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[1999] TASSC 145
Supreme Court of Tasmania
1999-12-15
Evans J
Original judgment source is linked above.
CITATION: Wilson v State of Tasmania [1999] TASSC 145
HEARING DATES: 1, 2, 3, 6, 13 September 1999 and 5 October 1999
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Other matters - Anxiety disorder not amounting to a post traumatic stress disorder - Contributing causes - Probability of factors unconnected with negligence causing the anxiety disorder.
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkes v Crittenden [1965] HCA 34; (1965) 114 CLR 164; applied.
Judgment Number: [1999] TASSC 145
1 The plaintiff sues the defendant for damages for personal injuries he suffered on 18 February 1995. At the time, the plaintiff was an inpatient at the Royal Hobart Hospital. He had been admitted for the investigation of a heart problem. He was given the drug Anginine by intravenous infusion. Due to a human or mechanical failure in the system for the administration of the drug, the plaintiff received a substantial overdose. The defendant has admitted liability for the overdose incident.
2 The plaintiff quickly recovered from the physical effects of the Anginine overdose and on 20 February 1995 he underwent emergency coronary by-pass surgery. The overdose played no part in the plaintiff's need for the emergency surgery. Since his discharge from hospital, the plaintiff has recovered from the physical effects of the by-pass surgery. He has not returned to work.
3 The medical witnesses are in agreement that since the plaintiff's hospitalisation, he has suffered from a psychiatric condition which comes within the general classification of an anxiety disorder. They are not in agreement on the specific classification of the condition.
4 The plaintiff's claim for damages is put on the basis that the overdose incident caused him to suffer from a post traumatic stress disorder, which in turn has rendered him unemployable.
5 In the course of the evidence, a number of matters have been referred to which are relevant to the cause of and classification of the plaintiff's condition and his failure to return to work since his hospitalisation. Matters for consideration include:
* the precise categorisation of the plaintiff's psychiatric condition.
* the cause of the condition, with particular reference to the part the overdose incident played in the onset of the condition.
* the role played by the overdose incident in the plaintiff's failure to return to work and how likely it is that he would have returned to work following his emergency by-pass surgery, regardless of the occurrence of the overdose incident.
6 The plaintiff is 61 years of age. At the time of the overdose, he was 56 years of age and he was employed as the Director of Nursing in Mental Health, Southern Region, with the Department of Health in Tasmania.
7 The plaintiff was educated in the United Kingdom where he obtained qualifications as a psychiatric nurse, a mental subnormality nurse and a general nurse. He worked as a mental health nurse in the United Kingdom and for three years in Bermuda before coming to Australia in 1977. His initial employment in Australia was as a nurse at the Royal Derwent Hospital, New Norfolk. Following a series of promotions, he was appointed to the position of Director of Nursing in 1988. In that position, he supervised the delivery of all nursing services throughout the southern region of Tasmania in relation to mental health facilities conducted by the Department of Health. He was responsible for recruitment, staff development, dealing with unions and workers compensation. He had an involvement in nurse education and was a member of many committees, some of which he chaired.
8 Prior to the plaintiff's hospitalisation in February 1995, he had been in reasonable health for a man of his age. He was an active home renovator. His level of physical activities had not been significantly reduced by a successful micro-discectomy performed on his lower back at the L5 level. In 1973, the stapes in his ear was removed and a teflon replacement inserted. He has since worn a hearing aid in his right ear.
9 In his position as Director of Nursing, the plaintiff managed 300 people. He worked extensive hours. He said he found the position rewarding, although it was always difficult and involved a significant amount of conflict with union representatives, workers compensation claimants and staff.
10 The immediately senior position to that held by the plaintiff was Program Manager, Mental Health, Southern Region. In 1994, that position fell vacant and the plaintiff was appointed to it on a temporary basis. During the period of 2½ - 3 months that he held the temporary position, he remained responsible for the position of Director of Nursing. He shared the temporary role of Program Manager with another officer. The plaintiff did not apply to be appointed to the position of Program Manager on a permanent basis. His shared responsibilities for that position ceased on 24 October 1997 when Mr J T Leary was permanently appointed to the position.
11 Mr Leary's role as Program Manager included the consideration of changes to the structure of the organisation. Shortly after Mr Leary's appointment (he believes it was within three days of his appointment), the plaintiff approached him with a proposal to restructure nursing management. The plaintiff had prepared a paper on restructuring and his proposal included the abolition of several positions, including his own position of Director of Nursing. Mr Leary had not requested the preparation of the paper and thought it was too early for him to be considering changes. He wanted to get an understanding of the program before considering that sort of issue. Whilst the plaintiff's retirement was canvassed no decision was made on the restructuring proposal. The proposal was not implemented before the plaintiff ceased work. Insofar as it related to the position of Director of Nursing, it has, in effect, since been implemented. The plaintiff's position has not been filled since the last day on which he worked, 15 February 1995.
