Namala v Northern Territory of Australia [1996] NTSC 29; 131 FLR 468 (14 May 1996)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J CWDS Negligence - medicine. Damages. Use of comparable verdicts. Carson v John Fairfax and Sons Limited [1993] HCA 31; (1992-93) 178 CLR 44, Planet Fisheries Pty. Ltd. v La Rosa [1968] HCA 62; (1968) 119 C.L.R. 118, at 124- 125, Rigby v Solicitor for the Northern Territory (1991) 105 FLR 48 applied. Aboriginals and Torres Strait islanders - children HRNG DARWIN, 25-27 March 1996 #DATE 14:5:1996 #ADD 12:2:1997 Counsel for plaintiff: J E Reeves Solicitors for plaintiff: Cridlands Counsel for defendant: P M Barr Solicitors for defendant: Solicitor for the Northern Territory ORDER Judgment for plaintiff. JUDGE1 KEARNEY J 1. In this action the Plaintiff sues the defendant for damages for its alleged failure to use reasonable care, skill and diligence in and about the treatment, attendance and advice which the defendant gave to the plaintiff on or about 22 July 1984. 2. The claim was founded upon the alleged negligence of the plaintiff�s treating doctors at Royal Darwin Hospital during the delivery, by caesarean section, of the plaintiff�s first, and only, child. In particular, the plaintiff alleged that by reason of the negligence of the defendant, the plaintiff�s uterus was damaged to the point where its vascular supply was compromised, thus necessitating a total abdominal hysterectomy. 3. Although proceedings were initially commenced by Writ on 19 June 4. against seven defendants, by the time the action came on for trial the defendant was the sole remaining defendant, the action having been discontinued against the rest. 5. The trial commenced on 25 March 1996; on that date the plaintiff and one of her witnesses testified. At the commencement of the second day�s hearing the defendant conceded that it was liable. 6. I heard counsel on the sole remaining issue of damages on 27 March 7. I invited and received further written submissions on quantum from both counsel on 2 and 3�April 1996. I now rule on the question of quantum of damages, and the interest thereon. THE EVIDENCE 8. At the time her cause of action arose, the plaintiff was a 23 year old Aboriginal woman bearing her first child to her then husband (by Aboriginal marriage), David Morgan. A Nanggikurrungu woman, she lived at Daly River Mission and led a lifestyle which included participation in traditional Aboriginal cultural activities and ceremonies. It is clear from the evidence that traditional Aboriginal aspects of her lifestyle were important to her cultural fulfilment in life. 9. Throughout most of her pregnancy the plaintiff was cared for at Daly River. About 24 days prior to commencing labour she was transferred to Royal Darwin Hospital for further management and delivery. On 21 June 1984 she presented with ruptured membranes and regular contractions. The delivery process progressed gradually to 9cm dilation; at that stage complications arose which led her treating doctors to perform an emergency lower uterine segment caesarean section. 10. It was during this operation that the negligence relied on by the plaintiff occurred. It is clear from the evidence that when the caesarean section was effected, the baby�s head was wedged tightly in the plaintiff�s pelvic cavity. Two particular acts, alleged by the plaintiff to have been negligent, were: (i) the incision in the plaintiff�s uterus was made at the incorrect anatomical site, being in fact too low and involving the junction of the cervix and vagina; and 11., the failure of the doctor performing the procedure to dislodge the baby�s head by pushing upward through the vagina before the operation. It was alleged that the doctor, to remove the baby�s head from its position deep in the pelvis, reached into the plaintiff�s uterus, causing excessive tearing from the position of the incision around the uterus, thus resulting in a substantial loss of blood and compromising the vascular supply to the uterus. A hysterectomy was thereby necessitated in order to save the plaintiff�s life. 12. Afterwards, the plaintiff was admitted to the intensive care unit and given whole blood, oxygen and an omnopon infusion. On 23�June she was transferred out of the unit to a ward, where she remained until discharged on 11�July 1984. The plaintiff gave evidence that she experienced pain. I note numerous references in the Hospital notes (Exhibit P4) to abdominal tenderness. I also note references to wound haematoma and to a possible post-operative infection. 13. Following the plaintiff�s recovery she and her newborn son returned to the Daly River Mission. She gave evidence that on her return she told her husband that she would not be able to have any more children; and that, for that reason, he subsequently left her. When the plaintiff�s husband left her, she and her son moved back to Palumpa to live with her family. 14. The plaintiff presently resides at Palumpa where she works as a cleaner at the local school. At Palumpa she met and formed a relationship with another man. The plaintiff testified that both she and her new husband would like to have more children; specifically, she said that she wanted to have �4, maybe 5� children. She said she feels �shame� about not being able to have any more babies. In particular, she contrasted her situation with that of her siblings. She gave evidence that her elder sister has 13 children, and that her other 3 sisters have 4, 7 and 1 child respectively. The plaintiff is from a family of 9 children. 