Supreme Court New South Wales

• Medium Neutral Citation: Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656
• Hearing dates: 21-23 May 2013
• Decision date: 29 May 2013
• Jurisdiction: Common Law
• Before: Adamson J

Decision

(1) Judgment for the plaintiff in the sum of $366,903.60.

(2) Subject to any party making an application for a different costs order, order the defendant to pay the plaintiff's costs of the proceedings.

• Catchwords: TORTS-negligence-damages-non economic loss-evidence of hypothetical future intentions--future economic loss-difficulty in determining future capacity-buffer awarded-past domestic assistance
• Legislation Cited: - Civil Liability Act 2002, s 5D(3), s 13, s 15, s 15(2), s 15(3), s 18, s 31
• Cases Cited: - Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; - Chappel v Hart [1998] HCA 55; 195 CLR 232; - Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559; - Penrith City Council v Parks [2004] NSWCA 201; - Rosenberg v Percival [2001] HCA 18; 205 CLR 434
• Category: Principal judgment
• Parties: Vanessa Rasmussen (Plaintiff); South Western Sydney Area Health Service (Defendant)
• Representation: Counsel: AJ Lidden SC and PN Khandhar (Plaintiff); MJ Fordham SC (Defendant); Solicitors: Brydens Compensation Lawyers (Plaintiff); Curwoods (Defendant)
• File Number(s): 2010/274544
• Publication restriction: Nil

Judgment

Introduction

1 The 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.

2 The 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

3 The 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.

4 In 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.

5 The 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.

6 The 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.

7 Four 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.

8 The 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.

9 She was offered counselling at Liverpool Hospital but was unable to accept the offer because she could not bring herself to return there.

10 The 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.

11 The 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.

12 In 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.

13 When 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.

14 In 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.

15 In 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.

16 In 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.

17 In February 2010 the plaintiff became pregnant again.

18 Rebecca 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".

19 Ms 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.

20 Ms 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.

21 I 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.

22 The plaintiff commenced these proceedings by statement of claim filed on 18 August 2010.

23 The 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.

24 In 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.

25 Because 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.

26 S 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.

27 The 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.

28 On the two week days when the plaintiff is not working, she stays at home and looks after her daughters.

29 The 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.

The plaintiff's performance at the ANZ Bank

30 The plaintiff tendered a bundle of documents produced on subpoena from the ANZ Bank from her personnel file which indicates the various scores she has received over time. The plaintiff's most recent aggregate score, which is a weighted average of the various scores referred to below, was, according to a performance management document dated 2 April 2013, 3B.

31 Mr Lidden SC ultimately submitted that, although her employment could not be regarded as being in jeopardy, because of her disclosure of her condition at the outset, she was barely coping with work and that this ought be reflected in damages for a substantial long term loss of working capacity. I am not persuaded that these documents establish that for which Mr Lidden SC contends.

32 The evidence established that work of employees at the ANZ Bank is measured by reference to certain scales. Those, including personal bankers, who are engaged in sales work, have their productivity measured by reference to the number of services that they have managed to sell to customers within a particular period. Points are allocated for opening an account, providing a credit card and so on. The best score is 1 and the worst score is 5. There is also a letter, such as B, which appears to provide an indication of "competency".

33 The final numerical score is a product of separate scores for particular categories: financial; customer; process/risk and people. The percentage value of these categories is not consistent in the documents tendered. None of these categories is sufficiently explained in the evidence to permit me to make any particular finding about its relevance to the plaintiff's work. Nor is there evidence that would permit me to evaluate the significance of the scores in particular categories beyond the description in the internal bank records set out below.

34 Relevantly Rating 3 means:

"Operational efficiency

- Consistently meets expectations, sometimes exceeds

- Adheres to process and policy. Has not "failed" internal or external checks.

- Complies with all procedural & regulatory processes, so that most things are done 'right the first time'.

- Completes tasks efficiently through appropriate use of technology and documentation, and customer serving time is optimal.

- Always understands and applies the regulatory and policy compliance procedures.

Keeps up to date with product and process knowledge.

