Supreme Court New South Wales

• Medium Neutral Citation: Goddard v Central Coast Health Network [2013] NSWSC 1932
• Hearing dates: 25-29 November 2013; 2-5 December 2013
• Decision date: 19 December 2013
• Jurisdiction: Common Law
• Before: Adamson J

Decision

(1) In proceedings 289707 of 2008, judgment for the defendants.

(2) In proceedings 289708 of 2008, judgment for the defendants.

(3) In proceedings 289709 of 2008, judgment for the defendants.

(4) Unless an application for a different order is made in writing to my Associate within seven days of this order, order the plaintiffs to pay the defendants' costs of each of the proceedings.

• Catchwords: FAMILY LAW -effect of parenting orders where no adoption order; TORTS -negligence -whether surgery negligent -whether post-operative review and discharge was negligent -whether advice to bring patient in to Emergency Department where health deteriorated was negligent -contributory negligence -effect of subsequent bereavement on assessment of non-economic loss; DAMAGES -Compensation to Relatives Act 1897 -assessment of damages -whether subject to s 15 of Civil Liability Act -whether quasi-adoption ought be regarded as reducing or extinguishing loss in same way as remarriage
• Legislation Cited: Children Act 1975 (UK), s 8, sch 1 s 3,; Civil Liability Act 2002, s 3B, s 5D, s 5E, 5O, s 5R, s 5S, s 5T, s 11, s 12, s 15, s 15(1), s 15(2)(b), s 15(2)(c), s 15B, s 16, s 32; Compensation to Relatives Act 1897, s 3, s 4, s 4(1); Family Law Act 1975, s 65C(ba), s 65J, s 65M, s 65N, 66C
• Cases Cited: Attorney-General for NSW v Perpetual Trustee Co. (Ltd) [1952] HCA 2; 85 CLR 237; Benjamin v Currie [1958] VR 259; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Elliott v Bickerstaff [1999] NSWCA 453; 48 NSWLR 214; Fawns v Green [1972] WWR 272; Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161; Grosso v Deaton [2012] NSWCA 101; Mehmet v Perry [1977] 2 All ER 529; Nguyen v Nguyen [1990] HCA 9; 169 CLR 245; Roads and Traffic Authority of New South Wales v Jelfs [1999] NSWCA 179; Stonehouse v Gamble (1982) 44 BCLR 375; Taylor v The Owners- Strata Plan No. 11564 [2013] NSWCA 55; 83 NSWLR 1; Turner v Owen (1984) Aust. Tort Rep. 80-667; Watson (Administrators of) v Willmott [1991] 1 QB 140; Willis v The Commonwealth [1946] HCA 22; 73 CLR 105
• Texts Cited: Review of the Law of Negligence (2002) (The Ipp Report)
• Category: Principal judgment
• Parties: Andre Goddard (Plaintiff); Debra Rumble (Plaintiff); Central Coast Local Health District (First Defendant); William Scott Munro (Second Defendant)
• Representation: Counsel: L Whalan with L-C Hutchinson (Plaintiff); M Windsor SC with S Kettle (Defendants); Solicitors: Beilby Poulden Costello Lawyers (Plaintiff); Curwood Legal Services (Defendants)
• File Number(s): 2008/289709; 2008/289708; 2008/289707
• Publication restriction: Nil

Judgment

Introduction

1 These proceedings arise from the death of the late Rebecca Rumble on 15 December 2005, three days after she underwent an operation to remove her gall bladder which was performed by Dr Munro at Gosford Hospital, a part of the Central Coast Health Network (the Network).

2 Andre Goddard, Rebecca's partner, claims damages for nervous shock from both the Network and Dr Munro. He also claims damages under the Compensation to Relatives Act 1897 on his own behalf and on behalf of Rebecca's three children: Lindsay, Ethan and Kyanah.

3 Debra Rumble, Rebecca's mother, claims damages for nervous shock.

4 The negligence alleged against the Network and Dr Munro is threefold:

(1) The surgery was not performed in accordance with the appropriate standard of care and that Rebecca suffered an injury to her liver as a result of careless manipulation or control of surgical instruments.

(2) The defendants failed to properly monitor and review Rebecca on 13 December 2005 prior to her discharge.

(3) The Network gave inappropriate advice to Mr Goddard when he telephoned the hospital on the night of 14 December 2005 as a result of which he decided not to bring Rebecca back to hospital.

5 The duties Dr Munro and the Network owe to the plaintiff are different. Although a hospital (for which the Network is responsible) has a non-delegable duty of care to a patient, that duty does not extend to the performance of surgery with due skill and care: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Elliott v Bickerstaff (1999) 48 NSWLR 214 at 245 per Giles JA, Handley and Stein JJA agreeing. Because of my conclusion that neither defendant is liable to the plaintiffs, there is no reason not to refer to them collectively in these reasons, but I do so for convenience only.

Facts

Background to the surgery

6 In 2004 Rebecca consulted her general practitioner at the Eleanor Duncan Medical Centre complaining of pain thought to be related to gallstones. She was referred to Dr Munro by letter dated 29 July 2004. The letter referred to her past medical history as including recent amphetamine detoxification.

7 She consulted Dr Munro on 19 August 2004. By this time she was 16 weeks pregnant. Although she did not have pain due to gallstones at the time of the consultation, their presence was confirmed on ultrasound. He explained the nature of the surgery required to remove the gall bladder and the risks associated with it. Dr Munro explained that he assesses patients the morning following the surgery and that the majority of patients are well enough to be discharged the day after surgery. On 19 August 2004 Rebecca signed a consent form for the operation, which was also signed by Dr Munro.

8 The operation was deferred until after Rebecca had given birth. Her third child, Kyanah, was born on 5 January 2005.

The operation and its aftermath

9 On 12 December 2005, Rebecca drove from her home at Watanobbi to her mother's place at Springfield and left her car there. Mrs Rumble drove her daughter to Gosford Hospital at 6am. When they arrived they were told that Rebecca was not expected to be admitted until 11am. They went away and returned at about 11am, at which time Rebecca was admitted to have her gall bladder removed. This required laparoscopic cholecystectomy and an intraoperative cholangiogram.

10 Rebecca spoke to the anaesthetist before the operation and disclosed that she used marijuana.

11 Dr Munro performed the operation with the assistance of Dr Nolan, a Registrar. The operation, which commenced at 3.40pm, took one hour. Dr Munro regarded it as a common procedure; indeed it was the most common he performed. At that time he had performed in the order of 1600 such operations.

12 A laparoscopic cholecystectomy requires a procedure under general anaesthetic. Four small incisions are made and the gall bladder is freed up from its bed in the liver which involves some dissection. A cholangiogram is performed to ensure that there are no stones that have travelled out of the gall bladder. The gall bladder is then removed, as are the stones.

13 Dr Munro made four incisions. The first, through the umbilicus, was used to accommodate a laparoscopic camera with a light source to illuminate the gall bladder and the liver, images from which were shown on a video monitor in the operating theatre. A tube was also inserted in the umbilical incision to blow carbon dioxide into the abdominal cavity to create space in the abdomen to facilitate the operation. A second incision was made below the sternum; a third at the mid-clavicular line and a fourth further lateral and lower than the third.

14 The gall bladder adheres to the underside of the liver. It is therefore necessary to detach the gall bladder from the liver to which it is attached by fibrous tissue through which tiny veins draining back to the liver pass. The connecting tissue occupies about a third of the surface of the gall bladder. A diathermy hook, introduced through the port created by the incision below the sternum, is operated by a foot pedal that causes an electrocautery current to pass through it. The current divides the fibrous tissue and seals the minor vessels.

15 The gall bladder is removed by pulling it with a grasper through one of the ports, either through an epigastric port, as in the instant case, or through the umbilical port. The ease with which it can be removed is determined by the number and size of the stones it contains. On occasions the gall bladder perforates during the surgery, either because of the number of stones it contains, or because its wall is unhealthy.

16 Towards the end of the operation, gallstones are retrieved and removed with a cup-shaped instrument, known as a stone-grasping, or Rampleys, forceps. They may be in the gall bladder, the cystic, or bile, ducts or in the abdomen. As far as Dr Munro could recall, he removed about six gallstones. Two remaining gallstones were found on autopsy. Dr Munro explained that stones spilt from the gall bladder can be lost within the loops of fatty tissue around the small bowel, which makes them impossible to locate.

17 After he removed the stones, Dr Munro checked on the monitor in the operating theatre to see whether there was any abnormality within the abdominal cavity and found none. I accept Dr Munro's evidence that there was no possibility that the haematoma (which was identified as the cause of Rebecca's death) was visible during the surgery itself, since the liver was magnified twenty times on the monitor which was in his direct view. Neither Dr Munro, nor Dr Nolan observed any abnormality.

18 At the end of the surgery, a sucker irrigator is used to remove fluid from over the liver.

19 The post-operative instructions recorded were:

Routine obs, may eat and drink, analgesia PRN [as required] leave dressings intact, Heparin, review on ward round mane [in morning].

20 The anaesthetist who had presided over the operation specified medication that could be given by the nursing staff for pain relief in the 24-hours post-operation without the requirement for medical review or further medical authorisation. With the exception of Dextropropoxyphene, an analgesic administered at 8am (see below), it is not suggested that the pain relief administered fell outside the list of drugs and dosages prescribed by the anaesthetist.

21 Following the operation, Rebecca was sent to the post-anaesthetic ward. She complained of pain in her shoulder tip. Such pain is a common side effect of operations that involve insufflation of carbon dioxide in the diaphragm since the gas tends to irritate the diaphragm by stretching it. This causes pain to be referred to the shoulder tip. Pain relief was administered. After the operation and during the course of the night Rebecca was given Fentanyl intravenously for pain relief. She was also given Panadeine Forte and Oxycodone orally.

22 Rebecca was also given De-gas tablets for the purpose of dissipating the carbon dioxide that had been used to insufflate the abdominal cavity during the surgery.

23 Mrs Rumble visited her daughter on 12 December 2005 at about 6pm. Rebecca complained to her mother that her shoulder was hurting. A nurse gave her some tablets for the relief of pain. About 10 minutes after Rebecca took the tablets, she wanted to go to sleep, at which time her mother left.

24 Rebecca remained in Surgical Ward 4 overnight. There are approximately 28 beds in that ward, which is served by a nursing unit manager, a discharge nurse and 5 or 6 other registered nurses.

13 December 2005

25 At 6.50am the observation chart recorded a pulse rate of approximately 92 (a normal reading) and noted:

"Severe shoulder tip pain. Difficulty breathing."

26 Dr Munro opined that it is common after an operation on the abdomen for a patient to engage in shallow breathing and that, if Rebecca had difficulty breathing at the time of complaining of pain, it was likely that the difficulty related to the pain in the diaphragm.

27 At 7am on 13 December 2005, Rebecca complained of pain. She was given 7.5 mgs of morphine subcutaneously. Morphine administered in that way may take over half an hour to take effect. At 7.35am, Ms Fitzgerald (a registered nurse) administered, with the approval of a senior nurse, an oral dose of 10 mgs of Oxycodone (a narcotic analgesia also known as Endone).

28 Dr Munro accepted that it would be unusual for Oxycodone to be given so soon after a morphine injection, but did not consider it to be inappropriate if the patient was still complaining of pain. He said it was not unusual for a patient to need oral pain relief after surgery. Dr Nolan said that Oxycodone would take at least half an hour to take effect.

29 Between 7am and 7.35am, Rebecca spoke to her mother, who was already at work at Davo's Fish Shop in Woy Woy. She told her mother that she was in pain and could not breathe properly.

30 Ms Fitzgerald observed that Rebecca showered herself and was able to put on her stockings, which were tight as they were designed to prevent clots. Rebecca's ability to put them on without assistance was an indication of her capacity to look after herself.

Dr Munro's morning review

31 Dr Munro reviewed Rebecca on his morning rounds at 7.40am on 13 December 2005. His Registrar, Dr Nolan, and Dr Connell, a Resident Medical Officer, accompanied him. When they arrived, Rebecca was walking down the corridor. She returned to her bed so that Dr Munro could examine her abdomen. I accept the following entry in the progress notes as accurate:

"Seen by Dr Munro. Patient recovering well. Complaining of shoulder tip pain. [diagram of abdomen with notation- soft (abdomen), wounds tender.] Plan- await eat and drink. Oral analgesia. Discharge home this pm."

32 Dr Munro explained that the clinical finding of a soft abdomen signified that there was no evidence of peritonism (inflammation from problems arising inside the abdomen).

33 Dr Munro considered that Rebecca was recovering well in that she had stable observations and a satisfactory examination. The observation chart recorded that her oximetry (a measurement of the level of oxygen in the blood) was 99, which Dr Munro explained was a normal rate with normal oxygen saturation. There was no evidence of respiratory distress at the time of the review. Indeed the oximetry results are inconsistent with any significant difficulty in breathing. Dr Munro was satisfied, following the review, that Rebecca's pain was controlled and that she was comfortable. He regarded the complaint of shoulder tip pain as normal following such surgery.

34 Dr Munro was concerned to ensure that the pain was controlled by oral analgesia before Rebecca was discharged. He said that patients who had had this kind of surgery could be expected to require analgesia in the first two or three days after surgery, which could be administered orally after discharge. There are two principal reasons for the pain: the four incisions made to perform the operation and the stretching of the diaphragm by carbon dioxide introduced for insufflation.

35 Dr Connell, the intern who had accompanied Dr Munro on the morning ward rounds, recorded the plan for discharge in the following terms in the progress notes:

"Plan// await eat and drink.

oral analgesia

d/c home this pm."

36 Dr Munro gave evidence that at the conclusion of the morning review on 13 December 2005, he instructed Dr Nolan to review Rebecca in the afternoon with a view to assessing her for discharge. He explained that the reason for the further review was to assess her pain after the effects of the morphine had completely worn off, by about 11am, since there was no point in her going home if she was likely to need another injection of morphine to relieve the pain. The effect of morphine largely wears off after about three hours and completely wears off after about four hours. Other drugs might add to, but not prolong, the effect of morphine. Dr Munro did not intend to conduct the review himself. In any event he was not expected to remain in the hospital that day once he had completed the morning rounds.