15. She gave evidence as to the importance of children in Aboriginal families in that vicinity. She stated that older persons in the community are respected if they have lots of children and grandchildren; and that the children look after their grandmothers and grandfathers, providing them with food and sometimes money. 16. The plaintiff also testified that it was important for Aboriginal women in that community to have daughters, so that they are able to fully participate in ceremonial women�s business. She gave evidence that she felt hurt and sad by not being able fully to participate, and that she was only able to look on. Although, in cross-examination, the plaintiff said that she participates in many cultural activities with her nieces, including gathering bush tucker and making dilly-bags and fire sticks, in re-examination she stated that she feels sad by not being able to do this with her own children. 17. The plaintiff also called evidence from Mr�Barber, a consultant anthropologist. Although Mr Barber�s evidence was necessarily limited, as he had not been able to discuss the matter specifically with the plaintiff for cultural reasons, he was able to provide an anthropological viewpoint on the types of effects which a person in the position of the plaintiff in her community could reasonably be expected to suffer. He gave evidence that her inability to have more children would reduce her status in her community. In particular, he said that the patriarchal nature of the society meant that major political and economic institutions were in the hands of the men of the community, and that, as a woman, the plaintiff would have no power in her community other than through her children. 18. Mr Barber also gave evidence of the prevalence of acts of violence and fighting within the community, and he described the importance of having a large number of children as an aspect of personal protection. Finally, he gave evidence of the economic ramifications of not having children, upon a person in the position of the plaintiff. He testified that because of the lack of employment in communities, and the taking of all unemployment benefits by the men in the community, women�s economic empowerment is only through the receipt of child endowment funds. Mr Barber concluded that women who do not have large numbers of children, and women who are not able to have children, find themselves in a very difficult position. It is likely that their partners would want to have children. Through her inability to have children, the plaintiff�s relationship with her husband could be in jeopardy. THE PRINCIPLES APPLICABLE TO THE ASSESSMENT OF DAMAGES 19. Mr Reeves of counsel for the plaintiff framed his submissions on quantum of damages under 3 headings; (1) resulting infertility; (2) effect on traditional lifestyle; and (3) pain and suffering and loss of amenities of life. 20. Use of comparable verdicts 21. In relation to the first two of these heads of damages, Mr Reeves sought to place before the Court some comparative verdicts. He submitted that as a result of the High Court�s observations in Carson v John Fairfax and Sons Limited ; , the previously well-established position - that counsel are not permitted to place comparative verdicts before the court - had changed. Mr Reeves relied upon the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ at pp59-60, viz: �As a matter of logic and principle, there is nothing perverse in permitting - even encouraging - appellate courts to draw comparisons with personal injury verdicts while prohibiting such an approach at the trial stage. Appellate courts would have regard to personal injury awards to assist in resolving the question whether �the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case� (Coyne v Citizen Finance Limited ; at 215). Juries are charged with the more exacting task of deciding upon a precise figure, and thus will derive less assistance in accomplishing their duty from the rough comparison provided by personal injury awards. HAVING SAID THIS, WE SEE NO SIGNIFICANT DANGER IN PERMITTING TRIAL JUDGES TO PROVIDE TO THE JURY AN INDICATION OF THE ORDINARY LEVEL OF THE GENERAL DAMAGES COMPONENT OF PERSONAL INJURY AWARDS FOR COMPARATIVE PURPOSES, NOR IN COUNSEL BEING PERMITTED TO MAKE A SIMILAR REFERENCE. Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases (Planet Fisheries Pty. Ltd. v La Rosa ; , at 124-125), THERE IS MUCH TO BE SAID FOR TRIAL JUDGES OFFERING SOME GUIDANCE ON DAMAGES - such as inviting the jury to consider the investment or buying power of the amount it might award (Coyne 22. 172 C.L.R. at p235; John Fairfax and Sons Limited v Carson 23. at 301) or perhaps even indicating a range of damages which might be considered appropriate - while ensuring that the jury knows that they are to reach their own decision (Coyne (1991) 172 C.L.R. at 235). PROVIDING BASIC INFORMATION ON THE GENERAL DAMAGES COMPONENT OF PERSONAL INJURY AWARDS MIGHT EVEN BE MORE HELPFUL THAN THESE OTHER EXAMPLES.