Rasmussen v South Western Sydney Local Health District

Introduction 1The plaintiff is the mother of a child, Kaden, who died on 22 August 2007 when he was four days old as a result of the negligence of those associated with Liverpool Hospital for which the defendant is liable. She claims damages for nervous shock arising from the loss of her first-born son, including non-economic loss, loss of earning capacity, damages for domestic care and assistance and treatment expenses. 2The defendant has admitted liability. The defendant also accepts that the plaintiff has suffered a recognisable psychiatric injury by reason of the death of her son. Accordingly, the only issue between the parties is the quantum of damages.

The Facts 3The plaintiff was born on 3 December 1981. When she finished school she obtained a Diploma in Hospitality Management from Wollongong TAFE. In September 2001, her last year of TAFE, she started working at Pizza Hut Revesby in the role of assistant restaurant manager. By 2003 she was earning more than $25,000 and by 2005 she was the manager of the Pizza Hut restaurant at Jannali. Her gross income, which comprised a retainer and a bonus for store performance was $37,000. The unchallenged evidence of Amanda Micheli, who remains a good friend of the plaintiff's, is that the plaintiff was very motivated and talented. According to Ms Micheli she displayed exceptional organisational and management skills and was very good at managing staff. The plaintiff worked for about 50-60 hours a week in this position, although she was paid only for the standard 40-hour working week. 4In February 2005 she began living with Bradley Rasmussen, whom she later married, in a three-bedroom house at Wattle Grove. Mr Rasmussen was at that time an enlisted soldier. Shortly after they moved in together he was away on six months' active service. While he was away the plaintiff did all house cleaning, gardening and lawn-mowing. 5The plaintiff became pregnant with Kaden in December 2006. She planned to resign from her employment with the franchisee of the Jannali Pizza Hut and take six months off for Kaden's birth. Her gross salary from the Jannali Pizza Hut in the financial year prior to Kaden's birth was $41,000 per annum. Her evidence was that when Kaden was six months old she intended to apply for a full-time position as an area manager for Yum Restaurants Limited, the franchisor of Pizza Hut franchises. 6The plaintiff gave birth to Kaden on 18 August 2007. There were complications which resulted in brain damage. He was put on a ventilator and was transferred to the intensive care unit. 7Four days later, on 22 August 2007, she and her husband decided to stop Kaden's ventilation, which allowed him to die. She held him in her arms until he died. I accept her evidence that these four days were "a living hell" and that the decision to turn off the ventilation that sustained him was a terrible and heart-wrenching, albeit a merciful and necessary, one. 8The following day the plaintiff became obsessed with having her late son's body removed from the hospital and taken to a funeral home to be prepared for the funeral. 9She was offered counselling at Liverpool Hospital but was unable to accept the offer because she could not bring herself to return there. 10The plaintiff was devastated at the loss of her child. The hours at home when her husband was at work weighed very heavily on her. She was distressed by the room that she had set up as Kaden's bedroom. Eventually, her husband packed up everything in the room so that she would not have physical reminders of the things that would have been Kaden's. 11The plaintiff wanted to get out of the house but could not bring herself to return to Pizza Hut to face all the people she knew who had wished her well when she left on maternity leave. She decided to have a complete career change. 12In October 2007 she obtained employment at Escape Travel, also known as Flight Centre. She did not disclose to her employer what had happened with Kaden since she regarded it as a private and personal matter. She was required to undertake an intensive three-week training course. She found the return to work extremely difficult. She could not concentrate and found that her memory was compromised. She lasted less than four weeks. Her memory of that time is poor. As far as she can recall she could not cope, resigned, rang her husband to tell him and simply walked out without serving out any period of notice. 13When she returned home, she was unable to do routine household work because of her mental state. Her husband took over many of the tasks that the plaintiff had done before Kaden's death. 14In January 2008, the plaintiff obtained employment at the ANZ Bank at Mortdale as a personal banker. She disclosed her emotional state to her employer. She was given considerable support from her branch manager. Her initial working hours were 20 hours per week over 4 days. She was paid $22,000 gross per annum. She originally worked as a teller but had difficulties in balancing the till and was subsequently engaged as a personal banker. 