37 Dr Nolan did not agree that Dr Munro instructed him to perform a review and did not remember any such instruction. Dr Connell did not record any such instruction.

38 I do not accept Dr Munro's evidence that he instructed Dr Nolan to conduct a review in the afternoon. Had he given such an instruction, I am satisfied that Dr Connell would have recorded it in the progress notes. Furthermore, the reason Dr Munro gave for ordering a further review was a clinical one. Its purpose could readily, as occurred in the instant case, be fulfilled by the nursing staff. All that was required was for Rebecca's pain to be controlled by oral analgesia after 11am (by which time the morphine would have worn off) and for her capacity to nourish herself to be confirmed by waiting until after she had eaten lunch.

39 Evidence was given by Mrs Rumble that Rebecca told her that Dr Munro said to a nurse in her presence, "What are you doing giving her more gas when she is already full of it?". I accept Dr Munro's denial of this statement. Evidence was also given by Mrs Rumble that Rebecca told her that Dr Munro had told Rebecca that he was going to come back at 4pm to tell her whether she could go home or not. I accept Dr Munro's denial of this statement. Dr Munro was at the Gosford Hospital in the morning to do his ward rounds and knew that he would not be present at the hospital for the rest of the day.

40 With the exception of Dr Munro's evidence that he instructed Dr Nolan to perform an afternoon review, I accept his evidence.

The period following review

41 After the review, at about 8am, Rebecca complained of pain to Ms Fitzgerald, who gave her Dextropropoxyphene. This drug did not appear on the list authorised by the anaesthetist. Its administration was authorised by Dr Connell.

42 At about 9.30am, after Rebecca had eaten breakfast, Ms Fitzgerald returned to check on her. She reported that she had no further pain and was feeling better. She made no further complaints of pain to Ms Fitzgerald who remained on duty in Surgical Ward 4 until after Rebecca was discharged.

43 On 13 December 2005, Ms Plater was the nurse who assisted with discharging patients from Surgical Ward 4. As such, she was responsible for giving patients who were due to be discharged that day a discharge summary for their local doctor, a discharge brochure and such medication as was to be provided by the Hospital on discharge. The responsibility for the decision to discharge a patient was the doctor's, but Ms Plater would act on the instructions given by the relevant doctor.

44 Ms Plater understood the plan for discharge was as recorded in the progress notes made by Dr Connell. She understood that Rebecca could be discharged after midday once she had eaten lunch if her pain was controlled by oral analgesia.

45 At some time before 10.15am, Ms Plater went into Rebecca's room to talk to her about discharge but she was not there. Ms Plater returned to Rebecca's room at about 10.15am and found her standing beside the bed. She was calm and smiling and told Ms Plater that she had been walking around the ward. When Ms Plater asked her how she was feeling, she told her that she had pain from under the right rib to the right shoulder and around to the back. Ms Plater explained the cause of the referred pain and told Rebecca that the gas is usually absorbed by the body within about three days but that if the pain did not settle she should return to hospital or see a doctor.

46 Ms Plater noticed that Rebecca was only taking shallow breaths, which she considered was due to "guarding" to avoid the pain associated with taking a deep breath. Ms Plater gave Rebecca two Panadeine Forte at 10.30 am to relieve the pain with a view to enabling Rebecca to take deeper breaths. This time corresponds with the time at which the morphine given subcutaneously would be expected to wear off. Rebecca reported that she had eaten breakfast without nausea. Ms Plater told Rebecca that they would see how she was feeling after lunch. Ms Plater gave her wound care instructions as well as a discharge brochure. Ms Plater did not see her again before discharge but was told by Ms Fitzgerald that she was comfortable after she had taken Panadeine Forte and that she had eaten lunch before she was discharged.

47 According to Mrs Rumble, Rebecca rang her at 11.30am complaining of pain and reported she was to be discharged because the hospital wanted her bed. I do not accept Mrs Rumble's evidence that this was what her daughter said to her or that it was said at that time. It is possible that Rebecca spoke to her mother either prior to being given the two Panadeine Forte tablets at 10.30am by Ms Plater, or after they had been given but before they had started to take effect. At that time, Rebecca expected that she would be discharged after she had had lunch if the pain was relieved by oral analgesia. I do not accept that the reason she was discharged was because the hospital wanted the bed. I accept Ms Plater's and Ms Fitzgerald's evidence that neither told her either that her bed was needed or that she had to leave the hospital. To the extent to which Mrs Rumble's evidence is at odds with this, I do not accept it as an accurate recollection of her conversation with her daughter.

48 During this conversation Rebecca told her mother that Mr Goddard would collect her from the Hospital.

49 At about 11am, Ms Fitzgerald recorded Rebecca's temperature, pulse and blood pressure on the observation chart. These three measurements were within normal limits.

50 At some time prior to midday, Rebecca had lunch.

51 I accept the evidence of Dr Munro, Dr Nolan and Ms Plater that Rebecca's post-operative recovery was unremarkable. That Rebecca required subcutaneous morphine at 7am, Oxycodone at 7.35am and Dextropropoxyphene at 8am was not surprising since she had spent the night with only Oxycodone taken at 7.10pm to relieve the pain. Ms Plater explained that the gas in the diaphragm causes the pain and this is made worse by lying flat. Several witnesses, including experts in the course of concurrent evidence, expressed in different words what Ms Plater said about pain relief:

"Different people require different levels of pain relief."

52 Ms Plater did not consider there to be anything untoward about giving these three drugs in relatively quick succession. In her evidence she explained that post-operative pain was to be expected and that the task was to get the pain under control by using the medication that had been nominated by the anaesthetist for the 24-hour period post-operation. Ms Plater considered Rebecca's disinclination to take a deep breath to be a usual consequence of such an operation. Dr Nolan gave evidence to the same effect and explained that the requirement for further medication would indicate that the dosage was inadequate for that particular patient. He said that one would expect there to be pain after a laparoscopic cholecystectomy.

Discharge from hospital on 13 December 2005

53 After Rebecca had had lunch, she asked Ms Fitzgerald if she could go home. When Ms Fitzgerald asked her if she was experiencing any pain, she said that she was not. She confirmed that she had eaten lunch and that she had all her discharge paperwork and medication. Ms Fitzgerald then asked her whether she was sure that she was ready to go home, to which she responded, "Yes".

54 Rebecca was discharged at around midday on 13 December 2005. Her discharge was authorised by Ms Fitzgerald, who considered herself to be complying with the plan prescribed by Dr Munro that morning in the ward rounds. I accept the accuracy of Ms Fitzgerald's note in the progress notes which she wrote at 12.30pm after discharge:

"12.30pm NURSING: Patient self caring and independant [sic] with ADLS [activities of daily living] this shift. C/o shoulder tip pain given analgesia as charted for same with good effect. Seen by team. Tolerated diet with fluids. Observations within normal limits. Given discharge instructions and medication. Patient discharged with no complaints at 12.00."

55 I accept Ms Fitzgerald's evidence in the inquest into Rebecca's death, which she adopted in these proceedings, that she would not have discharged Rebecca had she still been complaining of pain.

56 Although Mr Goddard was disqualified from driving, he collected Rebecca from the hospital. It is not clear what vehicle he used to collect her since he said that he had sold his own car in June 2005 when he was disqualified from driving. Rebecca's car was at her mother's place, which Mr Goddard estimated was about 45 minutes drive away from Watanobbi. I find that Rebecca telephoned him at or some time after 11am and that she was discharged at about midday after she had had lunch.

57 I do not accept Mr Goddard's evidence about the conversation he had with Rebecca when he picked her up from hospital to the effect that she told him that she was in pain and did not feel well enough to go home. Had this been the case, I am satisfied that Mr Goddard would have raised this with the staff but he did not. According to Mr Goddard, when he brought Rebecca home she continued to complain of pain. I do not accept this evidence. He gave evidence that he asked Rebecca when they arrived home whether she had eaten anything and she said that she had not. I do not accept that this conversation occurred or that Rebecca had not eaten at the hospital before discharge.

58 At about 1pm, Dr Nolan returned to Surgical Ward 4, in accordance with his usual practice to "touch base" with the interns and the nursing staff. I accept his evidence that he did not return to the ward specifically to see Rebecca. The nursing staff told him that Rebecca's pain had settled with analgesia and that she had been discharged.

59 That afternoon, when Mrs Rumble telephoned, Mr Goddard informed her that Rebecca was not well. Mrs Rumble and her husband drove to visit her. Rebecca complained of pain in her right shoulder. Her mother sat on the bed next to her for about 10 minutes, after which Rebecca started to doze off. She slept for a while. Her mother, who was still in the house when she awoke, offered to take Kyanah with her. Rebecca was asleep again by the time her mother left with Kyanah.

60 Mrs Rumble understood, as a result of what either Rebecca or one of the nurses had told her, that shoulder pain was to be expected after such an operation.

14 December 2005

61 Mrs Rumble spoke to Rebecca on the telephone early in the morning on 14 December 2005. Rebecca reported, "I feel great this morning." Rebecca accepted her mother's offer to have Kyanah stay for another night and arranged to collect Kyanah the following night, Thursday 15 December 2005.

62 Mrs Rumble's evidence as to her daughter's wellbeing is inconsistent with that of Mr Goddard, who said that when Rebecca woke up she was still in pain and that her lungs were burning when she breathed. If the inconsistency can be explained by different timing of the conversation, I would infer that Rebecca was uncomfortable on waking, complained to Mr Goddard, took pain relief, which relieved the pain, and then, once the pain relief had taken effect, called her mother to tell her how well she was feeling.

63 I accept Mr Goddard's evidence that he was away from about 8am until 1pm on 14 December 2005. I am satisfied that Rebecca took advantage of his absence to smoke marijuana, the residue of which was found on autopsy. Mr Goddard became aware she had smoked marijuana and reported to the staff at Wyong Hospital the following day that she had smoked marijuana in the previous 24 hours.

64 At about 1.30pm Rebecca started vomiting and continued to vomit throughout the afternoon. She complained of stomach pain and shoulder pain. The pain in the shoulder was the continuation of the referred pain consequent on the absorption of the carbon dioxide. It is possible that if she was suffering from stomach pain, it resulted from the haematoma. I accept Mr Goddard's version of Rebecca's symptoms that afternoon to the extent to which they accord with what he told the ambulance officer the following morning (see below).

65 I accept Mrs Rumble's evidence that at about 6pm that night, Rebecca rang and told her that she was in a bit of pain and did not feel well. She asked her mother to phone the following day as Mr Goddard had a job and would not be at home.

The alleged phone call made by Mr Goddard to Gosford Hospital

66 Mr Goddard gave evidence that he made a single phone call to Gosford Hospital. In his statement dated 1 August 2013 he said that because he was so worried about Rebecca's condition he telephoned Gosford Hospital at about 8pm on 14 December 2005. His evidence about the terms of the conversation was:

I was put through to a female staff member ("FSM"). As best as I can recall the conversation I had with her was as follows:

AG: Rebecca has just had gallstones surgery there. She was discharged yesterday. She's in a lot of pain in her shoulder and stomach. She's been vomiting all afternoon.

FSM: It is normal to have pain after surgery. Just keep her comfortable.

AG: Can Rebecca come back to the Hospital and stay there? Because she's not doing too well.FSM: No. Don't bring her back. If she gets any worse she will have to sit in Emergency and wait.

I was not given any information about what 'worse' meant or for anything to look out for. I had wanted to take her back, but they said not to. I was worried less about Rebecca because they said what she had was normal after this type of surgery.

I told Rebecca that the Hospital had said, 'If she gets any worse, she will have to sit in Emergency and wait.' Rebecca said, "I'm not going to sit around in Emergency for hours. I am better off at home."

67 His evidence in re-examination about the call and the subsequent discussion with Rebecca appears in the following exchange:

Q. Why didn't you take her back to Emergency?

A. I rang because she was obviously not comfortable so I thought I'd ring the hospital first to see if she could obviously see either the doctor who done the operation rather than going straight to emergency I thought, because she had the operation, she would have been taken straight in to see a doctor who done the operation rather than going and sit in Emergency and wait which she didn't that was the main reason I didn't take her back was because she didn't want to sit in Emergency and wait.

68 There is no reference in the ambulance notes or the notes of Gosford Hospital that Mr Goddard gave a history of having telephoned the hospital the previous night. He did not ever tell Mrs Rumble that he had called the hospital.

Rebecca's deterioration and death

69 In the early hours of the morning on 15 December 2005, Rebecca collapsed in the bathroom as a result of a cardiac arrest. At 3.44am Mr Goddard called an ambulance which arrived ten minutes later. The ambulance officer recorded the following history:

Partner states pt had gallstones removed on Monday @ GDH [Gosford District Hospital]. States patient has been SOB [short of breath] since arriving home. Pt was vomiting from 1330-1930 yesterday. States pt woke at 3.15 c/o pain. R shoulder radiating down the pain. Pt c/o feeling hot & clammy. Partner states neighbour gave her pain relief yesterday- "something starting with "Dex".

70 I accept that, at some time between her discharge from Gosford Hospital on 13 December 2005 and the cardiac arrest on 15 December 2005, Rebecca obtained pain relief from a neighbour but the evidence does not establish what was taken, or when.

71 Rebecca was taken to Wyong Hospital. Mr Goddard gave the following history to the hospital staff:

Not well since surgery. Boyfriend says she has felt unwell and slept all day yesterday. Woke up and went to the neighbour who gave her pills ? sleeping pills or painkillers. (has had a BG of speed and ecstasy abuse but not recently + boyfriend insists she has not taken anything but marijuana in the last 24/24.

C/o right shoulder tip pain.

72 Rebecca had no vital signs. Her Glasgow Coma Score was zero. Her life was pronounced extinct at 7am on 15 December 2005.

