McManus v Murrumbidgee Local Area Health Network

1. [1]

   HIS HONOUR: Sharon McManus sues for damages for nervous shock following the death of her son. She alleges that the defendant failed properly to monitor her labour or to manage her antenatal period and delivery with the result that her unborn child died soon after birth and in circumstances that could and should have been avoided by an earlier Caesarean intervention.

2. [2]

   Liability is admitted.

3. [3]

   Ms McManus and her husband provided statements and also gave oral evidence. They were cross-examined respectfully and appropriately by Mr Fordham of senior counsel for the defendant. The balance of evidence in the proceedings consisted of a statement from Ms McManus’ mother and statements from two of her friends, as well as medical reports from her treating psychiatrist and other qualified medical and related specialists. A conclave of some of these experts produced a series of extremely helpful joint reports to some of the details of which it will be necessary shortly to refer. The defendant relied solely upon the several detailed reports of psychiatrist Dr Lisa Brown. No other evidence was called by the defendant.

4. [4]

   It is not disputed that Ms McManus is seriously unwell. The cause of her condition is also not in question. The only issues that remain in these proceedings concern her likely prognosis and the related issue of the amenability of her condition to treatment. Upon the answers to these questions depend the usual collateral issues that influence a proper assessment of Ms McManus’ damages in several categories.

Background

1. [5]

   Ms McManus was born in April 1979. She is 37 years of age. She went to school in Goulburn. She completed Year 10. She then completed an Advanced Certificate in Office Administration at Goulburn TAFE. Ms McManus worked in a variety of positions over the years. These are referred to later in these reasons.

2. [6]

   Ms McManus met Shaun McManus in September 2008. They commenced living together in December that year. She became pregnant. They married in April 2010.

3. [7]

   In mid-April 2010, Ms McManus suffered from a severe attack of gastroenteritis. She was required to attend Wagga Wagga Base Hospital every day for a period of three weeks. Daily CTG monitoring of her baby was carried out and an ultrasound was performed every second day. On 14 May 2010, she underwent a series of tests. These included another ultrasound. A doctor told her that she was fine and could go. However, that advice was contradicted by a midwife and Ms McManus observed there to be a dispute between them that continued throughout the morning. She was confused and in tears. Ultimately, at about 4.30pm she was allowed to go home.

4. [8]

   Ms McManus returned to the hospital the following morning. A CTG trace was taken. She was told to go and have something to eat and come back later. She did so. She returned to the maternity area and a further trace was taken. Dr Jarrell examined her briefly and left. A nurse told her to go and get her things and that a Caesarean would be scheduled for that afternoon. She was told that it could not be done straight away as she had eaten recently.

5. [9]

   Ms McManus and her husband returned to the hospital about 1pm. An intravenous line was inserted at about 2.30pm. A hospital staff member looked at the CTG and said words to the effect of, “We have to go now”. Suddenly everything appeared to become urgent.

6. [10]

   An anaesthetist arrived and spoke to her about requiring a general anaesthetic rather than an epidural. This upset her. Ms McManus did not want to have an epidural because of an existing back condition from when she had fractured bones in her spine. This had never previously been an issue and she had made her preference clear at all times.

7. [11]

   Ms McManus was wheeled into theatre. She observed that all of the medical staff were hurrying around but were calm. Her next recollection is waking up after the delivery. She was in severe pain. A doctor who she had never previously met spoke to her saying, “I’m really sorry but the baby didn’t make it.” She replied, “Are you serious?” The doctor replied, “I am very serious. I will go and get your husband”.

8. [12]

   Ms McManus was shocked. This was totally unexpected. She cried uncontrollably for days and became angry and depressed. She commenced abusing alcohol. She became totally reliant upon it. Whenever she was awake she was drinking. Ms McManus also increased her reliance on cigarettes. Her pattern of drinking to excess continued until she was admitted to St John of God Hospital following which she received professional help. Ms McManus last had an alcoholic drink in October 2012.

