Child PTSD – Generals & Lost Earning Capacity

Ali v Auguste & Anor [2014] QDC 272

These sorts of trials are uncommon and this decision helpfully analyses the relevant principles.

Ryrie DCJ

[1] Ms Al Ali, the plaintiff in this matter, claims damages for personal injuries and consequential loss suffered by her as a result of a motor vehicle accident which occurred on 11 September 2011. Ms Al Ali had been walking on a footpath with her cousin, now deceased, when the vehicle driven by the 1st  defendant mounted onto the footpath and struck the deceased causing her to propel some distance forward before finally hitting the ground. As a result of being struck, the deceased suffered multiple injuries and was bleeding heavily from her head. Ms Al Ali, who was walking with the deceased at the time, having witnessed the events so described, stayed with the deceased at the scene of the accident. She also viewed  the deceased’s body as she remained on life support. That life support was subsequently turned off. As a consequence of the matters set out, Ms Al Ali, who was 12 years at the time, not surprisingly, suffered severe nervous shock and upset.

[6] On the 2nd October 2013, the plaintiff was assessed by Dr Ewing (Ex 1, Tab 1) as suffering from Post Traumatic Stress Disorder with dissociative symptoms, chronic severe. Dr Ewing also diagnosed her as suffering from a possible Persistent Complex Bereavement Disorder (not yet however recognised by the DSM-5). Dr Ewing assessed Ms Al Ali’s PIRS as 7% impairment of the whole person.

[14] My overall assessment of the plaintiff as a witness  was  one  worthy of absolute belief. At no time did she try to embellish her evidence in order to promote herself in a more favourable light. Indeed, she struck me as a forthright young girl who has tried and is continuing to try her best to put the tragic events which have led to her suffering the injury behind her. That is evident in her evidence where she is optimistic for her future. This is despite that she has continued to suffer, as Dr Ewing noted, persistent posttraumatic stress disorder symptoms with fluctuating severity since the accident which are now unlikely to ever fully resolve

Assessment of General Damages

 [15]  Section 61 of the CLA requires the court to assess an Injury Scale Value (‘ISV’)  for the injury suffered. The Regulation prescribes rules for the court to assess the ISV for a particular injury, according to a table set out in Schedule 4.1

[16] The parties agree that Item 12 (ISV range 2 to 10) is the appropriate item number in Schedule 4 however they disagree on the appropriate ISV. The plaintiff contends for 10 and the 2nd defendant submits 7. Counsel has provided helpful submissions on this issue in their outlines, marked Exhibit 2 and 3 respectively. I have taken those factors into account when making my determination.

[17] I assess an ISV of 10. Ms Al Ali has a condition which is now chronic in nature. The medical notes contained in Exhibit 1 (especially Tab 6) the subject of a consultation with Ms Adulla (5th March 2014) confirms that the constellation of symptoms described to Dr Ewing in October 2013 have continued. Those include nightmares,  getting  angry  quickly,  irritability,  being  easily  startled  and  feeling jumpy and the like. Importantly, those notes reveal that she is still suffering from lack of concentration, is absent minded, can’t focus on anything and was not enjoying her schooling (Grade 8) at all. She told the counsellor that prior to the accident she had enjoyed school and her teachers a lot.

[18] Those notes were also not inconsistent with the plaintiff’s own description of the difficulties she is still having at this point. The circumstances of the accident witnessed by her were horrific and not surprisingly Dr Ewing (who was cross examined at hearing) confirmed her view that this plaintiff will more likely than not continue to have persistent symptoms associated with the posttraumatic stress disorder she has suffered for the rest of her life. This is so even though it was accepted by the doctor that appropriate treatment may help to improve  her condition, but will never fully resolve it (T1-72).

