Express law No. 06

31 August 2004

Inability to prove alleged psychiatric illness

In this
decision Bongiorno J held that although it might be a reasonably
foreseeable risk that someone might suffer
a psychiatric injury as a result of being told that others
who had received similar drug treatments had died of
those treatments, this did not happen in this case. Bongiorno
J found the plaintiff did not suffer any psychiatric
injury in 1993 or subsequently as a result of her obstetrician
informing her of the possible risk.

Carol Elizabeth Farrell
v CSL Limited and Commonwealth of Australia

Supreme Court
of Victoria No. 6285 of 1994, 26 August 2004

In
1994 the plaintiff instituted proceedings against CSL Limited
('CSL') and the Commonwealth of Australia
seeking damages for psychiatric injury. As a result of
exposure to the risk that she might contract Creutzfeldt-Jakob
disease ('CJD') following hormone treatment
with human pituitary gonadotropin (or hPG) for infertility
from 1976 and 1978, the plaintiff claimed to have suffered
psychiatric injury. Although the plaintiff commenced her
action for damages against the defendants in 1994, the
matter was not listed for hearing until April 2003, before
Bongiorno J in the Supreme Court of Victoria.

Background

HPG is derived from pituitary glands harvested
from human cadavers and was used for infertility treatment
and as
a human growth hormone. CSL manufactured the hormone with
which the plaintiff was treated and the Commonwealth, through
the Department of Health (specifically the Human Pituitary
Advisory Committee), supervised the administration of the
treatment program.

In June 1993 the plaintiff was informed
by the obstetrician who had administered her hPG treatment
that she might have
received a batch of hPG contaminated with CJD. The plaintiff
claimed that as a result of receiving this information
she developed a psychiatric reaction which resulted in,
inter alia, physical brain deterioration, severe stress
syndrome and major depression.[1] She claimed that the
defendants failed in the duty they owed to her to inform
her at the time of treatment of the facts which she says
each of them knew or ought to have known regarding the
risk of contracting CJD from the hPG treatment she received.

On 13 May 1994 the Department of Health wrote to the plaintiff's
general practitioner. They informed him of the specific
batch numbers of hPG approved by the Department of Health
for use by the plaintiff's obstetrician in the treatment
of her infertility. One of those batches had also been
administered to one of the women who had in fact contracted
and died from CJD as a result of her treatment.

The plaintiff
alleged that she received a copy of this letter by way
of ordinary post, and that she interpreted
the letter as telling her that she had in fact received
treatment from an infected batch. The plaintiff claimed
that this was the main source of her anxiety.

In July 1994
the plaintiff received her Health Department file from
her then solicitors. Although the solicitors
advised her that she did not receive treatment from any
of the infected batches of hPG, the plaintiff adopted the
position that she had in fact received treatment from an
infected batch. On 21 July 1994 the plaintiff's obstetrician
confirmed to the plaintiff her solicitors' advice
that she had not received treatment from an infected batch.

Did
the defendant's owe the plaintiff a duty of care?

It
was 'beyond argument' that the relationship
between the plaintiff and each of the defendants gave rise
to a duty of care. CSL owed the plaintiff the duty of care
imposed by law on a manufacturer of drugs for human consumption.
The Commonwealth, in providing medical treatment for infertile
women in the discharge of its 'governmental responsibility',
was in a similar situation to a health provider such as
a public hospital. Although the exact content of each of
those duties was the subject of debate, Bongiorno J held
that in the circumstances of this case, the question of
whether the plaintiff had established liability for damages
could be determined without examining the extent or the
specific content of the respective duties. Nor was it necessary
to consider whether either or both of the defendants were
in breach of their duty of care.

The plaintiff's case
failed because of her inability to prove the psychiatric
illness she alleged. It also failed
on the issues of causation and/or foreseeability. This
was largely because the plaintiff's evidence was
almost 'totally uncorroborated', and was not
accepted by Bongiorno J.

Injury: mid-1993 to mid-1994

The plaintiff's evidence
on her injuries suffered between June 1993, when she was
first informed of the possibility
of receiving a contaminated batch of hPG, and July 1994,
when she received her Health Department file, was largely
based upon her own testimony, which was not accepted by
Bongiorno J. As a result, His Honour found that the plaintiff's
case of psychiatric injury during this time was not made
out, and consequently that her claims of physical disability
also failed.

