contained relevant entries by Nurse Tanner and either Nurse Dow or Nurse Allan. None of those nurses were called to give evidence. As 26 December 2011 was earlier in time than when the plaintiff was authorised by the Psychiatrist to drive her motor vehicle, it seems to me unlikely that she drove on that occasion and the plaintiff's explanation that she was accompanied by a friend and the friend's son seems more probable.
The cross-examination of Nurse Easson by counsel for the plaintiff began by establishing the availability of witnesses who were not called by the first defendant, including Tracey Hogan, Eddie Fennell and Sharon Vincent. The fact that they were not called does not require that any particular inference be drawn. It does, however, make it easier to accept the evidence of other witnesses (such as the plaintiff and Ms Allan) over Nurse Easson.
Nurse Easson was then cross-examined about the plaintiff's general tiredness whilst at the Hospital. She was initially taken to an entry on 10 January 2012 at 6.30pm which read "Revalyn complained of feeling very tired this afternoon woken for dinner" [T252.41]. When asked whether that was a common experience with the plaintiff during her first admission, Nurse Easson unequivocally replied "no, not necessarily" [T252.46]. When asked that the plaintiff was commonly tired during the day Nurse Easson somewhat evasively, replied, "not commonly. At times, but not commonly" [T252.49]. Her answer to both of those questions was neither emphatic nor convincing. It may be that her evidence was unreliable by reason of a poor recollection.
Nurse Easson was then taken to the day of discharge when it was recorded by the Nurse that the plaintiff was tired and she confirmed that the plaintiff "reported that she had been feeling tired lately" [T253.2]. Notwithstanding that, Nurse Easson stated that "she didn't appear overly tired at the time of the risk assessment" [T253.8]. Nurse Easson agreed with the proposition that her recollection of completing the risk assessment form was consistent with the plaintiff saying to her at the time that she felt very tired lately [T253.25]. Somewhat inconsistently with Nurse Easson's recollection of the events of that date generally, she then went on to state that "it was not what I observed of her" [T253.28]. Nurse Easson's answers to these questions generally created the impression that she was attempting to evade answering the questions honestly or in any way which favoured the plaintiff. Overall, she presented as a witness with a poor recollection for material events. This may not be surprising given that she was giving evidence more than five years after the event. To the extent that the evidence of Nurse Easson was at variance to that of the plaintiff, I prefer the plaintiff's evidence.
Also at odds with the Nurse's evidence is the statement made to the insurer by the Psychiatrist on 20 February 2012 "staff reports that she has been sleeping much longer than usual since her return to hospital and for the 2 days preceding discharge". That would seem, at least possibly, to attribute such knowledge to Nurse Easson.
At odds with her evidence-in-chief, Nurse Easson said she assumed that the plaintiff took the OxyContin on the morning of discharge at the time it was administered. She stated, "well, if my signature's on the chart, if I'd signed for that medication, yes" [T257.49]. That is, that she signed to acknowledge that the medication had been taken [T258.1]. Had the plaintiff not consumed the medication when administered, Nurse Easson would have placed a "R" in the box on the medication sheet indicating that the patient had refused to take the medication. The fact that she initialled the medication chart for the administration of OxyContin at 8am on 17th January 2012 suggests that Nurse Easson was of the belief, at that time, that the medication had been consumed by the plaintiff. Again, this is consistent with the evidence of the plaintiff and raises even further doubts as to the reliability of the evidence of Nurse Easson.
Nurse Easson attempted to explain this apparent inconsistency by stating that the plaintiff may not have actually swallowed the medication at the time it was administered [T259.4], stating, "we can only comment on what we sight" [T259.15]. She then stated that she observed the plaintiff swallowing the tablets that morning [T259.25]. These answers were confusing and inconsistent.
This evidence is also at odds with the notation in the clinical notes (Exhibit 1-D1, page 182) where Nurse Easson recorded "Revalyn refused to take OxyContin 10 mgs this am as felt she would be too drowsy".
Again, the evidence of Nurse Easson concerning this topic was unreliable.
Nurse Easson claimed to have no knowledge of the plaintiff's sleeping patterns on the day of discharge but was aware that on the day before, 16 January 2012, the plaintiff spent most of the day in bed. She stated "I noted Dr Grund had made mention of that" [T268.29]. She did not say when the Psychiatrist had told her of that fact.

[16]

Larissa Grund (the Psychiatrist)

The Psychiatrist had been a Fellow of the Royal Australian New Zealand College of Psychiatrists since 2002. She said that she was one of several doctors treating the plaintiff during the course of her first admission from 16 December 2011. The Psychiatrist confirmed that there were variations made to the plaintiff's medication upon admission. For example, Dr Montanari prescribed Stilnox and Endone. Dr Lienert initiated Avanza and Mirtazapine.
Despite the plaintiff being admitted under the care of the Psychiatrist, she said that she only saw the plaintiff on three occasions during her first admission (6 January 2012, 7 January 2012 and 16 January 2012). The Psychiatrist told the Court that she worked on just three days per week at the Hospital, namely Monday, Wednesday and Thursday, in accordance with her contract as a Visiting Medical Officer.
Despite the clear indication of that fact from the medical notes, the Psychiatrist denied that the plaintiff was admitted under her care [T287.16]. The Psychiatrist's evidence in this regard and as to the early treatment whilst at Hospital appeared to be directed to downplaying the Psychiatrist's involvement with or responsibility for the plaintiff. Whilst that may reflect upon her reliability as a witness and her motive in providing evidence in the manner in which she did, it is not particularly material to the plaintiff's case as it is alleged the relevant breach of duty of care occurred after the Psychiatrist had taken over the care of the plaintiff in early January 2012. It was the circumstances and conduct of the Psychiatrist leading to the discharge of the plaintiff from Hospital on 17 January 2012 which is most relevant to the question of breach. It is also the period during which, according to the Psychiatrist, the plaintiff was experiencing sedation.
I take this opportunity to observe that the Psychiatrist was not an impressive witness. She appeared defensive and rehearsed in the answers which she gave. Whilst, to some extent, this is understandable given that her professional conduct is under consideration, she demonstrated a lack of frankness and candour with the Court.
The Psychiatrist's evidence about her first consultation with the plaintiff on 6 January 2012 is not at all controversial, save for the discussion about driving which the plaintiff said occurred at that time [T66.10-19]. I accept the plaintiff's evidence as to that conversation (as above). It follows that I find that the Psychiatrist's recollection is flawed.
The same cannot be said of the Psychiatrist's alleged attendance upon the plaintiff the next day, on 7 January 2012. First, the clinical note of that consultation was apparently incomplete and, according to the Psychiatrist, did not contain the totality of what was said between the parties [T289.25].
The second factor arising on 7 January 2012 was the fact that the Psychiatrist authorised the plaintiff to resume driving a motor vehicle. When asked about the conversation with the plaintiff concerning that topic, the Psychiatrist embarked upon a lengthy answer which included a number of non-responsive, self-serving statements [T290.27-40].
Despite the fact that the Psychiatrist had concerns due to the plaintiff's chronic pain, major depressive illness, a number of physical illnesses as well as her medication including PRN medication, the authorisation to drive was provided. The apparent reason for that decision by the Psychiatrist was that the plaintiff "was well practised and experienced in knowing when she could and couldn't drive, particularly when on PRN medication" [T290.48]. The Psychiatrist seemed to delegate to the patient the duty to determine whether or not she was fit to drive. For a patient in the position of the plaintiff that seems highly irregular, notwithstanding that she was a nurse. To give the plaintiff permission to drive without undertaking an assessment of her capacity to do so safely illustrates the Psychiatrist's careless approach to the management of the plaintiff.
Whilst none of this appears in the clinical note, the Psychiatrist told the Court that she was also concerned because "pain disrupts sleep" [T291.6]. One would think that was a factor which would warrant not providing permission to drive.
The Psychiatrist also appeared to have been influenced by the suggestion (again not recorded in the notes) that the plaintiff was "quite insistent that she be allowed to drive" [T291.22]. The plaintiff denies this and given the absence of any record to that effect and the self-serving nature of the Psychiatrist's evidence, I accept the plaintiff.
Overall, the Psychiatrist's evidence concerning the consultation said to have taken place on 7 January 2012 came across as an attempt by her to absolve herself of all responsibility for the plaintiff being given permission to drive.
The Psychiatrist then gave evidence about the next and final consultation with the plaintiff prior to discharge on 16 January 2012. Once again, the Psychiatrist said that the clinical notes entry for that occasion did not contain "the totality of the discussion" between the plaintiff and the Psychiatrist. At no stage did the Psychiatrist attempt to provide any explanation for the consistently inadequate state of her clinical notes.
The first omitted matter, again self-serving for the Psychiatrist, was that apparently she offered the plaintiff an extension at the Hospital which the plaintiff declined [T292.36]. The reason for making the offer, according to the Psychiatrist, was that the plaintiff "presented as her pain having been quite exacerbated on that day" [T292.40]. It is not clear whether the offer followed upon advice that the plaintiff ought to stay in the Hospital.
The other matter omitted from the Psychiatrist's notes concerning this consultation was a request by the plaintiff for copies of documents creating during her admission to the Hospital. Not that anything turns upon this, but the Psychiatrist indicated that would be done but inexplicably failed to document that permission on the notes. The only relevance of this omission is that it again demonstrates a habit on the part of the Psychiatrist to be selective in the records which she kept.
It is significant to the plaintiff's physical condition that when the Psychiatrist examined her on 16 January 2012 and authorised her for discharge on 17 January 2012 the consultation took place in the plaintiff's room as the plaintiff had been experiencing muscle spasms throughout the day and was in bed [T293.5].
The Psychiatrist was specifically asked in chief whether she had been told of the plaintiff's tendency to fall asleep in the afternoon. The Psychiatrist denied that she had been told that by the plaintiff at all. Had the Psychiatrist made inquiries of the Hospital staff or read their notes, that matter would have become known to her. Simply, the Psychiatrist denied that the plaintiff spoke to her about insomnia during the course of the first consultation [T294.5]. This is at odds with the Psychiatrist's own note on 6 January 2012 that the plaintiff was experiencing disturbed sleep. The plaintiff's irregular sleep habits were a matter which were known to the Hospital staff and recorded in the Hospital clinical notes. Information from both of those sources was available and ought to have been accessed by the Psychiatrist.
This is also inconsistent, at least to some degree, with the note made by Nurse Easson that the Psychiatrist was aware that the plaintiff had been suffering tiredness lately.
The only other relevant event which occurred involving the Psychiatrist prior to the subject accident was that she received a phone call on 17 January 2012 whilst she was in her private rooms in East Gosford. She was contacted by one of the nursing staff to confirm that she had given permission for documents to be released to the plaintiff.
Two matters of relevance arise from that conversation. First, there is no suggestion that the Psychiatrist made enquiries of Nurse Easson making the call as to the plaintiff's condition on the day of discharge in circumstances where the Psychiatrist knew that the plaintiff had been suffering an exacerbation of pain the day before and was taking strong pain relief medication for same. Secondly, Nurse Easson failed to inform the Psychiatrist of the fact that the plaintiff had demonstrated tiredness, lethargy and sedation on the day of discharge which ought to have raised obvious questions about the plaintiff's fitness to drive a motor vehicle upon a public road. This evidence reflects poorly upon both defendants.
The Psychiatrist told the Court about her dealings with WorkCover who were funding the plaintiff's stay at the Hospital. She stated "they would only approve one week at a time they were indeed very difficult and quite obstructive to liaise with" [T294.47].
She was asked questions about an examination which took place on 18 January 2012, after the accident. The Psychiatrist said she thought that the plaintiff looked very tired on that day and asked how it compared with how she looked the day before when discharge was authorised by the Psychiatrist, she answered in a somewhat evasive manner by saying well the plaintiff had been through a car accident and she looked like someone to whom that happened [T295.46]. That non-responsive and cynical mode of answering questions was characteristic of the Psychiatrist's evidence generally.
The Psychiatrist was asked about a notation made 18 January 2012 which read "relates excessive sedation over the last three to four days which will require review" [T295.30]. When asked why she wrote that, the Psychiatrist said well that is what the plaintiff reported to me. The Psychiatrist denied that the plaintiff had told her that she was experiencing excessive sedation prior to the first discharge. I do not accept that evidence. The Psychiatrist consulted the plaintiff during that three to four day period. One would expect that if she did not accept or believe the plaintiff's account then she either would not have recorded that fact or also noted her own, contrary observations.
The Psychiatrist's answer in that regard is inconsistent with a letter about that matter written to the insurer on 20 January 2012 (Exhibit 1-D1, page 234). That report contained the following entry/statement by the Psychiatrist: The staff reports that she has been sleeping much longer than usual since her return to hospital and the two days preceding her discharge. (Emphasis added).
Two things might be said about that entry. The first is that it is inconsistent with the evidence of the Psychiatrist that the plaintiff was the source of information as to her level of sedation in the period prior to the first discharge. Secondly, as the Psychiatrist saw the plaintiff on the day immediately prior to discharge, one would expect that she would have noticed sedation at that time, especially as the consultation took place in the plaintiff's room as she was in bed.
In the Psychiatrist's very first consultation with the plaintiff on 6 January 2012 she noted "disturbed sleep pattern". As mentioned, Nurse Easson's note on the day of discharge recorded that the Psychiatrist was aware that the plaintiff had been tired lately. The Psychiatrist's evidence that the plaintiff had not told her of excessive sedation prior to the first discharge is at odds with the contemporaneous notes and cannot be accepted.
Further, in the letter to the insurer, the Psychiatrist stated: The plaintiff's increased sedation may be due to the introduction of Oxycontin which has increased to 15 mgs twice a day then decreased to 10 mgs mane, 15 mgs nocte. Lower doses did not control her pain.
It appears, therefore, that as at 20 January 2012, the Psychiatrist was aware of increased sedation prior to discharge and attributed that to medication which had been administered to the plaintiff during the course of her first admission and well in advance of discharge, that is, during the time when the Psychiatrist was the only doctor attending to the plaintiff. It is troubling that this contemporaneous note created by the Psychiatrist is, again, inconsistent with her evidence.
The Hospital's cross-examination of the Psychiatrist began with attempting to establish precisely the Psychiatrist's role in the care for the plaintiff. Before turning to that evidence, I pause to again observe that the general thrust of the evidence of the Psychiatrist was to attempt to distance herself from the care of the plaintiff. For example, in her evidence-in-chief when asked about review by a cardiologist and why it was not considered by the Psychiatrist she stated "I wasn't looking after her at that time until the day before discharge" [T298.10]. That statement is plainly false. The Psychiatrist received the plaintiff into the Hospital and other psychiatrists managed the plaintiff on her behalf until she returned from leave and was available. In any event, it is plain from the Psychiatrist's own notes that she first had a long consultation with the plaintiff on 6 January 2012, at least 11 days prior to discharge. It is, therefore, false to say that the Psychiatrist was not looking after the plaintiff until the day before discharge. Her motive for giving this evidence could only be explained as an attempt to exculpate herself.
This was a matter which was explored by counsel for the Hospital in cross-examination. The effect of that cross-examination (commencing at [T305]) is that the Psychiatrist denied that she was responsible for the care of the plaintiff upon admission to Hospital and said that any documentary reference to the fact that the plaintiff was reviewed by her in those early stages was "not correct" [T307.1]. It would appear that both Dr Lienert and Dr Montanari were "confused" as to the Psychiatrist's role [T307.15]. Later, when pressed, the Psychiatrist agreed that she took over care of the plaintiff on 14 January 2012. That is, eight days after the Psychiatrist's first long consultation with the plaintiff. In any event, the Psychiatrist agreed that from that date (including the time of discharge), she was the sole psychiatrist responsible for the plaintiff's care.
Once again, this portion of the Psychiatrist's evidence displays attempts by her to distance herself from the plaintiff and knowledge of the obvious inferences arising from the clinical notes.
Notwithstanding the obfuscation by the Psychiatrist as to who in fact was responsible for the plaintiff's care, she agreed that at the time of making a decision as to discharge on 16 January 2012, she was the sole psychiatrist responsible for the plaintiff's care [T310.20].
The Psychiatrist was asked questions about the telephone call she received from the Hospital on the day of discharge, 17 January 2012. The call came at about 11.30, according to Hospital notes. Significantly, the Psychiatrist agreed that: I had given the nurses and in particular the nurse unit manager permission to contact me in my rooms whenever necessary for a matter of urgent patient care, and I was happy to be interrupted to deal with issues related to urgent patient care while I was not present on site at the hospital. [T311.5].
It is said that the phone call related to the release of some documents to the plaintiff. Hardly a matter going to "urgent patient care". One would have thought the more pressing or "urgent" matter for contacting the Psychiatrist, would have been the plaintiff's sedated condition on the day of discharge.
As to the plan for the plaintiff's travel home upon discharge, the following exchange occurred between counsel for the Hospital and the Psychiatrist: Q: At the time of that consultation (on 16 January 2012) you expected that the plaintiff would drive home upon discharge from the hospital? A: No. Q: You thought it was likely didn't you? A: We didn't discuss it. Q: I'm not saying anything about what you discussed ma'am, I'm just asking what you expected? A: It wasn't something that was addressed so I actually had not thought about it any further than the discussions that we had on the 7th. My feeling was it was at that stage that Ms Naidoo's decision how she got home the following day because her pain fluctuated and some days she would be have really bad spasms and the next day they could be gone and that was why I discussed this with her on the 7th. So in answer to your question it was not discussed and I didn't have an expectation. It was an implicit perhaps, even in terms of her coming to the hospital, if I was assuming she would drive if she was if she judged she was well enough to drive that day yes. That would be on the Thursday of that week. But we didn't specifically discuss how she was going to get home. She didn't ask me how she was going to drive. We discussed her discharge planning and follow up care and I asked her if she wanted to stay in the hospital if her pain was, if she felt her pain was not you know this was an extraordinary pain situation as opposed to the normal fluctuation. Q: I'm not asking you about what you and the plaintiff discussed on this date. I'm just asking you about your own state of mind, do you understand? A: Yes. Q: You must have at least considered that the plaintiff the following day would drive home? A: I actually didn't think about that on that day. Q: You knew that the plaintiff was going to go home the next day? A: Yes. Q: You knew she had a car at the hospital? A: Well usually I wouldn't plan how someone was going to go home - Q: Did you know she had a car at the hospital or not? A: Yes. Yes. Q: You knew from your discussion on the 7th that she was enthusiastic about driving didn't you? A: Yes. Q: You must have known on the 16th that it was likely that the following day she would drive home? A: As a psychiatrist I can't tell everyone who's enthusiastic about driving not to drive. Q: Please answer my question. Please doctor? A: She was enthusiastic about driving on the 7th yes. HIS HONOUR Q: You said a moment ago that you were assuming that when she returned to the hospital for review on the Thursday she'd be driving back to the hospital. I assume therefore that you similarly assumed that she'd be driving home from the hospital on discharge? A: I assumed that she would be driving if she judged she was well enough to drive on that day because that was the assessment that I did that she could judge herself if she was well enough to drive. SCRUBY Q: So far as you were concerned she was okay to drive if that was her own view? A: On which day? Q: On the 17th? A: On the 17th? Well I couldn't make a judgment unless I saw her on the 17th. Her condition changed particularly with her pain quite a lot from day to day. Q: Your view on the 16th was that the plaintiff would be okay to drive home on the 17th if that was the plaintiff's view on the 17th, correct? A: There isn't a yes or no answer to that because her condition fluctuated. And that's why I took a lot of time on the 7th. It wasn't an easy decision to come to. So I actually couldn't say she may not have been able to drive on the 17th but I didn't see her on that day. HIS HONOUR Q: Doctor, with respect that wasn't the question. The question was that your state of mind on the 16th was such that - - A: My state of mind was that she could make the decision whether or not she was safe to drive the next day. That I was content with. Yes. SCRUBY Q: If her decision was she could drive then you were happy for her to do so, correct? A: Well that's a different thing. She could have made the wrong decision but that she was able to make the decision on - in terms of her mental state presentation on the 16th, yes. She wasn't delirious. She was able to make a judgment on the 16th. Q: Certainly, on the 16th you didn't think that the plaintiff required another assessment by a psychiatrist on the 17th, did you, to determine whether she should be discharged? A: No. [T321.5 - 323.4 - emphasis added]. And: HIS HONOUR: Q: Doctor, just while that's happening, just so I understand your evidence is it your evidence that when you saw the patient the day before discharge it was your intention to leave it up to her to decide the next day whether she was in a fit state to drive the vehicle? A: Yes. [T323.21-25 - emphasis added].
I pause in analysing the evidence of this witness to observe that, once again, she attempted to avoid answering the questions in a direct fashion, consistent with her generally evasive manner of giving evidence.
In terms of liability, I also note that the Psychiatrist has attempted to completely absolve herself of any responsibility for what occurred at the time of discharge. I find that to leave it up to a psychiatric patient who suffered from pain, fatigue and sedation which would vary from day to day to decide whether she was fit to drive at the time of discharge is a complete abrogation of the Psychiatrist's duty of care and responsibility. To say that she did not turn her mind to how the plaintiff would get home upon discharge, represents an unacceptable failure to satisfy her most basic professional obligations to the plaintiff. I find that such conduct would not be regarded as acceptable by peer professionals.
The Psychiatrist's manner of answering questions continued under cross-examination by counsel for the plaintiff.
Later in cross-examination, the Psychiatrist was asked whether, if a patient was sleepy and drowsy at the time of discharge, she would recommend that a person drive a motor vehicle. The Psychiatrist answered: If I perform a mental state examination of a patient and they're exhibiting falling asleep in front of me and abnormal tiredness for the time of day, I would not recommend that they drive a motor vehicle if they [sic] planning to do so in the near future. [T332.39-42].
Further, the Psychiatrist agreed that if the patient was feeling drowsy and sleeping a lot she would not advise them to drive home [T333.15]. In fact, the Psychiatrist volunteered that she would say "well can you get someone to give you a lift home until we work out what's going on?" [T333.15]. It might then reasonably be inferred that if the Psychiatrist had seen the plaintiff on the day of discharge she would not have allowed her to drive. Given that, according to the Psychiatrist herself, the plaintiff was also sedated in the days prior to discharge it would appear to be an extraordinary breach of duty not to revoke permission for the plaintiff to drive or to ensure that arrangements were in place for the plaintiff to travel home safely. One would also expect that a psychiatrist acting professionally and reasonably would have at least enquired of the plaintiff's condition on the day of discharge.
The following exchange then occurred: Q: The answer you've just given would be a standard common sense approach to the state where you are aware that the patient is drowsy, do you agree with that? A: Drowsy, drowsiness being self-reported as being abnormally drowsy, yes. [T333.17-20].
The answer is, with respect, non-sensical. In this case, not only was drowsiness self-reported it was evident from the plaintiff's condition on the day of discharge - so much so that it was noticed by and the cause of concern to other inpatients. Even had the nursing staff not observed her condition for themselves (and I find that they did), it was brought to their attention by what was said to them by Ms Allan.
At no stage on the day of discharge did the Hospital staff inform the Psychiatrist of the plaintiff's condition. At the same time, despite being in contact with Nurse Easson regarding the plaintiff, the Psychiatrist did not make any inquiries as to the plaintiff's condition, suitability for discharge or her fitness to drive. Given the Psychiatrist's evidence that she knew that the plaintiff's condition changed from day to day, I find that her failure to make any enquiry as to her condition on the day of discharge a further breach of her duty of care to the plaintiff.
In further cross-examination by counsel for the plaintiff, it became apparent that on the Psychiatrist taking over care of the plaintiff on 6 or 14 January 2012, the Psychiatrist made no effort to examine the nursing clinical notes relating to the plaintiff. She agreed that she would have looked at the notes but "mainly have referred to the entries made by my colleagues, Dr Wright and Dr Lienert" [T341.35]. No explanation was offered for not having proper regard to the more comprehensive nursing notes.
In the questions which followed, the Psychiatrist altered her answers saying that she would look at the nurses' notes but just give more weight to the psychiatrists' comments. The Psychiatrist was then taken through the clinical notes which demonstrated the plaintiff's pattern of being awake in the early hours and sleeping during the course of the day.
Nevertheless, the Psychiatrist claims to have told the plaintiff on 7 January 2012 that she should not drive first thing in the morning if she had not slept well or had taken night time sleeping medication [T348.5]. As part of the same answer, the Psychiatrist stated: Well usually if people don't sleep well at night they are more tired during the day, particularly during the morning, but usually the circadian rhythm kicks in and they are okay by the afternoon. [T348.2-4].
Again, there was no record of that instruction being provided to the plaintiff in the clinical notes. I note that the plaintiff's counsel generally challenged the entry for 7 January 2012, in any event, on the basis that a consultation did not occur on that day. This dispute is dealt with elsewhere in these reasons. Again, I prefer the plaintiff's evidence.
The Psychiatrist said that the usual practice was for patients to vacate the rooms by midday on the day of discharge. She agreed, however, that patients might stay later if waiting to be picked up but so long as they vacated the room they could stay on the premises. The Psychiatrist was not aware of the time that the plaintiff was due to leave the Hospital on the day of discharge and was seemingly unaware that it occurred after the ordinary time for patients to leave.
The Psychiatrist was then asked questions about her letter to the insurer of 20 January 2012 which she stated that the plaintiff had been suffering increased sedation on the days prior to discharge. Notwithstanding informing the insurer of that fact, the Psychiatrist stated "it wasn't apparent to me when I reviewed her before discharge" [T350.40]. Notwithstanding, the Psychiatrist said that if the plaintiff told her that she had been suffering increased sedation during that period, the Psychiatrist would have accepted that description [T351.25]. When it was put to the Psychiatrist that the plaintiff had appeared to be suffering increased sedation the last few days before discharge she denied that to be the case [T351.35].
In an attempt to explain the obvious inconsistency between her evidence and the representation which she was making to the insurer in order to obtain funding, the Psychiatrist stated: In this letter I was advocating for her to stay in hospital for extensive investigations. I needed to use strong and convincing language to advocate for her to remain in hospital given that we'd had so much difficulty I was very keen - - [T351.46-49].
When asked whether she was misrepresenting the situation to the insurer, the Psychiatrist stated that she "needed to advocate for the interests of (her) patient" [T352.3].
The Psychiatrist's attempts to explain her choice of language in the letter to the insurer was unconvincing (see [T352] generally). It was either accurate or a fabrication.
The Psychiatrist continued to be evasive in her evidence and became argumentative with the questioner. She misrepresented the true situation either to the insurer or in her evidence before the Court. In either case, her conduct was, to say the least, quite unsatisfactory. The only two explanations for this inconsistency is that she was attempting to obtain a financial benefit from the insurer or lied under oath in Court. Although these are serious matters, I do not intend to make a finding either way. There may be a less damning explanation. I am at a loss to think of one.
After lengthy questioning inducing evasive questions, the Psychiatrist finally agreed that her representations to the insurer was that the OxyContin prescribed prior to discharge "might have contributed to (the plaintiff's) reports of increased sedation" [T355.24-32].
The following exchange then occurred: Q: Can you read that any other way than you are expressing a professional opinion as her treating psychiatrist that this is your view? A: I'm expressing a professional opinion that OxyContin, if it was increased I think in about the week before discharge, might have contributed to Revalyn's experience of increased sedation and that needed to be reviewed, yes. HIS HONOUR Q: In light of the accident is that - - A: In light of the accident. Q: As a possible cause of the accident? A: Yes. Yes. [T355.34-46].
The Psychiatrist was a most unimpressive witness. I find that her cavalier attitude to the condition of the plaintiff and her fitness to drive on discharge was an extraordinary breach of her duty of care to the plaintiff. I also find that leaving the question of fitness to drive to a highly medicated psychiatric patient is complete neglect of her obligations as a medical care provider upon whom the plaintiff was entitled to rely and did so rely. I have already noted my views about her lack of frankness under oath in Court.