12 The thrust of the plaintiff's evidence was that had the redundancy plan been implemented prior to 15 February 1995, he would have taken a redundancy and found other work. Initially, that would have been non-Government employment. After whatever period was specified in his redundancy agreement, he would have returned to Government employment.
13 The plaintiff was under stress in his employment as a Director of Nursing. He requested a meeting with Mr Leary regarding the high levels of stress he was experiencing. Mr Leary believes the meeting occurred on 22 November 1994, although he has little recall of what occurred, save that the plaintiff said he was distressed and told him he was going to see a doctor. When questioned about this meeting, the plaintiff said that he had no recall of wanting to see Mr Leary about his stress or discussing conflict and stress arising from his work with Mr Leary. The plaintiff did, however, recall seeing a doctor about work related stress in late 1994. He said that at the suggestion of his general practitioner, Dr Cornell, he saw Dr Isles, a psychiatrist. The plaintiff said that he saw Dr Isles because of stress put on him by the temporary position of Program Manager. He referred to the steep learning curve required of him in order to fulfil that position and co-operation problems he had in the position. He said he consulted with Dr Isles whilst he was in the temporary position and that he had no difficulty when he returned to the position of Director of Nursing.
14 Dr Isles said the plaintiff saw him because he was experiencing stress in his work situation. The plaintiff felt his concentration was slipping somewhat and his sleep had been disturbed by concerns about conflicts between his ethical approach to his profession and what he was being required to do as an administrator. The plaintiff described a conflict he was having with another psychiatrist. Dr Isles did not consider that the plaintiff was suffering from any psychiatric condition. He said that the plaintiff's anxiety was the normal anxiety of an executive under pressure and was not a clinical anxiety. Dr Isles discussed stress management ideas with the plaintiff and also tried to help the plaintiff see that his moral outlook could be satisfied without the strain he was putting on himself. This consultation occurred on 21 November 1994. Dr Isles saw the plaintiff again on 7 December 1994. At that time, the plaintiff was feeling a good bit better and was able to cope a lot better.
15 I reject the plaintiff's evidence that his reason for consulting Dr Isles was stress in relation to the temporary position of Program Manager and his denial that he saw Dr Isles for stress referable to his work as Director of Nursing. The plaintiff saw Dr Isles over a month after Mr Leary took up the position of Program Manager by which time the plaintiff had no reason to be stressed about the responsibilities he had held in that temporary position.
16 It appears from other evidence that the plaintiff found his employment as Director of Nursing stressful. On 29 August 1995, he completed a personal statement for the purposes of his application to the Retirement Benefits Fund Board for a benefit on the grounds of his invalidity. His statement included the following:
"I ALSO CONSIDER THAT THE INVALIDITY RELATES TO A MEETING REQUESTED IN DECEMBER 94 WITH THE PROGRAMME & HUMAN RESOURCE MANAGER REGARDING HIGH LEVELS OF STRESS BEING EXPERIENCED AT THAT TIME."
Clearly this is a reference to the plaintiff's meeting with Mr Leary. That meeting occurred after the plaintiff had relinquished responsibility for the position of Program Manager. It is probable that the high levels of stress referred to related to his employment as Director of Nursing.
17 When the plaintiff was interviewed by his cardiologist, Professor Jelinek, on 2 November 1995, he described his work as Director of Nursing as stressful. When discussing a return to work with an occupational therapist on 28 February 1995, he referred to plans of returning after making changes to reduce the stress of work.
18 I find that in late 1994, the plaintiff was under considerable stress arising from his employment as Director of Nursing. Whilst the stress was sufficiently significant to prompt him to approach Mr Leary and to seek the assistance of his general practitioner and a psychiatrist, it was not so great as to warrant classification as a psychiatric condition. At that time, the plaintiff volunteered a restructuring proposal to Mr Leary which recommended the abolition of his own position. I conclude from this approach, coupled with his concern about work related stress, that in late 1994 the plaintiff was contemplating leaving his employment as Director of Nursing.
19 On 15 February 1995, the plaintiff left work at about 4.30pm. It was a very hot day. As he drove home, he experienced a very focused, unremitting central chest pain. At home, he lay on his bed. Medical assistance was needed. It was a difficult time to arrange for a general practitioner to visit the home and the plaintiff did not feel up to going to a general practitioner. An ambulance was called. The plaintiff was taken to the Royal Hobart Hospital. Following his initial examination at the hospital, it was suggested that his pain was gastric in origin and that he should go home. The plaintiff was not satisfied with this prognosis. Following a consultation with the Registrar, he was admitted for observation and stress tests. These are tests which are carried out whilst the patient is exercising physically. Stress tests were performed on Thursday 16 February 1995 and they indicated a heart problem. The cardiologist was consulted and arrangements were made for an angiogram to be performed on Monday 20 February 1995.
