Damages
84 The plaintiff was born in Poland on 14 November 1974. She came to Australia in 1989 and attended the Riverside Girls High School. In 1995 she was awarded a Bachelor of Arts from Sydney University. She obtained secretarial work with Telstra prior to her involvement with FH.
85 She was almost twenty-five when she was infected with HIV in August 1999. She is now twenty-eight. Her marriage to FH was dissolved in May 2001.
86 Sometime in 2001 and after her divorce she entered into a relationship with a man from Sweden to whom she is presently engaged and who is also HIV positive. A child of that union was born on 29 November 2002. It is unlikely that he will be allowed to stay in this country permanently by reason of his HIV status.
87 Earlier I have referred to the fact that the plaintiff was admitted to Canterbury Hospital in September 1999 with a fever and a rash over her body. Later and just before the birth of her first child in February 2000 it was realised that her condition in September 1999 was the result of her HIV infection.
88 After she became aware that she was HIV positive she underwent anti-retroviral drug therapy which, together with having a caesarean delivery, resulted in her child being born HIV free. She underwent similar treatment just prior to the birth of her second child which to date appears not to be infected with HIV although the risk of it cannot be eliminated until he remains negative for at least twelve months.
89 After the birth of her first child Telstra allowed her three months paid maternity leave followed by twelve months unpaid leave. She returned to work part-time in August 2001. Had she remained in full-time employment with Telstra from August 2000 until September 2002 she would have earned net $54,399. During that period she earned net $25,572.
90 Her claim for loss of earnings in the past commences on 13 August 2001 and ends about September 2002 when she ceased work prior to the birth of her second child. Her loss is calculated by reference to the difference between full-time employment and part-time employment to which she returned. That at least was her claim as originally formulated. Upon that formulation she claimed the difference between part-time and full-time work and claimed approximately $8,000 for past economic loss (together with interest at 2%).
91 During the hearing a submission was made that she was entitled to $25,572 for loss of earnings to date being the difference between what she could have earned working full-time ($54,399) and what in fact she earned ($25,572).
92 The defendant submits that her diminution in earnings is referrable solely to the need to care for her children and is not due to her infection. The medical evidence, which I accept, is that by reason of her infection she has suffered a severe depressive episode with some fatigue but to date there is no physical reason why she could not work full-time.
93 I do not accept the submission that she is entitled to loss of earnings being the difference between what she was able to earn had she worked full-time and what she in fact earned. In my opinion although it is true that probably she would not have married FH and had a child by him had the doctors not been in breach of their duty to her the unpaid maternity leave is, in my opinion, referrable to the birth of her child and is not to be regarded, in law, as a compensable consequence of the negligence of the defendant.
94 I accept she has suffered and continues to suffer from a depression illness and a consequent feeling of fatigue and this has contributed to the need for her to work part-time. However I have also come to the conclusion that although her depressive illness operated as part of the reason for part-time work most of it was referrable to the need to look after her children. Doing the best I can I assess her loss of earnings to date referrable to her HIV infection to be $3,000.
95 The plaintiff's future is uncertain. Prior to the "strategic utilisation" of highly active anti-retroviral therapy which first became available in 1996 it was generally thought that patients who had been infected with HIV had a life expectancy of approximately eight to nine years from the onset of infection until death by an AIDS defining illness - eighteen months to two years later.
96 Since 1996 the life expectancy of a person infected with HIV has lengthened but, according to Dr Furner the Director of Clinical Services at the Albion Street Centre, whose evidence I accept, there is insufficient evidence to determine with any degree of precision how long a given patient is likely to survive after HIV infection post 1997 given that at some time the person would undergo highly active anti-retroviral therapy. Moreover the extended life expectancy comes at a cost because it is not uncommon for the drugs used in the therapy to cause unpleasant side effects such as nausea, diarrhoea, diabetes and, in extreme cases, renal failure. Dr Furner has mentioned that sometimes the side effects cause patients to discontinue taking drugs.
97 Previously it had been thought that the anti-retroviral therapy commenced at a time when a test of the immune function indicated a moderate degree of suppression of the immune system with a CD4 (t-cell) count of 500. The guidelines have since been revised and it is now generally accepted that therapy will not ordinarily commence until the CD4 (t-cell) count has fallen below 350 or the measure of virus in the blood (viral load) is greater than 55,000 copies per ml.
98 The evidence discloses that in May 2002 her CD4 (t-cell) count was 730 UL and her viral load 43,374 which was described as being within the "moderate" range. In March this year her CD4 (t-cell) count was 820 UL. It is not uncommon for readings to fluctuate but over a long period and without the intervention of drugs the loss is usually about 80 UL per year
99 Dr Furner thinks the worst case for the plaintiff is if the natural progression of the infection is not arrested by drug therapy. In these circumstances it is anticipated that the plaintiff would contract an AIDS defining illness about nine or ten years after infection and die one and a half to two years later. However at the present time she regards what she describes as the "worst case scenario" as no higher than a 10% probability.
100 The plaintiff has submitted that I should approach damages by reference to the "worst case scenario" and thereafter make certain allowances to accommodate the likelihood that the plaintiff will not, in fact, be a "worst case scenario". On behalf of the defendants it has been submitted that I should assume that an AIDS defining illness will not occur until about the year 2019 i.e. twenty years after her infection and that her death will occur sometime in 2020 or 2021.
101 It appears common ground that the period of survival after the commencement of an AIDS defining illness is between eighteen months and two years during which time the patient becomes increasingly ill until the point is reached about six months before death when the patient is admitted to hospital.