9. [13]

   Prior to her first admission to St John of God Hospital, Ms McManus noticed the following things. She was socially withdrawn. She did not like crowds or talking to people. She was very edgy, anxious and nervous. Ms McManus was unable to sleep and suffered from nightmares and flashbacks. She became fearful that her husband would leave her.

10. [14]

    Ms McManus was first admitted to St John of God Hospital as an inpatient between 3 October 2012 and 3 November 2012. She has been admitted to the same hospital as an inpatient for similar treatment on several occasions since then.

11. [15]

    Since the death of her son, Ms McManus continues to ruminate constantly over the circumstances of his death. She becomes angry about this and has difficulty discussing it. She has become socially withdrawn and her relationship with her husband has deteriorated. She has poor concentration and is forgetful. Ms McManus is terrified of again falling pregnant.

12. [16]

    Mr McManus confirmed these things. He described his wife as a confident woman who knew what she wanted in life. She was hard working and caring. These characteristics have been eradicated by what has happened to her. When he went to his wife in the delivery room following the birth, she was hysterical and hyperventilating. She was crying uncontrollably, saying “I am sorry, it was my fault”.

13. [17]

    Mr McManus confirmed his wife’s descent into alcoholism. This was in contrast to her moderate social drinking before her son’s death. She suffered from nightmares and insomnia. She takes a large amount of medication and appears constantly to be in a dazed condition. She no longer attends to work around the home as she had always previously done. The effect upon the marriage has been profound and significant. Mr McManus conceded that their relationship was fragile.

14. [18]

    Mr McManus said that his wife seldom leaves the house alone. She rarely socialises and does not appear to enjoy the company of others.

15. [19]

    Mr McManus now attends to most of the household and domestic tasks formerly performed by his wife. These include vacuuming, cleaning, cooking and washing up. Mr McManus originally spent about 14 hours per week doing this work although this has now settled at seven hours per week.

16. [20]

    These difficulties have also had a serious and significant impact upon Ms McManus’ ability to work. Since the birth, she has tried to return to work with limited success. Between October 2010 and January 2011, she worked part-time at a local take away food business in Lake Albert. That was for five hours per day, three days per week. The work involved food preparation and dealing with customers but the latter task made her particularly anxious and afraid. Her drinking was a response to the increased levels of anxiety brought on by this aspect of her work.

17. [21]

    Ms McManus has also worked at a florist shop in Wagga Wagga on a voluntary basis for a period of about three months. She came under pressure to work in the shop, as opposed to making deliveries, but was unable to do so due to her depression and anxiety. She declined another offer of employment with a friend who owned a food outlet as she was unable to bring herself to commence that employment.

18. [22]

    In October or November 2013, Ms McManus obtained employment at the bakery at Lake Albert. Her duties included packing orders, slicing bread and customer service. She was only able to maintain that employment for six weeks as she could not cope with her employer or with serving customers. She felt physically sick prior to going to work and would cry every day after work.

19. [23]

    Before her son’s death, Ms McManus was able to complete jobs that required organisational skills. She no longer has those skills. She has difficulty concentrating and completing a task before turning to another. She often loses track of where she is or why she has done something. Ms McManus does not think that she could manage working more than seven to eight hours per week in any position.

20. [24]

    Ms McManus has no interest in sexual contact with her husband. This has fuelled her fears that the marriage might end.

Medical opinion

1. [25]

   Dr Jovanova reported upon Ms McManus on 22 August 2014. Ms McManus had been under her care as an inpatient at St John of God Hospital. She developed severe symptoms of post-traumatic stress disorder related to her son’s death on 15 May 2010. Her symptoms were unremitting and compounded by the development of alcohol dependency. Ms McManus reported recurrent, involuntary and intrusive distressing memories of the events related to her son’s death. She suffered from poor memory and concentration, depressed mood with fleeting suicidal thoughts, a perpetual feeling of fear and horror as well as feelings of shame and diminished interest in all activities of daily life.