20 The medication prescribed for the plaintiff was Anginine tablets. It dilates the blood vessels and increases the output of the heart muscle. A side effect of Anginine in tablet form can be headaches. As the plaintiff was suffering from headaches, it was decided to provide Anginine to him in liquid form by way of an intravenous infusion. On the afternoon of Saturday 18 February 1995, a nurse connected the plaintiff to a bag of Anginine. The plaintiff's wife, Mrs Wilson, was present, she was sitting beside his bed. As the nurse attended to her task, there was general conversation between her, the plaintiff and his wife. Within less than a minute of the intravenous drip being connected, the plaintiff thought he was dying. He said it felt like a vortex had appeared in his mattress and he was being sucked down it. He felt like he was being drained of all life. He shouted, "What are you doing", to the nurse who moved towards the plaintiff to reassure him. He turned towards his wife and said "200 mls". He had apparently observed approximately that quantity of Anginine had drained from the bag. The plaintiff's shout attracted the attention of two other nurses who rushed into his room. One, a male, removed the bag from the drip stand and disconnected the drip. As he did so, he commented that the infusion was in free flow. The other nurse joined the first nurse in reassuring the plaintiff. The plaintiff's wife says he appeared absolutely terrified, his eyes were standing out of his head and he was as white as a sheet. Someone notified the Registrar who arrived shortly thereafter. The Registrar explained to the plaintiff that as a consequence of the overdose, the plaintiff's blood vessels had been super-dilated. The Registrar told the plaintiff that his body would naturally dispel the drug and his circulation would return to normal. He said there was no reason for alarm and all was well.
21 It seems that the plaintiff was conscious throughout the incident, although he said he was not really compus mentis as he was recovering. Mrs Wilson stayed with her husband for several hours after the incident until she was satisfied that he had recovered and her presence was no longer needed.
22 Later that evening, the nurse involved in the administration of the overdose visited the plaintiff and apologised for what had occurred.
23 The plaintiff quickly recovered from the immediate physical effects of the overdose. They were not a concern to him by the next day by which time his focus was on the upcoming angiogram. It was performed on Monday 20 February without incident. As a consequence of the angiogram, it was decided that an angioplasty was necessary and this was scheduled for Wednesday 22 February 1995.
24 The performance of the angioplasty was not successful. As the procedure was being carried out, a vessel occluded. It was necessary for the plaintiff to immediately undergo emergency coronary artery by-pass surgery. A triple vessel coronary by-pass graft was performed. For the purposes of the surgery, the plaintiff's rib cage was opened by splitting it along the line of the sternum.
25 The plaintiff has no recall of what occurred during the actual performance of the angioplasty or the emergency coronary artery by-pass surgery. He said he has a recollection of being in a corridor when his wife was crying. His wife gave evidence that on her arrival at the hospital following the angioplasty, she met a nurse who informed her that the angioplasty had not been successful and the plaintiff was going for emergency cardiac surgery. As they were speaking in a corridor, the plaintiff was wheeled by. He was semi-conscious. She was crying and he said to her, "Get Mark". Mark is their son. The plaintiff's next recall is of waking in ICU on Saturday 25 February 1995.
26 The plaintiff was shocked and horrified to find that he had undergone open heart surgery. A visitor told him that he had died on the operating table. Professor Ivor Jones says that this incident had a profound effect on the plaintiff and that it still causes him concern. In his evidence before the Court, the plaintiff did not make much of this occurrence. He said he checked with his wife and the consultant anaesthetist and established that there was no such incident. Whilst recovering in hospital, the plaintiff contracted pneumonia and during the course of a two day period, he suffered from atrial fibrillation. This involves a rapid and irregular pulse. The plaintiff was aware of this condition and found it very scary. Whilst in hospital, the plaintiff's sleep was disturbed by dreams. This is common with people on the medication he was having.
27 The plaintiff was discharged from hospital on 2 March 1995. Shortly thereafter he undertook a rehabilitation program for people who have undergone cardiac surgery.
28 The immediate physical consequences of the procedures carried out on the plaintiff were significant pain in his chest where his sternum had been split and pain at the site near his groin where entry had been gained for the angiogram and the angioplasty.
29 Professor Jelinek, the cardiologist who supervised the plaintiff's treatment, said that generally the acute physical effects of cardiac surgery wear off after about three months. The plaintiff's evidence, supported by his wife, is that he did not fully recover from the physical effects of the surgery for six to eight months. The plaintiff said that by that time he was able to undertake all his former physical activities.