� (emphasis mine) 24. In order to expedite the hearing I deferred ruling on the propriety of Mr�Reeves� approach, and provisionally allowed counsel to make reference to other awards. I now rule on Mr�Reeves� submission. 25. The principal authority in Australia on whether other judgments may be referred to by way of comparison to the case at hand, is Planet Fisheries Proprietary Limited v La Rosa (supra). The High Court there considered a submission by counsel that, in deciding whether or not an award of damages was excessive, it �should seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison with which� it could be seen that the award �was disproportionate�. At pp124-25 the Court stated: �We would emphatically reject this submission. It is the relationship of the award to the injury in its consequences as established in the evidence in the case in question which is to be proportionate. � Whether it is so or not is a matter of judgment in the sound exercise of the sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. � The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between the situations may be supposed to be seen. � The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a Judge who is making an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet�s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.� 26. Whilst the approach in this decision has received some academic criticism, it has nevertheless been consistently applied since 1968 as authority binding upon the various Supreme Courts of Australia. See, for example, Moran v McMahon at 724 per Priestley JA. 27. The approach in Planet Fisheries Pty Ltd has also been applied in this Court. In Rigby v Solicitor for the Northern Territory , Angel J discussed the matter and said at p51: �Courts draw upon their knowledge of generally comparable awards in order to address what is customary and reasonable for the loss in question. Other awards are not used as precedents and judges do not look at particular cases, but to be brought to bear to reach a figure that is reasonably proportionate to the non-economic loss established on the particular facts in the individual case.� 28. In LMP v Collins (unreported, Supreme Court (NT) (Kearney J), 3 February 1993) I said: �A Court may thereby take into account the general range of awards of common law damages for non-pecuniary loss, but not specific awards in comparable cases. � [Counsel] referred in some detail to cases which, she submitted, were more or less comparable to the present case. Although I permitted this to be done and I note those cases below, for the purpose of informing my experience vicariously, it is clear that in Australia neither an appellate court nor a trial court can determine the adequacy or inadequacy of an award of damages by reference to specific awards in other cases. IT FOLLOWS THAT AN APPLICANT SHOULD NOT BE ALLOWED TO CITE PARTICULAR COMPARABLE VERDICTS IN SUBMISSIONS TO THE LOCAL COURT OR ON APPEAL.� (emphasis mine) 29. I turn now to consider whether this position has changed in light of Carson�s case. In doing so, I note the discussion of the interaction between Carson and Planet Fisheries Pty Ltd by Kirby�P in New South Wales Insurance Ministerial Corporation v Hay (1993) 18 MVR 30. at 377, where he said: �With respect, it is appears difficult now to sustain the fundamental proposition in Planet Fisheries in harmony with the holding in Carson v John Fairfax & Sons Ltd. If it is possible to compare damages judgments as between judgments recovered in different torts, it seems difficult, in principle, to justify a refusal to compare damages judgments recovered in respect of the one tort, viz negligence.� 30. Although I respectfully agree with Kirby P, I do not accept Mr�Reeves� submission that Carson permits the Court now to consider comparable verdicts in cases such as the present. I consider that the passage from Carson set out at p8, must be read in the context of that case. As their Honours stated at p60: �There is the distinct possibility that jurors in defamation cases, drawing on their own values and experiences, would call to mind the information provided to them in the media concerning very large personal injury awards. Such large claims often gain prominent media attention. Jurors who might call to mind such instances, however, will almost certainly be unable to recall - if indeed they ever knew - what proportion of those very large verdicts represented general damages. Unassisted by the provision of information of the kind which we have suggested, the jurors may well make their own comparisons in a manner which is totally inaccurate and misleading.� 31. It can clearly be seen that the Court was concerned in Carson with defamation awards by juries. In context it cannot be said that Carson permits the Court to go beyond the clearly established restrictions flowing from Planet Fisheries Pty Ltd on the use of other personal injury damages awards. 32. In the result, I consider that I may make no use of the comparable verdicts to which I was referred by counsel, other than through vicariously informing my general experience and my general awareness of considerations of fairness and moderation. Accordingly, I make no comparison between the circumstances of the plaintiff and her loss, and those of any other cases. 