[18]

Professor Jonathan Phillips, Consultant Psychiatrist (for the Plaintiff)

Professor Phillips prepared a single report dated 21 January 2016 based upon a review of documents provided to him. After making some preliminary observations about the use of multiple medications, Professor Phillips expressed the opinion that: Assuming comments about the plaintiff having difficulties rising on the day of discharge to be correct then prima facie it is possible (or even probable) that she was over-sedated at the time. Sedation, from any cause, is a known trigger for motor vehicle accidents. (Paragraph 34 - emphasis added).
Professor Phillips further stated: On the balance of probabilities, and meeting the common sense test, it is far more likely that Ms Naidoo, as a consequence of the use of multiple psychoactive drugs in combination, suffered an impaired level of consciousness (with associated impaired cognition) after attempting to drive home from Brisbane Waters Private Hospital, this resulting in the motor vehicle accident. (Paragraph 38).
He continued: It almost goes without stating that there is a long established tradition within the medical profession that a person should not be permitted to drive a car, or to go home alone, after any test where sedating pharmaceutical agents are used. Given Ms Naidoo was treated with multiple psychoactive drugs at the time of discharge, this established practice should have been adopted. On the basis of the above, it is my strong opinion that Dr Grund and Brisbane Waters Private Hospital had been incorrect in allowing Ms Naidoo to attempt to drive her car immediately following discharge from hospital, and in the context of the plaintiff having been medicated with several psychoactive drugs. In keeping with this, it is my strong view that Dr Grund and Brisbane Waters Private Hospital would face a reasonable peer professional criticism for allowing Ms Naidoo to drive her car, thus putting herself at risk. (Paragraphs 39-41 - emphasis added).
Professor Phillips was critical of the opinions of Professor Large (for the second defendant). Professor Phillips stated: Discharge from [sic] a patient after treatment in a specialist psychiatric clinic is a key step in the progress of that person. At the very least a careful clinical assessment of the person must be carried out on the day of discharge, either by the psychiatrist or another delegated member of the mental health team. This will need to include the matter of how the patient will get home. Given that Ms Naidoo was continuing to take multiple psychoactive drugs at the time, there was an established duty of care to prevent her driving herself home, or going home in an unaccompanied manner. The obligation of Dr Grund and Brisbane Waters Private Hospital is well beyond that of "mutual obligation". (Paragraph 46).
Professor Phillips was not critical of the method of treatment given to the plaintiff by the defendants. His criticisms were limited to what occurred at or around the time of discharge. He stated: Simply, Dr Grund and Brisbane Waters Private Hospital failed to consider properly the possible effects of polypharmacy on the patient's capacity to drive. Dr Grund and Brisbane Waters Private Hospital failed their duty of care to properly evaluate the situation and to prevent the patient driving her car, or properly warn the plaintiff not to drive the car when she left the hospital. The primary responsibility in this domain was with Dr Grund and Brisbane Waters Private Hospital, rather than with the plaintiff. (Paragraph 48).
The situation to be evaluated included the fact that the plaintiff was spontaneously falling asleep and difficult to awake on the day of discharge.
Professor Phillips rejected the suggestion that the defendants acted in a professional manner which would be widely accepted by peer professional opinions. I accept his opinion.