30 For some time after the surgery, the plaintiff found it difficult to get comfortable when trying to sleep. He was also troubled by bad dreams. In his evidence, he said that about two to three weeks after his discharge from hospital, he started having a dream in which his body is sucked down a vortex in the mattress. He would wake from the dream with a feeling of dread and sit on the side of his bed sweating and hyperventilating. Initially this dream, or a variation of it, occurred two to three times per week. In the variations of the dream, the vortex is in his stomach and a head or an arm is sucked into it. The dreams are vivid. He said the dreams occurred quite frequently during the four years following his hospitalisation. They now occur about two or three times a month.
31 Since his hospitalisation, the plaintiff has also suffered from breathlessness. He describes this as feeling that he has not been breathing enough and needs to take a couple of extra breaths. He has suffered from this constantly about six to eight times a day since his hospitalisation.
32 The plaintiff also gave evidence of suffering from panic attacks. He described them as a feeling of acute panic and dying. He was hesitant about estimating the frequency of their occurrence. His initial evidence was that in the year following his hospitalisation, they occurred monthly. Later in his evidence he said that their occurrence had diminished in the same ratio as the dreams and that he now has them about twice a month. I conclude that they occur about monthly
33 The physical outcome of the plaintiff's cardiac surgery was good. Professor Jelinek said the plaintiff does not suffer from long term damage arising from the surgery. Many patients who undergo cardiac surgery suffer from anxiety at a level less than that which is recognised as a psychiatric condition. Many patients also suffer from significant depression, loss of confidence and irritability. It is not uncommon for patients to complain of breathlessness, impotence and reduced sexual activity following cardiac surgery. These reactions to the surgery ordinarily lift with time. The cardiac rehabilitation program which the plaintiff undertook is directed to overcoming problems such as these.
34 Professor Jelinek said that suffering psychiatric levels of anxiety following cardiac surgery is uncommon and that less than 10 per cent of cardiac surgery patients do so. Professor Jelinek has conducted an investigation into loss of sexual function after a heart attack, as distinct from heart surgery. He found that 39 per cent of patients had sexual activity less than once a month following a heart attack and half of these were impotent. He had great reservations about the validity of the results of his investigation.
35 Professor Jones, a psychiatrist, said that it is quite common for people who have undergone cardiac surgery to suffer psychological and psychiatric problems, sometimes with long lasting effects. In his view, the plaintiff's sexual dysfunction is an accompaniment of his anxiety. Professor Jones accepts that about 20 per cent of all people who undergo cardiac surgery suffer significant psychological or psychiatric sequelae.
36 Dr Sale is a psychiatrist who was called as a witness by the defendant. He has researched papers concerning the impact of coronary by-pass surgery on patients. His research shows that a significant minority of individuals who undergo by-pass surgery had ongoing difficulties, including anxiety, depression, and impaired sexual function and failed to return to work. One of the papers to which he referred recorded a 20 per cent drop in the work participation of patients. His assessment is that something in the order of 15 to 20 per cent of individuals who undergo coronary by-pass surgery develop anxiety or depressive problems. He said that assessing the likelihood of them suffering problems in the sexual area is much more difficult.
37 Professor Jones, Mr Webb (a psychologist consulted by the plaintiff), Dr Isles and Dr Sale are all of the view that the extent and degree of the plaintiff's symptoms since his hospitalisation warrant the diagnosis of a psychiatric condition which comes within the general classification of an anxiety disorder. Dr Sale is of the view that the plaintiff's condition comes within a residual category for anxiety disorders, that of an anxiety disorder not otherwise specified. Professor Jones, Dr Isles and Mr Webb are of the view that the plaintiff's condition falls within the category of anxiety disorders known as a post traumatic stress disorder. Dr Isles did not examine the plaintiff with a view to making a diagnosis. He did not check for, or make a note of, the criteria for a diagnosis of post traumatic stress disorder. In the circumstances, I place little weight on his diagnosis.
38 Professor Jones first saw the plaintiff on 21 September 1995 for the purposes of a report for the Retirement Benefits Fund Board on the plaintiff's application for a benefit on the ground of invalidity. In his report dated 26 September 1995, Professor Jones concluded:
"He is now left with an anxiety state with recurrent unpleasant dreams and associated anxiety. The clinical picture is compatible with post-traumatic stress disorder. It is likely that both the infarction, the subsequent procedures and this experience [the overdose incident] have contributed to the present ongoing state and apportioning his present state to these two stresses is difficult but is, I understand it, not the central feature of this consultation, which is to assess ongoing disability."