The autopsy report

73 An autopsy conducted by Dr Lee on 16 December 2005 detected cannabis in Rebecca's blood. It is accepted that this must have been the result of cannabis ingested after her discharge from hospital on 13 December 2005. Oxazepam was detected at a sub-therapeutic level but all other drugs detected were at therapeutic levels and consistent with medical usage.

74 The cause of death was identified as a subcapsular haematoma on the lateral aspect of the right lobe of the liver. This site is well away from the area on the underside of the liver from which the gall bladder was removed.

75 The autopsy report recorded:

The liver (2335 g) had a generally unremarkable external surface and colour. A single subcapsular haematoma covered the lateral aspect of the right lobe covering an area of 28.5 x 18 x 6.5 cm. This contained 600 g of clotted blood. The periphery of the tear showed a slightly irregular border throughout most of its circumference and showed a transverse tear overlying the lateral aspect of the upper quadrant. The lower lateral aspect of the haematoma showed a pair of well-defined ovoid to spindle shaped areas of discolouration which were situated approximately 1 cm from each other, measuring approximately 2.5 cm in length and 1 cm in breadth.

On section, the liver itself was generally normal. The subcapsular surface of the liver showed a finely scalloped appearance with a small area of more organised thrombus than that seen generally. This was in the area underlying the capsular discolouration.

76 The lungs showed marked deposits of tobacco type macrophages consistent with significant cannabis use.

77 The autopsy report concluded:

The autopsy findings are consistent with the subcapsular hepatic bleeding having started at around the time of the operative procedure, with continuing bleeding from that time. Only much later at the time of capsule rupture has the bleeding become catastrophic. There was no evidence of external abdominal injury.

There was no haemorrhage from the gall bladder bed, and the free gallstones had not contributed to the haemorrhage. There was no significant bleeding from the incisions.

The part played by recreational drug usage in delaying her re-presentation at hospital cannot be established.

Liability

78 As referred to above, the plaintiffs put their case on three separate bases: negligent surgery, negligent care and negligence in responding to Mr Goddard's telephone call on 14 December 2005.

Joint report from expert conclave

79 On 12 November 2013 the following doctors participated in a joint expert conclave:

Doctor	Party by whom called	Specialty
Prof. Spigelman	Plaintiffs	Surgery
Dr Goodman	Plaintiffs	General surgery with sub-specialty in gastrointestinal surgery
Dr Raftos	Plaintiffs	Emergency medicine
Prof. Merrett	Defendants	General surgery with sub-specialty in upper- gastrointestinal surgery
Prof. Cox	Defendants	General surgery with sub-specialty in upper- gastrointestinal surgery and emergency medicine
Dr Hugh	Defendants	General surgery with sub-specialty in gastrointestinal surgery
Dr Vickers	Defendants	Hepatologist and gastroenterologist

80 Each of the doctors was bound by the Expert Witness Code of Conduct and was therefore bound to give an independent opinion without regard to the interests of the party by whom the doctor was called. However, because of the way some of the questions were answered, I propose to describe them in a shorthand way by reference to the party who called the expert.

81 Each of the doctors prepared reports that were in evidence. The joint report of the conclave was tendered. All doctors who took part in the conclave gave concurrent evidence in the course of the hearing, with the exception of Professor Spigelman who was unable to attend at the arranged time. I reject the defendants' submission that, in light of his absence, I ought either reject his reports or give them no weight. However, as the plaintiffs' case on liability developed in the course of the conclave, Professor Spigelman did not have an opportunity to address those developments and, necessarily, his reports did not address them. For this reason, although I have taken Professor Spigelman's reports into account I do not have the benefit of his opinion on matters that arose in a more refined way during concurrent evidence.

Alleged negligence in the way in which the surgery was conducted

The joint report of 12 November 2013

82 The opinions from the joint report relevant to the surgery were as follows:

(1) The plaintiffs' experts and Prof. Merrett considered that the initiating pathology for the haematoma was caused during the operation. Dr Hugh did not agree and opined that its cause is uncertain. His view was that there was no basis for asserting that the initiating pathology for the haematoma was caused during the surgery because no abnormality was seen on the liver surface after the washout at the conclusion of the operation.

(2) The plaintiffs' experts considered that it was more likely than not that the haematoma was caused by a surgical instrument coming into contact with the liver. The defendants' experts considered that to be unlikely.

(3) The experts were unanimous that the ovoid marks on the lower lateral aspect of the liver were more likely than not made by diathermy application via the end of a grasper.

(4) The experts were unanimous that it was not more likely than not that that the haematoma was caused by excessive pressure rather than general pressure.

(5) The experts were unanimous that the operation was carried out in a manner consistent with accepted professional practice.

83 I note that in concurrent evidence, Dr Goodman was adamant that the ovoid spindle shapes on the liver were caused by pressure, not heat (see below), which would appear to be at odds with the unanimity recorded in (3) above.

The evidence of Drs Munro and Nolan as to the cause of the haematoma

Dr Munro's evidence

84 Dr Munro was asked, at the inquest and in the proceedings, to opine as to the likely cause of the haematoma. He considered that, if the haematoma was caused by the surgery, the most likely explanation was that there was a blunt injury to the surface of the liver caused by one of the graspers which is used to retract the gall bladder up over the liver. He said that force on the liver during such an operation was usually minimal. He was unable to say how that would have caused the haematoma. The sole basis for his opinion appeared to be that this was the only implement that was used in the vicinity of the area of the liver where the haematoma developed, since the grasper is used on the gall bladder fundus (the top part of the gall bladder) which is adjacent to the right lateral lobe. He had not seen such a consequence of this sort of surgery before. Nor had the colleagues with whom he discussed the death at the time ever encountered its occurrence.

85 At the inquest, Dr Munro admitted that it was likely that the haematoma was caused by something done during the course of the surgery. However, in these proceedings, he said that he did not know whether that was the case. He said that if there was any significant internal bleeding, the first change would be an increase in heart rate and no such increase was observed prior to discharge.

86 Dr Munro considered that there would have to be diaphragmatic irritation to cause shoulder pain, which was unlikely to be experienced as a result of a developing haematoma. A haematoma was more likely to produce visceral, or abdominal, pain.

Dr Nolan's evidence

87 Dr Nolan said it was highly unlikely that the haematoma was caused at the time of the surgery. He said that if it had been caused at that time he would have been able to see it because of the high magnification of the laparoscope. He did not, however, have any explanation, other than the surgery, for the development of the haematoma.

The plaintiffs' case: scenarios A and B

88 The plaintiffs' case against the defendants in relation to the surgery was refined to two scenarios: the first relates to the springing open of the grasper in the course of the operation which created a shearing force (Scenario A) and the second relates to excessive pressure from a sucker irrigator, which is a straight instrument, pressing against the liver (which is curved) at the conclusion of the operation when the area is cleaned out (Scenario B). These will be considered in turn.

89 The defendants submitted that the plaintiffs were precluded from putting submissions to that effect set out above since neither scenario was put sufficiently either to Dr Munro or to Dr Nolan. There is some force in this submission since both scenarios appeared in their present form for the first time during the expert conclave, which took place on the eighth day of the hearing after all the other evidence had been given and, accordingly, long after Dr Munro and Dr Nolan had left the witness box. I propose to consider the two cases on their merits before determining whether I would be foreclosed from accepting them on that ground.

Scenario A: careless handing of the grasper

90 This scenario is based on the finding on autopsy of two ovoid-shaped areas of discolouration on the surface of the liver at the extreme edge of the haematoma. Dr Goodman, a specialist surgeon opined that these shapes were caused by the grasper springing open due to inexpert handling of the instrument and causing excessive pressure on the liver, resulting in the subcapsular haematoma.

91 The following hypothesis was articulated by Dr Goodman for the first time in the concurrent evidence in the following terms:

I think the that the mechanism was probably that the forcep attached to the fundus of the gall bladder being held by the assistant sprung open, as I have seen it happen on a number of occasions in the past, because the handle has a trigger on it, a release trigger to it has a ratchet to lock it, and there is a release trigger. And if you inadvertently, as an assistant might, especially if it were an inexperienced assistant, might inadvertently release the trigger. The jaws of the forcep would spring open, the liver would drop, and I can just picture that those open jaws as the as the liver drops, hitting the convex surface of the liver, causing a shearing force, and that's how I picture the whole event happening.

92 Dr Goodman said that the risk of this occurring could be removed by fastening the end of the forceps once the gall bladder is in the desired position. The ends would be released only at the end of the operation in order to manipulate the fundus of the gall bladder so as to remove the last bit of the gall bladder from the gall bladder bed.

93 Dr Goodman's reasoning as to a causal connection between inexpert handling of an instrument and the haematoma was as follows:

(1) The proximity of time between an invasive operation and the development of a haematoma in a 24-year old is sufficient to establish causation.

(2) The ovoid marks were caused by pressure, not heat.

(3) The pathology result showed that there was something different at the location of the ovoid marks which signifies that that is where the clot that initiated the haematoma started.

(4) Although the ovoid marks are not at the centre of the clot, but rather at the extreme edge of the clot, this does not mean that the clot did not begin there because gravity can affect the growth of a haematoma.

94 His view was not shared by the other experts. There was general, although not universal, consensus about (1) (see above). The consensus, excepting Dr Goodman, was that the ovoid marks were caused by heat, not pressure. Dr Raftos agreed with (3) and (4).

95 Dr Hugh, by reference to a photograph in his report, explained that ovoid marks are a common, but inconsequential, observation in such surgery. They are not harmful. They are caused by the application of diathermy through a grasping instrument and they represent the heating produced by the contact of the two ovoid jaws of a grasping instrument with the surface of the liver. Dr Hugh noted that Dr Lee found no underlying liver pathology underneath the capsular marking. Dr Hugh regarded this finding as inconsistent with there being any causal connection between the marks and the development of the haematoma. Professors Cox and Merrett agreed with Dr Hugh.

96 As to (2), Dr Hugh relied on Dr Lee's observations on autopsy as excluding pressure as a cause. At the inquest, Dr Lee explained that if one were to squeeze, or otherwise apply pressure to, the liver for a short period of time, its appearance would return to normal within a few minutes. Pressure alone, without more, will not cause a mark that is still evident within a few days. Dr Lee opined that the marks could be explained by heat having been applied to the surface. Heat from the diathermy equipment would be sufficient to create such a mark. Dr Lee noted, however, that the diathermy equipment is used in the area where the gall bladder connects with the liver, which is well away from the area where the ovoid marks are located. He also said that the liver in the area where the ovoid marks are seen is too thick to be grasped with a grasper.

97 As to (3) and (4), Professor Cox explained the reasons for his disagreement with Dr Goodman. He said that the only variability in the capsule is where the ligaments are attached. Since the ligaments are well away from the haematoma, this variability can be disregarded. Other than where the ligaments are attached, the path of resistance is equal throughout the liver capsule. A haematoma will follow a path of least resistance. Because the resistance throughout the liver is uniform, one would expect a haematoma to expand symmetrically from its starting point. Gravity does not bear on the spread of a haematoma in the liver since there is no "free space" within which the gravitational force can be exerted. Because the ovoid marks are at the extreme edge of the haematoma, they can therefore be excluded as a cause. Professor Merrett and Dr Hugh agreed with this analysis.

98 I accept the views of Professors Cox and Merrett and Drs Hugh and Lee that the ovoid marks were caused by heat rather than pressure. It appears that Dr Lee considered that only a minor element of heat would have been required to produce the marks. I also accept their views that the marks are irrelevant to the cause of the haematoma. I accept Dr Hugh's evidence that the marks are not uncommon in such surgery and are not harmful to the patient.

99 It follows that I am not satisfied that the marks were caused by the grasper springing open. I am not satisfied that the negligence alleged in Scenario A has been established. However, in any event, I am satisfied that the marks are not causally related to the haematoma.

100 It is therefore not necessary for me to consider the forensic consequences for the plaintiffs of Scenario A not having been put to Drs Munro and Nolan in cross-examination.

Scenario B: Pressure against curved surface of the liver

101 This scenario does not depend on the ovoid marks being related to the haematoma. It does, however, depend on the proposition that the haematoma was caused by the surgery. The views of the experts differed.

102 Dr Hugh considered that to find causation was to succumb to the post hoc ergo propter hoc fallacy. Professor Vickers said that one must be guided by the published evidence to the effect that the causes of subcapsular haematomas of the liver are unknown. Professor Merrett said that a cause of subcapsular haematoma of the liver has rarely been found. Dr Raftos said that it could not be said that Rebecca would have developed the haematoma but for the surgery but accepted that it was not a matter within his expertise. Because of Dr Goodman's view expressed above, he was satisfied that he had found a specific cause for the haematoma.

103 In summary, of the experts who expressed a view, the consensus, excepting Dr Goodman, was that it was pure speculation as to what caused the haematoma. However, I do not understand the experts to have departed from the view expressed in the joint report that, apart from Dr Hugh (who considered the cause to be unknown) and Professor Cox (whose view on the question was not recorded in the joint report), the experts considered that the initiating pathology for the haematoma was caused during the operation. All experts agreed that it was pure speculation as to why it expanded.

104 The experts agreed that, during the course of the operation, surgical instruments will come into contact with the liver. The defendants' experts did not accept that the haematoma was caused by the forceps springing open. They said that, because of the dynamics of the operation, if that occurred, it would be the diaphragm, not the liver, that would be damaged.

105 In support of Scenario B, the plaintiffs relied heavily on the evidence given by Dr Munro at the inquest, which included the following passages:

"Given that this is not a penetrating injury but a blunt injury, the most likely explanation that I can give is that one of the graspers which is used to retract the gall bladder up over the liver has caused a blunt injury to the surface of the liver."

. . .

"Q. So if there isn't careful manipulation of the grasper such that it's allowed to compress the liver, that's the most likely explanation for this haematoma?

A. I believe so."

106 Dr Hugh considered Dr Munro's explanation to be most unlikely because of the indisputable absence of any evidence of injury to the liver substance on autopsy. He referred to the evidence given by Dr Lee at the inquest that the ovoid marks were the only abnormality he discovered on the surface of the liver. Dr Lee said of any other damage:

There was nothing at all deeper in the liver that showed me in the form of trauma, and one of the things that I specifically considered were vascular abnormalities of the liver.