In summary, Bongiorno found that:

She [the plaintiff] sought
no medical or similar treatment during the period under
discussion, nor did she satisfy
me that her psychiatric or physical capacity was in any
way diminished or different from what it had been prior
to June 1993. I am not satisfied that her sale of the
Bassendean Squash Centre was necessitated by any diminution
of her
capacity to run it or, for that matter, to play and teach
squash. Her histories to those doctors she did see after
mid-1994 all refer to any problems she had such as fatigue
and the like as arising before 1993 … Her squash
playing activities after June 1993 appear to have been
unchanged from what they were before. In short, the plaintiff
has failed to establish any psychiatric disability which
commenced after Dr Giles' conversation with her
on 29 June 1993.

Even if the plaintiff had been able to establish
some diminution of her psychiatric state over this period,
Bongiorno J
would not have been satisfied to the requisite standard
that any such deterioration was a result of her obstetrician
informing her in June 1993 of the possibility of receiving
a contaminated batch of hPG.

Injury: post mid-1994

Bongiorno J found that the only difference
between the plaintiff's psychiatric health between
June 1993 and July 1994 and of that after July 1994 was
that in August
1994 the plaintiff claimed to be depressed, was prescribed
with anti-depressant medication by her general practitioner
and in March 1995 she began seeing a psychiatrist.

Her squash
playing continued unabated, with regular trips interstate
and to country Western Australia for tournaments,
and she remained intent on playing pennant squash. She
engaged in a number of business activities during this
time, including becoming a director of a finance company,
acting director for a number of other companies, engaged
in real estate transactions and property development, let
real estate and represented herself in a tenancy dispute
before a tribunal.

Again, the plaintiff's evidence
as to her psychiatric state was essentially uncorroborated
and was not accepted
by Bongiorno J. Although His Honour found it was possible
that the plaintiff suffered from some psychiatric condition
intermittently during this period, he found that it was
equally possible that her complaints 'have been feigned,
either for financial gain or some other more obscure motive.' Thus,
the plaintiff was unable to establish any damage flowing
from a breach of a duty of care. Even if the plaintiff
did suffer some psychiatric condition, His Honour found
that it was considerably less severe than the plaintiff
submitted.

Furthermore, Bongiorno J held that the plaintiff's
unreasonable response to information given to her 'so
far overshadowed any breach of duty on the part of one
or other or both of the defendants' that it constituted
a new intervening act, and as such rendered any such breach
of duty no longer a cause of any resulting psychiatric
condition.

Finally, Bongiorno J held that although it might
be a reasonably foreseeable risk that someone might suffer
a psychiatric
injury as a result of being told that others who had received
similar drug treatments had died of those treatments, that
this did not happen in this case. The plaintiff did not
suffer any psychiatric injury in 1993 or subsequently as
a result of her obstetrician informing her of the possible
risk. If she did suffer any injury, it was after mid-1994
and was because of her erroneous belief as to which batches
of hPG she was treated with. It would not be reasonably
foreseeable by a person in the position of the defendants
that their breach of duty in allegedly failing to provide
the plaintiff with appropriate information about hPG at
the time of treatment would create a risk that she would
embrace a false belief as to what happened and that she
would suffer a psychiatric injury because of that false
belief.

Implications

The decision of Bongiorno J turned on the
credibility of the plaintiff's evidence. Given that
this case is clearly distinguishable on the facts, it will
not have
widespread implications for the Department of Health and
offers little precedent value.

[1] The plaintiff also claimed that the following injuries – sterilisation,
severe psychiatric reaction, diagnosed anxiety disorder,
sleeplessness, shock, loss of concentration, headaches,
dizziness and blackouts, personality changes, suicidal
ideation, paranoia, diarrhoea, weight loss, persistent
fatigue, intermittent hair loss, intermittent vision loss,
forgetfulness, claustrophobia, tremors, abnormal blood
chemistry, poor decision making, constant flu-like infections,
general poor health, constant fear of death – for
self and natural-born son, loss of enjoyment of activities,
inability to perform normal household tasks, panic attacks
and fasciculation.

For further information please contact:

Susan Pryde
Senior Executive Lawyer
T 03 9242 1426 F 03 9242 1317
M 0418 676 445
susan.pryde@ags.gov.au

Cara O'Shanassy
Lawyer
T 03 9242 1220 F 03 9242 1317
M 0418 676 445
cara.o'shannassy@ags.gov.au

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