39 The plaintiff saw Mr Webb on seven occasions in 1995 and 1996. His first consultation was on 14 November 1995. At that time, Mr Webb had Professor Jones' report that the plaintiff's clinical picture was compatible with a post traumatic stress disorder. On the basis of the information that Mr Webb was able to obtain from the plaintiff, he was not able to confirm that diagnosis. He was, however, satisfied that the plaintiff had an anxiety disorder and he provided the plaintiff's solicitors with a report to that effect. The plaintiff consulted Mr Webb again on two occasions in 1998 and early this year. Mr Webb is now of the view that the plaintiff suffers from a post traumatic stress disorder. Mr Webb was not asked to relate specific symptoms of the plaintiff to each of the criterion for a diagnosis of post traumatic stress disorder and he did not do so in his evidence.
40 Dr Sale examined the plaintiff for 75 minutes on 2 October 1998 at the request of the defendant. Dr Sale concluded that the plaintiff was suffering from an anxiety disorder, but he was not satisfied that the plaintiff was suffering from a post traumatic stress disorder. In his evidence, Dr Sale referred to a number of symptoms which, in his view, the plaintiff did not have and which are necessary for such a diagnosis.
41 In the absence of unanimity amongst the medical witnesses as to whether the plaintiff suffers from symptoms which warrant a diagnosis of post traumatic stress disorder, I turn to that issue.
42 The criteria for a diagnosis of post traumatic stress disorder are well recognised and not in dispute. In order to encourage international conformity in the diagnostic classification of some psychiatric conditions, psychiatrists have formulated tables detailing the required criteria for the conditions. A table has been prepared for post traumatic stress disorder. The following is the table which was utilised by Professor Jones:
Diagnostic Criteria for Posttraumatic Stress Disorder
A The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone (eg, serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence).
B The traumatic event is persistently reexperienced in at least one of the following ways:
(1) recurrent and intrusive distressing recollections of the event (in young children, repetitive play in which themes or aspects of the trauma are expressed)
(3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative [flashback] episodes, even those that occur upon awakening or when intoxicated)
(4) intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma.
C Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following:
(1) efforts to avoid thoughts or feelings associated with the trauma
(2) efforts to avoid activities or situations that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma (psychogenic amnesia)
(4) markedly diminished interest in significant activities (in young children, loss of recently acquired developmental skills such as toilet training or language skills)
(5) feeling of detachment or estrangement from others
(6) restricted range of affect (eg, unable to have loving feelings)
(7) sense of a foreshortened future (eg does not expect to have a career, marriage, children, or a long life)
D Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following:
(6) physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event (eg, a woman who was raped in an elevator breaks out in a sweat when entering any elevator)
E Duration of the disturbance (symptoms in B, C, and D) of at least one month.
Specify delayed onset if the onset of symptoms was at least six months after the trauma."
43 The above Table is taken from the 3rd edition of Diagnostic and Statistical Manual of Mental Disorders. The Table relied on by Dr Sale was taken from the 4th edition of the Manual. Whilst there are some differences between the Tables published in the 3rd and 4th editions, for present purposes, they are not relevant.
44 On the evidence before me, I have no difficulty in finding that criterion A, B, D and E in the Table are established. As to criterion A, I am satisfied that the overdose incident suffered by the plaintiff is an event that is outside the range of usual human experience and that it would have been markedly distressing to almost anyone. It was a life-threatening experience. Criterion B is satisfied by evidence of distressing dreams which the plaintiff has about two or three times a month which evoke the experience he underwent at the time of the overdose incident.
45 Difficulty arises in relation to criterion C. To satisfy that criterion, the plaintiff must experience at least three of the indicators there specified. Dr Sale was only satisfied that the plaintiff experienced indicator (7). As to that indicator, Dr Sale said he gained a history from the plaintiff of a foreshortened future in that the plaintiff said words to the effect that he was living on borrowed time. When Professor Jones completed the Table, he ticked indicators (1), (5) and (7)of criterion C.
46 There is no evidence before me that the plaintiff experiences indicators (1), (2) or (3) and I am not persuaded by the evidence that the plaintiff experiences indicators (5) and (6).
47 I deal specifically with indicators (1) and (5) as they were ticked by Professor Jones when he completed the Table. As to indicator (1), that is, evidence of the plaintiff's efforts to avoid thoughts or feelings associated with the overdose incident, such evidence as there is, is to the contrary effect.
48 When the plaintiff first saw Mr Webb on 14 November 1995, he completed a "Mississippi PTSD Scale", a form containing 35 questions to which he was asked to give one of the following five alternative answers:
"4 If something happens that reminds me of the accident, I become very distressed and upset.
8 When I think about the accident I wish I was dead.
13 Being in certain situations makes me feel as though I am back at the accident.
33 I try to stay away from anything that will remind me of the accident."
49 The plaintiff answered each of the above questions, "not at all true". It is clear from these answers that when the plaintiff completed the test he was not concerned about recalling the overdose incident. In his evidence, the plaintiff did not mention recurrent intrusive thoughts about the incident or efforts to avoid thinking about it. I do not accept that these matters are or have been a concern to the plaintiff.