2. [26]

   Dr Jovanova expressed the following opinion in August 2014:

3. [27]

   On 17 March 2016, Dr Jovanova expressed the opinion that it was “highly unlikely that [Ms McManus] will recover fully from the traumatic experiences in 2010” and that it “is highly unlikely that [she] will return to the level of her pre-morbid general functioning”. She continued:

4. [28]

   Dr Gertler first saw Ms McManus for psychiatric assessment on 15 April 2011. He formed the opinion that she had developed an adjustment disorder with depressed mood. He was of the view that her level of depression was consistent with that of a major depression, chronic in duration. She lacked motivation to attend to domestic and personal chores and her ability to engage in normal social and recreational activities had been affected.

5. [29]

   By 12 March 2013, Dr Gertler observed that Ms McManus’ symptoms of anxiety and depression had become more apparent since she stopped all alcohol consumption. He considered that she was learning to come to terms with the symptoms of anxiety and to control them in an acceptable therapeutic manner. Nevertheless, Dr Gertler considered that her prognosis remained guarded. She lacked motivation and remained socially withdrawn. She continued to have problems with concentration and all of her symptoms would adversely affect her capacity to return to work. Dr Gertler considered that Ms McManus required “prolonged psychiatric and psychological treatment such that an eventual return to work, most likely through a rehabilitation program, [was] unlikely for at least 12 months”.

6. [30]

   On 17 March 2014, Dr Gertler reported in these terms:

7. [31]

   By 16 June 2015, Dr Gertler considered that Ms McManus would “require further treatment for up to two years”. He expected that treatment gradually to become less intense over that time, “particularly once legal proceedings have been completed”. Concerning her capacity for work, Dr Gertler said this:

8. [32]

   Professor McFarlane has provided a series of very long and detailed reports concerning Ms McManus. In his report of 2 February 2015, he expressed the following opinions:

9. [33]

   Professor McFarlane has continued to maintain his opinion that Ms McManus will be unable to work for more than eight hours per week.

10. [34]

    Dr Langeluddecke is a psychologist. She conducted a neuropsychological assessment of Ms McManus on 25 November 2015. She formed the view that her test results were a valid measure of Ms McManus’ cognitive abilities with no evidence of inadequate effort or concerns regarding practice effects.

11. [35]

    Dr Langeluddecke agreed that Ms McManus suffered from a chronic post-traumatic stress disorder and possibly also a major depressive disorder. She thought that Ms McManus was unlikely to prove capable of resuming employment in a managerial role similar to that held prior to the loss of her son given the chronicity of her anxiety and depressive symptoms and cognitive resources/impairment evident on formal testing. Her conclusions were as follows:

12. [36]

    Dr Brown is a consultant psychiatrist. She prepared a series of reports between November 2011 and June 2016. Her 27 June 2016 report summarises her final conclusions in the following terms:

13. [37]

    Dr Brown did not consider that Ms McManus was suffering from any form of mild neurocognitive disorder. Dr Brown, alike with her colleagues, agreed that Ms McManus would require ongoing inpatient and outpatient psychiatric admissions. She considered that Ms McManus should attempt to undergo up to 15 sessions with a psychologist experienced in dealing with trauma reactions for desensitisation/exposure treatment.

“Neurobiological underpinnings”

1. [38]

   At large in these proceedings are the issues of how long Ms McManus’ disabling psychiatric conditions will continue and whether or not they are likely to diminish over time. The defendant contends that her condition will improve and that it is amenable to psychiatric, psychological and pharmacological, as well as therapeutic and cognitive behaviour, regimes that will have that effect. That is because Ms McManus’ condition is a psychiatric condition and not one that derives from some form of irreversible structural pathology.

2. [39]

   Ms McManus’ position is that her condition will not improve over time and that it is not amenable to treatment. That is for at least one of two reasons. First, her condition is so severe that she will never fully recover. It is a psychiatric condition of such duration and intensity that, based upon her limited progress so far, she can expect to be afflicted with her condition permanently. Secondly, and alternatively, Ms McManus has sustained alterations to her neural pathways secondary to her post-traumatic stress that are irreversible and that will entirely delimit the prospect of any further recovery. Treatments are therefore of limited assistance for any purpose other than the temporary amelioration of symptoms.