Participation in ISM meetings and uses MWP45 and coaching action plans

Adheres to CIP/KYC Compliance

No significant breaches in relation to Simple Wealth (Scripted General Advice) Compliance (WAP Accredited staff only)

Completes allocated checking responsibilities."

35 Rating 4 means:

"Operational efficiency

- Sometimes meets expectations although often below

- Errors are detected through the various checking and testing processes undertaken internally and externally."

36 Rating 5 means:

"Staff member is not undertaking this aspect of their role to the best of their ability.

Confirmed by District Manager."

37 The score reflects, in part, an employee's ability to sell products. I am not satisfied that the plaintiff's talents, but for the accident, would necessarily, or even probably, have been along those lines. The plaintiff spoke in oral evidence of the "need to be fairly aggressive". She said:

"I am not aggressive enough and yeah you have to be. It is not about being there and being nice, and having a nice conversation and helping people like the ads of banking are meant to be and I am not disparaging banking but the reality is on multiple occasions the conversation I have with my boss is, "You might be a nice person but your job is to sell, you're a sales person.""

38 The plaintiff's evidence in her statement of 3 April 2013 included:

"In or about October 2012, I returned to work with the ANZ Bank at the Sutherland Branch, working 3 days a week, 8 hours a day as a personal banker.

The difficulties outlined at [55] of my first Evidentiary Statement remain the same. I have problems coping at work because of my confidence and memory. I am not meeting my targets. Since returning to work in October 2012 I have been verbally disciplined on 3 occasions about my work performance. I do not believe my job is secure although I am doing the best I can."

39 The plaintiff herself gave some general evidence about performance standards, as did Ms Carlson. Neither party called anyone from the Bank to establish how the plaintiff's score compared with that of her peers. They indicate that the plaintiff's performance varies somewhat over time. I take into account the plaintiff's evidence that when one is on maternity leave, one gets a notional 100% score and that this affects the average. However, having regard to the undoubted stress of the litigation, I regard her present score, 3B, a reasonably good indication that, even in circumstances of considerable stress, she is able to perform to an adequate level.

40 The ANZ documents also include the plaintiff's most recent contract of employment. The bank accepted her application for "Part-time work-child care", which I take to mean an application for part-time work which the bank makes available to those of its employees whose children are of pre-school age. The date on which the contract started was 8 October 2012. It relevantly provides:

"You will be employed on a part time basis for 4 years and 4 months or such other period as agreed with ANZ up to a maximum of five years.

At the conclusion of this part time period, your return to full time work will be managed in accordance with the [ANZ Part Time Work Child Care] Policy."

41 Although the plaintiff said she did not feel secure in her job, I am satisfied that her present employment will continue to be available to her for the foreseeable future.

Expert evidence

42 Two psychiatrists have assessed the plaintiff for the purposes of these proceedings: Dr Parmegiani, at the request of her solicitors, and Dr Skinner at the request of the defendant's solicitors. A joint report has been prepared which records substantial agreement between them.

43 They agree that the plaintiff suffered an anxiety disorder and a pathological grief reaction, each of which is a "recognisable psychiatric illness" within the meaning of s 31 of the Civil Liability Act 2002. Dr Parmegiani attributed her anxiety to post traumatic stress disorder (PTSD) and residual symptoms of depression. Dr Skinner opined that the PTSD symptoms had receded and that her anxiety is now focussed on her children.

44 Both experts agreed that the plaintiff required up to 18 sessions of psychological therapy. Dr Skinner considered 6-10 sessions of cognitive behavioural therapy and additional sessions for marital therapy to be reasonable. They differed with respect to anti-depressant medication: Dr Parmegiani opining that it would be required for 12-18 months and Dr Skinner considering that it might be required if the psychological symptoms do not resolve with psychotherapy.

45 Both experts also agree that the plaintiff's mental state will improve with treatment and the passage of time. She will remain susceptible to temporary exacerbations, triggered by such events as Kaden's death, childbirth or other reminders, such as seeing friends or colleagues with sons who were born at about the time of Kaden's birth. If she becomes pregnant again, she is at risk of post-natal depression.