107 Dr Vickers, who is not a surgeon and who has, accordingly, not performed such an operation, opined in his report dated 18 December 2012:

"How the presence of a simple pressure injury from splayed forceps came to cause such a devastating event is speculative. I personally think that the simple pressure from the forceps probably caused a shearing injury to a tiny sub-capsular vein of the liver. This minor trauma then started to leak very slowly over many hours and finally develop into a massive haematoma which split under its own pressure. A second possibility is that the minor trauma caused a tiny intimal dissection of a subcapsular vein. The dissection then spread upwards and laterally to finally rupture in the upper lateral right quadrant of the liver to form a haematoma.

. . .

Sub-capsular veins of the liver tend to be very small and not visible to the naked eye or by ultrasound. They represent normal liver anatomy and course under the capsule of the liver . . . A simple innocent closed blunt injury to these veins or lymphatics would be impossible to notice over a short period of time when the capsule itself is not disrupted. The pressure of the intact liver capsule would contain a small blunt force haematoma for a period of time until the pressure increases and starts to cleave the capsule away from the underlying liver substance."

108 Dr Vickers said that if it was caused this way, the pressure could not have been excessive because, if it had been, there would have been some tissue trauma detected on autopsy. The only finding in the area was a thrombus, which is a single blocked vessel.

109 Professor Cox, who has performed over 5,000 such operations, said, both in his report dated 15 November 2012 and in concurrent evidence, that in less than 1% of such operations one can get a small (5-10mm) subcapsular haematoma when the surgeon manipulates the upper surface of the liver with sucking devices to remove fluid from over the liver. These haematomas can occur because the liver surface, which is curved, is compressed during this action by the sucker irrigator, which is straight. He explained that such gentle pressure as was exerted would occur routinely in the majority of gall bladder operations that he conducts laparoscopically. It arises because of the inherent nature of the liver. He was, however, unable to explain why the haematoma expanded since he had not observed any such expansion in the haematomas that he had seen. Professor Merrett concurred with Professor Cox.

110 Dr Goodman said that the haematoma could have been caused by a shearing force that is sufficient to push the capsule off the underlying liver but not sufficient to damage the underlying liver.

111 I accept the views of Professors Cox and Merrett as to how the haematoma could have been caused: through gentle pressure of the straight instrument pressing on the liver. I accept that excessive pressure has been excluded as a cause because of the absence of any underlying tissue damage.

112 I note that Professor Spigelman gave the following answer to the question posed in his report dated 17 October 2013:

In your opinion, is the cause of Ms Rumble's haematoma more likely on the balance of probabilities to be excessive, rather than gentle, pressure to the liver? Please explain your opinion.

Yes, it is my opinion that the cause of Ms Rumble's haematoma was more likely on the balance of probabilities to be excessive rather than gentle, pressure on the liver. This is because gentle pressure would not, on the balance of probabilities, have led to the creation of the significant hepatic haematoma that occurred.

113 I regard this opinion as having been superseded by Professor Spigelman's concurrence in the unanimous answer given in the joint report that it was not more likely than not that the haematoma was caused by excessive pressure rather than general pressure.

114 It is not possible, on the state of the evidence, to find on the balance of probabilities that the haematoma was caused in the way Professor Cox hypothesised. However, it is possible that it was caused in that way. That possibility cannot be excluded on the balance of probabilities. The plaintiffs have, accordingly, failed to exclude to the requisite standard the possibility that the haematoma could have been caused without negligence. Even if I accepted (which I do not) that the haematoma was caused by a shearing force, as Dr Goodman contended, there is no evidence that this probably occurred as a result of negligence. Indeed, the evidence is consistent with the haematoma being the result of the inherent risk of the surgery, if what caused the haematoma was the pressure of the sucker irrigator on the curved surface of the liver.

115 In light of the evidence referred to above and my associated findings, I do not accept Dr Munro's evidence at the inquest as being the most likely cause of the haematoma. I respectfully accept the explanation that Professor Merrett gave for Dr Munro's speculation at the inquest:

There's no question, when someone has an adverse outcome, that the surgeon and all surgeons will do that will spend a lot of time speculating and thinking about what could have been the potential cause of that. Now, that doesn't necessarily mean that Dr Munro was actually correct in what he has been speculating. He's been trying to think of potential explanations for how this patient had an adverse outcome.

Alleged negligence in monitoring, review and discharge

The Joint Report

116 The unanimous opinions from the joint report relevant to the monitoring, review and discharge were as follows:

(1) Given the observations of Ms Plater and the amount of analgesia Rebecca had received, including Panadeine Forte, Rebecca should have been discharged on 13 December 2005.

(2) The review was carried out in a manner consistent with accepted professional practice.

(3) Rebecca should have been discharged prior to the medical review ordered by Dr Munro to take place in the afternoon of 13 December 2005.

(4) Rebecca's discharge at about midday on 13 December 2005 was conducted in a manner consistent with accepted professional practice.

(5) If Rebecca had been medically reviewed in the afternoon of 13 December 2005 and if she had been complaining of severe pain at the time of the review, it is more likely than not that she would have been kept in hospital for appropriate monitoring management.

The plaintiffs' case on negligent monitoring, review and discharge

117 The plaintiffs' case was, in substance, that it was negligent of the defendants to discharge Rebecca before she had had the afternoon review by Dr Nolan as prescribed by Dr Munro. They contended that Rebecca's recovery was not straightforward because she had required substantial pain relief which would tend to mask the severity of her symptoms.

118 Whether negligence on this basis has been established depends substantially on whether Rebecca's pain was adequately controlled prior to her discharge at about midday on 13 December 2005. One purpose of the review was to check that she was able to manage the pain with oral analgesia; the second was to ensure that she was able to eat and drink without nausea. The first purpose was fulfilled in the first instance by waiting until 11am when the morphine she had been given at 7am would have completely worn off, administering oral analgesia and seeing whether the oral analgesia gave adequate pain relief. This is exactly what occurred. As the facts set out above show, when Ms Plater asked Rebecca how she was feeling at 10.15am, she said that she had pain. She was given two Panadeine Forte at 10.30am.

119 The conversation between Ms Fitzgerald and Rebecca that took place after lunch establishes that the pain relief she had taken at 10.30am had been sufficient to relieve her pain. All the doctors agreed that by this time the drugs that had previously been administered would have worn off and that Rebecca would have been reliant solely on Panadeine Forte for pain relief. She had eaten breakfast and lunch before she was discharged. There was, accordingly, nothing to be gained by detaining her in hospital until Dr Nolan returned on his afternoon rounds since the purposes of the review had already been fulfilled.

120 I accept the opinions of Professors Cox and Merrett and Dr Hugh that Rebecca could be expected to require more analgesia for pain relief than a patient who does not take illicit drugs and that the amount that was administered was unremarkable. Furthermore, because Rebecca had revealed her substance abuse in the Pre-Admission Health Questionnaire, all medical and nursing staff would have been aware of it. The word "polysubstance abuse" also appears under the heading Medical, Surgical, Mental Health History. Dr Hugh opined that, since substance abuse is rarely confined to one substance, Rebecca may well have been abusing over-the-counter medications that contained opioid. Such use would have tended to make her even more tolerant to the medication administered in hospital.

121 Drs Goodman and Raftos had a different view: that there is no "cross-tolerance" and that the only relevant substance abuse was opiate abuse. I prefer the opinions of Professors Cox and Merrett and Dr Hugh.

122 The other matter that was relevant to the experts' determination of whether the amount of pain relief required was excessive, was the lack of clinical clues that there was any need for concern. Professors Cox and Merrett opined that subjective complaint of pain would not imply a concern, since one would expect to experience pain after such an operation. They considered that one would expect physical signs or other objective data such as tachycardia, decreased blood pressure, fever, distended abdomen, nausea or vomiting if there was anything untoward. There were no such physical signs.

123 I am not satisfied that the pain relief that was administered to Rebecca was, in all the circumstances, excessive or such as to put the defendants on notice that her recovery was not straightforward.

124 For these reasons, I am not satisfied that the defendants were negligent in failing to defer Rebecca's discharge until she was reviewed by Dr Nolan in the afternoon.

125 Causation has, in any event, not been established. I accept Dr Hugh and Professors Merrett and Cox's opinion that if Rebecca had been assessed by Dr Nolan at midday, his findings would have been the same as the nursing staff and she would have been discharged in the afternoon. Professor Merrett said of the nursing staff:

I think we have to be very much aware that the nursing staff that we can't downplay what the role of the nursing staff is in this situation. They're usually very experienced, very welltrained and their assessment is probably as good, if not better, than many junior medical officers.

Alleged negligence with respect to advice given to Mr Goddard on 14 December 2005

The joint report

126 The unanimous opinion of the experts was that, if Rebecca had returned to the hospital at about 8pm or shortly after on 14 December 2005 and been assessed, she would have survived.

127 The first version in the evidence of Mr Goddard's ringing the hospital was given shortly after Rebecca's death to someone who rang the New South Wales Department of Community Services (DOCS) to report concern about the welfare of the children. An officer of DOCS made a note of the call, an extract of which follows:

"Caller said n/father [natural father] is very angry as he feels n/mother should not have been released from hospital as she was still in a lot of pain. N/father rang the hospital last night to advise that n/mother had been vomiting for 7 hours and they said to bring her back but she can sit and wait like everyone else. N/father Andre did not take n/mother Rebecca back to the hospital. N/mother collapsed in the bathroom this morning and n/father called the ambulance."

128 There is a very significant difference between this version and the one in Mr Goddard's statement set out above. In the earlier version he was told to bring Rebecca back to hospital; whereas in the version made for the proceedings, he was told not to bring her back.

129 On 9 April 2008 Dr Phillips saw Mr Goddard for the purposes of a medicolegal consultation at the request of the plaintiffs' solicitors. Dr Phillips recorded that Mr Goddard told him:

"His wife continued to complain of shoulder tip pain on the following morning. He called the hospital to enquire what to do, and he was told to take his wife to the emergency department at Gosford Hospital. He elected not to take the advice."

130 This statement was admitted for all purposes, including the truth of its contents. When Dr Phillips gave concurrent psychiatric evidence, he was not asked about the accuracy of the note he made of the history Mr Goddard gave to him. It follows that the plaintiffs are taken to accept that the history that appears in Dr Phillips report was what Mr Goddard told him on 9 April 2008.

131 Mr Goddard knew that he could take Rebecca to the Emergency Department at any time of the day or night. He realised, with hindsight, that her death could have been prevented had he taken her before she suffered a cardiac arrest. In my view, Mr Goddard has, whether subconsciously or otherwise, reconstructed his memory of the past, to absolve him of, or mitigate his, responsibility for Rebecca's death and to enhance his prospects of obtaining damages in these proceedings.

132 Furthermore, had he been told not to bring Rebecca in, he would, in my view, have told Mrs Rumble about the phone call. However, if he had had a phone call in the terms reported to Dr Phillips, I consider it to be unlikely that he would have told Mrs Rumble of it because he would have appreciated that it would tend to implicate him in Rebecca's death. He did not give the version which he would have me accept until years after the event, when the forensic need to fix blame on the hospital, and exculpate himself, became more evident and pressing.

133 For the foregoing reasons I am not satisfied on the balance of probabilities that Mr Goddard called Gosford Hospital at all on 14 December 2005. If he did make the call, I accept the version he gave to Dr Phillips, namely that he was asked to bring her in but he did not heed the advice.

134 The plaintiff has not established the factual basis for this allegation of negligence. As the concurrent evidence of the experts demonstrates, the proof of negligence on this head, depends on my accepting Mr Goddard's version of the conversation at its highest, which I do not. It is therefore not necessary for me to address the different expert opinions about the appropriate way in which a hospital ought respond to enquiries concerning patients who deteriorate after discharge.

Defence under s 5O of the Civil Liability Act

135 Because of the unanimous views of the experts as expressed in the joint report that the surgery, monitoring, review and discharge were carried out in a manner consistent with accepted professional practice, Dr Munro would, had negligence been established, have had a defence to the plaintiffs' claim: s 5O of the Civil Liability Act.

Mrs Rumble's claim for damages for nervous shock

The background facts

136 Mr Goddard telephoned Mrs Rumble at about 5am on 15 December 2005 and told her that Rebecca had had a heart attack. She immediately drove to Rebecca's place and then on to Gosford Hospital with Lindsay. When she arrived at Gosford Hospital she was told that Rebecca was at Wyong Hospital and that Dr McLeod wanted to speak to her. Dr McLeod told Mrs Rumble that her daughter was dead.

137 Mrs Rumble's immediate concern was how she could tell Lindsay, who was standing beside her at the time, that his mother had died. She and Mr Goddard went to Wyong Hospital. Dr McLeod explained that she had internal bleeding in her stomach and that she had been taken off life support. Mrs Rumble, Mr Goddard and Rebecca's sister, Racheal, went to see Rebecca's body. Mrs Rumble was shocked when she saw her daughter's swollen stomach. Racheal kept saying that Rebecca looked as if she was pregnant.

138 When counsellors spoke to Mrs Rumble and Mr Goddard, Mrs Rumble insisted that no arrangements needed to be made for the children since they would be looked after by members of the family.

139 Rebecca's funeral was on 23 December 2005. Although very distressed, Mrs Rumble contained herself for the benefit of Rebecca's young children. She returned to her usual work at Davo's on Christmas Eve, in part, to distract herself from Rebecca's death. She continued to work until about July 2010 but eventually stopped, in part because of some irritation at work and in part because of her responsibilities towards her grandchildren. She still occasionally works at Davo's in the busy pre-Christmas period.

140 Since about February 2006, as set out above, Mrs Rumble has looked after Lindsay.

141 On 12 June 2008, Mrs Rumble's second daughter, Racheal, died of an acute attack of asthma. Racheal's daughter, Larni, who was then five, came to live with her grandmother from that time, her father having handed over full custody of Larni to her. Larni is now 10 years old. Documents produced by the Department of Family and Community Services record that, at the time of Racheal's death, Mrs Rumble was still working and suffering from considerable emotional and financial stress. However, when she stopped working and began to receive increased benefits, her stress was alleviated.