3. [40]

   The genesis of this latest alternative is Professor McFarlane’s report dated 9 February 2016. Professor McFarlane would appear to have been influenced by the cognitive disturbances identified by the formal testing of Ms McManus carried out by Dr Langeluddecke, which Professor McFarlane agreed pointed to “underlying neurobiological contributions to [her] condition”. In that report, for the first time in this litigation, Professor McFarlane said this:

4. [41]

   Perhaps unsurprisingly, Ms McManus’ solicitor thereafter asked Professor McFarlane in effect to elaborate on his reference to neurobiological underpinnings, in the related context of Ms McManus’ likely response to the resolution of this litigation. Professor McFarlane proceeded at some length to do so in his 29 August 2016 report as follows:

5. [42]

   The defendant took exception to this evidence, upon the basis that it came late in the day and on the eve of the final conclave of experts. The defendant objected to its reception because Dr Brown would not have been able at short notice to deal with it. I expressed doubt that Dr Brown would not have been able to deal with the issue but postponed consideration of the objection until I received the final Joint Conference Report dated 30 August 2016.

6. [43]

   In my opinion Ms McManus should not be permitted to propound any such case. There are at least two reasons for this.

7. [44]

   First, Professor McFarlane’s opinion embraces what he referred to as “a substantial body of scientific evidence from structural neuroimaging studies, functional and neuroimaging studies, and studies of electrical activity on the brain that demonstrate substantial underlying pathology”. In the present case, Ms McManus has simply not been the subject of any such imaging or examination. Professor McFarlane contends, however, tautologically in my opinion, that on the balance of probabilities, in the light of the severity of her symptoms, their chronicity and her associated neurocognitive impairment, that Ms McManus is in fact likely to have significant volumetric changes in the regions of her brain involved in executive functioning and memory. Part of what he said at the joint conference was as follows:

8. [45]

   It will be apparent that the ultimate demonstration of the presence or absence of any relevant volumetric changes relies upon the structural neuroimaging studies to which Professor McFarlane refers and which, logically, he utilises to confirm his diagnoses. To that extent Professor McFarlane approbates the importance of such studies. In their absence in the present case, however, Professor McFarlane resorted to the adoption of a position that in effect requires me to take him on trust. In my view that amounts to a reprobation of the importance of the studies simply because they have not been performed on Ms McManus. That seems to me to be a totally untenable position for an expert to adopt. It is more significantly procedurally unfair to the defendant. Simply stated, it cannot be assumed, as Ms McManus asks me to assume, that the neuroimaging studies will necessarily confirm Professor McFarlane’s pessimistic opinion. The defendant should have been given at least the opportunity to examine Ms McManus in this respect. Conversely, if she wished to rely upon the existence of an organic cause for her condition, she bears the onus of establishing it.

9. [46]

   Secondly, the views of Professor McFarlane come late in the day, in the sense that, if the suggestion that Ms McManus had structural changes to her brain was as clear and obvious as Professor McFarlane wishes now to assert, it is surprising to say the least that this idea was not referred to with corresponding emphasis in one or other of his several earlier reports. It is not correct to say, as Professor McFarlane appeared to suggest in his evidence, that he did not mention it earlier because he was not asked to do so. The first mention of neurobiological underpinnings appears apparently unsolicited in Professor McFarlane’s 9 February 2016 report in answer to a suggestion that resolution of these proceedings will lead to an improvement in Ms McManus’ condition.

10. [47]

    I am in any event not satisfied that Ms McManus has established this type of pathology. The neuroimaging that all practitioners appear to accept is capable of establishing the condition has not been undertaken. Opinions about so-called neurobiological underpinnings in this case therefore rise no higher than informed speculation.

