Sexual assault at optometry store and vulnerable plaintiff

Sapwell v. Lusk & Anor [2010] QSC 344

CATCHWORDS: EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – FORESEEABILITY – where plaintiff was employed by the defendants as an optical technician in an optometry shop – where plaintiff worked alone during daylight hours and would repair spectacles in the shop’s back room obscured from view – where plaintiff had limited view of the front section of the shop when in the back room – where the back room was not installed with any device to prevent people from following the plaintiff in to the back room or to alert the plaintiff to the presence of an intruder – where plaintiff was sexually assaulted by a customer when she was in the back room repairing his spectacles – where plaintiff claimed that she had a history of child sexual abuse and developed severe post traumatic stress disorder, depression and anxiety following the assault – whether the risk of injury to the plaintiff was foreseeableTORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where plaintiff was employed by the defendants as an optical technician in an optometry shop and was sexually assaulted by a customer when she was alone at work – where plaintiff developed severe post traumatic stress disorder, depression and anxiety following the assault – where employer owes a duty of care to employees to provide a safe system of work – where employer owes a duty of care to employees to take reasonable care to protect employees from the criminal behaviour of third parties – whether defendants breached their duty to take reasonable care to avoid the foreseeable risk of injury to the plaintiff

 

Issues:

Both liability and quantum were in issue, in particular the degree and content of the employer’s duty of care and the pre-existing vulnerability of the plaintiff once injured. The plaintiff was sexually assaulted, whilst she was working alone as an optical technician in a room behind the counter, which was not secure. The assailant was a 70 year old customer who subsequently died before his criminal proceedings were determined. The plaintiff suffered a serious psychiatric condition and alleged this brought back suppressed memories of when she was sexually abused as a child, which significantly exacerbating her work based psychiatric condition. The risk of assault in this manner was low. The cost of security measures which were not undertaken would have been in the order of $300-$1,200.

Atkinson J

[5] Mr Bart wanted his glasses fitted. In accordance with her usual practice, Ms Sapwell came out from behind the reception desk, where she normally sat, to check the glasses on his face. An optical technician typically stands in front of a customer to fit the glasses on the customer’s face. This was done by Ms Sapwell in the reception area of the shop which has a frontage onto the street with large glass windows affording an unimpeded view from the shop to the footpath and street and from there into the shop.

[6] Once Ms Sapwell fitted the glasses, she went into the back section of the shop to effect the necessary repairs. The area where repairs were conducted was immediately behind the reception desk. It was accessed by a corridor which led to the room in which were stored, inter alia, the tools for repairing glasses and a bench on which to do the work. There was a wall behind the reception desk which formed the front wall of the back section. That wall had a window in it which was predominantly frosted glass with 5 slits of clear glass. The frosted glass sections were each 15 cm and the slits of clear glass were 1 cm. The entry to the back section could not be shut or locked as there was no door to that area. There was no view into the back section from the reception area or footpath or street but some limited vision from the back section into the reception area of the shop.

[7] When Ms Sapwell went to the back section with Mr Bart’s glasses, she put them on the bench, took the appropriate tools out of a drawer where they were kept and bent over the glasses to repair them. She was unaware that Mr Bart then followed her into the back section of the shop. He placed his hands on her hips and she felt some gyrating behind her. He then cupped his hands on her breasts. She told him to “fuck off” or words to similar effect, pushed past him and fled to the reception area of the shop. He followed and bizarrely engaged in normal conversation as if nothing had happened. A female customer came into the shop and Mr Bart left, turning his head in an apparent attempt to hide his face.

[21] On 2 February 2005, Ms Sapwell lodged an application for compensation with WorkCover Queensland (WorkCover). Thereafter WorkCover paid for the medical treatment she received.

[22] On 23 February 2005, Ms Sapwell was seen by a psychologist, Peter Jordan, to whom she was referred by WorkCover for interview and assessment. He recorded the results of his examination of her by relating the history which he took from her including her feelings of anger, guilt and confusion that the assault had caused her such a severe psychological reaction. He observed that from the account provided to him there had been no non-work stressors which had contributed to the onset of her anxiety and negative mood symptoms. She had experienced stressors outside her work environment, such as her husband having been gravely ill and having been retrenched (although he swiftly gained another management position), a number of failed pregnancies and abandonment by her mother when she was five years old, as well her father telling her she had been sexually abused as a child, but they did not appear to have contributed to her then current symptoms although the earlier sexual abuse had made her vulnerable to the possibility that any further episodes of sexual abuse would trigger repressed memories or images of sexually abusive trauma and associated traumatic anxiety.