33. Lump sum or awards under separate headings 34. Mr Reeves submitted that I should make separate awards of damages under each of his 3 headings (p7). The problems associated with adopting such an approach are notorious (see Pascoli v Spittle (unreported, 17 November 1989, New South Wales Court of Appeal, No. CA339 of 1988, per Hope AJA). 35. Fertility is, prima facie, an amenity of life; resulting infertility is a loss of an amenity. The effect on the plaintiff�s traditional lifestyle is, to some degree, a loss of what otherwise would be cultural fulfilment, and thereby constitutes a form of suffering. The objective loss of amenities the plaintiff has suffered, and continues to suffer, causes some subjective pain and suffering. 36. For the purposes of damages, it would be very difficult to disentangle the separate aspects of damages to which Mr�Reeves referred; I do not consider that in this case it is either necessary or desirable to endeavour to do so. Accordingly, I approach the award of damages on the basis that a global award, covering all three aspects to which Mr Reeves referred, is appropriate. QUANTUM OF DAMAGES 37. I have taken the following factors into account, inter alia, in reaching a decision as to the quantum of damages: (1) The physical pain and suffering resulting from the hysterectomy necessitated by the negligence of the defendant; specifically, the pain and suffering flowing from the loss of blood leading to dehydration and the necessary blood transfusions as recorded in the hospital notes (Exhibit P4). (2) The objective loss of the ability to bear children. (3) The breakdown in the plaintiff�s first marriage; as to this factor see Hird v Gibson , and generally, Luntz �Assessment of damages for personal injury and death� (1990, 3rd ed) at par2.7.5, and cases there cited. (4) The plaintiff�s subjective suffering resulting from her inability to bear children. (5) The aggravation of the plaintiff�s subjective suffering, by virtue of the cultural importance of having a large number of children within her community (see Devi v West Midlands Regional Health Authority (unreported, Court of Appeal (Eng.), 9 December 1981). (6) The plaintiff�s subjective suffering, resulting from a loss of cultural fulfilment through inability to fully participate in traditional cultural ceremonies and activities; see Napaluma v Baker ; Weston v Woodroffe , ; Dixon v Davies ; Milpurrurru & Ors v Indofurn Proprietary Limited & Ors 38. Having weighed these factors, together with the antecedents of the plaintiff, I consider that an appropriate global award of damages in this case is $80,000. INTEREST 39. The law governing the calculation of interest on damages for non- economic loss sustained pretrial was clearly stated by the High Court in MBP (SA) Pty Ltd v Gogic ; ; the rate fixed was 4% per annum. Mr�Reeves submitted that it was appropriate in this case to calculate interest on the damages award at 4% for the whole period pretrial. In support of this submission he relied upon previous decisions of this court, specifically Rosecrance v Rosecrance (unreported, Supreme Court (NT) (Mildren J), 21 December 1995). Mr�Barr of counsel for the defendant submitted that a proper consideration of the nature of the damages awarded for pretrial loss indicated that part of the damages might accrue gradually, and therefore interest should be calculated at the rate of 4% for half of the pretrial period, or 2% for the full pretrial period. He relied on Hallet v Schoevers 40. I have considered the nature of the damages in this case. I note also the judgment of Windeyer�J in Skelton v Collins at 130: �I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. IT MUST SURELY BE BASED UPON SOLACE FOR A CONDITION CREATED NOT UPON PAYMENT FOR SOMETHING TAKEN AWAY.� (emphasis mine) 42. On the basis that the award of damages here is largely solace for a condition created, and on the basis that the condition was created at the time of the operation, I consider that by far the greater bulk of the damages were occasioned at that time. Accordingly, in general, interest should be allowed at the rate of 4% for the entire period of 43. years 10 months and 23 days. 44. I consider that the only element of the damages which does not fall into this category, is that related to loss of cultural fulfilment through the plaintiff�s inability to fully participate in traditional ceremonies with her children. This would accrue gradually. Accordingly, I apportion $10,000 for future suffering under this element, and $5000 for pretrial suffering under this element. 45. I therefore base interest calculations on 4% for the entire trial period on an amount of $65,000, 4% for half the pretrial period on an amount of $5000, and no interest on the amount of $10,000 for future pain and suffering. 46. I note that no issue was taken by counsel as to the appropriateness of the rate of 4%, or as to the delay involved in instituting these proceedings or in bringing them to trial. 47. On this basis I calculate the amount of interest upon the award of damages to be $32,119.67. CONCLUSION 48. The plaintiff is entitled to payment of damages and interest in the total of $112,119.67, and is awarded that sum.