[22]

Professor Matthew Large, Psychiatrist (for the second defendant)

Professor Large prepared three reports for the second defendant (22 May 2015, 12 August 2015 and 20 June 2016).
In his first report, prior to dealing with specific questions posed by the solicitors, Professor Large expressed the following opinion: I am of the opinion that the treatment Ms Naidoo received from Dr Grund at the Brisbane Waters Private Hospital was of a high standard and was well within peer professional psychiatric practice. Moreover, I think that it is very unlikely that Ms Naidoo had a motor vehicle accident because of the medications she was prescribed. (Page 6).
The rationale for that opinion appears to be based on a number of factors, including: 1. the fact that the plaintiff's anti-depressant regime was altered on occasions during the course of her admission and that there was improvement in her mood; 2. the fact that the plaintiff and the defendants "explicitly considered" the issue of driving. It is not entirely clear what is meant by that statement; 3. the fact that, prior to discharge, the last dose of Oxycontin was 18 hours previously and Diazapam and Zolpiden, 17 hours. Given my finding that the plaintiff took OxyContin at 8.00am on the morning of discharge, this is incorrect. Plainly, Professor Large considered that to be a matter of some significance in the formulation of his opinion. By reference to the medication charts, it would appear, however, that the plaintiff was administered Oxycontin just seven hours or thereabouts prior to driving; 1. the fact that the plaintiff completed a feed-back form and participated in a discharge assessment neither of which gave rise to any concern about her capacity to drive. I have reservations about accepting the accuracy of those records. For example, the self-assessment form (SA2) in which the question was asked of the plaintiff "do you feel tired?" was met with the response "none of the time". This is completely at odds with other contemporaneous evidence which would suggest that the plaintiff was and had been suffering from tiredness, lethargy and increased sedation prior to discharge; 2. the report of Dr Graham dated 25 January 2012 which stated that the plaintiff did not believe that she was sleepy at the time of the accident. In my view, this is no answer to the question as to whether or not the plaintiff's loss of control of her vehicle was caused by sleepiness and fatigue especially given that the description of its sudden onset. It is difficult to appreciate the context of the questions asked and the answers provided by Dr Graham and the plaintiff after the accident occurred. I prefer the contemporaneous evidence of the plaintiff's presentation on the day of the accident which, in my view, clearly indicates tiredness and fatigue.
In what seems to be an extraordinary statement, Professor Large described Dr Teoh's opinion as incorrect in "characterising the role of psychiatrists to allow or prohibit driving by their patients on the basis of the medications they have prescribed or [sic] their mental state" (page 10). He went on to say that "in the circumstances of a mentally competent patient like Ms Naidoo, a doctor's role is to explain the risks and benefits of new or changed treatment". He does not consider the circumstances where, by reason of the medication or lethargy/tiredness, the patient is not "mentally competent". I reject that opinion as an abrogation of the Psychiatrist's duty of care to the patient. In my view, that opinion lacks any rational basis.
Professor Large goes on to state that Ms Naidoo was clearly assessed by Dr Grund and others as "fit to drive". Whilst it was clear from the Hospital notes that the Psychiatrist did given authorisation for the plaintiff to drive on and from 7 January 2012, it is unclear what Professor Large had in mind when he referred to others as having performed a similar assessment. He denied that it was the responsibility of a medical practitioner to allow or disallow driving and stated that "there is no reliable psychiatric or medical test of driving ability" and would expect that a patient suffering sedation ought to result in driving being disallowed.
In my view, Professor Large has failed to give adequate consideration to the contemporaneous evidence that the plaintiff was suffering from lethargy, tiredness, insomnia and sedation. As a matter of common sense the plaintiff ought not to have been allowed to drive. There need not be a psychiatric or medical test of driving ability if it is apparent from the presentation of the patient, for whom the psychiatrist has responsibility, that the patient is susceptible to falling asleep spontaneously.
In his second report, Professor Large attacked Dr Teoh's reasoning on the basis that it suffers from "hindsight bias". He also considered it not to be feasible to have continuous discussion with a patient about the side effects of medication or providing a continuous warning about same. That is, however, not what is suggested here. The plaintiff's case, as I understand it, is that she ought not to have been permitted to drive her motor vehicle home on the day of discharge.

[24]

Joint Report of Professor Phillips, Dr Teoh, Mr James and Professor Large

A conclave was held on 10 May 2017 resulting in a Joint Report of the same date (Exhibit B, page 626 and following). The experts were asked a number of questions to which they provided answers.
As to the medication causing or materially contributing to the plaintiff suffering cognitive impairment, sedation or seizure while driving home, Professor Phillips said that sedation of any type can impair a person's driving a car and he believed that it was the most likely scenario in this case. Dr Teoh thought the medication could possibly have caused sedation. Mr James was of the opinion that the medication did not materially contribute to sedation and Professor Large thought it was remotely possible but he did not believe the medication taken by the plaintiff contributed in a material way.
The experts were asked a question about whether the plaintiff lost consciousness leading to the accident. It would be a fair description of their opinions that the plaintiff did not suffer a loss of consciousness and in the words of Professor Phillips that issue "can be put aside".
The experts were then asked whether there was a clinical and/or medical standard applicable to the assessment at the time of discharge. The effect of the evidence from the experts was that no such standard applied. Professor Phillips, however, referred to what he described as "the common sense standard". He stated that "my belief that a person who recently left hospital and is on a multiple group of drugs should be warned against driving a motor vehicle but as Professor Large has pointed out there was an apparent discussion earlier relating to driving … we cannot move away from the importance of assessment prior to discharge from hospital and the common sense assessment can be done by the psychiatrist, the psychiatric registrar or a member of the senior nursing staff". In the present case, the common sense standard ought to have considered the plaintiff's physical presentation together with observations made by Hospital staff and others, including Ms Allan.
The experts were next asked whether there was any clinical and/or medical standard applicable to the assessment of a patient's ability to safely drive a motor vehicle. Again, the experts seemed to agree that there was no applicable standard. Professor Phillips again expressed his opinion that "I come back to the common sense test and make the point that in my view there would have been (reason) for a fresh assessment of the patient on the day of discharge, which could have been done by a variety of persons within the hospital system".
Question 9 is perhaps the ultimate issue in the proceedings and that is whether, given the admission and duration of the plaintiff's stay at the Hospital, ought the plaintiff to have been advised not to drive her car home at the time of discharge. Surprisingly, Mr James stated that he would not have given the plaintiff any specific advice at the time of discharge that she could not drive a car. Professor Large seemed to agree, at least inferentially.
Professor Phillips adopted an approach which he described as a little different and stated "it goes back to the common sense test again. I am not sure that the patient should have been encouraged to drive her car, or that her driving was accepted by the staff, during her period of admission to the hospital, given that she was taking multiple psychotropic drugs. There is a duty to warn or protect where a person is about to leave the hospital. General advice should have been given to her at around the time of discharge, specifically that she should not drive home and should be very careful with driving (travelling small distances only) in the period following her discharge". I accept and prefer the opinion of Professor Phillips.
Overall, I found the Joint Report of little assistance in advancing the resolution of the issues in the case. The concurrent evidence shed some further light upon the experts' opinions (see below).

[26]

Concurrent Evidence of Experts

Prior to the commencement of this evidence, I sought confirmation from counsel for the plaintiff as to the case being advanced on her behalf. Counsel confirmed that the plaintiff no longer pressed any case based upon seizure or black out and that the case was limited to an accident being caused through excessive tiredness or drowsiness [T364.13-19]. Dr Teoh was asked about the sedative effects of the medications the plaintiff was taking at the time of discharge and the basis for his opinion regarding that matter. He stated: Based on the conclusion of knowledge of the medication and also of knowledge of the interactions of the mediation. So we are aware that when medication like Cymbalta, like Oxycontin and - I am just checking this again - and Zolpidem are very sedative. They can cause cognitive impairment. We are also aware that interactions can make those effects worse. [T365.5-10].
Dr Teoh went on to explain the metabolic interaction of the medications.
Dr Christie considered Dr Teoh's opinion on that subject highly speculative to which Dr Teoh replied that you would expect some kind of interaction and that it was a question of degree.
There was considerable dispute between Dr Teoh and Dr Christie concerning this topic. Professor Kennedy entered the debate supporting Dr Teoh's opinion that the effect of the combined medication would be to cause an increase in sedation [T366.35].
Dr Christie seemed to ultimately agree that there may be a sedative effect associated with the medications depending upon the length of time they were taken prior to the relevant period. To a large extent, it was the opinion of Professor Phillips which related the hypothetical to the known facts. He stated: I hear what my colleagues have said; I speak as a clinician and not as an academic. There is evidence in the material that this particular woman was seemingly quite sedated in the morning when she left the hospital. On my understanding she had to be roused three times and she couldn't pack her bags and there may be some evidence that she lost control of her bladder on one occasion. Now as a clinician those things worry me. I listen to the chemistry of all of this but my view is that clinical medicine often defines the underlying, how should I put it, theoretical matters of pharmacology and it's very, very hard for a clinical [sic] to predict with any sense of accuracy how a person is going to relate or how a person is going to manage when they are taking multiple psychotropic drugs. My concern in this case not being a theoretical level, it's a practical level, is that this was as somewhat unusual situation. I am not per se against the issue of polypharmacy but where somebody has been receiving five or even six psychotropic drugs I think we have to be extremely careful in our interpretation of what happens. [T367.30-44].
The debate between the experts concerning the interaction of medications and the impact that may have had upon the level of sedation of the plaintiff is highly theoretical. Whilst I have attempted to grapple with the conflict in opinions of the experts, I do not consider it necessary to come to a concluded view as to those matters. It is sufficient to simply find that the medications taken by the plaintiff at the time of discharge had a tendency to cause sedation. So much is clear from the letter from the Psychiatrist to the insurer after the accident in which she attributed an increase in sedation pre-discharge to medication. Same might be said of her letter to Dr Graham in which she stated that OxyContin "is probably the culprit" (emphasis added).
Further, irrespective of any finding made as to medication-related sedation, one must carefully look at the plaintiff's conduct and presentation prior to discharge. In my view, it is plain from the evidence of the plaintiff and of Ms Allan that the plaintiff was tired, fatigued and suffering sedation prior to discharge. Whether that was caused by medication, insomniac behaviour or a combination of both is unnecessary to determine. The plaintiff's sedated condition, however caused, was known or ought to have been known to the Hospital and the Psychiatrist.
Both Dr Teoh and Professor Phillips attempted to redirect the discussion to the facts as they existed on the day of discharge. They stated: WITNESS TEOH - This is on a clinical - I am speaking as a clinician. I think, you know, as a clinician if someone is on that kind of combination of medication I would be extremely worried about them driving, especially on the day of their discharge without assessment and without a proper review in relation to their capacity to drive. As a clinician I would be very worried about anyone taking that kind of combination of medication and driving. WITNESS PHILLIPS - Your Honour, I would share the view of my colleague. It is important at the time of discharge to consider not only the patient's clinical status and sedation in particular, or interference with cognition, but also to look hard at the drug regime and as a rule of thumb, and this is a practical matter as much as a theoretical matter, as a rule of thumb I do not believe it is good practice to allow a person to drive their car home from hospital on the morning when they have shown definite evidence of sedation and where they have not even been able to pack their bags in a satisfactory manner. Something may well have interfered with her capacity to drive her car. On a balance of probabilities, like Dr Teoh, I would have thought that the group of medications needed to be taken into serious consideration. I would not have allowed her to go home driving herself on that day. [T370.19-37 - emphasis added].
The Court then drew to the attention of Professor Phillips the fact that the plaintiff had driven on two occasions after being authorised to do so by the Psychiatrist on 7 January 2012. Professor Phillips' reply was: Well there's two ways of looking at that, the first is again just from a clinical perspective, the thought of sending someone out of the hospital whilst the patient to drive while taking I think six agents with psychotropic properties, I think was just bad medicine. Yes, she apparently drove with a degree of safety. Well we all know there are multiple factors in an accident and if you are driving perhaps in a local area that you know and that there is no stress in terms of something else happening, you might survive the drive. On the other hand, if something more complex occurs in the process of driving a car, then I would be very worried about a person with multiple psychotropic drugs in their system at the wheel of the car. [370.45-375.4].
Counsel for the plaintiff sought to direct Professor Phillips' misapprehension as to when the plaintiff was discharged. That is, that she was discharged in the afternoon and not the morning of 17 January 2012. When asked whether that would alter his opinion Professor Phillips: Yes, it would. Obviously the more time that has elapsed after taking one or five drugs then the less likely it is that those drugs will have an effect, and that is dependent on the half-life entirely. It would not make a very large difference, but I would certainly take it into consideration and thinking that an accident occurring some time later in the day might have another cause and I might say here that I am in absolute agreement with Professor Large about the multiple possibilities leading to sedation. The problem is not in the number of possibilities; it's in weighing those possibilities and coming to put them in some sort of order and I certainly struggle with that and I suspect my colleagues might too. [T373.9-18].
Professor Large was taken to the question of the plaintiff's tiredness at the time of discharge. His reply was "she has a depressive disorder. Depressive disorders are intrinsically, you know, tiredness is an intrinsic part of that" [T374.11].
After careful consideration I consider the evidence of Professor Large to be generally unhelpful. Even leaving aside the questions of medication-induced tiredness, he was not prepared to alter his opinion as to whether the plaintiff should drive even if told that the plaintiff had been experiencing fatigue for two days prior to the accident [T377.8-9]. This rigidity in his opinion causes me to question its reliability. He appeared to be acting as an advocate for his client, contrary to his duty to the Court.
He said that it was not the role of the doctor to decide whether patients drive their cars or not [T377.23]. Leaving aside whether that statement is correct, a doctor, caring for and treating a patient in a psychiatric facility at the very least has a duty to warn the patient about the risk of driving a motor vehicle whilst affected by tiredness or sedation.

[27]

analysis

The plaintiff was a patient at the Hospital. Her management was at the direction and under the instruction of the Psychiatrist. The defendants had a duty to take reasonable precautions to protect the plaintiff from reasonable foreseeable risks of harm.
The Psychiatrist decided which other doctors acted in the plaintiff's management. She reported to the insurer who was funding the plaintiff's stay. The Psychiatrist was, at least from 6 January 2012, solely responsible for the plaintiff's management, including the medication she was given by Hospital staff.
It was the Psychiatrist, who, on 7 January 2012, decided that the plaintiff should be allowed to drive her motor vehicle notwithstanding the medication she was taking, her known insomnia, general fatigue and sedation. She was authorised to drive short distances in the local area. It was part of her re-integration into the community. A number of such short trips were undertaken before discharge, without incident.
When the Psychiatrist saw the plaintiff on 16 January 2012, she decided that she was fit for discharge and authorised same for 17 January 2012. The Psychiatrist did not see the plaintiff again prior to her discharge, despite having a conversation with a nurse of the Hospital the day of discharge. That conversation related to releasing clinical notes to the plaintiff.
It would have been a fairly simple matter for the Psychiatrist to enquire of the staff as to the condition of her patient on the day of discharge. Had she done so, she ought to have been informed of her tiredness and sedation which ought to have caused concern to the Psychiatrist about authorisation for the plaintiff to drive at all, let alone to her home following discharge. The Psychiatrist did not turn her mind to how the plaintiff would travel home upon discharge. She left the decision to drive a matter for the patient. In the circumstances, I have found that this was a breach of the duty owed by the Psychiatrist to her patient.
On the day of discharge when the Psychiatrist spoke with Nurse Easson regarding the plaintiff's clinical notes, the following facts were then known, or ought to have been known, to Nurse Easson: 1. that the plaintiff was drowsy or asleep during the day, especially in the afternoons; 2. that the plaintiff suffered from insomnia and was often out of her room at night; 3. that she was taking an array of medications, some of which were known to cause sedation; 4. that, on the day of discharge, she was very difficult to arouse. Nurses attempted to wake her on several occasions; 5. that at least one other patient, Ms Allan, observed the plaintiff to become more and more drowsy; 6. that Ms Allan expressed her concern about the plaintiff being discharged to Hospital staff, including a nurse named, Anne; 7. that the plaintiff would spontaneously fall to sleep, even when seated; 8. that, by reason of her sedation and general fatigue, the plaintiff was unfit to safely drive a motor vehicle.
It ought to have been obvious to the Hospital staff that it was unsafe for the plaintiff to drive home. Similarly, had the Psychiatrist asked about the plaintiff's condition on the day of discharge she would have been provided with information (above) which ought to have made it plain that not only should the plaintiff not be permitted to drive but that she probably ought not to be discharged. In fact, so much ought to have been apparent to the Psychiatrist when she saw the plaintiff on the evening before discharge.
In my opinion, the plaintiff should have been kept in the Hospital until it was safe for her to drive, the Hospital should have arranged a transfer by taxi or notified family or a friend of the plaintiff's to drive her home. Any one of those steps would have avoided the accident occurring and the harm being suffered to the plaintiff.
The precise pharmacological or other cause of her sedation may not be determinable, although it was most likely related to her insomnia, day-time sleeping and/or medication, all of which were within the knowledge of the Hospital and the Psychiatrist.
I make the following findings: 1. that the plaintiff was suffering from sedation and/or extreme fatigue on the day of discharge; 2. that the plaintiff had been suffering from that condition for several days prior to discharge, including when she consulted the Psychiatrist on 16 January 2012; 3. that the plaintiff's condition was the result of medication and/or insomnia; 4. the plaintiff was unfit by reason of sedation and/or fatigue to drive home at the time of discharge; 5. that whilst driving, the plaintiff fell asleep causing the loss of control of her vehicle, resulting in the accident; 6. that her condition ought to have been obvious to Hospital staff (on the day of discharge) and the Psychiatrist (on 16 January 2012 - the day prior to discharge); 7. that the Psychiatrist ought to have either examined the plaintiff on the day of discharge or enquired as to her condition when taking with Nurse Easson; 8. that, had such an examination taken place or enquiries made, it ought to have confirmed the Psychiatrist's belief that the plaintiff was unfit to drive a motor vehicle home on 17 January 2012; 9. the plaintiff ought not to have been discharged home alone that day; 10. alternative arrangements ought to have been made for her transfer home; and 11. enquiries ought to have been made as to the availability of some other person to drive the plaintiff home, such as a family member or friend.
Having made those factual findings I am satisfied that both the Psychiatrist and the Hospital breached her/its duty of care to the plaintiff.
I now turn to the specific matters for consideration under the Civil Liability Act 2002.