46 The experts agreed that the plaintiff would find it difficult to work full-time due to her anxiety until her children are at school but that thereafter she should be able to resume full-time employment. They agree that she will need domestic assistance until the end of 2013.

47 Dr Skinner and Dr Parmegiani agree that treatment will improve her capacity to work and also to do domestic chores but her prognosis is guarded.

48 Mr Lidden SC, who appeared for the plaintiff, questioned the experts in the course of their concurrent evidence by putting a series of assumptions to them in very broad terms with a view to undermining the opinions that they had expressed in their individual reports and in the joint report which they had prepared shortly prior to the hearing. Dr Parmegiani had seen the plaintiff on five separate occasions: 17 March 2010, 7 March 2011, 28 February 2012, 28 May 2012 and 6 December 2012. Dr Skinner had seen her on four separate occasions: 18 January 2011, 15 September 2011, 24 July 2012 and 6 March 2013. I am satisfied, from their evidence and the terms of the reports, that each of the experts took a careful history from the plaintiff on each of the consultations.

49 I consider that the only substantial matter of which Dr Skinner was unaware was that the plaintiff had made errors while working as a bank teller. I do not consider this to be sufficient to undermine the evidence of Dr Skinner or the substantial agreement between the experts that is evident from their joint report and the concurrent evidence.

Assessment of damages

50 Kaden's death changed the plaintiff substantially. She was transformed from being optimistic, ambitious and willing to take on further responsibilities to someone who confines her social activities to the family circle and close friends and who, to a large extent, avoids random social contact because of the prospect that her emotional lability will be triggered and she will be unable to cope. It has made the two pregnancies which followed and resulted in the births of her two daughters, very anxious experiences. The births and rearing of her two daughters has been substantially affected by the loss of Kaden. She is overly concerned for their welfare and describes herself as "one of those annoying parents" who regularly rings the childcare centre where her two daughters spend the three days a week when she is working. This happens, on average, once a week.

51 She has a limited social life that consists of family dinners or going to the cinema with her husband. However, this is not an uncommon phenomenon with working couples with two small children.

52 No amount of money can restore her loss or compensate her adequately for it. The grief she suffers is lifelong.

53 Although she has managed to continue her life in an apparently normal way, by having two further children and following a not unusual pattern of returning to part-time work following the birth of a child and then having another and doing the same, she has suffered substantially in the process. The joy that might usually accompany childbirth has been tainted by grief at the loss of her first-born.

54 Her enthusiasm for work is tempered by her concern about whether she is performing to standard, her fear of losing her job and her anxiety about her children who are cared for by others while she is working. She would prefer to look after her children herself but needs to work to pay the mortgage.

55 That she has been able to undertake a Bachelor of Arts Degree is testimony to her application and dedication to new tasks and to her education and advancement in life. Although I accept that she undertook this study as a distraction from her grief, her ability to qualify in this degree is powerful evidence that she is able to concentrate and perform, albeit it in the relatively controlled environment of a correspondence course.

56 There are several prognostications which demonstrate the plaintiff's capacity to function and which augur well for the future:

(1) The plaintiff's ability to have two further children after Kaden's death;

(2) Her ability to look after A, who was the first child born after Kaden's death, without apparently transmitting her anxiety to A;

(3) Her ability to continue to work part time continuously in a relatively demanding job since January 2008, apart from periods of maternity leave;

(4) Her well-groomed presentation;

(5) Her readiness to resume and complete tertiary academic study, by correspondence, at a time when she was also bearing and rearing her two daughters, in circumstances where there was no apparent financial imperative to do so;

(6) Her preparedness to leave her two young daughters in the care of others at the childcare centre for three days a week for a period of about eight hours a day;

(7) Her willingness to travel, both on a cruise and on holidays interstate; and

(8) Her motivation to return to normal functioning.