[29] WorkCover referred Ms Sapwell to a psychiatrist, Dr Michael Beech, for an independent report. After giving an account of the assault at work which is consistent with her evidence and all of the other accounts given to various medical practitioners and the police, she told Dr Beech that while giving her statement to police she suddenly “started screaming, crying and carrying on”. She told him that she had known that she had been molested as a child but had not prior to that been able to remember the details. When giving her statement she abruptly experienced the phenomenon of remembering the details of the abuse “like watching the movies all of a sudden.” She told him that the flow of memories continued intrusively for some time.

[35] Dr White related a history given to her by Ms Sapwell of previous adverse life events suffered by Ms Sapwell. These included the intra uterine foetal death or neonatal death of six babies in five pregnancies with one live birth giving her and Mr Sapwell a much loved son. In addition she gave a history of being repeatedly sexually assaulted as a child and adolescent by sequential male partners of Ms Sapwell’s mother. These assaults continued until Ms Sapwell was about 21 years of age. Nonetheless Dr White observed that notwithstanding her complicated history of sexual abuse and bereavement, at the time of the sexual assault in the shop, Ms Sapwell was functioning at a high level personally, occupationally and within her family unit. Dr White recommended that Ms Sapwell attend the Cognitive Behavioural Therapy Unit (CBTU) program at the Belmont Private Hospital.

[38] On 5 February 2007, Ms Sapwell’s husband was himself assaulted at work and suffered severe physical and psychological symptoms caused by a head injury. He has, according to Ms Sapwell, now recovered well but has not returned to work.

[44] This case presents a number of conundrums. To what extent did she tell the whole story to the various medical practitioners who examined her? What effect did this have on her credibility? What is the effect on her now of the various adversities she has suffered both before and after the assault? Was she sexually abused as a child and young adult? If not, what impact does that have?

[45] Ms Sapwell was living a stable well-adjusted life at the time she was assaulted. She had a long and happy marriage. She had coped with the adversities life had given her with fortitude and resilience. That changed after, and as a result of, her being assaulted at work. She lost her sense of security. It was not only that she was sexually assaulted but also that she was surprised by Mr Bartholomaeus coming to the secluded back section of the shop to carry out his assault.

[46] She had dealt with her childhood unhappiness by filing it away and trying to forget it. She did not tell her husband about the sexual abuse that she later told Ms Allan and Dr White she now believes she endured as a child and young adult. She says she disclosed this abuse to a counsellor and a psychiatrist whom she trusted. It is perhaps unsurprising that she was less willing to discuss these aspects of her life with doctors whom she saw only once or twice. She gave evidence, which I accept, that she found it very embarrassing to discuss such intimate matters with medical practitioners with whom she had not developed a trusting patient/doctor relationship. This view was supported by Dr Varghese’s evidence that he was reluctant to press her for details of the sexual assault as he was a male doctor and they were alone. Dr Mulholland also reported that he chose not to take her through the circumstances of the workplace assault as there was an abundance of evidence about it and he did not wish to re-traumatise her. In cross-examination Dr Mulholland said that it is a daunting prospect for a person to reveal all such information in one or even two consultations even though psychiatrists try to put them at their ease.

[47] Her evidence is therefore entirely credible that her complete disclosures were only made to the two female practitioners, one a counsellor and one a psychiatrist, whom she saw on a number of occasions and with whom she had developed a trusting clinical relationship.

[48] In addition I have had the advantage of seeing and hearing Ms Sapwell give evidence. While not over-estimating the advantage that this gives a trial judge, she appeared to be a generally truthful witness. She was obviously daunted by giving evidence and reluctant to talk about the sexual assault or assaults upon her in such a formal environment. She also appeared to be unwell and struggling with panic attacks as she gave evidence. Mr Grant-Taylor conducted a skilful forensic cross-examination of her and exposed some weaknesses and inconsistencies in her evidence for which she was able to give adequate explanations.