[29]

s5B(1)(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known).

The relevant risk was that, by reason of tiredness, drowsiness, fatigue and/or sedation, the plaintiff might fall asleep or suddenly black out whilst driving the 50km journey from the Hospital to her home causing a loss of control of the vehicle and harm to the plaintiff ("the risk").
The risk was known or ought to have been known to the defendants, for the following reasons:

the Psychiatrist was aware that the plaintiff had been suffering disturbed sleep;
when seen by the Psychiatrist on 16 January it was noted that the plaintiff had spent most of that day in bed;
on the morning of discharge, the plaintiff fell asleep repeatedly and had to be woken on several occasions by the Hospital staff;
on the morning of discharge the plaintiff fell asleep at breakfast;
she had to take a cold shower in an attempt to alleviate or reduce her fatigue;
the Hospital staff packed the plaintiff's bags;
the Hospital staff carried her bags from the Hospital to her car;
Ms Allan's evidence is compelling proof from an independent witness as to the plaintiff's condition;
Ms Allan observed that the plaintiff could not stay awake prior to discharge and that the Hospital staff attended on several occasions to wake her up;
Ms Allan, also a Registered Nurse, was concerned about the plaintiff leaving the Hospital, given her condition;
Ms Allan communicated her concerns to a staff member named Anne, most probably Nurse Easson;
during the course of the discharge process, Nurse Easson recorded that the plaintiff had been very tired lately and that the Psychiatrist was aware of that fact;
after the accident upon return to the Hospital, the Psychiatrist recorded that the plaintiff reported increased sedation in the past week, that nursing staff reported that the plaintiff had been sleeping much longer than usual in the two days preceding discharge and that her condition had been observed by nursing staff;
in a letter to the insurer of 20 January 2012, the Psychiatrist made the following factual statements: (a) the plaintiff reported increased sedation over the last week; (b) that staff reported (to her) that the plaintiff had been sleeping much longer than usual in the 2 days prior to discharge; (c) that the increased sedation may be due to OxyContin.
In a letter to Dr Graham dated 20 January 2012, the Psychiatrist made the following factual statements: (a) that in the 3 days prior to discharge the plaintiff was "excessively sedated; (b) that in the 3 days prior to discharge the plaintiff "had some semi-falls"; (c) that OxyContin was "probably the culprit".

In my view this evidence established clearly that the Hospital and the Psychiatrist knew of the plaintiff's condition prior to discharge, making the risk readily foreseeable. I find that the risk was one of which the defendants knew or ought to have known so as to make it reasonably foreseeable.

[49]

s5O - Standard of Care for Professionals

This matter has been pleaded by the second defendant. The primary provision is contained within sub-section 1: s5O(1) A person practising in a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
In the circumstances of this case, the breach of duty is so clear that this issue could be answered by a lay person. As experts have been retained, however, that is not necessary.
For reasons provided above, I prefer the opinion of Professor Phillips to the other psychiatric experts in the case. In particular, I accept his opinion that the second defendant did not act in a manner that was widely accepted by peer professional opinion as competent professional practice. Professor Phillips expressed the opinion (quoted above) that both defendants were incorrect in allowing the plaintiff to attempt to drive her car immediately following discharge from Hospital.
Professor Phillips' opinion was supported by the report of Dr Teoh dated 9 September 2014 in which he stated that the conduct of the defendants in this case did not conform with a practice widely accepted in Australia by peer professional opinion as a competent professional practice "in allowing Ms Naidoo to immediately operate a motor vehicle following discharge from the Hospital".
The main opinion against Professor Phillips and Dr Teoh came from Professor Large whose opinion, for the reasons provided above, I do not accept. He thought the conduct of the defendants met peer professional standards of practice. I consider Professor Large's opinion to be irrational within the meaning of s5O(2) and find that it cannot be relied upon for the purposes of s5O. Professor Large's opinion contains an implicit assumption that the Psychiatrist assessed the plaintiff as "fit to drive". That does not reflect the evidence of the Psychiatrist. The effect of her evidence was that she left the assessment of fitness to drive as a matter for the plaintiff herself. In my view, that could never be considered acceptable professional practice for a patient taking sedative medication.

[51]

The Accident

I have above expressed the view that the plaintiff lost control of the vehicle after falling asleep. Before considering liability further, I provide the following reasons for that conclusion.
The plaintiff gave evidence in chief and was cross-examined by both defendants regarding the accident. She told the Court in chief that she remembered turning into a street parallel to her street but could not recall what then happened as she "blacked out" [T50]. She then said: I remember waking up to my head hitting the roof and the car was airborne and I black [sic] out again. The next thing was when the ambulance was there scooping up the teeth … [T150.12 - emphasis added].
In cross-examination she first said that she remembered her head hitting the roof and the ambulance [T72.10]. She had been told by police and the Psychiatrist that she had driven off the road and into a wall.
Later in cross-examination the plaintiff said that she was driving and "then the next moment I woke up with the car being airborne". She did not know what happened prior to that [T107 - emphasis added].
The NSW Ambulance Report is in evidence (Exhibit 1-D2, page 507). It recorded that there was first contact with the plaintiff at 15:27. The narrative in the report recorded a chief complaint of "posterior neck pain". It described the plaintiff being the driver of a vehicle that struck a sandstone block with the driver's side front wheel at low speed causing the steering arm to break.
The Gosford ED notes (Exhibit 1-D2, page 515) recorded that the plaintiff was unsure of events leading up to the crash. It recorded that she ran over a sandstone block at low velocity.
In respect of the accident, I make the following factual findings which are not readily disputable on the evidence as I have analysed it: 1. that the ambulance was booked at 15:18; 2. the accident occurred shortly prior to that time; 3. the accident occurred close to the plaintiff's home, being her destination; 4. that the front driver's side wheel struck a sandstone block causing the steering arm to break; 5. the impact was a result of the plaintiff losing control of the movement of the car; 6. that impact caused the vehicle to become partially airborne; 7. it also caused the plaintiff to wake up; 8. the plaintiff then struck her head on the roof of her car; 9. she may then have had a brief period of loss of consciousness but nothing turns on this; 10. the impact between the vehicle and the sandstone block was at a low speed.
The central factual issue about which a finding is necessary is what caused the plaintiff to lose control of the vehicle. There are a number of possibilities, all of which are based on inference. They include inattention on the part of the plaintiff, distraction or falling asleep at the wheel whilst driving.
Choosing between the three competing inferences should be done with caution. I am mindful of the approach of the High Court in Luxton v Vines (1952) 85 CLR 352 at 358: In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the consideration sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise …" (Emphasis added).
In my view, there are a number of facts proved on the evidence which reasonably permit a finding on the probabilities. They include: 1. the plaintiff was affected (to an unknown degree) by sedative medication; 2. the plaintiff was tired and sedated prior to the journey and for several days before it; 3. the plaintiff had been suffering irregular and disturbed night time sleep; 4. the plaintiff was in the habit of sleeping in the afternoons.
Those circumstances permit an inference that is both reasonable and definite and does not involve conjecture or surmise. That is that the loss of control of the vehicle was due to the plaintiff falling asleep whilst driving. Such a finding is also consistent with the plaintiff's own account that she "woke up" upon impact.
Accordingly, I find that the accident and the harm to the plaintiff were caused by her falling asleep whilst driving.
It is not necessary to determine the reason for her falling asleep. Whether it was due to sedation, irregular sleep patterns, the habit of afternoon sleeping or medication as the Psychiatrist suggested it is not material to the finding of liability. All that is necessary for the plaintiff to succeed is to establish that the defendants were aware of the plaintiff's sedated condition and not only discharged her from the Hospital but did so knowing that she was to drive her vehicle home.

[52]

PLAINTIFF'S submissions on liability

The plaintiff provided a Written Outline of Submissions ("PS" - MFI 13). It was submitted that the defendants owed the plaintiff a duty to take such care to avoid foreseeable risks of harm to her as was reasonable in the circumstances where they knew or ought to have known that the plaintiff had been suffering excessive tiredness and drowsiness at the time of her discharge and for two days prior, was driving home alone and had a journey ahead of her in excess of 30 minutes (PS 58).
The plaintiff described the relevant "risk of harm" as being of a patient at the Hospital suffering excessive tiredness and drowsiness who was driving home alone on a journey in excess of 30 minutes losing control of her motor vehicle and crashing and suffering personal injury (PS 59).
Whilst the risk of harm as defined by counsel for the plaintiff is not in the same terms as that which I have found, it is of the same effect. The plaintiff submitted that the risk was plainly foreseeable (PS 60). This is a matter which I have addressed above. Further, the plaintiff submitted that the risk is neither far-fetched nor fanciful and referred the Court to a decision of the New South Wales Court of Appeal in Drinkwater v Howarth [2006] NSWCA 222 at [16]. It was submitted that the risk was not insignificant. I addressed this matter above and agree with the plaintiff's submission in this regard.
It was submitted that the probability of the injury occurring was high. I agree. Further, that there was a serious likelihood of harm being suffered by the plaintiff and "the need to caution the plaintiff about driving was something the hospital should have been alerted to" (PS 63). I agree with that submission but do not confine the defendants' breach to the failure to caution.
Counsel for the plaintiff submitted, by reference to s5B(2)(c) of the Civil Liability Act that the defendants "could" have: 1. cautioned the plaintiff not to drive; 2. withheld the plaintiff's car key; 3. inviting the plaintiff to get a taxi noting her evidence that she could have got a taxi [T94.24]; 4. offered to order a taxi for the plaintiff; 5. proposed the plaintiff to be driven home by her brother or sister noting the plaintiff had transport that could have come and picked her up [T94.20]; 6. proposed the plaintiff drive home with a companion; and 7. kept the plaintiff under admission until she was no longer excessively tired or drowsy.
As would be apparent from the consideration given above to s5B(1)(c) I accept this submission advanced on behalf of the plaintiff.
Counsel for the plaintiff submitted that the relevant risk was not an obvious risk. That is, it was not obvious to the plaintiff. The Court's attention was drawn to a decision of Laoulach v Ibrahim [2011] NSWCA 402 (16 December 2011) where it was stated (by Tobias AJA with Giles and Macfarlan JJA agreeing): The expression "obvious risk" in s5F(1) of the CL Act has been held by me to mean that both the condition and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgment.
Reference was then made to the decision in the matter of The Council of the City of Greater Taree v Wells [2010] NSWCA 147 (1 July 2010) per Beazley JA with McColl and Basten JJA agreeing: Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the plaintiff was in. [75] The question of obvious risk therefore requires a determination of whether the plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff.
The thrust of the plaintiff's submission in relation to obvious risk was that the relevant risk was not a risk which was obvious to a reasonable person in the position of the plaintiff and, even if it was, the defendants would not have been relieved of their responsibility by reason of s5H(2)(c) of the CLA.
As is apparent from the findings I made above, I accept those submissions.
In exchange during oral addresses, the plaintiff's case became quite clear (see [T511 and following]). It was that there was no issue that the Hospital was aware that the plaintiff was excessively sedated but, nevertheless, permitted her to drive upon discharge.
So far as the Psychiatrist is concerned, the plaintiff's counsel was critical of the assessment performed by her on the day before the plaintiff's discharge and that, had a proper assessment been carried out at that time, the Psychiatrist would have discovered that the plaintiff was suffering from excessive sedation and sleeping much longer than usual. The plaintiff was also critical of Dr Grund as being the Psychiatrist who certified the plaintiff fit to drive in the first place.
Before turning to consideration of the defendants' submissions, I pause to comment upon the evidence so far as it relates to the specific allegations of negligence raised by the plaintiff. As these matters are considered elsewhere in these reasons to the extent relevant, my comments in this section will be brief. The following sub-headings represent the particulars of negligence set out in the Third Amended Statement of Claim:

[65]