57 Nonetheless, the plaintiff remains vulnerable to stressors, particularly those associated with childbirth and children. She will remain prone to anxiety and emotional lability whenever she encounters boys who would, had Kaden survived, have been his contemporaries. If her daughters suffer any mishap, she is likely to suffer more as a result. I accept the expert evidence that it is likely that the effect of these blows will diminish as her children grow older. Her evidence is that she countenances having another child. The birth of another child will subject her to the kinds of stress to which she was subject when her daughters were born.

58 Both expert psychiatrists considered that she had not yet had a course of treatment that was specifically addressed to her symptoms and that she was likely to benefit from such treatment.

Non-economic loss

59 The plaintiff submitted that her non-economic loss ought be adjudged to be 45% of the most extreme case. The defendant submitted that it ought be adjudged to be 35% of the worst case. For the reasons given above, I consider that the plaintiff's non-economic loss is to be assessed by reference to 40% of the most extreme case. Accordingly there will be an award for this head of damages of $214,000, being 40% of $535,000.

Loss of earning capacity: past

60 The plaintiff gave evidence that she always intended to work full-time. However she did so in the following context:

"I never thought about part time work. I had worked part time prior to getting a full time job and never thought about going back to part time work since I was full time employed that is probably it."

61 The questions asked about what the plaintiff would have done if Kaden had survived, to which she answered that she would have returned to full-time work, are obviously hypothetical ones.

62 Mr Lidden SC, who appeared for the plaintiff, submitted that because the plaintiff was a truthful witness and because she was not directly cross-examined about that evidence, I was bound to assess the plaintiff's loss of earning capacity, for both the past and the future, on the basis that, subject to periods of maternity leave, she would have worked full-time until the age of 67 years. I do not accept this submission.

63 Matters of fact, when controverted, ought be challenged in cross-examination, unless it is otherwise apparent that the opposing party does not accept them: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 26 per Hunt J. However, it is not as straightforward when the evidence sought to be challenged is a matter of hypothetical intention. There is no suggestion that the plaintiff did not genuinely believe in the truth of the evidence she gave. However it was necessarily informed by hindsight and by the litigation itself.

64 The resolution to this question arises most obviously in the so-called failure to warn cases: Chappel v Hart [1998] HCA 55; 195 CLR 232 per McHugh J at [32] fn 64 and Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [16] per Gleeson CJ. Since the coming into force of s 5D(3) of the Civil Liability Act 2002 a plaintiff's evidence of what he or she would have done if the negligent person had not been negligent has been rendered largely inadmissible. This provision indicates the extent to which such evidence is regarded by Parliament as unhelpful and unreliable since the determination of what someone would have done but for another's tort is to be resolved by reference to surrounding circumstances rather than the person's evidence, informed, as it must be, by hindsight.

65 The plaintiff's evidence that she always intended to work full-time was obviously a statement about future intention. Although one might readily conclude that the past is a good guide to the future (see, in a different context, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), the past is not necessarily a good guide to the future when circumstances change substantially. The plaintiff's intention always to work full-time was formed at a time before she had children. Kaden was her first child. When Kaden died, her mental state was so compromised that she has, to date, been unable to work full-time. What cannot be known was whether, had Kaden survived, the plaintiff would have returned to full-time work after a period of maternity leave.

66 I am not satisfied that the plaintiff's desire to look after her own children through their infancy is a result of the defendant's tort and her consequential psychological difficulties, including increased anxiety about her children's welfare. I am not satisfied that, but for the defendant's negligence, it is more probable than not that the plaintiff would have worked continuously full-time, apart from periods of maternity leave for her children. I consider the most likely scenario to have been that she would have continued to work, apart from periods of maternity leave, on a part-time basis until her youngest child began school at which time she is likely to have returned to work on a more or less full-time basis. This is, in effect, what she has done.

67 It was common ground that the difference between the plaintiff's earnings before she stopped work for Kaden's birth and her earnings after his death was $47,044.

68 The defendant submitted that this was a reliable indicator of her past wage loss and that damages for this head ought be limited to that amount.

69 The plaintiff submitted that her past wage loss ought be assessed as the sum of the following three figures:

(1) the base figure of $47,044;

(2) an additional amount of $5,880 to take account of the increase in average weekly earnings over the period since Kaden's death;

(3) a further figure of $50,000 to reflect the prospect that, but for Kaden's death, she would have worked in a managerial capacity, a position that was beyond her because of her compromised psychological state.