102 Although pressed to give some forecast Dr Furner claimed there were insufficient statistics for the survival of people who became infected after 1996 and who had access to anti-retroviral therapy. She said;
"It is my opinion at the moment that we are optimistic that patients will survive to twenty years but some patients may not but I don't have any data.
Q: In the way that you have expressed the view that the worst case might be 1 in 10 are you able to in the absence of data to express a view about the probability of a twenty year life expectancy?
A: I still think it would be 90% may potentially reach that point".
103 Doing the best I can I have made an assumption that the period before which the plaintiff will become afflicted with an AIDS defining illness will be approximately fifteen years after the date of infection (2014) and thereafter she will have between twelve and eighteen months before she dies (2016).
104 The plaintiff will receive treatment for her depressive condition and, on the evidence before me, probably will benefit by it. However I bear in mind the views of the psychiatrists called on behalf of the plaintiff and the defendant that she remains vulnerable to depressive episodes and may have difficulty coping as her condition worsens. There will be periods when she will not be able to work at all because of bouts of depression and/or because of the possible side effects from the anti-retroviral therapy.
105 The evidence at the present time is that she is able to work and, I infer, that although her decision to work part-time has, in part, been due to her depressive illness that ought not preclude her from working in the future should she decide to do so.
106 An issue has been raised concerning the plaintiff's entitlement to damages in the nature of special damages for the care of her second child during that period of her life when she can no longer care for him - i.e. from about the year 2014 when he will be twelve.
107 As I have said her HIV infection is unlikely to affect her earning capacity to a great extent during the next eleven or twelve years. There will be diminution of earning capacity by reason of her exposure to depressive episodic illnesses and, as I have already mentioned, the possible adverse side effects from the anti-retroviral therapy. But the time will come when she will no longer be able to care for her children. On the assumption I have made concerning her life expectancy and the progression of her disease that will occur in the year about 2014 when her daughter will be 14 and her son 12. It is not disputed she is entitled to have included in her verdict an allowance based on Griffiths v Kerkemeyer (1977) 139 CLR 161 not only for her own care (which in any event is unlikely to be provided for by anybody free of cost) but also for the cost of looking after her daughter until she is aged 18. It is not, however, conceded that any allowance should be made for the care of her son when she is no longer able to provide it.
108 The circumstances surrounding the plaintiff's relations with the Swedish fiancée and which resulted in her having a second child was not really explored during the proceedings. As I have said it is fairly clear that it will be extremely difficult for him to get permanent residency in this country by reason of his HIV status.
109 In Sullivan v Gordon (1998-1999) 47NSWLR 319 a five member bench of the Court of Appeal considered an entitlement of a plaintiff to receive damages calculated as a type of special damages for the value of the lost capacity to care for children. It overruled an earlier decision of the full Court in Burnicle v Cutelli (1982) 2 NSWLR 26 which had held that while the loss of capacity to look after a child was compensable it sounded only in general damages.
110 A consequence of the decision in Sullivan v Gordon is that the plaintiff can claim damages for injury-caused inability to care for a dependant child. As I have said the defendants do not dispute that the plaintiff is entitled to be compensated for the inability, when it occurs, to care for her first child until she is eighteen.
111 In Sullivan the plaintiff had two children after being tortiously injured with the consequence that she was severely brain damaged and had become irrational and irresponsible. It was submitted on behalf of the defendant that there were three reasons why the plaintiff's claim for the care of her children should not succeed. First that children were born after the accident subject of the claim should be excluded. Secondly there was no causal nexus between the tortious injury and the loss suffered by the plaintiff; it being asserted that the plaintiff herself broke the connection by deciding to have children. Thirdly that the plaintiff had acted unreasonably in all the circumstance in having more children.
112 The Court held that it mattered not whether the children were born before or after the accident but appeared to conclude that it was open to a defendant to argue that, that there may be a break in the chain of causation and/or the plaintiff had not acted reasonably in having children to deny, in a given case, a plaintiff's entitlement to damages for the care of a child.
113 The plaintiff was successful in Sullivan but her success depended on the Court being satisfied that her pregnancies were foreseeable and that the accident caused her to become irresponsible and reduced her ability to determine whether or not she should have children either at all or in the circumstances in which she conceived and bore them. Thus it was held that although her conduct might be viewed objectively as unreasonable it was the result of the respondent's negligence and hence there was no break in the chain of causation. That was the view of Beazley JA and concurred in by the Chief Justice, Powell JA and Stein JA. Mason P referred to the limits that may be necessary in adapting Griffiths v Kerkemeyer to the case of an injured plaintiff caring for children. His Honour, linked the birth of the children to the brain damage suffered by the plaintiff as did Beazley JA. However his Honour opined the result would be the same even if there were no link between the birth of a child and the injury the subject of the litigation.
114 Conceiving and raising children is a natural incident of the human condition. Uninstructed I would have thought there was some force in the argument that a plaintiff is entitled to claim damages for an inability to care for a dependant child even if there is no "link" between the birth of a child and the injury the subject of the litigation. However my understanding of the decision in Sullivan is that a link must be established. In the present case there is, plainly enough, a direct link between the birth of the plaintiff's daughter and the negligence of the defendants. That link, however, is wholly absent in the birth of the second child and it seems to me therefore on the authority of Sullivan the plaintiff is not entitled to damages calculated by reference to cost of care for her son when she can no longer afford it.