11. [48]

    Dr Brown has seen Ms McManus on several occasions. She has indicated in clear terms that Ms McManus did not appear to her to be cognitively impaired, having regard to her responses to questions upon examination. In addition to not having undergone the type of neuroimaging that might detect possible neurobiological pathology, Ms McManus has had neuropsychological testing which, although comprehensive, could be explained in terms of the deficits that were detected as being due to significant anxiety and depressive symptoms. Dr Brown has indicated that on each occasion that she has assessed Ms McManus, she has been able to provide a complete history and has not displayed the type of cognitive deficits in clinical presentation that are consistent with neurobiological pathology. Specifically, Dr Brown was of the opinion that there is insufficient evidence to support any long term dysregulation of neural functioning. Dr Brown was of the opinion that if Ms McManus had the type of permanent neurobiological pathology and significant cognitive deficits attributable to organic brain changes, she would probably not be able to work even the eight hours per week that she has recently been able to achieve.

12. [49]

    It is also significant in my opinion that nowhere in the voluminous material assembled in the form of hospital and clinical notes from the St John of God Hospital is there any material that I have been able to find, or to which my attention has been drawn, that lends support to the existence of an organic pathology of the type under consideration. Having regard to the accepted relationship between alcohol abuse, for which Ms McManus was being treated, and organically based cognitive impairments, it is remarkable that the existence of demonstrable cognitive deficits in her case is neither discussed nor documented.

13. [50]

    Finally, I have myself had the opportunity on two occasions to observe Ms McManus giving evidence under cross-examination in court. Allowing for the fact that there are limitations associated with observations of that kind, mine did not suggest that Ms McManus was labouring under any cognitive difficulties.

Resolution of litigation

1. [51]

   One of the matters, if not in fact the only significant matter, to which the defendant points suggesting that Ms McManus’ condition and prognosis are likely to improve is the likely beneficial effect of the resolution or completion of these very proceedings. Such a suggestion is not novel in litigation of this type, and it has received general support from the specialists who have treated or examined Ms McManus. For example, Professor McFarlane referred to this issue on a number of occasions. In his 8 August 2012 report he commented that the “failure of resolution of her ongoing legal issues … has compounded her difficulties”. In his 9 February 2016 report he referred to the issue as follows:

2. [52]

   Dr Gertler had also referred to this issue in his 16 June 2015 report. He expected Ms McManus’ “treatment to gradually become less intense over … time, particularly once legal proceedings have been completed”.

3. [53]

   Dr Brown also referred to the resolution of legal proceedings in the context of Ms McManus’ prognosis. In her 24 July 2015 report, Dr Brown said this:

4. [54]

   Dr Brown’s opinion was echoed by her at the conclave on 30 August 2016. She agreed that Ms McManus has a chronic pathological condition that has not remitted fully over time. However, she considered that the ending of the legal process and the undertaking of treatment should lead to significant improvements being achieved, or at least a reduction in symptoms. Dr Brown based that opinion upon Ms McManus’ acknowledgement that at the time of contact with legal hearings, such as at mediation or in anticipation of the trial, she has considered re-hospitalisation. Without this particular stressor, Dr Brown considered that Ms McManus was likely to experience a significant settling of her symptoms within six months to a year following conclusion.

5. [55]

   Ms McManus was briefly cross-examined on this topic as follows:

6. [56]

   This topic also arose in the course of the concurrent evidence of the experts as follows:

7. [57]

   Once again I note that, to my limited and necessarily incomplete observation, Ms McManus did not appear to be unduly concerned when giving evidence before me. I am unable to determine if she was inwardly distressed but even if she had been that did not appear to interfere with her ability to engage with counsel or to answer questions appropriately.

8. [58]

   My observations, together with the medical opinions that have been offered on the topic, lead me to conclude that these proceedings are but one factor in the cause of Ms McManus’ current distressing medical condition. It is not the only factor and is not in my opinion even the most significant factor. So much is apparent from an examination of the underlying causes of Ms McManus’ continuing post-traumatic stress disorder, her anxiety and her depression. The resolution of these proceedings will undoubtedly be beneficial to Ms McManus but that will not make a significant difference to her suffering in my opinion. In particular, it will neither shorten the duration of her condition nor significantly alter its intensity. The part to be played in ameliorating Ms McManus’ otherwise unfortunate prognosis by conclusion of her case will be minimal.