[19] Dr Ewing also explained in her evidence the impact which this plaintiff  may experience having suffered such a disorder which she opined had now become chronic in nature. She explained that while it was always difficult to predict with any certainty, her opinion still was that the plaintiff was certainly at risk of having a relapse or even developing depression as having chronic post traumatic stress disorder can also be a risk factor in that regard (T1-74). She also described in her evidence that certain triggers may also place her at risk of a relapse, including any increase or decrease in her stress levels.

[20]    Importantly, even though the doctor initially agreed with the general proposition put to her during cross examination that there may be variables in the plaintiff’s case which make it impossible to predict with any degree of probability whether her condition will have an effect on her ability to earn income in the future, Dr Ewing clarified that answer further in re-examination. At line 15 (T1-74) Dr Ewing confirmed the initial opinion she gave in her report. While she accepted that the plaintiff was already a disadvantaged young woman who also appeared (though it was not ever confirmed) to have had some learning difficulties as well as the inherent difficulties associated with translocation to a country where she did not speak the language, posttraumatic stress disorder is nevertheless commonly associated with difficulties in memory and concentration. Dr Ewing noted (correctly) that those difficulties have continued and never fully resolved and she observed that those difficulties in themselves can further exacerbate and maintain any problems that she was already having in learning. Dr Ewing went on to explain that while it was always difficult to predict whether or not she’ll be able to have a stable time through her life. She accepted that she will more likely gain employment, nevertheless opined that people with post traumatic stress disorder often find it difficult to sustain employment, depending on the level of severity of their symptoms, which is dependant on other stressors in their life at the time.

[21] Dr Ewing also confirmed in re-examination that the same analysis applied to the plaintiff obtaining promotions during her working life. She gave the example that if the plaintiff had to take time off or was to simply have a bad day rather than a good day due to ongoing symptoms and the like, that can often be reflected in the workers’ work record and can be a factor which goes against promotion (T1-74).

[22] While a percentage assessment in terms of whole person  impairment  is  never decisive insofar as any ISV awarded, it is still of relevance regarding which Item under the Schedule is the more appropriate one. That is evident from the wording contained in the Items themselves which make such a reference by way of example. It does not follow however that it means that where Item 12 is identified by way of example as the appropriate Item under the Schedule, that a selection in the middle must therefore follow or is more appropriate simply because 7% impairment of the whole person has been nominated by Dr Ewing.

[23] Taking into the account the plaintiff’s age, her degree of  ongoing impairment  (to which Dr Ewing gave evidence), the plaintiff’s future prognosis (which at best was guarded, as emphasised again by Dr Ewing in her evidence and indeed in the file note at Tab 2), the continuing persistent nature of her symptoms (which are now likely never to fully resolve), the fact that the plaintiff has suffered a serious psychiatric disorder as a young child (which she will more than likely now have to endure ongoing symptoms for the rest of her life) and the impact which it has had upon her already notwithstanding her attempts at counselling and the two episodes of self harm in 2012, I consider that an assessment of an ISV of 10 is more than appropriate in this case.

[24] I assess general damages at $13,350 pursuant to section 62 of the CLA and section 3(b) of Sch 7 of the Regulation.

Future Economic Loss

[27]    Section 55 of the CLA therefore is relevant in these circumstances. It provides:

“(1) This section applies if  a  court  is  considering  making  an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the

person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. …”

[28] It is trite law to say that any future economic loss assessment if made must be determined by reference to the facts of the particular case at hand and not through simple regard to other decisions in which courts have made awards of damages in broadly similar circumstances. Accordingly, it follows that an examination of the facts  of  the  case  at  hand  is  necessary  when  determining  any  assessment      or

otherwise.2 It is also trite to say that even if it is found to be that a plaintiff has suffered a diminution of his or her earning capacity as a result of the injury, it nevertheless must still be shown, on the balance of probabilities, that it will or may be productive of financial loss before any award can be made.3

[29]    I am also cognizant of the relevant authorities and assisted by the Court of Appeal in Allianz Australia Insurance Limited v McCarthy,4 which helpfully sets out that where a claim for future economic loss is being made, then this court must set out the assumptions made and the methodology applied as best as it can, in order to properly articulate as to how any assessment for future economic loss has been made.