15In about September 2008 Mr Rasmussen was due to go to Afghanistan on active service. He realised that the plaintiff would be unable to cope if he was away and decided to leave the army and move to Wollongong, where the plaintiff's family lives. They bought a house in Wollongong. Mr Rasmussen obtained employment as a grader operator doing earthmoving work and the plaintiff was transferred to the ANZ Branch at Cronulla where she worked as a teller for 24 hours a week. It took her about an hour to drive from their new home in Wollongong to work. 16In the same year, 2008, she enrolled in a correspondence course for a Bachelor of Arts Degree at Southern Cross University, which she had begun two years after she left school but had deferred in the interim. She enjoyed studying and found it a welcome distraction from her grief. She majored in history and politics. During 2010 she dedicated one day a week to study, usually Wednesdays, while she was working part-time, although sometimes she fitted in her study in the evenings or in shorter time frames. 17In February 2010 the plaintiff became pregnant again. 18Rebecca Carlson, who had known the plaintiff from the time they both worked at the Pizza Hut at Jannali, was the Manager of the Cronulla branch of the ANZ Bank from January 2010 until October 2010. When Ms Carlson started in that position, the plaintiff was working 20 hours a week over 4 days: half of her time was spent as a personal banker and the other half was spent as a teller. I accept Ms Carlson's evidence that she observed that the plaintiff was not, to use her words, "on the ball". 19Ms Carlson found the plaintiff to be a very different person from the confident, out-going woman she had known at Pizza Hut. The plaintiff's lack of attention was principally reflected in errors in cash handling which resulted in the till not balancing at the end of the day. This occurred either because too much cash had been handed out or because the deposit recorded was greater than the cash provided by the customer. Ms Carlson recalled that such a discrepancy happened at least five times and involved amounts of up to $1,000. There is no suggestion that any discrepancy was the result of any dishonesty. 20Ms Carlson recalled that, where discrepancies were discovered, the plaintiff attributed them to particular appointments with psychologists or psychiatrists regarding Kaden's death which had upset her. Ms Carlson adjudged that further training would not rectify the problem. Ultimately the decision was made that the plaintiff would no longer perform teller duties because of her inadequate performance. From that time on, she performed duties exclusively as a personal banker. 21I accept that the errors made by the plaintiff during this period were associated with her mental state occasioned by Kaden's death. Dr Skinner and Dr Parmegiani both opined that pregnancy, childbirth and looking after babies and young children would be particularly stressful times for the plaintiff. Since the period during which Ms Carlson was her manager coincided with the plaintiff's first pregnancy after the one that ended with Kaden's death, it is understandable that she was wont to make errors which she, in other circumstances, would not have made. It is significant that there was a temporal connection between the errors she made and particular events referable to Kaden's death or the treatment she was receiving in respect of it, which caused her significant stress. 22The plaintiff commenced these proceedings by statement of claim filed on 18 August 2010. 23The plaintiff completed her Bachelor of Arts degree in late 2010 and graduated in early 2011.She stopped working on 2 November 2010, a week before her daughter, A, was born by Caesarean section. A was a calm baby and slept well. 24In mid 2011, at about the time the plaintiff returned to work from maternity leave to the Engadine branch of the ANZ Bank, she became pregnant again, with her second daughter, S. She returned to work, initially for 20 hours a week. Later in the year her hours increased to 24 hours a week. 25Because of Kaden's death, the plaintiff was anxious about leaving A in the care of others. She would have preferred to stay at home and care for A herself. However, since the plaintiff and her husband needed her income to pay the mortgage and meet their expenses A was placed in a local childcare in Wollongong for the three days a week that the plaintiff was working. 26S was born on 13 March 2012. S had difficulty settling and sleeping. The plaintiff suffered post-natal depression. It is common ground that the post-natal depression was, in part, a consequence of what the plaintiff had suffered as a result of Kaden's death. She consulted Tresilian for assistance in getting S to sleep. This assistance substantially resolved S's sleeping problems. 27The plaintiff returned to work at the Sutherland branch of the ANZ Bank on 8 October 2012. She works three days a week, 7 1/2 hours a day, on Monday, Wednesdays and Fridays. A and S go to a childcare centre. On the days she works, the plaintiff drops off her daughters between 7.30 and 8 am and starts work at 9 am. The journey from Wollongong to Sutherland takes about forty minutes. She finishes work at 4.30 pm and returns to the childcare centre to pick up the girls. 28On the two week days when the plaintiff is not working, she stays at home and looks after her daughters. 29The plaintiff's husband, who starts work between 4 or 5 am, is enrolled in an engineering degree at TAFE which requires him to attend the TAFE for two nights a week: four hours on one night and two hours on the other. There is considerable further study and homework associated with the course which he generally undertakes at home in the evening.