Treatment

1. [59]

   Dr Brown has indicated that Ms McManus would be likely to benefit from some cognitive therapy, such as desensitisation sessions with an experienced psychologist. She and her colleagues answered some questions about this as the following transcript reveals:

2. [60]

   Ms McManus was not directly examined on this topic. She was only cross-examined generally about treatment as follows:

3. [61]

   It should be noted that Ms McManus gave her evidence about this before the issue was discussed in the concurrent evidence of the specialists. It should also be noted that revisiting areas of potential sensitivity for Ms McManus in the witness box made the cross-examiner’s task particularly difficult in this case. It is my understanding that the desensitisation therapy being contemplated would require Ms McManus herself to revisit the death of her son in a gradual but ultimately quite intense and confronting manner with a view to reducing and hopefully eliminating its continuing significance as a prime source of her psychiatric difficulties.

4. [62]

   At the conclave of experts on 30 August 2016, Professor McFarlane expressed the view that it was “improbable” that Ms McManus would be able to undergo desensitisation or exposure-based therapies as indicated by her intolerance to such treatment attempted to date. He noted that 30 percent of patients are unable to tolerate it and he considered that Ms McManus has had an adequate trial already without success.

5. [63]

   Doing the best I can it seems to me that it is unlikely that Ms McManus will venture to engage in the type of therapy concerned. I am not qualified to comment upon the likelihood of whether it would or would not be successful if it were undertaken. It is clear to me that Ms McManus is well motivated. However, having regard to her history and to the severity of the presenting cause of her illness I suspect that it is improbable that she will be able to manage the difficulties with the type of therapy concerned. I also consider that it would not be unreasonable for her to refuse to submit to desensitisation treatment in the circumstances.

Damages - calculation

1. [64]

   The following integers are used in the calculations of future losses:

   1. (1)

      Date of injury – 15 May 2010

   2. (2)

      Date of birth – April 1979

   3. (3)

      Life expectancy – 51.34 years

   4. (4)

      Multiplier for life – 980.6

   5. (5)

      Work life multiplier – 855.7

2. [65]

   Ms McManus is seriously ill. There is no significant challenge to the nature or extent of her psychiatric condition. Her post-traumatic stress disorder and depressed and anxious state render her disabled on an ongoing and unrelenting basis from enjoying or participating in a wide range of fundamental activities of daily life. This situation is likely in my view to continue for the whole of Ms McManus’ life, with little real or tangible prospect of improvement.

3. [66]

   Dr Jovanova has indicated that Ms McManus’ symptoms will become stable. That is not to be confused with a statement that they will improve or disappear. The prospect for Ms McManus is permanent psychiatric illness, even if some of the acute exacerbations caused by such things as involvement with litigation are obviously going to recede. No discernible improvement of a significant kind has yet emerged. Control of Ms McManus’ alcohol dependence has been a major step but her underlying psychiatric pathology endures unabated.

4. [67]

   In my opinion, Ms McManus is entitled to damages for her non-economic loss assessed as 60 percent of a most extreme case. That sum is $356,500.

5. [68]

   There is agreement to the extent of $112,155 under this head. The defendant disputes $3,628.35 of the amount claimed for Medicare and $4,131.40 for the cost of travel for treatment. There is also a dispute about the sum of $4,078.70 claimed by Ms McManus as the unrecoverable gap for psychiatric treatment. The total of the amounts in dispute is $11,838.45.

6. [69]

   Despite the provision at my request of an updated schedule of damages and supporting documentation or evidentiary references, I have been given no guidance upon how to resolve this difference and no material explaining the competing contentions. I propose to allow the amount that is presently agreed and invite the parties to inform me what is proposed by them for the resolution of the deadlock.