142 Mrs Rumble has not received any psychological treatment since Rebecca's death. Nor has she taken any relevant medication. She continues to look after Lindsay and Larni.

Nature and effect of recognisable grief, anxiety or depressive type disorder suffered by Mrs Rumble

143 These proceedings were commenced by the filing of a statement of claim on 11 December 2008. By this time both of Mrs Rumble's daughters had died. The only assessment in evidence of her mental state, after Rebecca's death in December 2005 but before Racheal's death in June 2008, was that conducted by Dr Jonathan Phillips, psychiatrist, on 9 April 2008 at the request of the plaintiffs' solicitors. He considered that she met the requirements for adjustment disorder with depressed mood, which is a recognised psychiatric illness within the meaning of s 31 of the Civil Liability Act. At later assessments, which took place after Racheal's death, he considered that a different diagnosis was appropriate and diagnosed a Major Depressive Disorder.

144 At the request of the defendants' solicitors, Dr Lisa Brown, psychiatrist, saw Mrs Rumble for the first time in May 2009. By that time, Racheal had died. At the time of that assessment Dr Brown did not consider that Mrs Rumble had developed a diagnosable psychiatric disorder arising from Rebecca's death. She opined that she was exhibiting only mild depressive complaints which she considered to be part of a normal grief reaction. However at the second assessment in September 2011, Dr Brown elicited sufficient in the way of mood complaints for Mrs Rumble for a diagnosis of mild Major Depression to be made. When Dr Brown assessed Mrs Rumble on 2 July 2013, she was still displaying features of mild Major Depression.

145 The two expert psychiatrists met in a conclave and prepared a joint report. They also gave concurrent evidence at the hearing.

146 Both experts agreed that Mrs Rumble's depressive symptoms became progressively more pronounced over time in the context of having lost both of her daughters and that her symptoms were within the depressive spectrum.

147 The experts agreed that if Racheal but not Rebecca had died, Mrs Rumble would probably have developed a similar depressive disorder, although possibly one of milder severity.

148 The experts agreed that Mrs Rumble coped moderately well with day-to-day life and was capable of high-level functioning with bringing up two of her grandchildren and running the household.

149 Dr Brown considered that Mrs Rumble's demonstrated ability to look after the children, including driving them around to various activities, shows that she is fit for full-time work, whereas Dr Phillips opined that Mrs Rumble would require some therapy before she could return to work. Dr Phillips' view appeared to be predicated on Mrs Rumble's being unable to carry on normal life. However, this was not borne out by the evidence.

150 Dr Phillips' opinion in this regard appeared to be based substantially on the history he had taken that she gave up work because of problems with concentration and due to her anxiety that she would run into a tree when driving. Although I accept that Mrs Rumble may have been concerned about her concentration at some time in the past, I do not accept that she is still concerned about it when driving, since she regularly drives her two grandchildren to their various commitments. I do not accept that she would continue to drive if she believed that her concentration was insufficient for her to drive safely. Dr Phillips also considered that there were safety issues at work which meant that she was at risk of injury if there were lapses in her concentration. This is not borne out by the evidence.

151 I accept Dr Brown's evidence that many people with nil psychiatric disorders, including depression, can and do work full-time in their usual duties. Accordingly, my finding that Mrs Rumble's work capacity is unaffected does not undermine my acceptance of the expert opinion that she suffers from a depressive disorder.

152 Dr Brown considered that Mrs Rumble would not particularly benefit from counselling, and indeed would not be likely to attend counselling sessions. They both considered that she would benefit from anti-depressant medication. Dr Brown described anti-depressant medication as "standard treatment for anyone with a major depression".

153 I accept the experts' opinion that Mrs Rumble's mental state is likely to improve after the litigation has been determined.

Assessment of damages

154 There are considerable difficulties in assessing damages for nervous shock arising from Rebecca's death but not for Racheal's death, except in so far as the reaction to Racheal's death can be said to flow from a vulnerability created by Rebecca's death. Section 5D of the Civil Liability Act requires me to be satisfied that Mrs Rumble would have suffered a psychiatric condition even if Racheal had not died. Section 5E of the Civil Liability Act requires the plaintiff to prove any fact relevant to the issue of causation.

155 I am satisfied that Rebecca's death caused Mrs Rumble to suffer the depressive disorder from which she continues to suffer. I accept that Mrs Rumble was particularly troubled by Rebecca's death because it was so unexpected and, from her point of view, so preventable. Although her current symptoms were deferred for a period, I am nonetheless satisfied that they are referable to Rebecca's death. It may be that her concentration on Lindsay's immediate needs and welfare caused her to put aside her own pain and grief, which was nonetheless felt later when more pressing concerns had been attended to.

156 In my view, Mrs Rumble is entitled to damages for nervous shock. I assess her non-economic loss at 25% of a most extreme case.

157 The claim for past out-of-pocket expenses was abandoned, there being no evidence to support it.

158 The amended statement of particulars does not include a claim for future treatment. However, if I had been persuaded that such a claim had been made out, I would have regarded the defendants as sufficiently on notice of it by reason of Dr Phillips's reports. I do not consider there to be any realistic prospect that Mrs Rumble will attend counselling or take anti-depressants. Accordingly, no amount is allowed for future out-of-pocket expenses.

159 I reject Mrs Rumble's claim for past and future economic loss and loss of superannuation benefits. She left work to look after Lindsay. There were irritations at Davo's which may also have inclined her to stop work. Her childcare responsibilities to her grandchildren are demanding and all-consuming. Her financial need to work was alleviated by the benefits she has received by reason of her being a care-giver to the children. She is "a lot less stressed" as a result. There is, in my view, no reason arising from her mental state to prevent Mrs Rumble returning to work. Indeed she does so in busy times.

160 If I had been satisfied that the defendants were liable to Mrs Rumble, I would have assessed damages at $36,000 for non-economic loss, being 25% of a most extreme case: s 16 of the Civil Liability Act.

Mr Goddard's claim for damages for nervous shock

The background facts

161 Mr Goddard has prior to, and since, Rebecca's death been convicted of offences relating to driving while under the influence of alcohol. From time to time he was disqualified from driving. I do not detect any discernible increase in that conduct that is referable to Rebecca's death. In or about November 2008 Mr Goddard committed assault occasioning actual bodily harm against his then girlfriend, Megan, and malicious damage or destruction of property for which he was convicted after a plea of guilty in April 2009. He was placed on a good behaviour bond which expired on 27 October 2010. As a condition of the bond he was required to accept the supervision of the probation service and to comply with such directions as were made by the service.

162 One such direction was that he attend counselling sessions to overcome his tendency to abuse alcohol and become violent. He attended appointments with a psychologist, Denver Simonsz, in compliance with the conditions of his bond but, once the supervision condition of his bond was terminated, he stopped attending such sessions. He failed to attend appointments and told the psychologist that he had been busy with work and would not be able to attend. I do not accept Mr Goddard's evidence that he had voluntarily undertaken the sessions as a "personal" matter. In my view the only reason he attended sessions at all was to comply with the conditions of his bond.

163 In early 2007 Mr Goddard began a relationship with a woman called Megan. He and Kyanah moved into Megan's two-bedroom unit in East Gosford. They lived there for about 12 months. The 3 of them moved to Long Jetty where they lived for about 18 months, before moving together to Tascott. In May 2010 the relationship broke up and Megan moved out of the Tascott house. Megan assisted in Kyanah's care. The relationship lasted for about 3 ½ years in all, although there were periods of separation throughout this period when Megan would go and stay with her family or friends. I do not accept that the difficulties that arose between Mr Goddard and Megan were the product of any abnormal grief reaction on his part.

164 Subsequently Mr Goddard had a relationship with Tania Hall who would come, with her own daughter, and stay on weekends. This arrangement continued for about 12-18 months. Tania helped with Kyanah's care.

165 In about October 2013, Mr Goddard commenced another de facto relationship with a woman called Tanaya, who, together with her two children, came to live with Mr Goddard.

Whether Mr Goddard has established any recognisable grief, anxiety or depressive type disorder

166 As occurred with respect to Mrs Rumble, Mr Goddard was assessed by Drs Phillips and Brown, who prepared a joint report and gave concurrent evidence. However, their views were significantly different. Dr Brown did not find evidence to warrant a finding of a diagnosable psychiatric disorder, whereas Dr Phillips diagnosed a pathological grief reaction taking the form of an adjustment disorder with depressed mood (chronic type). The experts were concerned by the differences in their opinions, which they found to be unusual. They opined that Mr Goddard's history-giving, which they regarded as being compromised by his lack of ability to articulate his thoughts and feelings, caused the difficulty in assessment, and, potentially, the differences in their opinions.

167 Both experts noted a functional improvement and considered that he was coping in a moderately successful manner.

168 I accept Dr Brown's opinion that distinguishing between normal distressed grief and a low level psychiatric disorder such as an adjustment disorder is one of the most difficult psychiatric determinations. Dr Phillips considered that the strength and duration of the symptoms meant that Mr Goddard qualified for the diagnosis.

169 I am not satisfied that the basis for Dr Phillips' opinion has been made out. I have formed an adverse view of Mr Goddard's credibility, which is separately addressed at the conclusion of these reasons. In addition, the experts considered him to be a poor historian.

170 I am not satisfied that Mr Goddard has, as a result of Rebecca's death, suffered any recognisable psychiatric disorder. Although I accept that he suffered considerable grief as a result of the loss of his partner, I am not satisfied that this went beyond a normal grief reaction.

171 Furthermore, Mr Goddard's claim for damages for nervous shock is based, in part, on the allegations that he has lost earning capacity because of his inability to concentrate and that he is incapable of forming long-term relationships because of his abnormal grief reaction to Rebecca's death. Neither of these foundations has been made out. Mr Goddard worked as a fencer and assisted a blacksmith. He was generally paid in cash. His tax returns do not disclose his actual income. There is no evidence, apart from his own testimony, which I do not accept, that he earned any income at all in the period from June 2005, when he lost his licence, until Rebecca's death. I am not satisfied that Mr Goddard's capacity to earn has been adversely affected by his reaction to Rebecca's death. He has formed three de facto relationships since her death. I am not satisfied that his ability to form such relationships has been compromised by any abnormal grief reaction.

172 Mr Goddard's claim for damages for nervous shock would, even had I found the defendants otherwise liable, not have resulted in any award of damages.

Claims under the Compensation to Relatives Act

General principles of assessing damages pursuant to the Compensation to Relatives Act

173 Section 3 of the Compensation to Relatives Act provides that an action is maintainable against any person causing death through neglect despite the death of the person injured. Section 4(1) relevantly provides:

Every such action shall be for the benefit of the spouse. . . and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.

174 The damages are, accordingly, to be assessed and awarded as I think proportioned to the injury resulting from Rebecca's death.

175 In Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 the High Court set out the relevant principles for assessing damages for the claims under the Compensation to Relatives Act. The majority (Dawson, Toohey and McHugh JJ) described such a claim as a claim "for recompense for some tangible advantage which has been lost by reason of the death of the deceased".

176 At 247 Brennan J said, of the quantification of damages for loss of domestic services:

When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison, it is possible to ascertain the "balance of the loss" -on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse - and the true nature and extent of the "injury resulting from [the] death to the parties". When that comparison is made and the "balance of the loss" is ascertained, evaluation of the loss can proceed.

177 Justice Brennan distinguished between claims by injured plaintiffs and claims under the Compensation to Relatives Act at 248-249 in the following terms:

When a personal injury creates a need which can be met by the provision of services, the physical disability of the plaintiff not only occasions the need but is usually of such a kind that it precludes the plaintiff from satisfying it himself. Medical and nursing attention, rehabilitation services, or help in performing domestic chores are familiar examples. When a loss of services in a Lord Campbell's Act claim creates a need, however, the plaintiff can often satisfy the need himself. In either case the question may arise: should the tortfeasor be liable to pay for outside assistance to satisfy the need? That question usually requires an affirmative answer in answering a personal injury claim but the answer is likely to be more problematical in assessing a Lord Campbell's Act claim. Why the difference? Because often the plaintiffs in a Lord Campbell's Act claim can reasonably be expected so to adjust their lifestyles as to modify the need or to satisfy the need themselves, without significant depreciation of their lifestyles. That is not to deny the reality of the loss or of the need it creates, but an adjustment which can reasonably be expected and which allows the plaintiffs to modify the need or to satisfy their needs is an adjustment that the plaintiffs are bound to make to mitigate their loss. Reciprocally, the tortfeasor is liable to pay for outside assistance if, but only if, such assistance is reasonably necessary to satisfy the need occasioned by the loss. If it is not reasonably necessary to bring in outside assistance because the need can be met by the plaintiffs themselves, damages are limited to an allowance for the increased burdens (if any) assumed or to be assumed by the plaintiffs. If it is reasonably necessary for the plaintiffs to bring in outside assistance, the tortfeasor is liable to pay for that assistance. The test of reasonable necessity to satisfy the needs created by the loss draws upon contemporary social standards and expectations as well as the particular circumstances of the case.

178 Justice Deane said that it was necessary to import an element of reasonableness and to ask whether the services that would have been provided by the deceased were superfluous to the reasonable needs of the applicant.

179 At 265, the majority agreed with Deane J that the assessment of damages is not necessarily to be made by reference to the cost of providing substitute services.

180 In Grosso v Deaton [2012] NSWCA 101 Basten JA, summarised the relevant principles that apply to the assessment of damages to be awarded to dependants for the loss of a mother, which I respectfully adopt:

[19] The true question to be considered is the loss which the boys suffered, in a material sense, from the death of their mother. To the extent that a father was providing some assistance or maintenance prior to the mother's death, allowance must be made in calculating the loss for those other contributions. If, upon death, relatives, including the father, step into the mother's role, the loss may be ameliorated or eliminated: Nguyen at 248. On the other hand, it is clear that the provision of services by "relatives or friends gratuitously or at small cost as a benevolent gesture to the family does not preclude the recovery of the true value of those services from the tortfeasor: Nguyen at 249 (Brennan J).

