ANGELA MICHELLE FOOTNER v.GUY MICHAEL DOHERTY No. SCGRG 87/2507 Judgment No. 3913 Number of Pages - 28 Negligence - Damages - Notice of Intention

[1993] SASC 3913

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Negligence - road accident cases - Respondent driving a utility and horse float on country road - turning right at a road junction - appellant driving a semi-trailer and overtaking respondent's vehicle - allegation that respondent's driving gave impression she was intending to stop on side of road on which she was travelling - trial judge's finding that liability was to be apportioned 90 per cent against the appellant upheld.
Damages - personal injuries - teenage girl suffering brain damage causing permanent intellectual impairment - loss of lower part of leg - award of $100,000 for past economic loss and $85,000 for future economic loss upheld - award of $54,000 for past economic loss upheld but future economic loss entitlement reduced from $500,000 to $350,000 on basis that the trial judge's assumption that she would assume managerial role in family company and share in profits was unjustified - award of $1,250,000 for future care upheld - requirment of care and supervision on a permanent basis outside an institution - whether needs of respondent's young child are relevant to assessment of future care - Burnicle v Cutelli (1982) 2 NSWLR 26 and Hodges v Frost 53 ALR
373 referred to.
Notice of intention - Beck v Farrelly damages - whether trial judge failed to compensate for services required as a result of the accident which were prepared voluntarily prior to the accident - Van Gervan v Fenton (1992) 109 ALR 283 discussed.
Appeal and new trial - practice and procedure - Notice of contention filed by respondent pursuant to SCR 95.05 - discussion as to nature of an appeal against an award of damages in an action for personal injury - notice of contention and not cross-appeal appropriate procedure in present case.

HRNG ADELAIDE, 11 and 12 March 1993 #DATE 29:4:1993
Counsel for appellant Doherty: Mr M.G. Steele
   with Mr M.C. Livesey
Solicitors for appellant:        Ward And Partners
Counsel for respondent:         Mr K.R. Mccarthy QC
   with Mr P Eriksen
Solicitors for respondent:     Angela Bentley and
   Associates

ORDER
Appeal allowed.