first defendant's submissions on liability

The Written Submissions of the first defendant ("FDS") rely heavily upon the risk assessment completed by Nurse Easson and self-assessment completed by the plaintiff prior to discharge. Those documents are relevantly summarised in the chronology above. Subject to the one notation that the plaintiff "reports tiredness lately - psych aware" (Exhibit 1-D1, page 78) the risk assessment completed by Nurse Easson does not record any factor which would give rise to anything which would cause Nurse Easson concern about the plaintiff's ability to drive a motor vehicle.
The difficulty with placing reliance upon the risk assessment is that it requires the person completing it to turn their minds to a number of specific categories of conditions, such suicidality, self-harm and others. Whilst these are obviously valid considerations for a patient being discharged from a psychiatric unit, the document itself does not cause the person completing it to turn his or her mind to the relevant risk in this case, namely, whether the patient upon discharge, was fit to drive a motor vehicle. It seems that in respect of that risk, the Hospital relied upon the opinion of the Psychiatrist, without its staff considering the risk themselves.
Only one of the 11 categories of risk assessment (General Vulnerability) requires the nurse to consider factors which may influence a person's ability to drive, although none of the categories specifically deal with increased sedation, perhaps with exception of "altered activity level" which was ticked "positive" in respect of the plaintiff.
Further, I consider the first defendant's heavy reliance upon the risk assessment to be misplaced. It was incumbent upon the discharging nurse to have regard to all of the circumstances of which she was aware or ought to have been aware. In this case, that would include the plaintiff's condition on the day of, and the day prior, to discharge. It would also include the plaintiff's condition as described by Ms Allan which was communicated to the nursing staff, probably Nurse Easson herself.
The second plank of the first defendant's defence is the plaintiff's own assessment, to the extent that it is exposed in the HoNOS document (commencing at Exhibit 1-D1, page 89). The difficulty with that assessment is that it was completed at a time when the patient was impaired by tiredness and sedation. Although it is submitted by the first defendant that there was no evidence to support the proposition that she was not in a fit state to make the assessment (FDS 17), it is obvious from other evidence (including the observations of the independent witness, Ms Allan) that the plaintiff was not in a fit state to make an accurate assessment of the risk herself.
One need only look at the answers to question 3 (Exhibit 1-D1, page 93) to be concerned about the answers given and the capacity of the plaintiff to understand the question and provide an accurate answer. This question is directed to assessing how much of the time during the past three days the patient had experienced the feeling identified in paragraphs A - I. The answers provided by the plaintiff to these questions are, within themselves, inconsistent, suggesting that she either did not have an understanding of the questions she was being asked or that her capacity to complete the form was impaired. For example, her answers to questions 3C and 3F cannot sit together. By those answers she is indicating that most of the time she had felt so down in the dumps that nothing could cheer her up (3C) but none of the time has she felt down (3F). The same can be said of her answers to 3E and 3I. That is, that none of the time did she have a lot of energy (3E) but that none of the time did she feel tired (3I).
The self-assessment completed by the plaintiff is of little or no value. I find that the answers provided by the plaintiff are unreliable. That unreliability may be due to her condition at the time at which it was completed or her lack of understanding of the document itself. It is not necessary to make a specific determination as to that matter as the unreliability of the document is clear on its face. The clear, irreconcilable inconsistencies in her answers ought to have been obvious to the Hospital's staff and raise concern as to the plaintiff's capacity.
When the plaintiff was re-admitted to the Hospital on 18 January, she was provided with the same self-assessment form. That document again demonstrated inconsistencies in the answers to question 3 which caused doubt as to reliability (Exhibit 1-D1, page 304). The same irreconcilable answers to 3E and 3I have been provided indicating that none of the time did the plaintiff have a lot of energy and yet none of the time in the past two weeks did she feel tired.
Whilst the second self-assessment occurred after the accident, it confirms the unreliability of the first assessment completed by the plaintiff on the day prior to her first discharge.
The first defendant submitted that "the questionnaires indicate that the plaintiff was in a lucid, cogent state at the time of discharge. They show she was capable of self-assessment at this time. They corroborate the plaintiff's own oral evidence that she felt fine to drive at the time she left the hospital" (FDS 20). I reject that submission and find that her answers to question 3, being the most pertinent to her condition, indicate that she was in a state of confusion. They certainly do not establish that the plaintiff was in a lucid and cogent state at the time of discharge. There was no indication in the evidence that the Hospital staff even turned their minds to these blatant discrepancies.
Moving away from the documents on discharge, the first defendant submitted that: There was a reasonable amount of evidence led by the plaintiff about her condition on the morning of the 17th. It is not clear that very much, if anything, turns on that issue: The critical question so far as the hospital is concerned is the plaintiff's presentation at the time of discharge. (FDS 27).
In my opinion, the duty owed by the Hospital extended beyond the plaintiff's presentation at the time of discharge. The discharging nurse ought to have had regard to all of the circumstances which may have informed the question of whether there was any risk in the plaintiff being discharged and driving a motor vehicle. Such matters ought to have included: 1. the fact that the plaintiff spent most of the day on 16 January 2012 in bed; 2. the fact that the plaintiff, after being woken by staff at breakfast, fell asleep over her breakfast; 3. the fact that nursing staff tried to wake her on several occasions throughout the morning of the 17th January 2012 but she fell back asleep each time; and 4. the observations made by Ms Allan which had been referred to above and which were made known to staff of the Hospital prior to discharge.
The first defendant submitted that the Court should accept Nurse Easson's assessment at the time of discharge and find, on the probabilities, that the plaintiff was in a similar condition from at least mid-morning (FDS 28). In order to make such a finding, would require the rejection of the evidence of the plaintiff and Ms Allan in circumstances where I have accepted those witnesses as witnesses of truth. Accordingly, I decline to make the finding contended for and instead find, that the Hospital, informed by other events of which it was aware or ought to have been aware, should have considered the plaintiff unfit to drive her motor vehicle at the time of discharge.
In its Written Submissions, the first defendant described the duty of care it owed to the plaintiff as a non-delegable duty involving the exercise of reasonable care in the provision of nursing services including those provided at discharge (FDS 57). It correctly accepted that the Hospital was vicariously liable for the conduct of its nurses, including Nurse Easson. Further, the first defendant submitted that it was not vicariously liable for the conduct of the provision of psychiatric care by the Psychiatrist (FDS 58). I accept those submissions.
In an effort to resist a finding of breach of duty of care against it, the first defendant relied upon the fact that the Psychiatrist had authorised the plaintiff to drive a motor vehicle on and from 7 January 2012 (FDS 61(b)). It also relied upon the plaintiff's own assessment of her capacity to drive which it was informed by the permission provided by the Psychiatrist on 7 January 2012 and the plaintiff's own knowledge as to the effects of medication given that she was herself a registered nurse.
I do not accept that the Hospital, by its trained staff, are entitled to act without question upon the permission to drive granted by the Psychiatrist when it ought to have been apparent from the plaintiff's presentation prior to and upon discharge that she was unfit to drive. At the very least, this ought to have caused a reasonable person in the position of the Hospital staff (Nurse Easson) to contact the Psychiatrist to determine whether, based upon the plaintiff's presentation at that time, she ought to be discharged to drive her motor vehicle or at all. I find that a prudent and reasonable response would have been to take the steps referred to above so as to avid the plaintiff driving herself home from the Hospital.
As for the Hospital's purported reliance upon the plaintiff herself, I do not accept that the Hospital's duty of care can be discharged by relying upon a psychiatric inpatient to make her own assessment as to her capacity to drive. Knowing that the plaintiff was to drive a motor vehicle home, it was incumbent upon the Hospital, by its staff, including Nurse Easson, to satisfy itself that she was capable of doing so. There is no indication in the clinical records that the Hospital staff turned their mind at all to the question of whether or not the plaintiff was capable of driving a motor vehicle on a public road from Woy Woy to Wyong, some 50 kms away.
I reject the first defendant's submissions as to breach and find that the first defendant breached its duty of care to the plaintiff for permitting or requiring her to drive her motor vehicle following discharge in circumstances where she was unfit to do so. I find that a reasonable person in the position of the Hospital (by its staff) would not have permitted the plaintiff to drive her motor vehicle. The reasonable response to the foreseeable harm would have been to take any one of the alleviating steps referred to above (Marien v Gardiner [2013] NSWCA 396, 27 November 2013).
Further, I find that it was as a consequence of that breach of duty of care that the accident occurred and the plaintiff suffered injury. Had reasonable steps been taken, harm would not have been suffered.
I note the plaintiff's evidence that she was not in the state of mind to make a decision as to whether she should drive her motor vehicle and that she "trusted" the judgment of her carers at that time.
I also accept the evidence of the plaintiff that had the plaintiff been told or warned not to drive then she would not have done so. I find that the Hospital's breach was causative and satisfied the requirements of s5D(1) (c.f. Biggs v George [2016] NSWCA 113, 17 May 2016). This is not a case where the plaintiff suffered harm by the materialisation of a risk which she was prepared to accept (c.f. Wallace v Kam [2013] HCA 19, 8 May 2013).
The first defendant submitted that the scope of liability ought not to extend to hold the first defendant liable in the circumstances as it was incumbent upon the plaintiff to prove that the accident was caused by the medications which she was taking at the time (FDS 77). In my view, this unnecessarily narrows the plaintiff's claim. The risk against which the defendant ought to have taken precautions was identified in paragraph 10A of the Third Amended Statement of Claim as being: The risk to a patient of the hospital taking a range of medications who was driving to Wyong whilst suffering tiredness, drowsiness, cognitive impairment or sedation of losing control of the motor vehicle and crashing and suffering personal injury.
The evidence clearly established that the plaintiff was a patient of the Hospital taking a range of medications and was suffering from tiredness or in the words of the Psychiatrist, sedation. I am of the opinion that it is appropriate to extend the scope of liability (in the context of causation) to cover the breach(es) of duty which occurred in the circumstances.
In my opinion, this is a case where the coincidence of the risk and the harm suffered leads to a compelling inference of a relevant causal connection (c.f. Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSW 8, 8 February 2013).

[66]

second defendant's submissions on liability

The Psychiatrist conceded that she owed the plaintiff a duty of care (SDS 69). Further, the Psychiatrist contended that the scope of the duty of care extended to reasonable care of treatment, including advice provided to the plaintiff during the course of her admission. The Psychiatrist sought to limit the scope of the duty of care by a number of matters including the fact that the plaintiff had to be discharged from the Hospital and by the plaintiff's entitlement and desire to drive her motor vehicle. The Psychiatrist declined to accept that her duty of care extended to harm caused by the plaintiff's decision to drive her motor vehicle.
I do not accept those limitations upon the duty of care owed by the Psychiatrist. The nature of the relationship between the plaintiff and the Psychiatrist was such that the plaintiff was in a position of vulnerability by reason of her condition and the Psychiatrist was in a position of control and responsibility.
It is apparent from the Psychiatrist's consultation note of 16 January 2012 (Exhibit 1-D1, page 180) that the Psychiatrist was concerned about the plaintiff being discharged. The concern, however, related to whether or not the plaintiff was suicidal and the Psychiatrist accepted the plaintiff's assurance that she was not.
At no stage did the Psychiatrist discuss with the plaintiff how she would travel home upon discharge. It is plain from the answer provided by the Psychiatrist in Court [T323.21 and following] that it was the Psychiatrist's intention to leave it up to the patient to decide the next day whether the patient was in a fit state to drive a motor vehicle. This is a clear breach of the duty owed by the Psychiatrist to the plaintiff.
The Psychiatrist's attempt to narrow the duty of care which she owed to the plaintiff was inconsistent with the fact that, upon admission, the keys to the plaintiff's vehicle (and, therefore, her ability to drive her motor vehicle) were handed over to staff at the Hospital and not to be given to the plaintiff until the permission of the Psychiatrist was provided. The Psychiatrist was the sole person with control over whether or not and to what extent the plaintiff drove her motor vehicle. The duty of care owed by the Psychiatrist to the plaintiff extended to include taking precautions to ensure that the plaintiff did not drive her motor vehicle unless capable of doing so safely.
The Psychiatrist then submitted that she had not breached her duty of care to the plaintiff (SDS 72). It was submitted on behalf of the Psychiatrist that the risk of harm resulting from driving the motor vehicle was not foreseeable by the Psychiatrist. That is, it was not a risk of which the Psychiatrist knew or ought to have known. For reasons provided elsewhere, I reject that submission. Apart from the obvious risk, the fact that the keys were taken away at all suggests that the risk of harm was foreseeable.
In my opinion, the Psychiatrist breached her duty of care to the plaintiff in permitting or requiring the plaintiff to drive her motor vehicle upon discharge in circumstances where she was not fit to do so safely.
Further, I find that the Psychiatrist breached her duty to the plaintiff in failing to review her or make any enquiries as to her condition on the day of discharge. The need to do so arose from the Psychiatrist's observations the day before discharge and her knowledge of the plaintiff's sedation, as communicated to the insurer and Dr Graham. This would have been a relatively easy matter to attend to, particularly as Nurse Easson was in contact with the Psychiatrist on the day of discharge. Had the Psychiatrist enquired of Nurse Easson as to the plaintiff's condition at that time, then one would expect that she would have been informed of the fact that the plaintiff was heavily sedated. This, in turn, ought to have led to the Psychiatrist reconsidering the discharge of the plaintiff and, indeed, the standing permission granted for her to drive a motor vehicle at all.
As mentioned, I accept the opinion of Professor Phillips that the Psychiatrist did not act in a professional manner which would be widely accepted by peer professional opinion. I consider her conduct to be extremely unsatisfactory. She displayed a complete absence of interest in the welfare of her patient who relied entirely upon her judgment. That reliance was misplaced. It is regrettable that a person working in the medical profession involving highly vulnerable patients was seemingly unempathetic.
The second defendant further submitted that the plaintiff has failed to discharge her onus of establishing that the medication caused the plaintiff to have the motor vehicle accident (SDS 77). I reject that submission and rely upon the reasons provided elsewhere.
Accordingly, I find the second defendant liable to the plaintiff.

[67]

apportionment of liability between the defendants

After careful consideration, I have reached the opinion that liability ought to be apportioned between the defendants as follows: The first defendant (the Hospital): 1/3 The second defendant (the Psychiatrist): 2/3
So far as the first defendant is concerned, matters which bear upon that determination include: 1. the fact that the plaintiff was a resident of and primarily in the care of the Hospital; 2. the Hospital, by its staff, had constant exposure to the plaintiff and, therefore, every opportunity to make observations as to her condition and the like; 3. the plaintiff's condition on the day of discharge was known, or ought to have been known, to the staff of the Hospital; 4. in view of the findings made above as to the plaintiff's condition on the day of discharge, the nursing staff at the Hospital ought to have, but did not, raise that matter with the Psychiatrist prior to discharging the plaintiff to drive home; 5. by reason of the procedures in place, the Hospital had the last opportunity to prevent the plaintiff from driving her vehicle or make other arrangements for her which they failed to do. This statement is not intended to invoke the "last opportunity" doctrine but it is a relevant consideration in weighing responsibility between the defendants.
So far as the Psychiatrist is concerned, I have had regard to the entirety of the evidence and, in particular, the following: 1. the Psychiatrist was the expert in charge of the treatment and management (including the discharge) of the plaintiff; 2. the Psychiatrist was the person who permitted the plaintiff to drive her motor vehicle on a public road on and from 7 January 2012; 3. it seems that, having given that permission, the Psychiatrist did not further turn her mind to the plaintiff's capacity to drive her motor vehicle; 4. the Psychiatrist left it as a matter for the plaintiff to make an assessment of herself as to whether she was sufficiently fit to drive; 5. the Psychiatrist did not turn her mind to how the plaintiff would get home upon discharge; 6. despite having examined the plaintiff the day prior to discharge when the plaintiff presented as tired and sedated, the Psychiatrist did not further enquire as to her condition prior to discharge, the following day. She had every opportunity to do so, particularly as Nurse Easson contacted the Psychiatrist prior to discharge; 7. the staff of the Hospital relied upon the expertise of the Psychiatrist in determining the plaintiff's suitability for discharge and capacity to drive her motor vehicle; 8. the Psychiatrist's degree of departure from the conduct of a reasonable person in her position was greater than that of the Hospital.
Having regard to all of those factors, I apportion liability as stated above.

[68]

contributory negligence

Sections 5R of the CLA apply to the determination of contributory negligence: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
In Allen v Chadwick [2015] HCA 47, 9 December 2015, the High Court when considering a provision similar to s5R stated: (The Section) imposes the same standard of care on both plaintiffs and defendants. It disqualifies any suggestion that the reasonable care and skill expected to the plaintiff to protect his or her own interests is different from that expected of a defendant to protect the interests of others.
This then requires the Court to have regard to the general principles contained in s5B of the CLA. In my opinion, a reasonable person in the position of the plaintiff would have relied upon the Psychiatrist and the Hospital staff to assess whether or not she was fit to drive her motor vehicle, to prevent her from driving or at the very least ensured that she was aware of the risks.
The plaintiff's evidence on this question was quite clear. She told the Court she was not in a condition to make that assessment for herself and instead "relied on her carers".
Before moving from the question of contributory negligence, it is necessary to have regard to the precise allegations made by the defendants against the plaintiff. In respect of each of the allegations, I provide the following brief observations: (a) driving in circumstances where the plaintiff knew or ought to have known that she may be affected by medication
As I have previously found, the plaintiff was not in a fit state to make an assessment as to her capacity to drive a motor vehicle. This allegation fails. (b) failing to inform the servants or agents of the first defendant that she was not fit to drive
The plaintiff's condition ought to have been obvious to the staff employed at the Hospital. In the event that, for whatever reason, it was not, then the report made to the staff by Ms Allan ought to have drawn the relevant facts to their attention so as to warrant intervention. This allegation fails. (c) failing to request a taxi or other means of transport to return home
The plaintiff quite reasonably relied upon the defendants and at no stage did either defendant suggest that the plaintiff ought to catch a taxi rather than drive her own vehicle. This allegation fails. (d) failing to arrange for a friend or acquaintance to collect her from the Hospital
I repeat the observations made in respect of allegation (c) above. In my view, this allegation also fails.
In my opinion, the plaintiff was entitled to rely upon the assessment of her carers who were experienced in making decisions of this type. I find that a reasonable person in the position of the plaintiff would have done the same.
Accordingly, I am not satisfied that the defendants have discharge their onus of establishing any evidentiary basis for a finding of contributory negligence.
If I am wrong about the preceding finding, then I observe that any allowance for contributory negligence would be de minimis and, when weighed against the negligence of the defendant both in terms of culpability and causation (per Podrebersek v Australian Iron and Steel [1985] HCA 34; 59 ALR 529 (29 May 1985)), would not exceed 10%. I am, however, satisfied that no reduction ought to be made.