[20] However, the principle that recovery is not precluded by the provision of gratuitous services replacing those of the deceased, is qualified, in the case of a spouse, by the requirement that allowance be made for the possibility of remarriage. Dawson, Toohey and McHugh JJ explained in Nguyen at 265:

Where the services are likely to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which a plaintiff will be entitled, not because the plaintiff's need for the services will then be satisfied, but because the plaintiff's loss is thereby directly reduced.

[21] Remarriage was not the only factor which might reduce the payment of compensation. The joint judgment continued:

In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household.

[22] Although the last example given by their Honours appears to have been self-evident to them, the explanation is not provided in the judgment. What follows is an analysis of why assistance provided voluntarily by "someone outside the immediate family" (at 266) or "voluntary unsolicited assistance" (at 267) does not preclude recovery. The reasoning involves concepts of reasonable expectations, legal obligations and moral revulsion against a stand which would discourage generosity or charity towards the victims of a tort.

The parties' submissions on the Compensation to Relatives Act claims

181 The plaintiffs submitted that, had Rebecca survived, she would have continued to provide 24-hour a day care to Lindsay and Kyanah until each was aged 18 to the extent to which they were not at school. They further submitted that she would have continued to care for Ethan every second weekend, at least until he moved to the United States with his father in 2006.

182 The defendants submitted that Lindsay has, since February 2006, suffered no loss of services by reason of his mother's death since Mrs Rumble has stepped in and provided those services for him, not only as a grandmother but as a substitute mother. They relied on the judgment of Young JA in Grosso v Deaton in support of the proposition that Mrs Rumble had taken on the role of mother, with all the legal obligations that that entails under s 66C of the Family Law Act 1975, including the primary duty to maintain the child. They contended that Lindsay's loss of his mother's services was extinguished by Mrs Rumble's voluntary assumption of legal responsibility which became binding when the orders were made by Gosford Local Court in February 2006.

183 They submitted that there was no reason in principle to distinguish between the situation of a claimant who has remarried and that of a claimant who has been adopted, either at law or in reality, before trial. They contended that each situation might have the effect of reducing, if not extinguishing, the loss and ought to be taken into account.

184 The defendants contended that there ought be no care component for Ethan because the conflict between him and Mr Goddard meant that his natural father has prior to, and subsequent to, Rebecca's death almost exclusively fulfilled Ethan's need for care.

185 The defendants contended that, in respect of Kyanah, Mr Goddard was employed only partially, if at all, and was available not only for night-time care but also for some care during the day time. They submitted further that it would be unreasonable to award damages referable to the actual cost of providing the services hitherto provided by Rebecca. They submitted that any sums paid to Mr Goddard by a government authority ought be deducted from any damages otherwise assessed in respect of Kyanah. The defendants contended that Rebecca intended to return to work in any event when Kyanah started school and that therefore she would not have been available to look after Kyanah after school had she survived. They submitted that I ought also take into account in assessing damages that Mr Goddard's various de facto partners provided gratuitous care to Kyanah when they were living as part of the same household and that therefore her loss has been concomitantly reduced.

186 The defendants submitted that, in any event, s 15 of the Civil Liability Act applies and the damages would be precluded entirely by reason of s 15(2)(b) and (c) or would, in any event, be limited to 40 hours a week at the capped rate, which was in the order of $25 per hour and is now in the order of $28 per hour.

187 In the alternative, the defendants submitted that s 15B applies and the damages are accordingly limited by reference to the hourly rate in that section.

Whether s 15 of the Civil Liability Act applies to the assessment of damages under the Compensation to Relatives Act

188 Section 15 of the Civil Liability Act relevantly provides:

Damages for gratuitous attendant care services: general

(1) In this section:

attendant care services means any of the following:

(a) services of a domestic nature,

(b) services relating to nursing,

(c) services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or

(ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

189 Section 15 is contained in Part 2 of the Act. Section 11A relevantly provides:

(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

(2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3) A court cannot award damages, or interest on damages, contrary to this Part.

190 Section 11 defines "injury" and "personal injury damages" in Part 2 in the following terms:

injury means personal injury and includes the following:

(a) pre-natal injury,

(b) impairment of a person's physical or mental condition,

(c) disease.

personal injury damages means damages that relate to the death of or injury to a person.

191 In my view, as a matter of construction, the claims by Mr Goddard, Lindsay, Ethan and Kyanah are claims for personal injury damages within the meaning of s 11A since they are claims for damages that relate to Rebecca's death, they are not excluded by s 3B and they are brought under statute, the Compensation to Relatives Act. Part 2 of the Civil Liability Act operates with respect to Compensation to Relatives Act claims: Taylor v The Owners- Strata Plan No. 11564 [2013] NSWCA 55; 83 NSWLR 1 per McColl JA at [9]-[23], Hoeben JJA agreeing and per Basten JA at [53]- [65].

192 Justice Basten in Taylor v The Owners- Strata Plan No. 11564 in deciding whether s 12 applied to fatal accidents claims also considered whether s 15 applied. His Honour said at [91]:

The Civil Liability Act imposes limitations on the circumstances in which and the amount which may be awarded for gratuitousattendant care services: s 15. That section also applies with respect to services provided "to a claimant": s 15(1). However, they appear to relate to services provided to an injured person, because the need for the services must arise "solely because of the injury to which the damages relate" and must be services which would not have been provided "to the claimant but for theinjury": s 15(2). This section would therefore appear not to affect the quantum of such an award made in a fatal accident claim, which, as RTA v Jelfs [[1999] NSWCA 179] indicated, may be significant.

193 At [92]-[93] Basten JA noted that s 13 and s 14 (which are also in Part 2) do not appear to apply to fatal accident claims. His Honour explained the relevance of whether other provisions in Part 2 applied to fatal accidents claims to the question whether s 12 applied to such claims in the following terms at [94]:

These matters are not directly raised by the circumstances of the present case, but are relevant for two reasons. The first is that the distinction drawn between "future economic loss" and "loss of expectation of financial support" in s 12(1) is critical to the assumption that the section applies to fatal accident claims. If that be so, it should be accepted that similar language in other sections in Pt 2 should be similarly understood. No other section containsreference to "loss of expectation of financial support". Secondly, the operation of s 13 and s 14 and, in particular, s 15 will give rise to anomalies: that is, they will not apply to fatal accident claims (see also s 15(4)). To the extent that the characterisation of a literal reading of s 12 as leading to "an anomaly" is put in doubt, the basis for the proposed judicial amendment is diminished.

194 This analysis led to his Honour's tentative conclusion at [95] that "no other provision in Pt 2 appears to apply to fatal accident claims".

195 Basten JA's view that s 15 does not apply to fatal accidents claims appears to be based on the reasoning that the word "claimant" in the section is a reference to "injured person" because the need must arise solely as a result of the injury. With the greatest of respect to his Honour, I do not consider that the section need be read that way.

196 There does not appear to me to be anything in s 15 that confines "injury" to an injury to the claimant as opposed to an injury to someone in respect of which the claimant claims damages. There is, accordingly, no need to read into s 15 any extended definition or term as occurred with respect to the word "claimant" in Taylor v The Owners- Strata Plan No. 11564 per McColl JA, Hoeben JA agreeing.

197 If s 15 applies, the various limitations imposed by s 15 on the award of damages for gratuitous attendant care services apply.

198 The first relevant limitation is that the need for such services arises solely because of the injury to which the damages relate: s 15(2)(b). This limitation excludes the claims by the three children since their need arises from their infancy and therefore does not arise solely from their mother's death.

199 The second relevant limitation is that the services would not be (or would not have been) provided to the claimant but for the injury: s 15(2)(c). In my view, this limitation, too, excludes the children's claims for damages in respect of such services.

200 Review of the Law of Negligence (2002) (commonly referred to as the Ipp Report) did not identify any problems that needed to be resolved by limiting damages in respect of so-called fatal accident claims: [13.116]. The effect of this reading of s 15(2)(b) and s 15(2)(c) is to preclude all claims under the Compensation to Relatives Act by children, or at least infant children, for loss of gratuitous attendant care services. That these provisions have such a substantial effect in circumstances where the Ipp Report did not identify any need for reform might seem surprising. Nonetheless the Ipp Report did recommend that the recommendations made by the Panel in regard to damages generally should be adapted and applied to dependants' claims: [13.119] and Recommendation 55. This recommendation is consistent with s 15 applying both to claims for damages for tort and claims under the Compensation to Relatives Act claims.

Conclusion on application of s 15 of the Civil Liability Act

201 In all the circumstances, and notwithstanding Basten JA's (albeit not concluded) view to the contrary I do not propose to read down the plain meaning of s 15 so as to exclude its operation to such claims. In my view, the claims of each of the three children are precluded by reason of s 15(2)(b) and (c) of the Civil Liability Act since their claims comprise exclusively claims for loss of domestic services.

202 However, the true construction is neither settled nor clear. Lest I be found to be incorrect in finding that s 15 applies to such claims, I propose to assess damages on the alternative basis that it does not apply. Because of my finding that the applicable hourly rate is less than the capped rate, the caps in s 15 are not material in any event.

Whether s 15B of the Civil Liability Act applies to the assessment of damages under the Compensation to Relatives Act

203 It is also necessary to consider the defendants' alternative submission that s 15B applies to the claims under the Compensation to Relatives Act.

204 The operative provision in s 15B is s 15B(2), which provides:

When damages may be awardedDamages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)-the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

205 I do not consider that, as a matter of construction, s 15B applies since it relates to a claim by a claimant for loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants. In my view, the claimant must be either the person injured or the legal personal representative of the injured (now deceased) person. Mr Goddard is the only claimant who has dependants but he has not lost any capacity to provide gratuitous domestic services to them. This situation is distinguishable from s 12 which was considered by the Court of Appeal in Taylor v Owners-Strata Plan No. 11564 [2013] NSWCA 55 where the word "claimant" was given an extended meaning by reason of its context. Accordingly I do not propose to consider s 15B further.

Facts relevant to the Compensation to Relatives Act claims

The family arrangements prior to Rebecca's death and their likely continuation had she survived

206 Rebecca Rumble was born on 18 March 1981. In November 1997, when she was 16, and still living at home, she gave birth to her first child, Lindsay. Lindsay's father, Lee Morgan, died of a drug overdose a year later. When Lindsay was about two, Rebecca left her mother's home to live with Warwick Wesson who became the father of her second child, Ethan, who was born in February 2000.

207 Rebecca's relationship with Warwick ended. In about 2002 she began a relationship with Mr Goddard. They moved in together in 2003 and lived at Watanobbi with Lindsay. In 2003 and thereafter, Ethan lived with his father but would occasionally stay with his mother on weekends. Mr Goddard provided financial support to Rebecca and her children and also performed domestic tasks for the household.

208 Throughout their relationship there was considerable friction between Rebecca and Mr Goddard relating to her drug use and their violence towards each other. On occasions Mr Goddard's violence towards Rebecca resulted in black eyes and bruises. He disapproved of her use of marijuana. In April 2004, at about the time of Mr Goddard's 27th birthday, he threatened to leave Rebecca because of her drug use.

209 Rebecca attempted suicide in April 2004. She presented at the Emergency Department of Wyong Hospital and gave a history that a previous boyfriend (Lindsay's father) died of a drug overdose in 1997 and that she had suffered depression since then. She told the triage nurse that she had been taking ecstasy every day to escape, as well as alcohol. She reported that she took 13 Valium tablets two nights previously, following an argument with Mr Goddard, and that she needed help. She denied suicidal ideation and said that she wanted to sort out her life and her drug use. She was reported as being reluctant to consider either hospitalisation or anti-depressants. Her reported drug use in the past month also included smoking between 3 and 7 gms of marijuana daily.

210 A mental state examination conducted on 15 April 2004 recorded that she was crying and distraught because she was going through withdrawal from speed and cannabis. She nominated various symptoms of her withdrawal including restlessness, irritability, loss of appetite, perspiration, anxiety, insomnia, vivid dreams, headache, depression, muscle twitching, paranoia, tiredness, joint pain, altered sleep and mood swings. The notes of the mental health unit recorded that she had had a termination two months previously, at 20 weeks.

211 Rebecca was admitted to a Detoxification Unit on the Central Coast on 16 April 2004. She gave a history of being stopped by Mr Goddard from throwing herself off a cliff known as "the Skillion". While she was at the Detoxification Unit, Lindsay stayed with Rebecca's sister, Racheal, and Ethan went to his father's. On discharge the same day Rebecca explained that she missed her family and could not cope with being away from them.

212 Rebecca continued to use marijuana after this time. Mr Goddard was aware that she smoked marijuana with friends in the street.

213 As referred to above, the evidence established that there was considerable friction between Rebecca and Mr Goddard relating to her drug use and his violence towards her. By and large the couple was careful to keep such differences and conflict from their families and friends. For example, Nicole Morandin, Mr Goddard's sister, did not notice any tension between them and was not aware of any physical conflict.

214 Mr Goddard does not drink alcohol responsibly. When under the influence he has, on occasions, driven motor vehicles, as a result of which he has lost his licence.

215 Whether the relationship between Rebecca and Mr Goddard would have continued, had she survived, is difficult to predict. On the one hand, they shared a natural daughter, Kyanah. On the other hand, their relationship was volatile and, at times, tumultuous. Ethan's occasional presence was a source of conflict between Mr Goddard and Rebecca. There was a real possibility that, even had Rebecca survived, Mrs Rumble would have been called upon to look after Lindsay or Kyanah, or both, since she appears to be a responsible, stable and loving influence on her grandchildren. The chances of this occurring are, in my view, less in respect of Kyanah, than in respect of Lindsay since Mr Goddard has shown himself to be both willing and capable of looking after Kyanah.

216 If Rebecca had survived, I consider that she would have returned to work, as she intended to do, when Kyanah started school at the age of five.