[49] Her evidence as to her memory of the sexual abuse she believes she suffered as a child was that she had never forgotten that she had been abused, but that she filed it away and did not tell people about it. This included her husband. She coped by keeping herself busy and not thinking about it. Her counsel, Mr Campbell, did not closely question her about those childhood experiences but rather had her adopt Dr Mulholland’s summary of those events which was based on what she told him.

[50] She gave evidence that she remembers being hospitalised at the age of 5 after an assault; she recalled her birthday occurring while she was in hospital. Her parents divorced soon after that and her father was awarded custody of the three children. She stayed with her mother from time to time and was assaulted by her mother and male partners of her mother. This happened in two phases: firstly when she was a child and then subsequently in her late teenage years until the age of 21.

[51] In cross-examination about this matter, she said that she always remembered some details of the sexual abuse of her as a child but not all of the details until after the assault when the memories became more vivid. I accept that this is the current state of her memory. The expert evidence was, however, useful in understanding how she came to have these traumatic memories.

[67] In the result, it does not matter whether her trauma from the sexual assault which led to her need for treatment has given rise to memories of childhood sexual abuse which did or did not in fact happen. The result has been the same: she suffers from a post traumatic stress disorder and on the majority of medical opinion, a serious depression from which she continues to suffer the effects. This was, on the expert evidence I accept, caused by the assault and was a foreseeable consequence of it.

Was the employer negligent?

[68] It is uncontroversial that an employer owes a duty of care to employees and that the defendants owed a duty of care to Ms Sapwell. That duty required the defendants to take reasonable care to avoid the foreseeable risk of injury to the plaintiff. If they did not, then they were in breach of their duty of care to Ms Sapwell. The legal test was aptly stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12 at [14]; (146) CLR 40 at 48:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.” (emphasis added)[1]

[69] In order to be foreseeable, it does not have to be probable that a risk of injury will occur. It is sufficient that it is that the risk is not far fetched or fanciful. It is not far fetched to suggest that a woman working alone in close customer contact, even in an apparently pleasant suburban setting, is vulnerable to assault particularly if the performance of her duties take her to a part of the premises which is not visible to passing traffic and yet is unable to be secured.

[70] In this case Ms Sapwell was in that position and the concentration on the task of repairing the glasses impeded her capacity to be watchful for her own safety. The risk of injury to her was foreseeable.

[71] The duty of an employer to take reasonable care to protect employees from the criminal behaviour of third parties, random and unpredictable as such behaviour may be, was recognised by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 at [26]; [2000] HCA 61; 205 CLR 254. His Honour referred with approval to Chomentowski v Red Garter Restaurant Ltd (1970) 82 WN (NSW) 1070, Public Transport Corporation v Sartori [1997] 1 VR 168 and Fraser v State Transport Authority (1985) 39 SASR 57. The employers were, in each of those cases, found liable for the injury to their employees from the criminal act of a third party because of their failure to implement a safe system of work in circumstances where it was foreseeable that their failure to do so exposed the employee to an increased risk of injury. It is the very nature of the non-delegable duty of care of an employer to his or her employees that give rise to that duty which does not exist in the ordinary neighbour situation where there is no general duty to prevent third parties doing harm to another.

[72] The source and content of the employer’s duty to the employee was set out in some detail by McColl JA in Gittani Stone Pty. Limited v Pavkovic [2007] NSWCA 355, whose analysis I gratefully adopt as apposite to this case. Her Honour referred to the statement of the duty by Gleeson CJ in Modbury Triangle and then continued with regard to the employment situation at [135] – [143]:

“[135] In New South Wales v Lepore [2003] HCA 4 at [2]; [2003] HCA 4; 212 CLR 511, Gleeson CJ referred to paragraph [26] in Modbury to describe the relationship between a school authority and pupil as ‘one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal’. His Honour’s remarks clearly also encompassed the relationship of employment.

[136] The reason the employer is subject to that exceptional obligation is because of the heavy burden imposed on employers to take reasonable care for the safety of their employees.