50 As to indicator (5), a feeling of detachment or estrangement from others, Professor Jones referred to the plaintiff suffering feelings of detachment and depersonalisation during his panic attacks. The plaintiff's evidence about his panic attacks did not equate them with feelings of detachment or estrangement from others. He described a feeling of acute panic and dying. I am not satisfied that a feeling of detachment or estrangement from others is associated with the panic attacks. With reference to the panic attacks, there was a significant difference between the plaintiff's evidence about the frequency of their occurrence and the evidence of Professor Jones and Mr Webb referable to the same. In their reports, they refer to the plaintiff suffering panic attacks on a daily basis. Professor Jones referred to them occurring seven times a day and Mr Webb referred to them occurring ten times a day. In his evidence, Professor Jones said the frequency of the panic attacks had not decreased and they were still occurring six to seven times a day. It seems that Professor Jones and Mr Webb have confused the plaintiff's feelings of breathlessness with panic attacks. In his evidence, the plaintiff clearly distinguished between the panic attacks, which he said occurred once or twice a month, and breathless incidents which he said occurred about six to eight times a day.
51 Further evidence which is relevant to my lack of satisfaction that the plaintiff suffers from indicators (5) and (6) is the plaintiff's answers to the following questions in the Mississippi Test referred to in par48 above:
26 No one understands how I feel, not even my family.
35 I have a hard time expressing my feelings, even to the people I care about.
52 As to indicator (4), markedly diminished interest in significant activities, the evidence satisfies me that the plaintiff has a markedly diminished interest in at least one significant activity, employment. There is also evidence that he is less confident about or interested in socialising. I am satisfied that indicator (4) is established.
53 Whilst I am satisfied that indicators (4) and (7) have been made out that is insufficient for a finding that criterion C has been established. For that criterion to be established, at least three of the indicators must be present. On the evidence before me, I am only satisfied that two of the indicators are present. I am accordingly not persuaded that the plaintiff's condition can be classified as a post traumatic stress disorder. In the circumstances, the classification of his condition, which I accept, is that of an anxiety disorder not otherwise specified.
54 The evidence before me is that no psychiatric condition, such as the plaintiff's anxiety disorder, has a unitary cause. Matters referred to by the expert witnesses as contributing to the plaintiff's condition are:
* the pain and fear he suffered in association with his angina attack;
* difficulties he had in obtaining admission to the Royal Hobart Hospital;
* being told that he had died in the course of the operation;
* annoyance he had about the hospital's response to the overdose incident.
55 Of these matters, the one that had the most prolonged and significant impact on the plaintiff's physical health was the cardiac surgery. Whilst the impact of the overdose incident on the plaintiff's physical health was of short duration it was a traumatic life-threatening incident. It is likely that the cardiac surgery and the overdose incident are the major causes of the plaintiff's psychiatric condition. As I am satisfied that the overdose incident is one of the causes of the plaintiff's condition, he is entitled to damages referable to the same. There being competing causes for the plaintiff's condition, one of which the defendant is responsible for, the evidentiary burden is on the defendant to disentangle the non-tortious causative factors; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkes v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
56 As a consequence of his anxiety disorder, the plaintiff suffers from breathlessness, occasional panic attacks, bad dreams and related problems. He suffers from sexual dysfunction involving a loss of libido and sexual function. He has reduced confidence. He is less tolerant and more irritable, emotional and susceptible to stress. He is uncomfortable in crowds and is less enthusiastic about socialising. I do not consider that his discomfort in crowds and his reduced interest in socialising amounts to a significant social phobia. His attendance at six Adult Education Courses since his hospitalisation and his continued socialisation with neighbours shows that this is not an overwhelming problem. Insofar as the social life which the plaintiff formally had in association with his work has fallen away, I relate this more to the termination of his employment than his anxiety disorder.
57 Efforts to treat the plaintiff's symptoms have been fragmented and have met with little success. The plaintiff consulted a urologist, Dr Siddens in relation to his sexual dysfunction. He was given two injections which were of no assistance.
58 When the plaintiff consulted Dr Isles in September 1995, Dr Isles assisted him with stress management ideas, relaxation tapes and suggestions on deep breathing. For a period of about a year, concluding in January 1998, the plaintiff's general practitioner prescribed Aurorix, an anti-depressant. That treatment was not continued as it had no beneficial effects. As Professor Jones saw the plaintiff for assessment purposes, rather than treatment, he did not recommend any treatment. Mr Webb carried out some relaxation/hypnosis type procedures and some eye movement desensitisation.