217 The evidence shows that there has been, since Rebecca's death, a limited demand for fencing work. This has affected the hours that Mr Goddard has been able to be engaged in remunerative employment, although as I have said above, I am not satisfied that he earned any money from work in the six months prior to Rebecca's death. Had Rebecca survived, it is likely that Mr Goddard would have continued to look after Kyanah, as I find he had done, jointly with Rebecca, in the six months prior to Rebecca's death.

218 Mr Goddard has also shown a willingness to form blended households with his de facto partners from time to time, each of whom has been prepared to help Mr Goddard to look after Kyanah, as he has done with their children, as part of the give and take of such relationships.

Lindsay

219 On the morning of Rebecca's death, Mrs Rumble went to her house and found Lindsay in the gutter with his head in his hands crying, "Nan, I'm homeless," to which Mrs Rumble responded, "You are not homeless. You come to live with Nan." I consider this exchange, although made in highly emotional circumstances, revealed Lindsay's realistic assessment that Mr Goddard would not willingly look after him in the long term after Rebecca's death. Lindsay continued to stay with Mr Goddard for a few weeks after his mother's death. For the period during which Lindsay remained in Mr Goddard's care, Mr Goddard received family assistance from the Government. By the time Lindsay started at the Chertsey Public School in the first term of 2006, he had moved in to live with Mrs Rumble.

220 At around 10 February 2006, Mrs Rumble applied for orders from the Local Court at Gosford under the Family Law Act 1975 that Lindsay live with her and that she be responsible for his day-to-day care and long-term decisions for him. The respondents named in her application were Lindsay's parents, Rebecca and Lee Morgan, who were both deceased. The following orders, which were expressed to be final, were made:

1. That the child of the parties, namely Lindsay Lee Rumble born 8/11/1997 reside with the applicant maternal grandmother.

2. That the applicant be responsible for day-to-day care and long term decisions for the child.

221 Mrs Rumble receives child benefits, family tax benefits and a supporting parent benefit in respect of her continuing care of Lindsay. These are to be taken into account in reduction of the claim on behalf of Lindsay since the monies have been used for his benefit: Attorney-General for NSW v Perpetual Trustee Co. (Ltd) [1952] HCA 2; 85 CLR 237 at 291-293 per Fullagar J.

222 Documents produced by Family and Community Services indicate that Lindsay has a good and loving relationship with Mrs Rumble. There is every prospect that she will continue to look after him until he no longer needs her care. An assessment conducted on 30 July 2009 recorded:

"Lindsay has represented school in league, AFL and soccer, making it to State level in AFL. He is also a prefect this year. He also won an aboriginal scholarship."

223 Mrs Rumble gave evidence that she did not expect Lindsay, who is 16, to become independent at 18, because he was presently much more dependent on her than Larni, although Larni is younger. In my view, it is reasonable to assess Lindsay's loss on the basis that he will be independent by the time he is 18.

224 I infer from the evidence that Mr Goddard provided care and assistance to Lindsay prior to Rebecca's death, as part of the sharing of household tasks between them. When Mr Goddard was working, Rebecca provided more hours of assistance to Lindsay because she was at home during the day looking after Kyanah. Because of the dearth of evidence to show how much Mr Goddard worked prior to Rebecca's death I am unable to quantify any differential between the care provided by her and the care provided by Mr Goddard.

Ethan

225 Notes produced by DOCS record that in early October 2004, after Rebecca dropped Ethan back to his father's place, he told him that Mr Goddard had hurt him and that he did not want to return to his mother's place. The notes also recorded that Rebecca admitted (presumably to Ethan's father) that Mr Goddard was assaulting her and that he grabbed her in front of Ethan and ripped her underwear off and threatened to rape her. This apparently resulted in the police being called. Following this event Ethan's father took on the role as his prime carer, although Ethan continued to stay with his mother occasionally on weekends.

226 After his mother's death, Ethan lived solely with his father. In around August 2006 he moved with his father to the United States. Mrs Rumble could only recall having two phone conversations with Ethan since that time.

Kyanah

227 Since Rebecca's death, Kyanah has been looked after principally by Mr Goddard and Mrs Rumble. However, during the first six months following Rebecca's death, Karen Murdoch, a friend of Rebecca's, looked after Kyanah, sometimes for up to five days a week because Mr Goddard was drinking a lot. Ms Murdoch, who had six daughters of her own, set up a cot for Kyanah to sleep in. Ms Murdoch continued to liaise with Mr Goddard and Mrs Rumble about Kyanah's care up until the time Kayanah started school. Ms Murdoch still has contact with Kyanah who sometimes stays with one of Ms Murdoch's daughters, all of whom are now adult.

228 Mr Goddard made an application for parenting payments from Centrelink because of his care of his daughter. These payments were made into his bank account with Bendigo Bank. He received a family allowance from December 2005. He also received a single parent pension until Kyanah turned eight in January 2013. The total amounts received were $190,758.24.

229 Since Rebecca's death, Mr Goddard has continued to work. His hours of work and payment received cannot be determined because he has often been paid in cash and his tax returns do not therefore reflect his total earnings. However, I am satisfied that his work has been intermittent and substantially less than full-time. When he has found work, Kyanah has been cared for by others. She was placed in long day-care before she went to school from 7.30am until 6pm for at least two days a week. Mr Goddard received a Government rebate for the cost of the day care.

230 Kyanah started school at the age of five and attends after-school care. Mr Goddard receives money from the Government to offset the cost of such care. Had Rebecca survived, it is likely that she would have returned to work when Kyanah started school and put Kyanah into after-school care.

Mr Goddard's claim under the Compensation to Relatives Act

231 In the Second Amended Statement of Particulars filed 18 October 2013, Mr Goddard alleged that he was dependent on Rebecca for four hours a day of domestic care and assistance that she provided to him. The assistance was said to be meal preparation, shopping, domestic cleaning, emptying rubbish, caring for the garden, washing his non-work clothes, washing dishes, spring cleaning, bill-paying and driving. A rate of $49 per hour is claimed for the past and for the rest of his life.

232 The first obstacle to an award of damages for this alleged loss is that the evidence establishes that, with minor exceptions, Mr Goddard has, since his wife's death, either performed such services for himself or such services have been provided for him by his various de facto partners from time to time. The minor exception is, in my view, de minimus and pertains to a single instance where Rebecca's friends visited the house and decided to clean it for him.

233 For the reasons given above I consider that s 15 of the Compensation to Relatives Act applies. Section 15 is, in my view, intended to cover the field of damages for gratuitous attendant care services. The definition of "gratuitous attendant care services" in s 15(1) is confined, relevantly, to services of a domestic nature that "have been or are to be provided by another person" to a claimant. Accordingly, services that Mr Goddard provides to himself are excluded.

234 The second, and independent, obstacle to the award claimed is that there is insufficient evidence to establish, or quantify, the need. There is no credible basis for finding that the loss of the services Rebecca provided to Mr Goddard resulted in a net loss to him, much less a net loss of four hours a day. Mr Goddard admitted that he assisted with household tasks, including meal preparation, did shopping and looked after Kyanah. Rebecca told her sister-in-law, Ms Morandin, and her friend, Ms Murdoch, that Mr Goddard was "good with the boys". I am satisfied that Mr Goddard also performed tasks for the benefit of Lindsay as part of his role within the household.

235 Mr Goddard gave some broad evidence in re-examination that he performed 10% of the household duties and Rebecca performed 90%. I do not accept this evidence. There was no basis in the evidence for distinguishing between the services Rebecca and Mr Goddard provided to each other and those relating to the children or for assessing that the losses exceeded the gains.

236 Furthermore, since I am not satisfied that Mr Goddard was actually working or engaged in any remunerative employment in the six months prior to Rebecca's death, the foundation on which the claim is made (that she was the housewife and he was the breadwinner who was away from the house during the working day) has not been made out.

237 Since Rebecca's death, Mr Goddard has been in at least three de facto relationships, the third of which was extant at the time of the hearing. These relationships have lasted in total for over five of the eight years since Rebecca's death. Where services are provided by another person who is a de facto partner at the time, such services would also appear to be excluded by the principles referred to above which require account to be taken of the prospects of remarriage since this is, according to the authorities, a benefit of the death of a spouse, or de facto spouse: Nguyen v Nguyen at 265-266 per Dawson, Toohey and McHugh JJ.

238 Accordingly, even if s 15 did not apply, Mr Goddard would not be entitled to an award of damages.

Contributory negligence

239 The defendants rely on contributory negligence as a defence to Mr Goddard's claims.

240 The relevant provisions are:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

5T Contributory negligence-claims under the Compensation to Relatives Act

(1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person.

(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

241 These provisions have the effect that any contributory negligence of either or both of Mr Goddard and Rebecca must be taken into account in reduction of Mr Goddard's claim: see also Benjamin v Currie [1958] VR 259 at 260-262.

242 Rebecca had been given a discharge brochure at 11am on the previous day, which contained the following passages:

WOUND CARE

Contact your doctor immediately if the operation site becomes:

Very hot or cold to touch

If you have excessive pain

If the area loses feeling, becomes numb

If bleeding persists or increases.

REMEMBER

The Emergency Department is open 24 hours a day if you have any concerns and cannot contact your GP.

243 Section 5R requires me to consider what a reasonable person in the position of Rebecca and Mr Goddard would have done on the basis of what he or she, as the case may be, knew at the relevant time.

244 A reasonable person in Rebecca's position would have read the brochure and also given it to Mr Goddard to read. It must have been clear to both Mr Goddard and Rebecca that her condition was substantially deteriorating over the course of the afternoon and evening of 14 December 2005.

245 In my view, a reasonable person in Rebecca's position would have either contacted her doctor, or asked Mr Goddard or her mother to take her back to hospital by 8pm on 14 December 2005. Such a person would have appreciated the concern exhibited by the hospital that she be able to eat normally prior to her discharge and would have realised that the lengthy episode of vomiting indicated that there was something seriously wrong that required medical attention. Rebecca was able to call the ambulance herself until she suffered a cardiac arrest. Had she done so at any time prior to 8pm on 14 December 2005, the unanimous view of the experts was that she would have survived.

246 Although I am not satisfied that Mr Goddard actually rang the hospital that evening, the fact that he told DOCS the following day that he had done so, shows, in my view, an appreciation by him that he realised that he ought to have brought her back to hospital or telephoned an ambulance at least by 8pm on 14 December 2005.

247 Even had I found that Mr Goddard was entitled to damages, I would have reduced them to nil under the Civil Liability Act on account of his and Rebecca's contributory negligence. Their conduct fell far short of the standard required of a reasonable person in their positions. It was a substantial cause of Rebecca's death.

Assessment of damages under Compensation to Relatives Act

248 For the reasons given above, I am not satisfied that Mr Goddard has, even were the defendants otherwise liable, established any entitlement to damages under the Compensation to Relatives Act beyond reimbursement of the expenses for Rebecca's funeral. The amount of $3,265 has been particularised but not proved. It cannot be included in the damages.

249 For completeness I propose to assess the children's claims as if s 15 of the Civil Liability Act did not apply, although, for the reasons given above, I consider that it does apply and that its application precludes their claims.

The hourly rate

250 Whereas the commercial cost of providing the services is the basis for assessment in claims by injured plaintiffs for damages in accordance with Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, it is no more than a starting point for the assessment of damages under the Compensation to Relatives Act: Nguyen v Nguyen at 265 per Dawson, Toohey and McHugh JJ. The income foregone by the alternative service provider, which has been rejected as an appropriate measure in respect of Griffiths v Kerkemeyer damages, is, however, regarded as an acceptable basis for assessment for damages under the Compensation to Relatives Act: Nguyen v Nguyen at 249 per Brennan J; Mehmet v Perry [1977] 2 All ER 529 (where a widower gave up work to care for his children and was awarded damages assessed by reference to his lost income), cited with approval by Handley JA in RTA v Jelfs [1999] NSWCA 179 at [76].

251 There is a range of hourly rates in the evidence. If one adopts a rate equivalent to the earnings of Mrs Rumble, the rate would be $15 per hour. If one uses Mr Goddard's daily labour rate of $200, the figure is $25 per hour. Ms Hardy gave evidence that services were available for between $16 and $22 per hour. When one uses an accredited agency, the rates increase to higher rates. Ms Flanagan, the occupational therapist qualified for the plaintiffs, calculated a median hourly rate for five service providers to come up with an hourly rate of $42.10 for weekdays and up to $80.75 for public holidays. Ms Hardy, the occupational therapist qualified for the defendants, obtained the schedule of payments from the Lifetime Care and Support Authority which is said to be intended as a guide to reasonable costs. Care and domestic services are provided for at $31.41 per hour with $149 for overnight stays.

252 The assessments made by Ms Flanagan and Ms Hardy of the replacement cost of the care provided by Rebecca to her children which they have lost by her death have been of assistance. However, such assessments are only the starting point. Damages under the Compensation to Relatives Act are to be assessed on a different basis from the way in which damages are assessed where the defendant's tort has created a need for care in an injured plaintiff.

253 In all the circumstances I consider the figure of $25 per hour to be a reasonable rate for assessment of damages for care and assistance. Although I accept that there are higher hourly rates which might be payable if the care was provided commercially through an agency, I am satisfied that such assistance could reasonably be obtained at that figure. I note that there is no suggestion that any of the services said to be required will be paid for.

The need for care

254 Ms Flanagan and Ms Hardy analysed the tasks performed by Rebecca and Mr Goddard for the three children and for each other prior to her death and the need for care since that time and into the future. The bases for their opinions have been substantially undermined by the evidence in the proceedings. For example, they relied on the following:

Mr Goddard worked for forty hours per week plus five hours per week travel time. The late Ms Rumble provided all care to Kyanah during this period of 45 hours per week.

255 I do not accept that Mr Goddard worked these hours when Rebecca was alive. Nor do I accept that he was away from home during these hours or that Rebecca provided sole care to Kyanah for that period.