[137] An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury: Czatyrko v Edith Cowan University [2005] HCA 14 at [12]; [2005] HCA 14; (2005) 79 ALJR 839. That non-delegable duty is ‘a duty … of a special and ‘more stringent’ kind’: Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR at 550 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

[138] In New South Wales v Lepore, McHugh J at [144] explained that:

‘When a duty is non-delegable, the person owing it must ensure that the duty is carried out. If the duty is to take reasonable care of some person or property, the person must ensure that reasonable care is taken.’

[139] Gummow and Hayne JJ pointed out at [255] that the categories in which the duty to take reasonable care is non-delegable are:

‘… identified as a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person’s property.’

[140] Their Honours explained at [257] that:

‘A duty to ensure that reasonable care is taken is a strict liability … [and] [t]here is a breach of the duty if reasonable care is not taken, regardless of whether [the person] that owes the duty has itself acted carefully.’

and at [259] that:

‘The duty of an employer to provide a safe place and system of work and a safe staff is said to be non-delegable because ‘the employee’s safety is in the hands of the employer’ and because ‘[t]he employee can reasonably expect … that reasonable care and skill will be taken’.’

[141] The content of the employer’s obligation in the context of a criminal attack on an employee by a third party was considered by Mason P in English v Rogers, [2005] NSWCA 327, a case in which an employer was found liable for injuries to an employee caused by the criminal behaviour of a third party.

[142] In English, a cleaner and his wife whose duties required them to work at a hotel in the early hours of the morning were ambushed by a masked gunman, who held them confined, at times tied up, while awaiting the arrival of the hotel manager. When the latter came on the scene he was forced to open a safe containing a sum of money. The gunman escaped. The event was found to have caused the plaintiff psychiatric injury. The plaintiff was employed to clean the hotel by the appellant, which was, in turn, contracted by the hotel.

[143] Mason P (with whom Santow JA and Brownie AJA agreed) held that the plaintiff’s employer was liable for breach of its non-delegable duty of care. His Honour described the appellant employer’s duty in the following terms:

‘[70] In Czatyrko, the High Court recently observed, at [12] (citations omitted):

‘An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.’

See also Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28: (2004) 217 CLR 424 at 439[34]; Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222.

[71] In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Mason J said at 687-688:

The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.’

[73] The employer’s duty was not absolute. Since, however there was in my view a real risk of injury to the plaintiff in the performance of his workplace task, the employer was required to ‘take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by provision of adequate safeguards’ (Czatyrko at [12]). This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue. (emphasis added)’”

[73] The reasonable response to such a risk depends on weighing up the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action. Here there were no conflicting responsibilities. The risk of an employee being assaulted whilst alone is a serious one, particularly of a woman working alone being sexually assaulted. Of course, while foreseeable, it is not very likely. Nevertheless the adverse effects of any such assault are serious and ought to be guarded against, particularly if it can be done relatively easily and inexpensively.

[74] An obvious way to reduce the risk of such assault is to have mechanisms in place which enable an employee who is alone and in a situation where she or he does not have the protection of being able to be seen by members of the general public to exclude others from the work space. This would involve no more than placing a door capable of being shut and locked between the employee and the access to the employee’s work space. In order to prevent the surprise which generated the plaintiff’s inability to repel the assault until it had happened, all that would be needed would be an infra-red beam between the open entry to the back section of the shop which would be triggered if someone entered the area. The first option would have prevented Mr Bartholomaeus (or any other assailant) from following her into the back section of the shop. The second option would have alerted her to his ingress enabling her to be aware of his presence and therefore not to have her back to him and to have been in a much better position to fend off any attack. Neither option would have been expensive, difficult or inconvenient.

[75] The evidence showed that the cost of purchasing and installing an infra-red security beam would have been $300.00 plus GST. The cost of a self-locking door with swipe or pin would have been $1,200 plus GST (not including the door). There was a sliding door between the reception area and a room used by the optometrist for eye testing showing that such a door was hardly unusual. The suggestion by the defence that Ms Sapwell could have moved the tools out to the front reception desk is hardly an answer to the problem. They were kept in the back area of the shop where there was a work bench for them to be used. The employers did not suggest or recommend to Ms Sapwell that she repair glasses in the reception area.