[69]

The Plaintiff's Evidence

Exhibit A is the plaintiff's Chronology which was read and adopted by the plaintiff prior to giving evidence. Her evidence was generally consistent with the Chronology.
The plaintiff was born in September 1965 in South Africa. She commenced school at the age of six and left after completing the equivalent of Year 12 in 1983 at about the age of 17. She went on to study nursing and midwifery completing those courses in 1989 and 1990, respectively.
The plaintiff then did her nursing training outside of town in a mission field before commencing work as a nurse in Durbin, South Africa. That was in early November 1989.
The plaintiff continued working as a nurse in Durbin for the next eight years before migrating to Australia where she commenced work as a nurse at the Sydney Adventist Hospital in Wahroonga, north of Sydney.
The plaintiff's employment at the Sydney Adventist Hospital was full time and involved working on a surgical ward which required bending, twisting, moving patients and turning them. As well, she was responsible for the dispensing of medications and dressing wounds. Plainly, she would be unfit for that employment now.
On or about 7 February 2001, the plaintiff suffered a lower back injury at work. She was lifting a patient and injured herself whilst bending and twisting. Prior to that her back had been fine. She was treated for that back injury by physiotherapy, hydrotherapy and in the end was admitted to hospital for pain management. The back pain improved over the course of 12 months following the injury but did not completely go away. She returned to work on light duties and was able to pace herself in performing those duties.
On 16 April 2003, the plaintiff had a further misfortune of being involved in a motor vehicle accident on the way to work. She injured her left shoulder and aggravated her low back and suffered a whiplash injury. Following that, the plaintiff underwent two weeks of physiotherapy and had some time off work before returning to work at the Sydney Adventist Hospital.
On 7 March 2005, the plaintiff ceased work with the Hospital as there were no longer any light duties available for her. The need for light duties was due to the back injury caused in 2001 and aggravated in 2003.
The plaintiff then received workers compensation payments for the period prior to obtaining employment for an insurance company in North Sydney. That job commenced within a few months of finishing at the Sydney Adventist Hospital.
Unfortunately, working full time and travelling to North Sydney caused her difficulties. She asked to work part time but that request was not accommodated and she left that employment in November 2005.
In about October 2006, the plaintiff secured employment with Medibank Private working as a telephone triage nurse. The plaintiff described the work as quite demanding and said that she had to be "on the ball". She was literally on a Swiss ball in early 2007 when it burst causing her to fall onto her back. She also suffered some concussion.
The plaintiff's low back condition was aggravated by the fall and she was off work for about two weeks. She then remained in the employ of Medibank Private for almost five years, performing the same duties which she had prior to the 2007 incident. Towards the end of that period, her back pain was becoming more frequent.
According to Exhibit A, the plaintiff's employment with Medibank Private was terminated due to absences from work because of back pain in October 2011. In the period between the injury at work in January 2007 and her termination in October 2011, the plaintiff suffered a number of conditions including heart failure, depression, and an injury to her right knee caused when she fell on stairs. In relation to the depression, the plaintiff began consulting Dr Murray, Psychiatrist, on 23 June 2011 and ceased consulting him on 12 October 2011.
In relation to her low back pain, the plaintiff began consulting Professor Peter Papantoniou, Orthopaedic Surgeon. According to Exhibit A, on 9 November 2011 he diagnosed a bilateral L4/5 low back pain radiating to the left buttock and thigh.
In the period since leaving Medibank Private, the plaintiff's back pain became worse causing her to become very depressed. On 7 December 2011, the plaintiff consulted Dr Lim, her GP, complaining of depression and feeling suicidal. Dr Lim arranged for the plaintiff's admission to the Wyong Hospital where she remained for about four weeks in the Mental Health Unit. The evidence as to that period is at odds with Exhibit A which suggests that the plaintiff was at the Wyong Mental Health Unit only between 7 December 2011 and 16 December 2011, a period of nine days.
In any event on 16 December 2011, the plaintiff was transferred to the Hospital under a referral by Dr Lim.
When asked to describe how she was feeling at the time of her admission to the Hospital, the plaintiff said that "I was feeling very low, feeling depressed, exhausted, tired. I have had enough kind of feeling" [T40.23].
The plaintiff's condition whilst at the Hospital was adequately covered in the discussion above.
The plaintiff was involved in the subject accident on 17 January 2012. She recalled "waking up to my head hitting the roof of the car and being airborne and I blacked out again. The next thing was when the ambulance was there scooping up the teeth - my broken teeth from my mouth" [T50.12].
The plaintiff was taken by ambulance to the Wyong Hospital where she remained overnight. When asked how she felt whilst at the Wyong Hospital, the plaintiff referred to a lot of pain in her neck, her head, her right shoulder, low back and left leg.
The plaintiff denied suffering from any problems with her neck, right shoulder, and left knee prior to the accident. In relation to her back, she stated "with my back it was sore but it wasn't as sore as it was after the accident [T51.23]. In relation to her teeth, she told the Court that she had broken several teeth and that, prior to the accident, she did not have any abnormalities with her teeth.
On 18 January 2012, the plaintiff was re-admitted to the Hospital under the care of the Psychiatrist. She remained at the Hospital until about mid-February before being transferred to the Gosford Private Hospital for rehabilitation. She was discharged from the Gosford Private Hospital to her home on 1 March 2012.
In relation to the plaintiff's neck pain, she described that the pain has never completely gone away. She has been having facet joint injections which she cannot now tolerate. Similarly, her condition in relation to her right shoulder never completely settled down. She describes the onset of pain upon reaching up into cupboards and the like. She said that she now must rely upon her left hand to do everything.
In relation to her left knee, the plaintiff underwent an operation with Professor Papantoniou in November 2012. Unfortunately, she was unable to afford physiotherapy post-surgery and the knee was still weak.
The plaintiff's low back condition is maybe the most significant issue. She stated that it is "definitely a lot worse" [T53.42] now than it was prior to the accident. The plaintiff described an instability by reference to her left knee and low back and told the Court that she had been having falls since the accident. She had not experienced falls prior to the accident but now when she gets sciatic pain, it can cause instability.
The plaintiff then gave evidence about her employment situation. It is a little unclear. What was clear was that she was terminated in about October 2011 because of her medical condition relating to her back. She said that she had her employment reinstated through Fair Work Australia however was unable to accept the job "because of the injuries that I sustained from the accident" [T54.30]. When pressed, she said that it was both her neck as well as the aggravation in the low back which prevented her from taking up the offer of re-employment which was made at some point in 2012.
There were limitations in terms of the plaintiff's capacity to sit as well as rotating her neck. Whilst a low back condition pre-dated the accident, the rotation of the neck on taking phone calls was the new injury which did not exist prior to the accident. In addition, the plaintiff suffers from headaches on a daily basis.
In terms of her neck, the plaintiff described pain from the base of her head going right down between her shoulder blades. This condition did not exist prior to the subject accident. The plaintiff described what was involved in working as a triage nurse for Medibank [T58.46] and told the Court that she could not do that job these days [T59.5]. Whilst that seems likely, it is significant that the plaintiff was unable to perform that work prior to the accident.
In terms of driving, the plaintiff's licence was suspended following the accident. It was necessary for her to undergo a driving test to determine what modifications were required to the car. That has not occurred. No reason was provided.
Whilst it is plain that the plaintiff suffered from depression prior to the accident, she said that she became more depressed as a result of it. She described how it affected her mental dexterity [T59.37]. What she meant by that was not entirely clear. To the extent that it matters I understood the plaintiff to be saying that the depression was more persuasive.
In terms of domestic assistance and care, the plaintiff described how she initially required assistance with self-caring upon discharge home. The Hospital apparently sent somebody to install handicapped rails and bars in her home to assist in mobility. She said that she has problems doing her lawn, cleaning the house and self-caring [T60.14].
In relation to self-caring, the plaintiff stated: I can't wash my hair on my own, I need assistance from somebody to do that because my right arm is too sore to lift up. I can't bend and do my feet and my toes like I used to before. When showering, I need somebody to assist me to do from my knees down. It's not always that I get help, but when I do have the help then I definitely graciously accept it. [T60.16-21].
The plaintiff said that she initially received some fluctuating assistance from the Gosford Private Hospital following discharge but the only assistance she was receiving now was from Terry who would visit her "at least twice a week" [T60.31]. When asked what assistance Terry provided, the plaintiff stated: He gets the shopping list and my car from me to do my grocery shopping. He does the lawn, he does the vacuuming of my floors and he helps me with dishwashing and to wash my hair. [T60.34-36].
Apparently, Terry has been doing that work since about mid-2014 and he is not paid for that work, although the position remains uncertain.
Terry (later identified as Terry McKittrick), according to the plaintiff, visits her at least twice a week and stays from about 4pm to 8pm or 9pm [T61.6].
In addition, the plaintiff described receiving assistance from ladies identified as Lola and Eva. Apparently, before becoming sick, Lola would assist the plaintiff "about every fortnight" [T61.35] in that she would drive the plaintiff to appointments, sometimes do her shopping if Mr McKittrick was unable to attend to that. Lola would also assist with laundry and dishes. It was said by the plaintiff that Lola would sometimes spend three quarters of the day providing assistance [T61.46]. She has been doing so for a couple of years now. This evidence conflicted with later evidence as to the period that assistance was provided.
There was also reference to a person named Heather who provided the plaintiff with some assistance once a fortnight in unison with Lola but the evidence about that was quite unclear.
Prior to Mr McKittrick providing assistance (that is pre 2014), the Pastor of the local church arranged a roster of people to assist the plaintiff. He was subsequently re-located to Bryon Bay and that's when Mr McKittrick started to provide assistance. The effect of the plaintiff's evidence is that from 2012 to 2014, members of the local church provided assistance in recent times and from 2014 to date, that assistance has been provided by Mr McKittrick. The plaintiff said that in the initial period, members of the church would provide about half a day's assistance on a daily basis which continued for about two years after the accident. When asked to estimate the time church members would provide assisting the plaintiff, she estimated 36 hours per week. I consider this to be an overstatement of the assistance which was reasonably needed and, in fact, provided.
Towards the end of the time when the church members were providing assistance, it was mostly for travel.
It would appear that the church members ceased providing assistance to the plaintiff when she stopped going to church about two years after the accident [T65.10].
I pause to observe that the plaintiff's evidence about domestic assistance and care post-accident was quite vague and I am not satisfied that the time spent by church members and Mr McKittrick were as a result of the need created by the accident instead of it being partially for social reasons.
The plaintiff then gave evidence about the medication she took post-accident. Whilst there may have been some change in the quantity of medication taken post-accident, it is difficult to discern the reason for that change.
In relation to the right shoulder, despite it being definitely sore, the plaintiff has had no specific treatment in respect of it. There is a reference to Dr Nakhla arranging radiological examinations of the plaintiff's shoulder which apparently permitted a diagnosis of a frozen shoulder, which, according to Dr Nakhla, will resolve itself.
In cross-examination by counsel for the first defendant, some matters pertaining to quantum were clarified. It seems that the plaintiff was terminated by Medibank on 9 November 2011 but last worked for the company on 24 August 2011. Between those dates, she was unable to work because of back pain and other factors, including depression of which she complained during that period. The plaintiff had not worked for about six months prior to the accident.
Further, the plaintiff commenced working from home after the Swiss ball incident in about April 2007.
As at August 2011, the plaintiff was unable to sit for more than 30 minutes due to back pain but "it wasn't just the sitting, it was the twisting basically, the twisting, but that's aggravated pain the twisting of the upper body" [T109.3].
The plaintiff, candidly, agreed with the proposition that, irrespective of upper body function, she could not do the work at Medibank today because of the condition of her back [T109.30]. The plaintiff resiled from that evidence to some extent when the proposition was put directly by counsel for the first defendant. The plaintiff then said that prior to the accident, she would have facet joint injections under CT scanning which used to help the pain. The facet joint injections that she has had since the accident have not provided any relief.
Ultimately, the plaintiff agreed that as at October 2011 she was unable to work due to back pain and medications which she was taking for that pain. She agreed that she was unable to sit for more than 30 minutes or stand for greater than 10 minutes. The plaintiff was also challenged by her weight and she accepted that she was badly overweight in 2011. This made it difficult to walk more than 100 yards or so. This resulted in an application being made for a mobility parking permit in November 2011.
The plaintiff reluctantly agreed that her worsening depression in the second half of 2011 was also endangering her job [T112.46].
The position in relation to the provision of domestic assistance to the plaintiff in 2012 became even further confused in cross-examination by counsel for the first defendant (commencing at [T117]). It seems that rather than the church group providing extensive assistance for two years post-discharge, it was for a lesser period of about one year and that, contrary to the plaintiff's evidence that it was just the church group assisting her in 2012, the insurer, Xchanging, paid for cleaning of the house and mowing of the lawns. Apparently, Xchanging stopped doing that at some stage in 2012 ([T120.15]).
There was then even further confusing evidence adduced concerning the involvement of the plaintiff's neighbour in the mowing of her lawns. She initially denied that occurred but seem to have later accepted that it may have been the case.
There were also emails between the plaintiff and Xchanging in relation to the provision of domestic assistance and the payment of taxi fares both of which undermine the evidence of the plaintiff that the church group was providing domestic assistance and driving assistance at that time. Those emails became Exhibit 2-D1.
To further complicate the plaintiff's claim for gratuitous domestic assistance, it also appeared that Mr McKittrick was being paid by the insurer to attend to the lawns and garden for a period in 2014.
The plaintiff's evidence concerning domestic assistance causes it difficult to make precise findings as to both the need for and provision of same. I discuss this further in the relevant section relating to the claim for damages below.
The plaintiff was then cross-examined by counsel for the second defendant. It was established that the plaintiff had suffered from vertigo in the last three months prior to 2001 and had a history of low back pain prior to that year. There was also evidence about low back pain from lifting patients prior to 2001 together with a right shoulder injury following a motor vehicle accident in or about 1996. The plaintiff received physiotherapy treatment for the shoulder injuries.
Further, the plaintiff agreed that she told the Psychiatrist that she had been suffering from migraines for at least eight to 10 years (prior to 2011). She was also asked about a history of a neck injury in about 1999 which the plaintiff contributed to the earlier motor vehicle accident. She described that pain as going from the left shoulder down to the neck.
The plaintiff confirmed that she had another motor vehicle accident in 2003 in which she suffered injury to her neck and left shoulder.
For a claim arising out of that incident, the plaintiff consulted Dr Conrad at the request of her solicitor who noted the plaintiff's complaint that her major problem was her back.
The plaintiff agreed that she had a history of migraine which was aggravated by a work related injury in 1999 or 2000. The migraine headaches would be associated with light headiness and nausea. They would sometimes last for eight or nine days at a time. The plaintiff would have to take two to three days off work on each occasion. She continued to suffer from migraines up until the subject motor vehicle accident.
In relation to the 2003 accident, the plaintiff agreed that she injured her left shoulder and aggravated her back condition. She agreed that she told Dr Bodel that she suffered constant pain in the lower part of her back radiating down the back of her left leg to her knee. When asked whether that continued up until the time of the subject accident, the plaintiff replied "I still have it" [T136.23].
In relation to the Swiss ball incident, the plaintiff agreed with counsel for the second defendant that she suffered injuries to the back of her head and to her neck.
The plaintiff also admitted to pain in her left shoulder in May 2011 as well as pain in her right knee. She described swelling in her right knee.
The plaintiff also agreed that prior to the accident she had suffered depression since 2003.
The plaintiff also agreed that upon consulting Dr Murray in 2011 she became aware that she was suffering from a condition called hypersomnia, a neurological disorder of excessive time spent sleeping or excessive sleepiness, per Wikipedia).
In cross-examination of the plaintiff by both counsel for the first defendant and second defendant it was demonstrated that the plaintiff had a long history of medical conditions which impacted upon her capacity.

[70]

The Evidence of Terry John McKittrick

At the time of giving evidence, Mr McKittrick lived in Cherrybrook and had known the plaintiff for approximately three years. That is, from on or about May 2014, more than two years after the subject accident.
Since about June or July 2014, Mr McKittrick has provided the plaintiff with assistance on a variable basis. He would visit her once or twice a week. If it was during the week he would possibly stay overnight and on the weekends would go up on a Sunday morning or Saturday afternoon and stay the night.
When asked what assistance he provided her he stated: I mow the lawns and help clean the house. I get groceries, things like that, yeah. [T202.46].
He was asked how much time he would spend providing her with assistance. He said that on weekends he would work between two to four hours and during the week a couple of hours "if I go up there, on Wednesday or Thursday night sort of thing" [T203.5]. That seems to suggest around four to six hours per week.
Mr McKittrick said that he would attend to the plaintiff's shopping once every couple of weeks, take her to medical appointments, mow her lawns and assist in cleaning.
Under cross-examination, Mr McKittrick explained that he worked full time as a brick layer in and around Sydney and there had been some times when he has been unable to attend to the plaintiff.
Mr McKittrick met the plaintiff through a Christian dating site and recalled that the church was helping her but that was before his time.
In terms of payment, he indicated that he had been paid for some of the work, mowing the lawns, by the workers compensation insurer or that the plaintiff paid him and she was reimbursed by the insurer. After the insurer stopped paying for the lawn mowing, Mr McKittrick kept doing it for free. He thought that was roughly from the middle of 2015.
In further cross-examination by counsel for the second defendant, Mr McKittrick repeated that he provided assistance to the plaintiff with shopping. She would attend with him.
In answer to questions from the Court, it became obvious that Mr McKittrick's attendances upon the plaintiff were not always for the provision of assistance: I went there for a pre-meeting with her to try and - because when she told me about her problems with her back and all that and other problems, that I said to her that I believed in prayer and healing so I was happy to go up and see her and there was about five or six other people that were there to pray with her to see if she could get her healed sort of thing. [T208.39-43].
And, Q: Have you continued to do that since you first met her? A: Yeah, I have, yeah. Q: So some of these attendances upon her have been for the purpose of prayer meetings? A: Yeah, at times. Not always within the group, but there - but - but yeah, I went up there to see her. [T208-29].
Mr McKittrick's attendance upon the plaintiff was partly religious, partly social and partly to provide assistance. No attempt was made to disentangle his evidence in this regard.