7. [70]

   There is no dispute that Ms McManus will require, and that she is entitled to damages covering the cost of, psychiatric consultations into the future. Dr Brown is of the view that Ms McManus’ condition will settle over the course of not more than two years. She is, however, alone in that view. The balance of medical opinion is that Ms McManus will require such consultations effectively for the remainder of her life.

8. [71]

   There is agreement that the present cost of an appropriate psychiatric consultation is $250. Ms McManus claims the cost of such consultations for the remainder of her life on a monthly basis. The total amount calculated for life at the agreed rate is $56,571.

9. [72]

   Ms McManus currently sees her psychologist for weekly consultations. The agreed rate for one of these consultations is $120. It is not agreed that Ms McManus will require this treatment for the whole of the remainder of her life.

10. [73]

    As far back as 2 March 2015 Ms McManus agreed with Mr Fordham that she would benefit from continuing to “concentrate on working with” her treating psychologist. It was not then suggested that she did not need to see her psychologist weekly or that she may not need to continue with such consultations as frequently as years went by. When Ms McManus was cross-examined briefly in September 2016, the issue of the need for psychological counselling sessions did not arise at all.

11. [74]

    It seems to have been accepted on both sides that psychological therapy has been of assistance to Ms McManus, that it will continue to be helpful and that having regard for her mental state, that she has an identified need for it. Save to the extent that Dr Brown posits a significant improvement in Ms McManus’ condition after about two years, the balance of medical opinion is that her post-traumatic stress disorder is a chronic condition with lifelong expectations. I consider that that view is well supported. It follows that Ms McManus should be entitled to the cost of psychological treatment at the specified rate for her lifetime. The amount calculated by reference to the appropriate multiplier is $117,672.

12. [75]

    The costs of inpatient stays at St John of God Hospital are claimed upon the basis of two such admissions per year. That conforms roughly to Ms McManus’ history of such admissions since 2010, with eight admissions between October 2012 and March 2016.

13. [76]

    A careful analysis of the wealth of clinical notes referable to these visits paints a fairly bleak picture. Ms McManus develops severe problems with anxiety and depression, with worsening mood often related to triggers such as relevant anniversaries related to the death of her son, and associated re-emergence of alcohol cravings for which she has been treated at the hospital. This documentary material bears witness to the cycle of relapse and recovery with which the hospital admissions have primarily had to deal. These patterns develop and repeat themselves notwithstanding outpatient consultations with Ms McManus’ psychiatrist and psychologist.

14. [77]

    It would be hoped that some diminution in the intensity and frequency of these relapses into psychiatric crises would have appeared by now or would develop over time. There is, however, no sign of that anywhere. I say so once again having regard to the optimistically dissenting opinion of Dr Brown. Indeed, the material produced by St John of God, when examined closely, does not inspire the slightest hope of permanent reduction of Ms McManus’ symptoms or in the prospect of some enduring partial remission.

15. [78]

    It seems to me that Ms McManus will unfortunately require semi-annual admissions to a hospital for psychiatric treatment for the rest of her life. The difference between the cost for these visits as claimed by Ms McManus and the amount with which the defendant is prepared to agree is of no significance. The costs as claimed amount to $195,500 and Ms McManus is entitled to recover that amount.

16. [79]

    The amount of $133,560 claimed by Ms McManus for travel expenses incurred in visits to medical specialists and hospitals does not seem to me to be reasonable. The weekly rate of expenditure on this item in the six years since May 2010 to date, recognising the dispute concerning the amount claimed referred to earlier, is approximately $45 per week. In my opinion that amount should inform the calculation of future travel costs. Applying the relevant multiplier the weekly sum of $45 produces $44,127. Accepting that arithmetical precision in such calculations is illusory, I consider that the sum of $50,000 should be allowed for this item.

17. [80]

    I have not been provided with evidence that would support rational findings by me about the rate of consumption of a series of nominated medications referred to in Ms McManus’ schedule of damages. In general terms the defendant does not contest Ms McManus’ need for these pharmaceuticals but is in doubt about the cost on a periodic basis in the absence of prescription recommendations, dosages and the like. In addition, Ms McManus has made no specific or identifiable claim for the cost of medication in the past from which any predictions could in general terms be offered.