70 The defendant submitted that the base figure of $47,044 is indicative of the plaintiff's past loss and an award of damages for that head would be appropriate.

71 Part of the difficulty associated with the comparison between what would have occurred had Kaden survived and what actually occurred is that, had Kaden survived, the plaintiff would have taken maternity leave to look after him which would be likely to have extended beyond the date on which she returned to work. There is also no reason to suppose that, had he survived, the plaintiff would not have given birth to A and S at the times she did. It can therefore reasonably be inferred that the plaintiff's work would have been interrupted in any event, at least for some periods of maternity leave.

72 The plaintiff's position at the ANZ was better paid by the hour than her position at Pizza Hut. I am not satisfied that she would have continued at Pizza Hut. The long hours required and the relatively lower pay would probably have inclined her to seek employment such as she obtained with the ANZ Bank. I am satisfied that it is likely that, had Kaden survived, she would have obtained a similar position at a similar rate of pay to the one she presently occupies.

73 I accept that, but for Kaden's death, she would have been in a position to apply for promotion and that it is likely that she would have achieved a higher level at the ANZ than she has done, although I am not satisfied, for reasons given above, that she would have returned to full-time work while her children were still young. The evidence is not sufficient for me to calculate with any degree of precision what her likely income would have been, but for Kaden's death, had she been promoted in the ANZ while still working part-time.

74 Nonetheless I am required to assess damages notwithstanding uncertainty. I consider the base figure of $47,044 to be a fair indication of the likely past wage loss, having regard to the matters referred to above. I award damages for this head of $50,000.

Interest on past wage loss

75 The plaintiff is entitled to interest on the amount of $50,000 in accordance with s 18(2) of the Civil Liability Act. Because the sum is, in substance, an amount to compensate her for the loss of the chance to earn more in a higher position, the loss is not evenly spread throughout the period since Kaden's death, particularly as she has had two more children in the interim. I allow interest in the amount of $ 6,000.

Past loss of superannuation

76 The parties are agreed that the appropriate rate for past loss of superannuation is 11%. Accordingly the plaintiff is entitled to an award of $5,500 for past superannuation.

Future economic loss: loss of earnings and superannuation

77 The plaintiff claims $376,040, calculated as a loss of $500 per week until the age of 67 years, that is, for the next 36 years, discounted for the 5% tables and by 15% to reflect the vicissitudes of life. The basis of this figure is that the net average weekly earnings for female workers is $1,000 per week. The plaintiff submitted that she has suffered a lifelong diminution of 50% of her future earning capacity because of her lifelong vulnerability to stressors.

78 The defendant submitted that she should be compensated on the basis that she will have a compromised earning capacity for the next five years until her youngest child, S, reaches school age but that her earning capacity will be such that she will be able to work full-time from that time onwards. The defendant submitted that the difference between full-time work and part-time work for the period of the next five years or so is $47,500.

79 For the reasons given above, I am not satisfied that the plaintiff would, but for Kaden's birth, have returned to full-time work during the intense years of giving birth to her children and rearing them in infancy. A is not yet three and S is just over one year old. Nor am I satisfied that the plaintiff's loss of earning capacity can be calculated in the way for which she contended. The effect of Kaden's birth on her future earning capacity is that it will make her more susceptible to life's adverse events.

80 I am required, by s 13 of the Civil Liability Act to determine the plaintiff's most likely future circumstances but for the injury. For the reasons given above for my award for damages for past economic loss, I am not satisfied that, but for Kaden's death, the plaintiff would have worked full-time while her children were infants. I consider the plaintiff's present work pattern to be reflective of a judgment she and her husband have made about family finances and the plaintiff's desire to look after her children.