[42] Having regard to the matters already canvassed by me and bearing those matters in mind, I now turn to the question of whether or not any assessment of damages for future economic loss ought to be made in this case with reference to the principles observed in Malec.5 As observed, by the President of the Court of Appeal in Allianz Australia Insurance Ltd v McCarthy,6 I am required to set out my assumptions and any methodology adopted which I shall now attempt to do.7

[43] It is apparent from the evidence, to which I have already referred, that the injury which the plaintiff suffers is likely to have a long term impact upon her future. This is evident from the evidence of Dr Ewing who confirmed that her posttraumatic stress conditions will never fully resolve. Dr Ewing has referred to the likelihood of her continuing to suffer from some degree of psychiatric impairment to varying degree into the future, which in turn will impact upon both her academic and occupational future. Having regard to that evidence, I am satisfied on the balance of probabilities, that the plaintiff has suffered a diminution of her earning capacity as a result of the injury suffered.  However, that is not the end of the matter. As Counsel for the 2nd  defendant properly submitted, I am also required to be satisfied, on the balance of probabilities, that such diminution of any earning capacity will or may be productive of financial loss before any assessment as to future loss may be made.8

[44] The uncontroverted evidence of Dr Ewing was that Ms Al Ali’s academic and occupational future has now been compromised because of the ongoing nature of her disorder which, even with further treatment, will never fully resolve because it is now chronic in nature (T1-72). She also gave evidence that she is at real risk of relapse and may as a consequence of her condition now being chronic in nature, be at risk of developing other mental conditions such as depression during her lifetime (T1-74).

[45] Accordingly, I find that there is a very real rather than a remote chance that the plaintiff will relapse into the future, depending of course upon the various stressors or triggers occurring in her life at the various times. There is a real chance in my mind that in those circumstances that any such relapses will or may be productive of financial loss, in that any fluctuating mental condition may cause her to lose an opportunity to obtain employment if it occurs at a time when she is seeking employment, or may prevent her from sustaining her employment if the relapse is serious enough. If she happens to be already employed, then I find that there is a real chance rather than a remote one that it could also impact upon her ability to attain promotions. Dr Ewing’s evidence on this point supports such assumptions being made. At the very least, there is a real rather than a remote chance that she will either simply not be able to work at all at times during the course of her working life or may require to have time off work without pay.

[46]  I assume that the plaintiff will be able to obtain work in the future and that it may be, due to Ms Al Ali’s own stoicism and determination, her chosen future employment choice (as a phlebotomist) that may well be achieved if she is offered any such opportunity.

[47]   However, I also consider that there was a very real chance and not so remote as to be speculative, that had she not suffered the serious injury when she did, she would have performed much better than she has so far at her schooling, had  she not suffered the injury at all. The demonstrated efforts of the plaintiff academically even prior to the accident, together with the evidence of Dr Ewing already referred to, supports such an assumption being made. In those circumstances, there was a real chance, to a point of relative certainty, that I consider that had she not had such a injury at such a tender age with continuing ongoing consequences, that she would have, more likely than not, achieved better academically, which in turn would mean that there would have been more employment opportunities made available to her in the occupational future and not just that of the type she is now prepared to settle for. I find that in those circumstances there has been a real probability that she has now been disadvantaged in her general competitiveness on the open labour market by not being able to be better academically qualified than others who have not suffered such a similar injury, and as a consequence, she has therefore suffered a diminution of her earning capacity which will probably be productive of financial loss in her future. While it is accepted that at the point she suffered her injury (at age 12) she had not been progressing academically to any recognisable academic achievement, there was still notwithstanding, a real rather than a mere remote chance, that had she not suffered such a serious injury with ongoing symptoms at that particular stage of her life, during her formidable learning years, that this plaintiff would have been better able to apply herself to her studies and therefore have obtained better marks overall academically. While it cannot be determined with any certainty at all that she would ever have obtained sufficiently enough the academic grades to become a dentist (generally OP 1-6 for University entry) based on the academic evidence which I have available prior to the accident, it cannot be said that there was simply no chance at all so as to be considered negligible, that she would not have done any better academically overall had she not had the injury at all. In those circumstances, the lost chance to perform better means that any better remunerative work opportunities than those of a phlebotomist may well have also been available for her in the working future. Even if dentistry was always beyond her, she would probably have done better but for the injury, and therefore probably had more remunerative employment.