18. [81]

    The total amount claimed for all medications at the relevant multiplier for the rest of Ms McManus’ lifetime is approximately $66,000. To the limited extent that I am able to assess the issue, those costs do not seem to me to be particularly excessive. In particular, they appear to me to be reasonable. In the circumstances I am prepared to allow the assessed amount of $55,000 for the cost of future medication, but on the strictly limited or conditional basis that if the defendant wished to revisit the issue and put Ms McManus to strict proof of this aspect of her claim, it should be entitled to do so.

19. [82]

    It is to be hoped that such a course will not prove to be necessary.

20. [83]

    The amount of $5,000 claimed for this item is not challenged.

21. [84]

    The amount of $4,443 claimed for this item is disputed. There is not in my assessment sufficient evidence to support this claim. Ms McManus has, since the date of the report recommending it, had gastric banding surgery. There is no current evidence to support this claim.

22. [85]

    Ms McManus claims 14 hours per week for 21 weeks between 15 May 2010 and 15 October 2010 at $24.74 per hour ($7,275) and thereafter seven hours per week for 307 weeks between 16 October 2010 and 5 September 2016 at $26.89 per hour ($57,785) producing a total sum of $65,060. That sum is not contested by the defendant.

23. [86]

    Ms McManus claims future domestic assistance at the commercial rate of $40 per hour for seven hours per week. There is ample evidence to support the provision of this level of domestic assistance to Ms McManus by her husband in the past and there is no suggestion that he would not continue to provide that level of assistance in the future. The defendant does not contest the existence of a continuing need for this assistance but does contest the claim for compensation upon the basis of commercial or paid care rates.

24. [87]

    It seems to me, considering the nature of the tasks with which Ms McManus requires assistance, such as cooking and cleaning and washing, together with the associated limited amount of assistance needed to meet her requirements, that it is quite unrealistic to assess the value or cost of this component on anything other than a semi-commercial basis at best. The defendant has conceded a combined hourly rate under this head of $28 as a combination of commercial and gratuitous care. That seems to me to be more than a sensible way to evaluate Ms McManus’ loss in this category.

25. [88]

    Accordingly, $196 per week at the lifetime multiplier of 980.6 produces a total amount for future domestic assistance of $192,200. This amount should be allowed.

26. [89]

    It is not contested that Ms McManus’ ability to earn income has been severely compromised by her medical condition. Despite it, she has attempted to work in several different settings at tasks commensurate with her experience and pre-morbid work history. Taking into account the average one day per week that Ms McManus has been able to work over the period since April 2010, her weekly net loss calculated as $639 less $136 amounts to $503. That weekly loss for the period of 303 weeks produces $152,410.

27. [90]

    Superannuation at nine percent on Ms McManus’ gross pre-injury weekly earnings of $800 less her average post-injury weekly earnings of $136 for 303 weeks amounts to $18,100.

28. [91]

    I am satisfied that Ms McManus’ economic potential will not improve from its present level. Her current lost net weekly earning capacity is $503. Having regard to the defendant’s latest proposed schedule of damages, that amount does not appear to be in contest. At the applicable work life multiplier, Ms McManus’ future economic loss is $430,420. Deducting 15 percent for vicissitudes, the proper sum to compensate for that loss is $365,860.

29. [92]

    Superannuation at nine percent on Ms McManus’ gross pre-injury weekly earnings of $800 less her average post-injury weekly earnings of $136 at the applicable work life multiplier, less 15 percent for vicissitudes, amounts to $43,470.

Conclusion and orders

1. [93]

   It follows that, subject to any further argument about some of the items to which I have specifically referred, Ms McManus is entitled to damages in the total sum of $1,785,498. The defendant should also pay Ms McManus’ costs.

2. [94]

   I will allow the parties a reasonable period to consider these reasons and to indicate thereafter whether or not there is agreement that Ms McManus should receive a verdict for the total amount that I have indicated.