On 18 September 2004, Janice Kakoschke, a 43-year-old youth support teacher at Coolum State High School, was stationary on the Yandina-Coolum Road when a vehicle driven by Rodney Draper struck her BMW from behind with significant force.
The physical injuries were minor. What followed was not.
Mrs Kakoschke developed post-traumatic stress disorder and a major depressive disorder. She attempted a graduated return to work but could not sustain it. She was transferred to Nambour High School, found herself unable to cope, and was medically retired from the Queensland teaching service in March 2006. She had not worked since.
This case was not straightforward. The defendant’s insurer had three lines of attack:
The insurer’s expert, Professor Varghese, rejected a PTSD diagnosis and attributed her condition to the Huntington’s gene. The court found his reasoning impossible to accept, noting that he had characterised the original impact as trivial despite uncontradicted evidence that Mrs Kakoschke had genuinely feared for her life.
Justice Skoien preferred Dr Mungomery’s evidence, as the treating psychiatrist who had seen Mrs Kakoschke regularly since April 2005.
On multiple causation, the court applied the principles from Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Once a plaintiff establishes a prima facie case that incapacity resulted from the defendant’s negligence, the onus shifts to the defendant to prove that a pre-existing condition caused or contributed to that incapacity. The insurer failed to discharge that onus.
On the Huntington’s disease argument, the court found that Mrs Kakoschke had responded to her diagnosis with remarkable resilience, continuing to work effectively until the accident. The disease was pre-symptomatic and was not a contributing cause of her disability.
The court was satisfied that the only real cause of her inability to work was the September 2004 accident.
Head of Damage | Amount |
|---|---|
General damages (pain and suffering) | $12,000 (agreed) |
Past economic loss | $61,925 (agreed) |
Interest on past economic loss | $3,737 |
Past loss of superannuation | $5,573 (agreed) |
Future impairment of earning capacity | $404,337 |
Future loss of superannuation | $38,665 |
Future psychiatric treatment | $28,050 (agreed) |
Special damages and out-of-pocket expenses | $8,384 (agreed) |
Interest on special damages | $187 |
Total | $560,919 |
The future economic loss figure of $404,337 was calculated on the basis that Mrs Kakoschke had no realistic prospect of returning to paid employment, and that she would have continued teaching until age 57.5 but for the accident. A 20% discount for contingencies was applied.
Psychiatric injuries are real injuries. Insurers routinely challenge psychiatric claims by pointing to pre-existing vulnerabilities, other stressors, or alternative explanations. This case demonstrates that a defendant takes a claimant as they find them. A pre-existing tendency to depression, or knowledge of a future illness, does not extinguish liability for a psychiatric injury caused by negligence.
The treating psychiatrist’s evidence carried the most weight. Dr Mungomery had seen Mrs Kakoschke regularly for more than a year. His clinical observations of her day-to-day functioning were more persuasive than the opinions of experts who had seen her once or twice. Continuity-of-treatment documentation matters enormously in psychiatric injury claims.
The economic loss calculation is where psychiatric claims are won or lost. Future earning capacity depends on prognosis, work history, and a credible assessment of when the plaintiff would have retired. In this case, the court accepted a working life of 57.5 and discounted for contingencies, including the possibility that Mrs Kakoschke might have been affected by her pre-accident psychiatric history at some future point.
Bold callout: Three psychiatrists assessed Mrs Kakoschke. The court preferred the psychiatrist who had treated her over time, not the one the insurer retained. In psychiatric injury claims, the quality and consistency of your medical evidence is often decisive.
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