81 Nonetheless I accept that this traumatic event and its consequences will result in some diminution of the plaintiff's earning capacity in the future in that she will be more susceptible to life's adverse vicissitudes, particularly where they involve one of her children. She is presently employed by a relatively sympathetic employer and has secure employment there for the foreseeable future, which involves part-time employment until about 2018. I note that plaintiff's evidence that she does not believe her job is secure but I do not accept that her subjective belief, although genuinely held, is based on reasonable grounds.

82 In these circumstances I do not consider it to be appropriate to apply a mathematical approach as if the loss of earning capacity will continue in any uniform way into the future, since much will depend on whether the plaintiff has another child and whether her children grow into healthy adults without serious incident.

83 Section 13 of the Act does not preclude the award of damages by way of a buffer in circumstances where the impact of the injury on earning capacity is difficult to determine: Penrith City Council v Parks [2004] NSWCA 201 at [5], per Giles JA, with whom Cripps JA agreed. I allow a buffer of $70,000 for future economic loss, which includes loss of future superannuation benefits.

Past treatment

84 This figure is agreed at $2,503.60. In the main the figure comprises consultations with general practitioners and psychologists including Sorya Issa and Belinda Pisana.

Future treatment

85 As referred to above, the experts substantially agree on the desirability of future treatment and on the content of a treatment plan. The base figures are $240 per session with a psychiatrist and $50 per week for anti-depressant medication. The plaintiff submitted that a figure of $12,500 was appropriate to allow for what the experts proposed and that an allowance of $30,000 ought be made for the future. The defendant submitted that the figure of $5,400 was appropriate, since that allows for 18 sessions of psychiatric treatment and 18 months of medication.

86 The plaintiff has been loath to take anti-depressants in the past, although she has tried them, because of the side effects of sleep disturbance and weight gain and the difficulties of predicting how she will respond to particular drugs. However I accept her evidence that she would be prepared to undergo another trial in order to function in as normal a way as is possible.

87 I allow $15,000. This will be sufficient to provide for the treatment proposed by the experts, including marriage counselling, and a period of anti-depressant medication, if treatment does not improve the plaintiff's mental state and she is willing to take it. It will also allow some money for future consultations, if required, in future times of trouble which are harder to bear because of Kaden's death.

Domestic assistance: past

88 The evidence on this topic is not particularly satisfactory. The base position, where the plaintiff essentially performed all tasks, was established while her husband was away on active service and before their children were born. I am not satisfied that it reflected what actually occurred when the two were living together.

89 In her evidentiary statement of 9 March 2012, the plaintiff made statements including:

"Bradley would have easily performed 15 hours per week since the date of Kaden's passing perfoming jobs that I did before the accident."

90 However, this statement was made at a time when the plaintiff had tried to return to work by obtaining a job at Flight Centre and had resigned because she was in such a poor emotional state. It is not clear for how long her poor emotional state continued. However, I infer from the circumstance that she started working at the ANZ Bank in January 2008 that it had improved somewhat by then.

91 When the plaintiff gave evidence about the move to Wollongong, which occurred in September 2008, she said, in her statement of 9 March 2012:

"Whatever domestic tasks I did manage to perform I performed poorly. Again Bradley picked up all of the tasks that I would have performed and he was still doing about 15 hours per week of jobs that I would have been doing."

92 Later in the statement, the plaintiff said that her husband:

"still attends to all of the domestic duties around the house but I do everything to do with the care of A. He will also have to take on the responsibility generated by the birth of our new baby [S] and I am worried about the extra burden that will be placed on him.

If we could afford to have some paid assistance to relieve Bradley we would get it and I suspect 10 hours a week would suffice."

93 In her oral evidence, the plaintiff admitted that she was quite particular about the way the house was kept. She agreed that her husband was away from the house for long periods from early in the morning. She said that she does not do the majority of the cleaning work but she does most of the tasks associated with looking after the children.

94 The plaintiff's husband gave evidence that after Kaden's death he took over almost all of the domestic tasks that she had been doing previously and that took about 15 hours a week. In his oral evidence he agreed that, irrespective of Kaden's death, he would have contributed to the household and to looking after the children. He agreed that it was always his intention to assist his wife in partnership to raise the children and look after the home. He helps with the children and the cleaning. Although he does most of the outdoor jobs, he pays someone to mow the lawn and do the gardening sometimes because of lack of time, particularly while he is studying.