JUDGE1 KING CJ In my opinion this appeal should be allowed and the amount of the judgment should be varied by reducing the same to the sum of $1,921,032.40. 2. I agree with the reasons of Duggan J for allowing the appeal. 3. I express my views as to a question of procedure which arose. 4. In his Notice of Appeal the appellant challenged the amount of the judgment and sought its reduction. The grounds of the appeal related in part to the apportionment of responsibility for the accident and in part to the assessment of damages. As to the assessment of damages, the appellant complained that the amounts allowed for pain and suffering, economic loss, both past and future, and future care were excessive. The respondent did not complain of the amount of the judgment, but contended that if any of the appellant's contentions succeeded, the judgment should nevertheless be upheld on the ground that the trial judge in assessing damages for needs met by voluntary services incorrectly excluded from his calculations a provision for needs met by services which would have been provided by the respondent's parents even if the injury had not occurred. The respondent raised this contention by means of a Notice of Alternative Contention filed and served pursuant to SCR 95.05. A question arose as to whether this should have been done by way of cross appeal. I think that the procedure adopted was correct and I state my reasons for that view. The right of appeal created by s.50 Supreme Court Act is, relevantly, a right of appeal against a judgment of the Court entered by a single judge. The judgment is the total amount of damages awarded by the judge. That total award is also the "decision" referred to in Rule 95.05. The appeal is against the operative judicial act which is the formal judgment and not against the findings or reasons by means of which the judgment has been arrived at; Commonwealth v Bank of New South Wales (1949) 79 CLR 497; Driclad Pty Ltd v Federal Commissioner of Taxation (1969-70) 121 CLR
45 per Barwick CJ and Kitto J at p.64. 5. The formal judgment of the Court against which an appeal lies is, in an action for damages for personal injury, the single lump sum by way of damages which is adjudged to be payable by the defendant to the plaintiff. It is the practice for trial judges to arrive at that final sum by assigning amounts, at least tentatively, to the various heads of damages. That practice has been encouraged if not insisted upon by the High Court in a number of cases; Gamser v Nominal Defendant (1976-77) 136 CLR 145 per Gibbs J at p.147 and Stephen J at pp.149-50; Sharman v Evans (1977- 78) 138 CLR 563 per Gibbs and Stephen JJ at p.571-2 and p.589; Griffiths v Kerkemeyer (1977-78) 139 CLR 161 per Gibbs J at pp.162-3 and per Mason J at pp.188-9. The itemisation of the components of an award, however, as appears from the cases cited, is no more than a method of arriving at the final amount and forms part of the reasons for the final judgment. 6. An appeal must be against the formal judgment itself. It must seek either an increase or a decrease in the amount thereof. It is not open to a party to attack by way of appeal or cross-appeal an amount assigned by the judge to a particular head of damage as part of the process of reasoning by which he arrived at the amount of the judgment. A challenge to a particular component is no more than a ground upon which the appellant seeks to impugn the total amount of the judgment. 7. Where an appellant succeeds in a challenge to a component of an award of damages, it remains for the appellate court to consider whether the total amount of the judgment is thereby rendered inappropriate. That necessarily involves a consideration by the appellate court of the appropriateness of the amounts allowed under the other heads of damage. In such a case "The appellate court must make its own determination of each part of the award, but no doubt will pay respect to, and quite likely adopt, particular intermediate decisions of the trial judge"; Beneke v Franklin (1975) 1 NSWLR 571 per Moffitt P at p.576. See also Delaney v Cummins (1987) 140 LSJS 407 per Cox J at p.410. In making its own determination the appellate court will ordinarily confine its attention to components which are in controversy and will therefore be guided by the manner in which the appeal is conducted by the parties. 8. It follows from what I have said that a cross appeal is appropriate only where the respondent disputes the appropriateness of the total amount of the judgment. If he does not dispute the total amount but wishes to contend that any error demonstrated in relation to one or more components of the damages is compensated for by an error in relation to the apportionment of liability or in relation to other components of the award, he may do so, subject to compliance with any procedural requirements, by argument on the appeal. If he succeeds, the appeal will be dismissed notwithstanding that the appellant has demonstrated error in relation to certain of the components. 9. The procedural requirement in this Court is compliance with Rule 95.05. The respondent in the present case complied with that Rule by filing and serving a Notice of Alternative Contention. I consider that that was the correct procedure.

JUDGE2 PERRY J In my opinion, the appeal should be determined in accordance with the reasons for judgment of Duggan J. Like him, I have some hesitation as to the practicality of the arrangements for future care upon the basis of which the learned trial Judge assessed damages on that head. But in the end I have reached the view that whether or not the plaintiff can be persuaded to accept the regime of care postulated by the learned trial Judge, in one way or another an amount of the order awarded is likely to be necessary to provide for her reasonable needs. 2. I agree with the observations of King CJ as to the appropriateness of the respondent proceeding by way of a Notice of Alternative Contention rather than a Cross Appeal. It has always been the practice to allow a respondent to advance any available argument to uphold the judgment which he has obtained, even if, in the case of an assessment of damages, he suggests that any possible over-award on one head is compensated for by an under-award on another head. In such circumstances, no Notice of Cross Appeal is necessary, provided that the respondent does not seek to change the final result. 3. The procedure for the filing and service of a Notice of Alternative Contention under SCR 95.05 does not alter that rule of practice. It only takes effect so as to oblige the respondent to put the appellant on notice that he seeks to justify the same result by reference to grounds other than those relied upon by the trial Judge.