[71]

The Expert Medical Evidence on Quantum

Dr Peter Giblin, Orthopaedic Surgeon, was retained by the solicitors acting for the plaintiff. He prepared a report dated 13 May 2015 following an examination of the plaintiff that day. He noted disabilities and complaints in relation to the low back, neck, both shoulders, both arms, left knee, bilateral groin pain and pins and needles in her left leg into her foot.
Walking was limited to 100 metres with a crutch, standing to five minutes, sitting to 30 minutes and sleep at night to just two hours.
On examination, the left shoulder showed no sign of adhesive capsulitis. Similarly, the Doctor's opinion was that there was no adhesive capsulitis in the right shoulder but examination was limited because of pain. There were restrictions in relation to the movement of her neck and low back.
Dr Giblin reached the diagnosis of soft tissue injury to her neck, back, left knee and both shoulders which he attributed to the subject accident. The prognosis was guarded. He assessed that she was permanently unfit to engage in a job requiring repetitive bending, lifting and twisting or for long periods of sitting or standing. He assessed a 20% impairment of the neck, 25% permanent impairment of the back, 20% permanent loss of efficient use of the right arm at or above the elbow, a 5% permanent loss of efficient use of the left arm at or above the elbow and a 20% permanent loss of efficient use of her left leg.
Dr Giblin was required for cross-examination but first some evidence was adduced in chief about the need for further treatment. Dr Giblin expressed the opinion that the plaintiff required a left total knee replacement which would cost in the order of $25,000.00. In addition, he was of the opinion that the plaintiff required bilateral total hip replacement which would cost about $22,000.00 for each hip. He raised the possibility of some surgery to the cervical spine but did not express the need in any certain terms. Although in evidence he expressed the opinion that the cost of cervical surgery (without specifying precisely what the surgery would be) would be in the order of $20,000.00.
Evidence was given as to the basis for the Doctor's opinion regarding the need for further surgery. The effect of his evidence in this regard [T424-426] was that his opinion was based upon the history provided by the plaintiff, observations made by the Doctor and radiological reports available to the Doctor. His opinion as to costings was based upon experience.
Dr Giblin was cross-examined. He confirmed his opinion that the plaintiff suffered a low back injury, left knee injury, left shoulder injury and right knee injury in the subject accident. The Doctor agreed that the plaintiff had long standing injuries in relation to her low back, a previous injury in relation to her right shoulder, left shoulder, left knee and had suffered from depression for many years.
In relation to his opinion the plaintiff requires a bilateral hip replacement, it was put to Dr Giblin that that need would have arisen in any event, irrespective of the accident occurring. The Doctor's reply was "I can't say" [T428.40].
In relation to the left knee replacement, when Dr Giblin was asked whether the plaintiff would have required that regardless of the motor vehicle accident, he replied "that's a fair comment" [T428.44].
In relation to the left knee replacement surgery, it was suggested to Dr Giblin that the plaintiff probably would have required that in any event, irrespective of the accident. Dr Giblin required "that's a fair a comment" [T429.19].
In respect of the left shoulder, Dr Giblin agreed that had he been told by the plaintiff about problems in her left shoulder just a week or so before the accident it would have been of significance to his opinion. Likewise, he agreed that he had been aware of the left knee problems prior to the accident that would have impacted upon his views.
In relation to the plaintiff's pre-accident condition, Dr Giblin agreed that she suffered from chronic lumbar pain, left lower limb pain, a degenerative disc disease, osteoarthritis affecting her cervical and lumbar spine, chronic pain disorder, diabetes and obesity.
Dr Giblin did not embrace the suggestion that the plaintiff would have required the total bilateral hip replacement irrespective of the accident. He did, however, agree that the left knee replacement would have been required.
In terms of work, Dr Giblin agreed that the plaintiff could manage light clerical duties or working in a supervisory administrative role [T431.33-38].
Dr Giblin agreed with counsel for the second defendant that the biggest barrier to the plaintiff returning to the work force relates to her chronic pain and also agreed that her mental health problems were an issue. Both matters existed prior to and independently of the subject accident [T431.49].
In re-examination, Dr Giblin stated that the plaintiff's chronic pain condition appeared to be increased by the accident "based upon the history and the physical findings on the times I saw her" [T434.20].
Before even considering the competing medical evidence, I make the preliminary observation that Dr Giblin's opinion seemed unreliable. At the end of the cross-examination by counsel for the second defendant, he appeared to have reversed his opinion as to the cause of the need for most of the surgical treatment claimed.
Next, the plaintiff relied upon a report by Jacqui Henry, Occupational Therapist, following an assessment of the plaintiff on 13 September 2016. At that time, the plaintiff reported that very poor mobility, limited finances and driving incapacity had severely limited her ability to participate in any social activities with her friends.
The plaintiff's accommodation was described as a four bedroom single storey detached brick and tile home in Hamlyn Terrace, near Wyong on the NSW Central Coast. She lived there alone.
Ms Henry undertook a pre and post injury daily activity pattern comparison. Apparently, the only assistance received by the plaintiff at that time was from Terry who would assist her in shopping every two to three weeks. The impression otherwise was that the plaintiff did not regularly attend to matters of self-care or domestic maintenance. In relation to lawn mowing etc, it was noted that the plaintiff "now employs gardening assistance", although it is unclear as to what that was referencing.
Commencing at page 16 of her report, Ms Henry undertook a fairly unsophisticated analysis of the plaintiff's needs. Insufficient regard was had to whether or not the needs in respect of which care assistance was suggested were caused by the accident or unrelated to the accident. The impression one gets upon reading the "Reported Current Capacity" column is that the plaintiff attends to most of her needs albeit slowly or on a reduced basis.
Ms Henry formed the opinion that in the time since the accident to 13 September 2016, the plaintiff had required on average, 13.33 hours per week of domestic assistance. It is not clear from the analysis exactly who it is that it is said provided that assistance and whether or not it was gratuitous or paid. It would seem that whatever assistance was provided was partly paid by the insurer and the remainder being gratuitous.
In respect of the future, Ms Henry recommended 7.36 hours per week of assistance. The reason for requiring less in the future than in the past is unexplained and seems incongruous with the proposition that the plaintiff's conditions are degenerative. One might expect the need for assistance (if it existed) to increase in the future.
Despite finding total future weekly needs of 7.36 at page 24 of her report, Ms Henry recommended 6.36 hours of assistance in the future at page 26 of her report. The reason for the variation is not explained. To confuse matters more, at page 30 of her report, Ms Henry suggested that the plaintiff required an average of 13 hours per week of current assistance over an extended period.
Frankly, I consider the opinion of Ms Henry to be ill-founded, unjustified and poorly reasoned. She gave insufficient weight to the plaintiff's pre-accident conditions and needs and made her assessment in a vacuum without taking into account all of the relevant circumstances.
The plaintiff also relied upon a report from Dr Vertoudakis, Dental Surgeon, dated 16 January 2017, following an assessment of the plaintiff six days earlier. He concluded that the plaintiff suffered damage to teeth 2 and 7 in the motor vehicle accident and rejected the suggestion the restoration of the other teeth were related to the motor vehicle accident. In terms of the future, Dr Vertoudakis considered that the plaintiff was pain free, had a normal diet, and from a dental perspective, was stable. Whole person impairment was assessed at 0%.
The plaintiff also relied upon a report by Associate Professor Peter Papantoniou, Orthopaedic and Spinal Surgeon, dated 31 March 2015. The focus of the report was the plaintiff's bilateral knee pain which Professor Papantoniou associated with chrondial damage and ongoing lower back pain and radiculopathy associated with pathology in the lumbar spine. He stated: Most of this pre-dates her motor vehicle accident and relates to work a injury [sic] in 2001 and a further work injury in 2004. She was having extensive non-operative management and had a left knee arthroscopy on 05/11/2012.
Despite stating in the report that "there is no doubt that the car accident has aggravated both her knees …" his evidence became less certain throughout the course of cross-examination. In relation to the right knee condition for which the plaintiff claims the cost of surgery in 2012, Professor Papantoniou confirmed that the plaintiff injured her left knee in a work injury in 2001 causing her to favour that knee resulting in an over use injury to the right knee. He considered that to be "part of the (original) work injury" [T451.20]. That this was the case was confirmed by the fact that on 21 September 2012, Professor Papantoniou wrote to the insurer seeking payment in respect of the surgery to the right knee performed in 2012. He agreed that he considered the condition was due to the work related accident in 2001 [T457.15].
On the basis of Professor Papantoniou's evidence, I find that any aggravation of the knees caused by the accident was short lived and that the need for surgery to the right knee in 2012 was not due to the subject motor vehicle accident.
The defendants both relied upon a report by Dr Dalton, Rehabilitation Specialist, dated 9 December 2015 following examination of the plaintiff on 8 September 2015. Dr Dalton referred to a "complex past medical history with a number of pre-existing conditions including diabetes mellitus, congestive heart failure, ankylosing spondylitis, hypertension, hypothyroidism, various musculo-skeletal injuries and pain, and also major depression".
At the time of the consultation, the plaintiff complained of mobilising with a single crutch due to back pain, lumbar pain, numbness down the back of her left leg, constant neck and right shoulder pain.
On examination, Dr Dalton considered the plaintiff to be "clearly overweight and deconditioned". He noted that she moved her neck freely during examination without any obvious guarding or apprehension. He identified "clear inconsistencies" in relation to neck movement. She achieved straight leg raising to 70 degrees with negative sciatic tension signs and had a full range of movement in both hips with no pain or guarding.
Dr Dalton then reviewed the medical documentary evidence available to him.
He described the plaintiff as a "complex case". He noted that she had a long history of depression with suicidal ideation requiring admission to hospital with ongoing psychiatric care and pharmacotherapy. Although outside his expertise he considered that the plaintiff's depressed mood and mental state had a significant bearing upon her ability to cope with chronic pain permitting a diagnosis of chronic pain disorder.
Dr Dalton refers to the plaintiff's medical history and said that leading up to her admission to hospital in December 2011 she was suffering from "chronic lumbar and left lower limb pain".
He noted degenerative disease and age-related degeneration upon radiological examination.
As for the effects of the accident, Dr Dalton accepted that the plaintiff suffered an injury to her cervical spine in keeping with a diagnosis of "Whiplash Associated Disorder".
In considering the prospect of a right frozen shoulder, Dr Dalton said "there was a marked discrepancy and inconsistency in her presentation".
In summary, Dr Dalton considered that the only physical injury suffered by the plaintiff in the subject accident was a soft tissue injury to her cervical spine with the development of secondary muscle spasm and guarding. He thought that the plaintiff would benefit from weight loss and an exercise programme.
In terms of employment, Dr Dalton doubted whether, irrespective of the accident, the plaintiff would have been able to return to her pre-injury employment. He thought that she could manage light clerical, supervisory and administrative duties initially on a part-time basis. He thought it was the Chronic Pain Disorder and entrenched illness behaviour which were the major barriers to the plaintiff's return to work. It is likely that the plaintiff suffered from those conditions pre-accident.
In terms of domestic assistance, Dr Dalton considered that, in a purely physical perspective, the plaintiff was independent in all aspects of self-care and could manage most light domestic duties. He noted that she had received assistance from "fellow churchgoers and friends" and had developed an illness behaviour, adopting a sick role with entrenched illness behaviour. Dr Dalton did not believe that the plaintiff's reliance on others for all domestic and household duties could reasonably be attributed to physical injuries sustained in the subject accident. I agree.
Having regard to the injuries which Dr Dalton considered were due to the accident, he thought that the plaintiff would need assistance with gardening and home maintenance, hanging out the laundry and heavy household tasks. He suggested one hour a fortnight for gardening and maintenance and two hours a week for household cleaning and vacuuming. That is, approximately 2.5 hours per week.
Dr Dalton was asked to comment upon the report by Dr Giblin and in so doing, identified some of the inadequacies of Dr Giblin's opinion, referred to above. After careful consideration, I prefer the opinion of Dr Dalton to that of Dr Giblin.
The Joint Report between Dr Giblin and Dr Dalton dated 19 April 2017 demonstrated the differences in opinion. Both experts agreed that the plaintiff suffered a soft tissue injury to her neck and right shoulder in the accident. Dr Giblin also considered an injury to her low back, left knee and left shoulder. Dr Dalton disagreed with Dr Giblin's additional findings on the basis of his careful review of the extensive medical records which gave no indication of the plaintiff's injuries to either leg or knee, left arm or a significant injury to her back. The details are set out in his report and referred to above.
Whilst I prefer the opinion of Dr Dalton, I also accepted that the plaintiff did suffer an aggravation of her low back condition in the accident, as described in her evidence. Accordingly, I find that as a result of the motor vehicle accident, the plaintiff suffered a soft tissue injury to her neck and right shoulder and an aggravation of a pre-existing condition to her low back.
The next matter considered in the Joint Report was the need for surgery. Dr Dalton said that no surgery was required as a result of the injuries suffered in the motor vehicle accident. Dr Giblin's response was that "at this point in time I agree, but in the future, I would see a deterioration occurring to the plaintiff, particularly in relation to her left knee and she will probably be a consideration for a knee replacement".
I find Dr Giblin's opinion in this regard unpersuasive and accept the opinion of Dr Dalton. Accordingly, I find that there will be no need for future surgery.
The next topic considered by the experts in the Joint Report was the need for personal or domestic assistance. Dr Dalton stood by the opinion expressed in his report which gave rise to the need for assistance of approximately 2.5 hours per week. Dr Giblin thought the plaintiff might need three hours per week of household and related assistance together with one hour per fortnight for maintenance work. That is, on average, 3.5 hours per week. Both estimates fell below the required threshold of six hours per week.
Whilst I approach the opinions of these experts with caution in view of the comments of the New South Wales Court of Appeal in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 I accept that both experts consider that there is a need arising due to the accident. Unfortunately, in this case, there is no reliable evidence from an occupational therapist which would permit an assessment as to the number of hours required. This is a matter which I shall consider further below.
In terms of employment, both experts agreed that, from a physical perspective, the plaintiff could manage light clerical/supervisory administrative duties initially on a part-time basis. The opinion suggested that the plaintiff might advance beyond part-time work as time progressed. They both, however, identified "significant barriers" to employment arising from the plaintiff's chronic pain disorder and, accordingly, considered the prospect of the plaintiff returning to paid employment as poor.
I accept that opinion and find that, on the balance of probabilities, the plaintiff will not return to gainful employment in the future.
Finally, the defendants relied upon a report by Dr Lisa Brown, Psychiatrist, dated 30 November 2015. As there is no question that the plaintiff suffers psychiatric illness, there is no need to consider the detailed report of Dr Brown in any length.
After a comprehensive consideration of the medical records, Dr Brown expressed the opinion that the plaintiff was probably not experiencing an exacerbated Depressive Disorder or Chronic Pain Disorder as a result of the motor vehicle accident. Dr Brown referred to an already established pattern of symptoms and behaviours of the same type which had been present over many years prior to the accident. She thought, however, that the plaintiff's presentation has become more complicated by abnormal illness behaviour which is most likely hampering her recovery. This was not put to the plaintiff and I do not intend to entertain it. She suggested that the plaintiff might come under the care of a pain management team to provide a specialist psychiatric and psychological treatment with a rehabilitative focus on recovery.
I note that the Psychiatrist considered a report by Dr Roberts, Psychiatrist, who had been retained by the workers compensation insurer. He queried whether the plaintiff's presentation reflected exaggeration, if not misrepresentation at a conscious level, of psychological complaints.
Dr Brown's opinion was that the plaintiff had developed a reduced capacity to function in daily activities because of the motor vehicle accident. She thought that the plaintiff's pain and depressive symptoms would limit her from working in any regular position. In terms of domestic assistance and the like, Dr Brown sensibly expressed the opinion that the loss of independence that would result from a high level of assistance may complicate her recovery. Inferentially, domestic assistance was not needed and may, in fact, be counterproductive.
I considered Dr Brown's examination of the plaintiff and the documents relating to the plaintiff's treatment to be both comprehensive and insightful.