[48] As already noted, it is said on the 2nd defendant’s behalf that she may get some improvement with further treatment if successful. That is so. That she may never have achieved academically enough to become a dentist. That is also true. That she may only have been likely to perform better in a vocationally oriented program than one oriented to professional qualifications as noted by Dr Ewing. That is also true. That she might simply follow the path of her sisters, take up full time domestic duties and continue to improve overall in her recovery as she develops her own independent adult life, I think the probability of this is low. However, as explained by me, those prospects must be weighed on balance with what I see as a very real chance of a much worse future for this plaintiff than even my allowance assumes based on the assumptions that I have made.

[49] I would rate the chances of this plaintiff suffering  significant  financial  loss of earnings over the course of her working life, due to the continuing effects and risks associated with her chronic condition caused by the subject accident, as virtually certain and any chance of her getting by throughout the course of her life without any significant loss or problems as very low.

[50] Ms Al Ali has potentially 50 years of working life in light of the ever-changing retirement age. She did not discount having children completely so some adjustment has to be made to include any time that may be taken out of the workforce for that purpose, notwithstanding that she admirably believes that she can work and look after her children too. Obviously, I must assess any prospective loss on very imprecise materials. Not intended as a criticism of Counsel at all, I have not been given, for example, even what a phlebotomist might earn per week. Nevertheless doing the best I can, it is appropriate to make a global assessment of $110,000 (one hundred and ten thousand dollars). I have not calculated future loss of superannuation as a separate award of damages because of the imprecise material available to me. In order that my methodology may be understood insofar as how I have made my global assessment, I shall now set that out.

[51] I have arrived at the figure of $110,000 by assuming that Ms Al Ali will have to have many periods off over the course of her potential working life because of the nature of her injury and her consequent susceptibility to relapse. That period I have assumed will likely be in the order of 18 months, particularly having regard to the potentially long working life ahead of her. I have taken into account the nature of the work involved in being a phlebotomist and perhaps sometimes stressful environment which the plaintiff may encounter during the course of carrying out that work. I have also used the average weekly wage for all employees,9  which is $58,936 per year gross ($1123 per week) as a guide only, making the adjustment for tax, applying that figure over 18 months by reference to the 5% tables, then adjusting again for contingencies at 15% (assessed at 15% to further reflect any time off to have children and also recognising that Ms Al Ali is likely to be less competitive on the open labour market, in any event, than an average worker, regardless of any injury suffered, because of the unique difficulties in coming to Australia when she did, the impact it has had upon her schooling and to account for any possible learning difficulties). I have assessed that amount to be $59,000.10

[52] In addition to this amount, I have also assumed that Ms Al Ali will have in any event, lost over the course of working life the opportunity to have obtained more remunerative employment as a direct consequence of the injury which she has suffered, from which she will never fully recover. In order to compensate for such additional loss I have therefore assumed a net loss per week of $60 on its present day value and, again by using the 5% tables only as a guide, have taken into account her  potential  working  life  (50  years),  adjusting  again  for  the    abovementioned contingencies which I have already explained, assessed at $50,00011

(footnotes omitted)

David Cormack – Brisbane Barrister & Mediator

 

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