JUDGE3 DUGGAN J The appellant was the defendant in an action for personal injuries arising out of an accident which took place near Iron Knob on 6th July, 1986. He appeals against the apportionment of liability determined by the trial judge and against various aspects of the award for damages. 2. The appellant was 16 years of age at the time of the accident and 21 years at the date of trial. The accident took place near the junction of Highway One and Kingoonya Road. The respondent was driving a utility which was towing a horse-float in which there were two horses. She was on her way to a Gymkhana at a station north of Iron Knob. A family friend, Mr Pyecroft, and another young woman accompanied her as passengers. The other woman was asleep at the time of the accident. The respondent is unable to recall any details of the accident. 3. As the respondent travelled in a westerly direction along Highway One the township of Iron Knob was to her left and the Kingoonya Road to her right and at right angles to the highway. There was also a service station to her left near the junction of the highway and the road leading into Iron Knob. At this point the highway is a straight stretch of road. The respondent intended turning right into Kingoonya Road. 4. The appellant was driving a prime-mover with semi-trailer. He was following on behind the respondent's vehicle but decided to overtake it when he assumed, wrongly as it turned out, that she was going to turn left. The learned trial judge found that at the time of impact the respondent was turning right in order to enter Kingoonya Road. It was not a sudden but a slow turn. The collision between the two vehicles took place as the offside front of the utility passed a short distance across the centre line of the highway. The appellant's vehicle was then in the course of overtaking and, according to the trial judge's findings, the prime-mover struck it near the rear of the cabin on the offside. 5. It is necessary to refer to some of the trial judge's findings of fact which were not disputed on appeal. As the respondent approached the junction with Kingoonya Road she changed down through the gears to second gear and moved along at a walking pace. The respondent then brought her vehicle to rest and changed into first gear, probably at the time she saw the entrance to Kingoonya Road. The respondent activated the offside trafficator well before commencing to turn. The appellant failed to see the trafficator operating and wrongly assumed that the respondent intended to turn left. The appellant's vehicle was travelling at a constant speed of about 80 kilometres per hour. 6. It was conceded that on these findings no challenge could be made to the conclusion that the appellant was negligent. However the learned trial judge also found that, although the respondent looked to her rear before commencing to turn, her lookout must have been defective and she was therefore of contributory negligence. He thereupon apportioned the responsibility 90 percent against the appellant and 10 percent against the respondent. According to the argument presented on behalf of the appellant a far greater degree of responsibility should have been allocated to the respondent. 7. Mr Steele, for the appellant, highlighted three factors which, he said, should have led the trial judge to apportion responsibility more favourably towards the appellant. First he argued that the respondent drove her vehicle in an ambiguous manner which deceived the appellant into thinking she was going to turn left instead of right. The trial judge accepted the evidence of Mr Pyecroft that the utility did not move left onto the southern verge of the highway before the respondent commenced her turn to the right. According to the view of the trial judge any movement by the respondent to the left would have been minimal so as to permit a gradual turn into Kingoonya Road. The appellant gave evidence that the respondent's vehicle moved to the left as if the driver was pulling up or about to make a left turn. He said he was not sure whether the utility moved off the bitumen. He then noticed that it started to turn right. He said he was keeping an eye on the respondent's vehicle as he was about to overtake it. 8. After reviewing the evidence the learned trial judge said: "Having carefully considered all of the evidence, including that of the defendant, I have concluded that the defendant did cease to pay attention to the utility and float after he crossed over to the northern carriageway of the Highway and he then concentrated upon keeping his vehicle on the bitumen surface and did not observe the offside trafficator of the float at the initial stages of the turn to the right of the utility." 9. Mr Steele criticised the trial judge for relying on a passage in the appellant's evidence which was set out in the judgment immediately before this finding. Under questioning by the trial judge the following answers were given:
    "Q. It brings me back to some questions I asked you earlier.
    Having got out there and having appreciated her vehicle had
    slowed or nearly stopped and that you were going to pass, you
    then concentrated on what was ahead of you until you noticed
    the movement of her vehicle making the right hand turn. Is
    that what happened?
    A. I don't know if that's what happened, but that fits in