59 An anxiety disorder is more susceptible to treatment than a post traumatic stress disorder. There is some prospect of the plaintiff's condition settling of its own accord. There have been improvements since its onset and these may continue. However, the reality is that his symptoms have persisted to varying degrees over a period of about 4½ years. This suggests that they are intractable in which case whilst treatment may alleviate some symptoms, it will not cure them.
60 Prior to the plaintiff's hospitalisation, he was suffering from employment-related stress sufficient to prompt him to seek medical help and to raise the matter with the employee who was his immediate superior. Quite apart from the overdose incident, a number of the plaintiff's experiences during the course of his hospitalisation, in particular the coronary by-pass surgery, are likely to have had an adverse impact on the plaintiff's psychiatric and psychological state. On balance, I consider it is probable that even if the overdose incident had not occurred, the plaintiff would have suffered some anxiety and other symptoms as a consequence of the cardiac surgery and related experiences.
61 With these matters in mind, I assess the plaintiff's general damages at $15,000.
62 Prior to leaving hospital, the plaintiff, in substance, told the occupational therapist that he planned to return to his former position as Director of Nursing, subject to making changes to reduce the stress of that work. Following his discharge from hospital, the plaintiff convalesced at home. He had accumulated leave entitlements which he relied on. The plaintiff formed the view that he was not up to returning to his former work. In reaching that view, it seems that the plaintiff did not seek any medical advice on his capacity for work, or fully explore the treatment options that were available to him.
63 On 29 August 1995, the plaintiff completed a personal statement in support of his application to the Retirement Benefits Fund Board for a benefit based on retirement on the ground of invalidity. Paragraphs 1 and 2 of the statement he completed, as edited, are as follows:
INVALIDITY RELATES TO A CONTINUING REDUCTION OF PHYSICAL AND EMOTIONAL INCAPACITY FOLLOWING UNPLANNED AND PROBLEMATICAL TRIPLE BY-PASS SURGERY CONDUCTED IN FEBRUARY 1995 AT THE ROYAL HOBART HOSPITAL.
I ALSO CONSIDER THAT THE INVALIDITY RELATES TO A MEETING REQUESTED IN DECEMBER 94 WITH THE PROGRAMME & HUMAN RESOURCE MANAGER REGARDING HIGH LEVELS OF STRESS BEING EXPERIENCED AT THAT TIME. IN ADDITION - A NEAR DEATH EXPERIENCE RESULTING FROM DRUG ERROR WHILST IN THE RHH ALSO CONTRIBUTED TO MY INVALIDITY.
2 When did the symptoms of the invalidity first become evident. (Dates) and description)?
AS RELATED ABOVE (DECEMBER MEETING) AND MY SUBSEQUENT REFERRAL TO DR JOHN ISLES CONSULTANT PSYCHIATRIST."
64 As a consequence of the plaintiff's application for an invalidity pension, the Retirement Benefit Funds Board referred him to Professor Jones for assessment. His first appointment with Professor Jones was on 21 September 1995. His referral to Professor Jones for assessment prompted the plaintiff to make an appointment with Dr Isles on 6 September 1995. The plaintiff says he did not go to Dr Isles for treatment or diagnosis, he simply went to discuss the experience he was having. He told Dr Isles he was not able to do his former job and would probably retire on medical grounds. Dr Isles endeavoured to allay the plaintiff's anxiety in the course of their discussion, but did not put in place any treatment regime or prescribe any medication.
65 Following Professor Jones' assessment of the plaintiff on 21 September 1995, he reported to the Retirement Benefits Fund Board:
"Currently, he is unable to perform duties at or even near those he was performing previously and even if an improvement in his state occurs, allowing him to return to a lower level of nursing, this may and probably will engender its own problems from lowering in his status. At present he is unable to work at all. On the other hand, it is somewhat early to make an accurate judgment about likely outcome. The most appropriate categorisation therefore does appear to be total and temporary incapacity with the suggestion that this is reviewed within one year's time."
66 Although the plaintiff regained his physical health following the cardiac surgery, he did not return to his former employment and he has not obtained or sought alternative employment.
67 The plaintiff claims damages for his past and future loss of earnings on the basis that but for the overdose incident he would have returned to his employment as Director of Nursing and remained in that position until he attained the age of 65 or, alternatively, on the basis that he may have taken a redundancy in which event he would have obtained alternative employment.
68 At the time of the plaintiff's hospitalisation, his after tax income was about $37,000 per annum. Following his hospitalisation, he continued to receive benefits in the nature of income from his employer until about January 1996, when he was granted an interim invalidity benefit equal to 75 per cent of his salary by the Retirement Benefits Fund Board. At that time, the plaintiff was 57 years of age. That pension continued until January 1998 when the plaintiff was granted a permanent invalidity benefit which entitled him to receive a benefit calculated as if he had worked until the age of 65. As a consequence of an election then made by the plaintiff, he receives a pension of approximately $21,500 per annum after tax. If the plaintiff was still in his former employment, his after tax income would be approximately $41,000 per annum.