[72]

Analysis of Evidence Regarding Quantum

In her Written Submissions, the plaintiff conceded that she was "already suffering extensive disability prior to" the accident (PS 74). It was submitted that prior to the subject accident, the plaintiff had suffered from the following conditions: 1. 7.2.2001 - accident at work at Sydney Adventist Hospital resulting in back injury; 2. 16.4.2003 - motor vehicle accident causing aggravation of low back condition, cervical whiplash and left shoulder injury;
It was also submitted by the plaintiff that she suffered from a right knee condition prior to the accident and had undergone surgery for same.
The pre-existing conditions were in fact more extensive than those referred to in the plaintiff's submissions and I note that Dr Giblin accepted that prior to the accident the plaintiff suffered from numerous conditions including chronic lumbar pain, left lower limb pain, degenerative disc disease, osteoarthritis in her spine, chronic pain, diabetes and obesity [T430-431].
Counsel for the first defendant also drew the Court's attention to the Wyong Hospital notes of December 2011 in which the plaintiff was reported as having described herself as being in "constant pain" and having "chronic severe back pain" and "no quality of life due to physical problems" (FDS [89]). These reports were obviously made before the accident and provide some insight into the plaintiff's own perspective of capacity pre-accident.
As I understand the plaintiff's submissions, it was put that, as a result of the subject accident, she suffered injuries to her neck, her head, right shoulder, lower back and left leg (PS [77]). The submissions emphasised the injury to the right shoulder, left knee, aggravation of low back, headaches and exacerbation of depression as being the salient components of the plaintiff's post-motor vehicle accident condition (PS [78]-[86]).
Counsel for the first defendant submitted that there was no evidence that the plaintiff's low back condition was aggravated by the accident (FDS [90]). This submission was put on the basis that the MRI scans taken prior to and post the accident failed to disclose any significant change. Reliance was also placed upon the opinion of Dr Dalton that the plaintiff's back condition was unrelated to the motor vehicle accident.
Whilst I accept the opinion of Dr Dalton over other medical experts in the case, I also have regard to the evidence of the plaintiff that her back condition was worsened to some degree following the accident. Given the extent of the pre-accident low back pain, any increase was a question of degree. It was not so severe in the period prior to ceasing work with Medicare as to require any further change in the plaintiff's work or lifestyle habits or treatment.
Similarly, any change in the plaintiff's depression or psychiatric condition post-accident is difficult to assess. It would appear that she had been suffering depression since 2001 or 2003 and in the months prior to the accident had reached the stage where, by reason of suicidal ideation and other factors, it was necessary for the plaintiff to be an inpatient in a psychiatric unit.
Leaving aside the dental damage, it would appear that the only fresh injury caused by the subject accident was the soft tissue injury to the right shoulder which was continuing. There was also aggravation of the neck and low back.
In its Written Submissions, the first defendant directed the attention of the Court to the decision of the New South Wales Court of Appeal in the matter of Glen v Sullivan (2015) 71 MVR 417 at 43-47. Reference was made to that decision in support of the submission that the overall onus of proving loss or damage rests with the plaintiff. I accept that, subject to the qualifications explained by the High Court in Purkess v Crittenden (1965) 114 CLR 164 and Watts v Rake (1960) 108 CLR 158.
In the matter of Glen, the Court of Appeal quoted the following passage from the joint judgment in Purkess: It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case where evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress were, likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact to the extent of the injury caused by the defendant's negligence.
It was submitted that the Court of Appeal in Glen summarised the applicable test derived from Purkess and Watts as follows at [47]: Where the plaintiff establishes a prima facie case that the incapacity has resulted from injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example, by reason of a pre-existing degenerative condition: … however, the burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff.
I accept these statements of principle which are, in the circumstances of this case, particularly pertinent given the extent of the plaintiff's pre-existing condition. I also note the comments by Justice Ipp (with whom Mason P agreed) in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 [93] - [116]. That reasoning was endorsed in the New South Wales Court of Appeal decision of Ridolfi v Hammond [2012] NSWCA 3 at [88].
I am satisfied that the defendants have discharged their evidentiary onus in relation to the plaintiff's pre-existing conditions, variously described above. At the same time, I am also satisfied that the plaintiff has established, on the balance of probabilities, that she suffered the following injuries as a result of the subject accident: 1. injury to her neck; 2. injury to her right shoulder; 3. aggravation of her low back condition; and 4. a temporary aggravation of her psychiatric condition.
Counsel for the second defendant drew the Court's attention to the decision of Commonwealth of Australia v Elliott [2004] NSWCA 360 at [69] - [81] where the Court, after referring to Watts v Rake and Purkess v Crittenden stated: 81 This must be reconciled with an allowance for contingencies, including the contingencies of accident and ill health, in the assessment of damages (see now the principles discussed in Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638). If a contingency is known to be greater than normal, that should be taken into account. Applied to allowing for contingencies, the appellant's evidential burden required that it lead evidence capable of establishing the respondent's pre-existing condition and that its ordinary progression and impact may have brought or may yet bring his incapacity. Thus in Wilson v Peisley Barwick CJ said (at 209) that where there was no Watts v Rake question because "[t]he existence of pre-existing condition and of its propensity for harm to the plaintiff was fully made out".
It was submitted that in the matter of Elliott, the Court of Appeal went on to apply a reduction for vicissitudes of 20%, 25% and 35% to all future losses including general damages, domestic assistance and future treatment expenses (at [27]).
Reference was also made to the decision of Tomes v Adams [2003] NSWCA 269 in which the Court of Appeal applied a reduction of 50% for vicissitudes to all future economic losses [36] - [39].
I have had regard to all of these considerations in the assessment of damages below.

[75]

Non-Economic Loss

Counsel for the plaintiff submitted that an allowance of 27% of a most extreme case ought to be allowed. Adjusted for the statutory increase from 1 October, that would be equivalent to damages in the sum of $61,500.00.
Counsel for the first defendant submitted that the plaintiff had failed to prove that she had suffered injuries which would exceed the threshold of 15% of a most extreme case (FDS [95]). It was submitted: She suffered soft tissue damage and dental damage only in the accident. The soft tissue damage occurred to her neck and right shoulder: see Dr Dalton's report at p 16 (Ex 1-D2 p107). The damage suffered is well below the 15% threshold - say under 5% (FDS [96]).
Counsel for the second defendant submitted that the plaintiff's pre-accident health was poor. I accept that submission. It was submitted that she had a serious low back injury, had reported a previous injury to her right shoulder, left shoulder and left knee. It was submitted: The extent of the plaintiff's pre-accident medical history (and associated restrictions and needs) is beyond question. Many of her conditions were degenerative and the injuries were sustained in the MVA are relatively minor. Dr Grund submits that the plaintiff does not exceed the necessary threshold for damages for NEL and submits that the plaintiff is 10% MEC (SDS [90]).
I have made findings above in relation to the injuries sustained by the plaintiff in the motor vehicle accident. I also have had regard to the plaintiff's pre-accident conditions and the extent to which they affect her present state. I am required to make a finding of fact as to the severity of the non-economic loss by reference to a proportion of a most extreme case (Hall v State of NSW [2014] NSWCA 154). In coming to a decision I have attempted to notionally separate out the plaintiff's pre-accident conditions such that no further, global reduction of the award is warranted (c.f. Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95). In view of those matters, I accept the submission by counsel for the plaintiff and find that the plaintiff is entitled to damages for non-economic loss pursuant to s16 of the CLA in the amount equivalent to 27% of a most extreme case, namely, $61,500.00.

[76]

Past Treatment Expenses

In MFI 1, past expenses are estimated to be $16,000.00. In the plaintiff's Written Submissions, no effort was made to calculate past treatment expenses and there was no agreement between the parties as to same.
The closest the plaintiff came to quantifying her claim for out-of-pocket expenses was in the Written Submissions at [108] and [109] where it was submitted that the plaintiff now takes twice as much Gabapentin in respect of which it was submitted that it represented an increased weekly cost to the plaintiff of approximately $1.00 (PS [108]). It was further submitted that the Cymbalta had in fact been reduced and OxyContin and patches had been ceased.
Against that, the defendants make no concession in relation to past treatment expenses. The first defendant said that the evidence does not support any award (FDS [123). The second defendant submitted that, as the plaintiff's expenses were paid by the insurer, any allowance would risk double compensation.
In all of the circumstances the Court is left in a position of having to guess whether additional treatment expenses have been incurred as a consequence of the motor vehicle accident and what has been the cost of those expenses. I note that the cost of the plaintiff's attendance at the hospitals after the accident were met by the insurer in respect of the 2001 accident. By reference to Exhibit 6-D1 it is clear that the plaintiff has continued to receive medical treatment from 29 June 2001 through to 23 May 2017 and ongoing and payments in the sum in excess of $300,000.00 have been made.
The plaintiff had not adduced any evidence of any amounts which are unpaid or any amounts which have been paid by the plaintiff personally. In the circumstances, making any allowance for past treatment expenses would involve the Court in the permissible approach of speculating whether any such expenses were in fact incurred. In the circumstances, the plaintiff has failed to discharge her onus in relation to past treatment expenses and, accordingly, no allowance is made.

[78]

Past Economic Loss

The plaintiff claimed the sum of $221,480.00 for past wage loss including superannuation (MFI 1).
This claim, similarly, is also vexed.
I have given careful consideration to the plaintiff's submissions concerning loss of earnings (PS [81]-[98]).
First, it is necessary for the Court to determine whether the plaintiff has suffered an incapacity which will result in a loss. It is significant that the plaintiff had not worked and was subsequently terminated due to disability some time prior to the subject accident. Despite the offer from Medibank to return to her pre-accident duties upon recovery, the plaintiff has never returned to work. The obvious inference is that she has never satisfactorily recovered from the conditions for which she went off work in the first place.
Further, I note (by reference to Exhibit 6-D1) that the plaintiff has received weekly payments from Xchanging from 14 January 2012 to date and ongoing. As at 12 May 2017, the plaintiff was receiving the sum of $822.08 by way of weekly payments pursuant to s38 of the Workers Compensation Act 1987.
The plaintiff's approach to the claim for past economic loss is confusing. It is submitted that the fact that Medibank Private offered to reinstate her subject to certain conditions being met demonstrated that the plaintiff "was perceived at the time as a person likely to recover some degree of residual earning capacity" (PS [93]). I do not accept that submission. The conditional offer made by Medibank Private followed the plaintiff taking action at Fair Work Australia. Paragraph 1 of the Terms of Settlement between the plaintiff and Medibank Australia (Exhibit D) reads: The respondent agrees to consider Revalyn for re-employment - at a future date on the condition that at that time she is declared fully fit by her treating doctor to fulfil her duties and functions of the role.
The plaintiff has never been fully fit to resume the functions of the role which she performed at Medibank and has, as said, never returned to that employment. That demonstrated either an incapacity for that work or a lack of motivation to return to work.
In my view, the plaintiff's capacity for employment had been substantially destroyed prior to the subject accident. In part, contrary to that finding is the medical evidence by both parties (Dr Giblin and Dr Dalton) that the plaintiff has some unexercised residual capacity.
In my opinion, the plaintiff's residual capacity (if any) has not been reduced or affected by the soft tissue injury suffered in the subject motor vehicle accident.
There was also an issue as to whether the plaintiff has any entitlement to damages for past economic loss at all given payments of workers compensation benefits by Xchanging in the period since the accident. In view of my finding as to the plaintiff's residual capacity (above) it is not necessary to determine that issue. It is sufficient to simply observe that, in the circumstances, to award the plaintiff any damages for past economic loss would run the very real risk of double compensation. Any award would call for a substantial discount not just for vicissitudes but upon the reasoning set out in Metaxoulis (supra).
In all of the circumstances, I am not satisfied that the plaintiff's limited capacity for work was affected or, even if it had, she did not suffer any loss as a result. It seems improbable that the plaintiff would have returned to any remunerative employment, irrespective of the accident's occurrence. Accordingly, I make no allowance for past economic loss.

[79]

Future Economic Loss

The plaintiff has 15 years before retirement at age 67. The claim advanced on behalf of the plaintiff is in the sum of $322,050.00 (MFI 1). That is equivalent to approximately $680.00 net per week (inclusive of superannuation benefits) for the remainder of the plaintiff's working life. The basis for that calculation was not explained. It certainly is not representative of the plaintiff's pre-accident condition.
Whilst the plaintiff did suffer a fresh injury to her neck and right shoulder in the subject accident and an aggravation of her back condition, it is difficult to determine whether any loss flows from those incapacities and what the value of such loss might be. I note my reasoning above in relation to impairment of earning capacity to date.
I also note the opinion of Dr Dalton at page 5 of the Joint Report that the plaintiff's injuries would not prevent her from working in a part-time sedentary or semi-sedentary role. He also considered that there were significant incapacities unrelated to the accident which would significantly reduce the prospects of the plaintiff returning to full time employment.
Again, in my view, given the severity of the plaintiff's medical conditions such as they existed prior to the accident, she was unlikely ever to return to full time employment. She may well have returned to part time employment but, as I note, in the opinion of Dr Dalton, she is fit for same in any event.
I am also mindful of the fact that the plaintiff is continuing to receive weekly payments from Xchanging in excess of $800.00 per week which must be taken into account in determining her loss flowing from the accident (see Kempsey District Hospital v Thackham (1995) 36 NSWLR 492). Although the facts are not identical, there is no reason to believe that after 16 years the insurer for the 2001 accident will cease making weekly payments.
In my opinion, the plaintiff's claim for future economic loss ought to be treated by way of buffer. There are too many contingencies and variables to approach the claim on a mathematical or more precise basis. There should, however, be some recognition of the fact that the plaintiff suffered some limited fresh injures which may, at some time over the next 15 years, become productive of loss.
In my view, a buffer in the sum of $25,000.00 (inclusive of superannuation) represents a reasonable allowance in the circumstances.

[80]

Past Domestic Assistance

The plaintiff claims the sum of $72,800.00 for past domestic assistance. Adopting the cost of attendant care services referred to in the plaintiff's Damages Schedule (MFI 1) of $29.93, and the time since the accident of about five years, that is equivalent to a claim of approximately 9.35 hours per week.
There is no doubt that the plaintiff needs attendant care services as defined in s15(1) of the CLA. I am not, however, satisfied that the plaintiff has satisfied the conditions for an award for past gratuitous assistance in s15(2) and (3): 15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months.
I am not satisfied that the plaintiff has made out sufficiently her claim for past domestic assistance. First, it is put on a gratuitous basis and, therefore, must meet the thresholds under the CLA s15(3). Secondly, the evidence about the provision of assistance is confused. It seems that some assistance was provided early on by members of the local church who were not called to give evidence and since 2014 by Mr McKittrick. Mr McKittrick met the plaintiff through an internet church dating site and, apparently, since 2014 has visited the plaintiff once or twice a week. Whilst evidence was given about the number of hours that was spent by Mr McKittrick with the plaintiff on those occasions, it was plain that at least part of that time was for social reasons rather than to meet a need for assistance generated by an incapacity caused by the accident.
The third complicating factor in relation to coming to any reliable assessment for past gratuitous assistance is that Xchanging has since May 2012 (until at least April 2016 (see Exhibit 6-D1)) paid for domestic assistance and lawn mowing, from time to time. It is impossible to reconcile the summary of records from Xchanging with the plaintiff's evidence and the evidence of Mr McKittrick. Contrary to my understanding of the evidence of Mr McKittrick, since he met the plaintiff in 2014, Xchanging has, from time to time, paid for domestic assistance, including lawn mowing.
The other difficulty with the plaintiff's claim in this regard is the poor quality of the evidence offered through Ms Henry, the Occupational Therapist. I refer to my comments above in relation to her report which I found of little or no use.
In order to make any award for past domestic assistance it is necessary to disentangle the need which pre-existed the accident and that which was caused by the accident. It is also necessary to have regard to the principles in Watts (supra) and Purkess (supra). The plaintiff's low back condition was clearly worsening and would have created an increasing need for assistance. In the circumstances, this required the Court to engage in an exercise of conjecture which ought not to be done.
Although mindful of what the Court of Appeal said in Boral Bricks (supra), I also pause to note the recommendations by Dr Dalton of 2.5 hours per week assistance and Dr Giblin of 3.5 hours per week. Estimating the number of hours required for assistance is not the kind of expertise which is normally attributed to their specialities.
Having regard to all of those factors I am not satisfied that the plaintiff has discharged her onus of proving that since the accident occurred she has satisfied the statutory threshold provided under the CLA such that an award of damages for past domestic assistance ought to be made. A claim on a commercial basis was not advanced and would, in any event, seem unlikely.
I find that the plaintiff's needs, such as they exist, fall below the thresholds required under the Act. Accordingly, no allowance is made for past domestic assistance.

Naidoo v Brisbane Waters Administration Pty Ltd trading as Brisbane Waters Private Hospital

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