95 It is common ground that there is no physical reason that would prevent the plaintiff carrying out any domestic or household chore. Although there are psychological reasons why it is sometimes difficult for her to look after her children because of her anxiety, she does so and often she does so unassisted by her husband because of the time at which he starts work in the morning when she has to get the children ready for childcare and the fact that she looks after them herself for two full weekdays when he is at work.

96 Although, as referred to above, there was a time when the plaintiff performed all of the household and garden chores, this was when her husband was away on active service. The evidence, taken as a whole, indicates that theirs is a household where the jobs and chores are shared.

97 The plaintiff submitted that she required 10 hours a week at $25 per hour for the whole period since Kaden's death and that she requires 7 hours a week for the rest of her life.

98 The defendant's primary submission was that the plaintiff has not established an entitlement to attendant care services in excess of the threshold in s 15(3) of the Civil Liability Act.

99 I do not consider that the plaintiff has demonstrated a need for domestic assistance beyond that which would have been provided by her husband, or her mother or sister anyway for much of the period since Kaden's death.

100 However, I consider that the immediate period of six months from Kaden's death up until about the time the plaintiff started to work part-time for the ANZ Bank is in a different category. I am satisfied that during this period there was a reasonable need for the attendant care services that were provided by her husband to be provided, that the need for those services arose as a result of the plaintiff's reaction to Kaden's death and that, in respect of six hours a week, the services would not have been provided but for her grief reaction. To the extent that the evidence is somewhat vague as to periods and hours, I consider that this is at least in part attributable to the plaintiff's loss of memory of that particularly traumatic period, which is a matter for which the defendant is responsible.

101 Accordingly I am satisfied that the plaintiff had a need for such care for six hours a week for the first six months following Kaden's death. I am not satisfied that, in respect of any other period, services provided by Mr Rasmussen, other members of the plaintiff's family or paid service providers (in the case of the person mowing the lawn etc) fulfil any of the requirements of s 15(2) of the Civil Liability Act.

102 Accordingly I assess damages for past care under s 15 of the Civil Liability Act on the basis of six hours a week for six months from 22 August 2007 until 22 February 2008. By the end of that period the plaintiff was working part-time for the ANZ Bank and no longer had a need for those services arising from her psychological injuries. To the contrary, housework, as well as work and study, were activities that she undertook to divert her from the grief from which she was suffering.

103 The hourly rate propounded by the plaintiff was $25. Accordingly, the amount awarded for this head of damages is $25 per hour x 6 hours a week x 26 weeks = $3,900.

104 I do not consider that any future need for future domestic assistance arises solely as a result of Kaden's death or that services provided to the plaintiff would not otherwise have been provided. Accordingly I make no award for future domestic assistance.

105 I do not consider that any entitlement for commercial assistance has been established. There are many couples who work and rear their children whose lives could be alleviated by paid help, either outside or inside the house. I do not consider that the plaintiff has established that the defendant's tort and the consequential effect on her psychological wellbeing have created any reasonable need for paid assistance.

106 For the foregoing reasons I assess the various heads of damages as follows:

Head of damages	Amount
Non-economic loss	$214,000
Past economic loss	$50,000
Interest on past economic loss	$6,000
Past loss of superannuation	$5,500
Future economic loss, including future loss of superannuation	$70,000
Domestic assistance	$3,900
Past out of pocket expenses (agreed)	$2,503.60
Future treatment expenses	$15,000
TOTAL	$366,903.60

Costs

107 I have not heard the parties on the question of costs. Ordinarily the defendant would pay the plaintiff's costs of an assessment of damages. However, there may be offers which have been made which affect this position. Accordingly, I will make the usual order, subject to the parties' right to apply for a different costs order.

Orders

108 I make the following orders:

(1) Judgment for the plaintiff in the sum of $366,903.60.

(2) Subject to any party making an application for a different costs order, order the defendant to pay the plaintiff's costs of the proceedings.

Decision last updated: 29 May 2013