69 I am satisfied that the plaintiff has not returned to work as a consequence of the anxiety state from which he suffers and for which the overdose incident is a contributing cause. I have, however, formed the view that regardless of whether the overdose incident had occurred, it is unlikely that the plaintiff would have returned to his former employment following his hospitalisation. In reaching this conclusion, I should say that I consider it to be significant that prior to the plaintiff's hospitalisation he was concerned about the stress of his work and was offering himself for a redundancy. I also consider it likely that the symptoms the plaintiff would have suffered from following his hospitalisation, regardless of the overdose incident, would have been sufficient to have enabled him to obtain an invalidity benefit. Having obtained that benefit, it is unlikely that the plaintiff would have sought alternative employment as it would have exposed him to the risk of having his pension suspended or reduced. If my views about this are correct, the plaintiff has suffered no loss of income by reason of the overdose incident. It is, of course, not certain that my prognostications are correct. They relate to hypothetical events which may or may not have occurred, regardless of the overdose incident. It is, of course, possible that the plaintiff would have returned to his former work had the overdose incident not occurred. This is a real possibility which cannot be dismissed as mere speculation. The plaintiff is entitled to compensation for the loss of this possibility. My assessment of this loss is an evaluation which defies precise calculation and it is undesirable that I seek to assess it on the footing of an evaluation expressed as a percentage; Malic v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639 - 640 and 642 - 643. In assessing damages for this loss, regard must be had to contingencies such as:
* how long the plaintiff would have continued in the position of Director of Nursing;
* whether he would have sought and obtained a redundancy payment upon retiring and, if so, how much;
* whether he would have obtained other employment if he had retired early.
70 If the plaintiff had returned to work, I doubt that he would have continued in the position of Director of Nursing for long and consider that there was a reasonable prospect of him resigning upon obtaining a redundancy payout. The evidence about a potential redundancy payout is very meagre.
71 The plaintiff said that in his current circumstances, it would be incredibly difficult for him to return to work at a lower level in nursing administration. As I understand him, he would find this most embarrassing. To work in other areas of nursing, would require him to re-train. Just as these matters presently deter the plaintiff from returning to work, they would have deterred him from doing so had he taken a redundancy payout.
72 Counsel for the defendant submits that in my assessment of the plaintiff's damages for lost earning capacity, I should make a reduction for the benefit the plaintiff receives from the Retirement Benefits Fund Board.
73 As long ago as the decision of Bradburn v Great Western Railway Co [1854] EngR 538; (1874) LR 10 Ex 1, it was held that the damages a plaintiff receives for personal injuries suffered in an accident should not be reduced by any benefit received by the plaintiff under an accident insurance policy the plaintiff has taken out. A similar approach has been taken by the courts to benefits obtained under superannuation and pension schemes. Illustrations are; Jones v Gleeson [1966] ALR 235; Paff v Speed [1960] HCA 61; (1961) 105 CLR 428; Parry v Cleaver [1969] UKHL 2; [1970] AC 1; Smoker v London Fire and Civil Defence Authority [1991] 2 AC 502 and State of New South Wales v Davies (1998) 43 NSWLR 182.
74 The Retirement Benefits Act 1993 contains no provision to the effect that benefits payable under it should be brought into account when damages are assessed in circumstances such as those of the plaintiff. It is manifest from the legislation that benefits are intended for members of the scheme personally. There is nothing in the legislation which suggests an intention that a benefit should reduce any damages a member becomes entitled to as a consequence of suffering a personal injury. So far as I am aware, the contrary has never been suggested referable to benefits paid under the Retirement Benefits Act, or any of the predecessors to that legislation which can be traced back to the Superannuation Act 1938. Had Parliament intended that a member's benefit should be brought into account when assessing a member's claim for damages for loss of income as a consequence of personal injury, it would have been easy to spell that out in the legislation. In the absence of any express or implict requirements that the benefit be reduced from a recipient's damages entitlement, I will not make any reduction for it in my assessment of the plaintiff's damages.
75 I cannot conceive of any way of assessing the plaintiff's loss of the possibility that he may have returned to work by means of a structured calculation. It can only be assessed on an in globo basis. I assess the plaintiff's damages for loss of earning capacity at $50,000.
78 Judgment will be entered for the plaintiff against the defendant for $66,140.
# Wilson, John Arthur
State of Tasmania \[1999\] TASSC 145
(1960) 108 CLR 158
(1965) 114 CLR 164
(1990) 169 CLR 638
(1961) 105 CLR 428
(1998) 43 NSWLR 182