[76] To fail to install some such mechanism as discussed to protect an employee in Ms Sapwell’s vulnerable position was in breach of the employer’s duty to her. I have reached this conclusion without having regard to expert evidence led. However, such evidence was led by the plaintiff and it served to reinforce the view I had already reached. I have approached the matter in this way since an objection was taken by the defendant to the evidence sought to be led by the plaintiff as expert evidence as to security measures that could and should have been taken.

[77] The defendant argues that even if such security measures had been installed there is no evidence that the plaintiff would have used them. The employer’s duty is not satisfied, however, merely by installing safety devices. It is also the employer’s duty to instruct the employee to use them. Ms Sapwell was a responsible, apparently biddable employee. I am satisfied that if there had been a security system in place and instructions to use it she would have done so.

[78] When Ms Sapwell had reported to Ms Lusk an incident where an angry young man had aggressively kicked a sandwich board on the footpath outside the shop, Ms Lusk had sensibly advised her if she was frightened to lock the front door to the shop and call Mr or Ms Lusk or the police. However, the employers in this case had not given any other consideration to the personal security of their employees and none at all to their security should they face a threat within the shop. They did not undertake any comprehensive consideration of their duties as employers except by taking an accountant’s advice. So ignorant were Mr and Ms Lusk of their duties as employers that they had failed to take out any workers’ compensation cover for their employees in the more than two years that they had operated the shop and employed, inter alia, the plaintiff. They did not undertake any assessment of workplace health and safety risks at the business except for reviewing the after hours security and taking out insurance against burglary, fire and equipment damage. The lack of a WorkCover policy was rectified the day after the assault when Ms Lusk rang WorkCover to find out what her obligations as an employer were. The defendants were fined and obliged to make back payments for the unpaid premiums but were then covered from the time they owned the business. It should be emphasised that whether or not they were insured is relevant only to showing the employer’s carelessness regarding their responsibilities to their employees and not in any other way.

[83] The admissibility of expert evidence is governed by the test set out by Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]; [2001] NSWCA 305; 52 NSWLR 705 at 743-744:

“if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R [1999] HCA 2 at [41]; [1999] HCA 2; (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”

[84] The identified area of expertise in this case was the assessment and implementation of measures that can be undertaken to protect employees from criminal behaviour or to promote their security. Mr Jenkins demonstrated expertise in this area by virtue of his training, study and experience. He expressed the opinion that there should have been some barrier in place to prevent Ms Sapwell being followed into the back room of the shop and that she should have been trained to administer such a security and safety system in an effective manner. If those measures had been carried out, his opinion was that this attack on the plaintiff would “likely not have occurred”. He opined that the plaintiff was exposed to “unnecessary violence by the failure of the business proprietor to institute simple and not costly crime deterrent measures.” The facts on which he based his opinion were proved by the plaintiff by other admissible evidence and identified by Mr Jennings. They provided a proper foundation for the opinions expressed in his first, second and fourth reports. His opinions in those reports based on the application of his specialised knowledge to the facts otherwise proved.[2] I am therefore satisfied that that evidence was admissible as expert evidence as to the security systems which could and should have been in place to protect the personal security of the employees of the shop particularly when out of the publicly viewed area of the shop, the relative inexpensiveness of implementing such security measures through the installation of a self-locking door and training the employee to use it and the unfortunate result of failing to implement those safety procedures.

[85] I have not relied upon the evidence in Mr Jennings’ third report which relied largely on hearsay documents from other organisations such as the Queensland Police Service, the Queensland government’s Department of Employment and Industrial Relations, WorkCover New South Wales and the Australian Institute of Criminology as well as various Australian Standards, as none of those were tendered by admissible evidence.

Quantum

Pain, suffering and loss of amenities

[89] As well as the suffering which has manifested itself in the psychiatric illnesses referred to, Ms Sapwell has lost her former activities of daily long walks and regular gym workouts because of her fears about people. Her hobby of reading had markedly decreased because of loss of concentration and she no longer socialised as she had lost friends due to her psychiatric illness. It is, however, the suffering caused by her psychiatric illness that has most impact on the quantum of general damages. The plaintiff claimed $60,000.00 in general damages relying on a decision by Dutney J in Cranston v Consolidated Meat Group P/L [2008] QSC 41 with regard to psychiatric illness. The defendant submitted that no more than $35,000.00 was adequate.