256 It was common ground between the experts that juveniles reasonably require 24-hour care and supervision from birth to the age of 17 when they may be permitted to leave school or obtain a driver's licence. Some of that care and supervision is provided by school authorities, friends and other relatives for several hours a day. To the extent to which their late mother provided that care, they have lost the material benefit of the services she provided to them, as long as the care she provided was not superfluous to their needs.

Lindsay

257 As referred to above, the defendants submitted that Lindsay ought to receive no damages since his loss has been reduced to nil as a result of Mrs Rumble's act of applying for, and being granted, an order which had the effect of requiring her to be responsible for him, both on a day-to-day and a long-term basis. Against this, the plaintiffs submitted that, to borrow a term from Nguyen, there would be a "moral revulsion" against accepting the defendants' submissions that the generosity and charity of his grandmother should reduce any award in his favour to award to nominal damages.

258 It is not possible, by reference to the evidence, to identify under which provision of the Family Law Act the order in respect of Lindsay was made, since the documents in evidence did not reveal what section was used. I have reviewed the Family Law Act and have been unable to identify any source of power for the making of the order other than the power to make a parenting order under s 65D of the Family Law Act

259 As Lindsay's grandparent, Mrs Rumble had standing to apply for such an order pursuant to s 65C(ba) of the Family Law Act. The parenting order ceases to be in force when Lindsay turns 18 (s 65H(2)) or if an adoption order is made (s 65J). Parenting orders have the effect of prohibiting interference with the terms of the order: see, for example, s65M, s65N. The terms of the parenting order require Mrs Rumble to be responsible for Lindsay. However, the order, unlike an adoption order, does not have the effect of making her his parent.

260 Accordingly, I do not consider that s 66C applies to impose on Mrs Rumble the legal obligation to maintain Lindsay although this is, in substance, what she had done since he moved in to her house after his mother's death. Young JA in Grosso v Deaton was considering the position of parents of a child and the effect of s 66C, which is distinguishable from the instant case where Mrs Rumble did not become Lindsay's parent although she was, and remains, in loco parentis.

261 I requested assistance from the parties to identify cases from other jurisdictions that might bear on the question.

262 The plaintiffs referred me to Turner v Owen (1984) Aust. Tort Rep. 80-667, a case in which a single mother died leaving three children. The deceased's mother and sister looked after the three children. The trial judge did not take into account the grandmother's services when assessing damages. The Full Court of the Supreme Court of Western Australia which dismissed the appeal, rejected this ground by reference to the principles in Griffiths v Kerkemeyer. Chief Justice Burt considered that Griffiths v Kerkemeyer required the court in assessing damages in a fatal accident claim to disregard gratuitous services on the ground that they were not rendered to relieve the tortfeasor.

263 In my respectful view, this line of reasoning is inconsistent with Nguyen which distinguishes damages to be awarded to an injured plaintiff for gratuitous care (which are to be determined by reference to Griffiths v Kerkemeyer) from those awarded to claimants of the deceased in fatal accidents claims. In the latter category gratuitous assistance that reduces the loss, whether by remarriage or otherwise, is a relevant consideration in assessing damages in such cases.

264 The defendants referred me to the following cases.

265 In Fawns v Green [1972] WWR 272, a decision of Gregory J of the British Columbia Supreme Court, the deceased and her three-year old illegitimate daughter, lived with her parents. She was employed, as were her parents. She paid her parents for food and board. Three months after their daughter's death, the parents legally adopted the infant. Some two months later they left Victoria and went to live in Winnipeg. The claimant argued that she had lost the care, education and training that she might have expected from her natural mother and that she had gained nothing by the adoption because her grandfather conducted himself, effectively, as her father before the adoption. The defendants argued that the claimant now had a full-time mother (since Mrs Fawns had resigned from work on her daughter's death), whereas the deceased had not only worked but also had other interests that occupied her spare time. The defendants also submitted that the claimant's grandmother's life expectancy was such that the claimant would receive at least as much care and attention as she would have received from the deceased, until she became an adult.

266 Justice Gregory accepted the defendant's submissions and concluded that the child had suffered no material benefit by reason of her mother's death after adoption. His Honour said at [27]:

"In my opinion the fact that an orphaned child has been adopted puts her in the same position as a widow who has remarried, only more so, because adoption is irreversible."

267 The defendants also referred to Stonehouse v Gamble (1982) 44 BCLR 375, a decision of the British Columbia Court of Appeal. The trial was by jury. The relevant ground of appeal was that the trial judge had erred in instructing the jury to ignore the contributions made by the grandparents who had looked after the deceased's child and became her legal guardians. The Court was taken to Fawns v Green. Justice Anderson (with whom Hinkson and Macfarlane JJA agreed) said at [123]:

"Assuming the above cases [including Fawns v Green] were properly decided, about which I have reservations, I am clearly of the view that the principles enunciated in those cases relating to stepparents and adopting parents should not be extended to cases involving foster parents or grandparents."

268 The appeal was dismissed, relevantly on the basis that the trial judge's direction to the jury was correct. Fawns v Green was distinguished in Stonehouse because the grandparents had not adopted the child; they had merely become her guardians.

269 The defendants referred to Watson (Administrators of) v Willmott [1991] 1 QB 140. The infant plaintiff was travelling in a car with his parents when his mother was killed in an accident caused by the defendant's negligence. Three months later the plaintiff's father was admitted to a psychiatric hospital to be treated for a severe depressive illness caused by the loss of his wife and the plaintiff, aged three, went to live with his aunt and uncle. Four months after the accident the father committed suicide. The plaintiff remained with his aunt and uncle, who adopted him shortly before his fifth birthday. The parental rights relating to the plaintiff thereby became vested in the adoptive parents in accordance with s 8 of the Children Act 1975 and thereafter, by virtue of paragraph 3(1) of Schedule 1 to that Act, the plaintiff was to be treated as if he had been born a child of the adoptive parents. Justice Garland held that the adoption replaced the non-pecuniary dependency on the deceased mother and that there was, accordingly, no such loss after the date of adoption. However, damages were awarded in respect of the loss up to the date of adoption, notwithstanding that some of the care for that period had been provided by the persons who became the adoptive parents.

270 Although the cases referred to above provide some support for there being a clear dividing line between adoption on the one hand and other lesser legal or moral obligations that might be fulfilled with respect to child claimants following fatal accidents, I do not consider that the existence of such a line is consistent either with the principles set out in Nguyen or the well-established preparedness to view legal marriage and de facto marriage as relevant factors. Although distinctions between cases can always be drawn, it must be remembered that it is s 4 of the Compensation to Relatives Act that governs the assessment of damages in fatal accident claims. It would seem to me inimical to the principles of statutory construction for words of such breadth to be constrained by glosses that import such formal distinctions.

271 In my view, Lindsay's position, as a matter of substance, is not dissimilar from the position in which he would have been, had Mr Goddard remarried and his new wife taken on full responsibilities as step-mother to Lindsay. The difference is, as far as Lindsay is concerned, that his grandmother is acting as his mother, rather than his step-father's putative wife. Claims under the Compensation to Relatives Act are typically brought on the assumption that the family unit remains intact and is either supplemented, or not, as the case may be, by remarriage of the surviving spouse. In Lindsay's case Mrs Rumble removed him from his immediate family unit and gave him a secure legal position in her own, although she has not formally adopted him.

272 Where a surviving spouse has remarried by the date of trial, it is open for damages to be assessed at nil, or a nominal award made, depending on the relative financial advantageousness of the second marriage: Willis v The Commonwealth [1946] HCA 22; 73 CLR 105. The relevance of a subsequent relationship does not depend on there being a legal marriage since de facto relationships are also relevant to the question whether the loss of material benefit has been, or will be, reduced.

273 I do not discern any reason in principle to distinguish between remarriage, or a new de facto relationship on the one hand, and legal adoption or the arrangement in place under the Family Law Act that will apply until Lindsay is 18 on the other, for the purposes of Lindsay's claim. The words of the statute do not provide any warrant for viewing the prospects of remarriage as being in a special category although they are commonly distinguished from voluntary assistance given by others. If permanence were any indicator of relevance, one might observe that Mrs Rumble's commitment to Lindsay, as formalised by the Local Court, is unlikely to be less enduring than marriage or a de facto relationship.

274 In my view, it is appropriate to make some allowance for Lindsay's loss prior to the making of the orders by the Local Court on 10 February 2006.

275 In my view damages ought be assessed on the basis of 25 hours a week for the period of 8 weeks from the date of death to the date of the order, being $5,000.

276 Had I rejected the defendants' argument about the effect of the Local Court orders I would have made allowance for 20 hours a week at $25 per hour for the past. I would have made a similar allowance for the future until Lindsay turns 18. The Government benefits to be received by Mrs Rumble that are referable to her care of him would need to be deducted from this figure.

Ethan

277 Prior to Rebecca's death Ethan stayed with his mother on occasional weekends. On such occasions he would arrive on Saturday and leave on Sunday. Although there is scant evidence on the subject, such evidence as there is shows that there was considerable friction between Ethan and Mr Goddard and that Ethan undertook these visits unwillingly. Ethan's natural father moved with him to the United Stated in August 2006. It is not suggested that there has been any loss of material benefit after that date.

278 In my view, Ethan should receive no allowance. His relationship with his mother was compromised so heavily by Mr Goddard's apparent aversion to him that I do not accept that he has suffered any loss of care or services by reason of his mother's death. Although he would undoubtedly had visited his mother, had she survived, in the months before his departure for the United States, his needs would not, in my view, have been fulfilled by her since his natural father was concerned that Ethan not be subjected to the violence and conflict that his presence appears to have engendered in Rebecca's household and took steps to make sure that Ethan remained in his care.

Kyanah

279 As for Kyanah, I propose to assess damages on the basis that she has lost 50 hours a week until the age of five, 35 hours a week from five to eight years and 25 hours a week thereafter until she is 18 years old. In making this assessment, I have taken into account in particular that there was a real possibility that, had her mother survived, her parents would have separated and her mother would have relinquished the care of her either to Mrs Rumble or to Mr Goddard and that as she grows older she will be in a position to provide domestic care and assistance to her father or to whoever is caring for her. Further, she is presently receiving substantial care from Mr Goddard, who is in a position to provide it, subject to his intermittent work commitments, and also from his present de facto who is providing such care in combination with care provided to her own child.

280 Mr Goddard has received $190,758.24 of past benefits which must be deducted from the figure for past care.

281 On this basis the amount for past care for Kyanah is $182,750 calculated as follows:

Age	Calculation	Sub-total
Up to 5 yrs- school commences	$25 x 50 hours x 216 weeks	$270,000
5 years to 8 years	$25 x 35 hours x 156 weeks	$136,500
8 years to judgment	$25 x 25 hours x 50 weeks	$31,250
Subtotal	Total past care	$437,750
Deduct	Total benefits of $190,758	($190,758)
Total		$246,992
	Less 15% for vicissitudes, say	$210,000

282 I assess the amount for future care as:

Future care to age 18

$25 x 25 hours= $625 per week x 412.9 (multiplier for 10 years) less 50% for to take into account benefits to be paid and vicissitudes

$130,950 (rounded)

Credibility

283 My findings based on the evidence of witnesses in the case appear from the reasons above. However I propose to address the credibility of Mr Goddard and Ms Plater separately since each was the subject of specific challenge.

Credibility of Mr Goddard

284 Much of the evidence given by Mr Goddard could not be tested since it related to conversations he had had with Rebecca and a description of what occurred before she died, as to which he is the only surviving witness.

285 Mr Goddard gave apparently credible evidence in cross-examination denying that he had a partner, or partners, at present or that he met with women from time to time. However his sister Ms Morandin disclosed in her evidence that a woman, Tanaya, and her two children had moved into Mr Goddard's house about a month previously. Ms Morandin said that it was an intimate relationship and Mr Goddard and Tanaya shared a bedroom. Ms Morandin had observed Tanaya doing the housework including doing the dishes and cleaning the house.

286 Mr Goddard's preparedness to lie about such a matter substantially undermines his credibility. I regard his evidence generally with circumspection and do not accept it except where it is consistent with objective probabilities, against interest or corroborated.

Credibility of Ms Plater

287 The plaintiffs sought to impugn the credibility of Ms Plater although they also relied on it by tendering as part of their cases a note she made of what had occurred on 13 December 2005. I accept Ms Plater's evidence that, when she heard of Rebecca's death, she decided to make a note of what had occurred on 13 December 2005 when it was still fresh in her mind. She explained that she made the note because Rebecca's death was an unexpected outcome in an otherwise routine presentation and routine post-operative recovery.

288 She did not include her personal note in the clinical notes because she did not consider that it belonged there. It was a personal note. She did not recall where she had been when she wrote it. She inferred from her use of hospital stationery that she had started to write it when she was at the hospital but she was not sure. She wrote it within a week of hearing of Rebecca's death. When she had written it she took it home and put it in a cupboard beside her bed amongst other private papers, including birthday cards and the like. She came across it by chance many years later and handed it to the defendants' solicitors.

289 Ms Whalan insinuated in her cross-examination of Ms Plater that there was something odd or suspicious in Ms Plater's making of the personal note as an aide-memoire and her keeping it at home. I do not regard Ms Plater's conduct in that way. I infer, on the basis of Ms Fitzgerald's evidence, that Ms Plater wrote the note as a result of the Nursing Unit Manager's suggestion that they should both make a note of what had happened for future reference.

290 I am disposed to accept the contents of the note as being an accurate record of the relevant interaction between Ms Plater and Rebecca on that day. The note, which the plaintiffs tendered, forms the basis for the findings set out above concerning Ms Plater and Rebecca's symptoms on the morning of 13 December 2005.

Orders

291 I make the following orders:

(1) In proceedings 289707 of 2008, judgment for the defendants.

(2) In proceedings 289708 of 2008, judgment for the defendants.

(3) In proceedings 289709 of 2008, judgment for the defendants.

(4) Unless an application for a different order is made in writing to my Associate within seven days of this order, order the plaintiffs to pay the defendants' costs of each of the proceedings.

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Decision last updated: 19 December 2013