[90] There is no doubt that the plaintiff suffered a severe depression as a result of the incident and the psychological sequelae have been devastating. She is not as ill as she was but continues to require a significant drug regime to prevent further suffering. Her illness has stabilised at an unsatisfactory level. I would assess this head of damage at $60,000.00.

[107] I would assess that she has been left with a residual capacity to work of about 5 hours a week.

[108] I have been assisted in the calculation of the economic component of her loss by the report by Mark Thompson of Vincents Accountants which was admitted by consent. Past economic loss should be assessed on the basis of his Scenario 1, that is that she would have earned income in line with her pre-assault rate of pay increased by the movements in Average Weekly Ordinary Time Earnings for Full-Time Queensland Employees (ABS Catalogue 6302.0) (“AWE”). It has been assessed to the time of trial as $142,020.00. From this I would deduct a period of 17 months to account from her absence from work because of her husband’s injuries. The period of 17 months from 5 February 2007 to 30 June 2008 is appropriate given this is close to the estimate given by Dr White of the period of set back in her recovery caused by her husband’s injuries. Twenty-one weeks’ salary from 5 February to 30 June 2007 ($553.83 x 21) is $11, 630.43. One year’s salary from 1 July 2007 to 30 June 2008 ($585.22 x 52) is $30,431.44. This brings the loss of earnings to $99,958.13 which I propose to round to $100,000.00.

[109] From the amount for lost earnings I have deducted the notional cost of travelling to and from work calculated by the defendant at $58.00 per week or about $12,655.60. I shall round that to $12,500.00. That leaves her net loss of earnings at $87,500.00

Superannuation on lost earnings

[111] Superannuation was payable at 9 per cent of earnings less contributions tax of 15 per cent. This comes to (85% of ($100,000.00 x 9%)) $7,650.00.

Future economic loss

[112] I have based this on Scenario 1/ Residual B of Mr Thompson’s report on the finding that she has a residual capacity for work of 5 hours per week and that she would have worked until she was 65 years of age, which is calculated in Schedule J of Mr Thompson’s report. Her capacity to work in the future would not have been adversely affected by her husband’s injuries. If anything they would have it more rather than less likely that she would have continued to work to support the family. That amount is $261,181.00. This should be further discounted by 15 per cent to allow for the usual contingencies. The loss of future income is calculated therefore at $222,003.85 which I will round to $200,000.00 which takes account, inter alia, of the cost of travel to and from work

Superannuation on future income

[113] I have assessed this on the basis of 9 per cent of future income with a 15 per cent contributions tax, being $15,300.00.

Future medical treatment

[114] Ms Sapwell continues to need to see Ms Allan and Dr White. It seems likely that she will need a further 8 consultations a year with Dr White for the next, say, 10 years. Those consultations cost $106.95 each. Applying a discount for present value, this amounts to $6,793.85. She seems likely to continue to require fortnightly counselling sessions for the future. I have allowed $90 per consultation for a period of 10 years. Discounted for their present value, this amounts to $17,870.00. Future travelling expenses to attend these appointments will be about $400 per annum discounted over 10 years or $3,177.00.

[115] Her future medication needs appear to be for a continuation of the present regime of Luvox, Seroquel and Serapax as needed. I have accepted the plaintiff’s calculation of $1,701 per annum discounted over 10 years which is $13,510.00.

Quantum of Damages

[116] In summary, I assess damages as follows:

General damages: $60,000.00

Interest on general damages: $5,040.00

Special damages: $73,418.07

Interest on special damages: $3,164.00

Loss of income: $87,500.00

Interest on lost income: $3,423.82

Superannuation on loss of income: $7,650.00

Loss of future income: $200,000.00

Superannuation on future income: $15,300.00

Future medical expenses: $41,350.85

Gross assessment: $496,846.74

Less agreed refund to WorkCover $109,212.92

Net damages awarded: $387,633.82

Brisbane Barrister – David Cormack

NB: reversed on appeal. From a practice procedure point of view – Her Honour applied UCPR 424(1)(c) to allow medical evidence from the plaintiff’s medical practitioners without the need to comply with the expert evidence rules [16], which was not interfered with on appeal.

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