    accordingly, I think." 10. According to Mr Steele it was inappropriate to give much weight to these answers when the appellant had made it clear that he was keeping a careful lookout at all times and that he was keeping an eye on the float. 11. I cannot agree that undue weight was given to this passage in the evidence. But what is of rather more significance is the unchallenged finding that the offside indicator had been activated by the respondent and that it had not been seen by the appellant. If this was the case and the appellant had been paying the attention which he claimed to the respondent's vehicle, then it is highly unlikely that he would not have observed the indicator. If the respondent's vehicle had moved slightly to the left the manoeuvre would hardly have been enough to justify the conclusion that it was going to pull up or turn to the left. 12. But once it is conceded that the offside trafficator was indicating a turn to the right, the appellant cannot be heard to assert ambiguous driving simply because he did not see the trafficator operating. I think there is much to be said for the trial judge's view that, after crossing over to the northern carriageway, the driver concentrated on keeping his vehicle on the bitumen surface. The appellant said:
    "A. When you overtake on that stretch of road, when it was
    like that, it was narrow. You had to watch what you were
    doing to stay on the bitumen. It is a narrow bit of road.
    Overtaking another truck or a truck coming towards you, there
    is not much room to play around. You have got to just watch
    you don't run off the road. There is a fair shoulder on the
    road, and it will wreck your tyres, and throw you round, so
    you stay on the bitumen.
    Q. As you actually went to go past the utility and the
    horse-float, where were you looking?
    A. Ahead. Just looking generally ahead of me, yes." 13. The next matter raised by Mr Steele concerns the evidence that the respondent put her head out of the window and looked to the rear before she commenced to turn into Kingoonya Road. The only evidence on this aspect was given by Mr Pyecroft in the course of cross-examination. The learned trial judge made the following findings on this evidence:
    "According to Mr Pyecroft, the plaintiff put her head out of
    the window and looked to the rear before she commenced the
    turn to the right but there was some confusion on his part as
    to precisely when that occurred. I accept that it did occur
    and probably on two occasions but it could not have occurred
    shortly before she commenced the turn or she would have seen
    the defendant's vehicle. However, she did see the
    defendant's vehicle in the moments before the collision,
    according to Mr Pyecroft. She called out 'truck' and
    commenced to turn the utility back to her left." 14. According to Mr Steele the respondent ought to have seen the appellant's vehicle on the two occasions she looked out. The roadway was straight for a distance of five to seven kilometres to the east of the point of impact and the appellant had moved out to overtake a considerable distance before the accident. According to the argument if she had seen the truck she would not have commenced the turn. 15. Mr Pyecroft's evidence on this aspect was vague and uncertain and during his cross-examination he stressed that he was having considerable difficulty recalling the details. It would have been unsafe to reach any conclusions on this part of his evidence apart from the fact that the looking behind took place on two occasions. Criticism was made of his Honour's finding that "it could not have occurred shortly before she commenced the turn as she would have seen the defendant's vehicle". But in my view it is highly unlikely that the respondent would have made the turn if she had seen the vehicle close behind her and I think that either the trial judge's explanation is correct or her actions in looking behind were inadequate. In any event the trial judge found that the lookout must have been defective, hence the apportionment of some of the responsibility against her. Nevertheless the fact that the indicator had been activated well before the attempted turn to the right and the failure of the appellant to see that justified the conclusion that the overwhelming responsibility for the accident must rest with the appellant and that the apportionment which the trial judge decided upon was not erroneous. 16. I should add that criticism was made of the trial judge's finding that the utility was not fitted with extended side mirrors which would have permitted the respondent to see the appellant's vehicle on the northern carriageway at an early stage. Photographs of the utility show a mirror on the near side which, it is conceded, is not an extended mirror. Damage to the off-side of the vehicle was extensive and no mirror can be seen on that side in the photographs. In an answer to an interrogatory the respondent said:
    "My motor vehicle was equipped with a rear vision mirror as
    well as side mirrors. The rear vision mirror was a normal
    size and type to be found in any ordinary motor vehicle. The
    mirrors on each side of the motor vehicle were much larger
    than the normal side mirror. They were approximately 8-10
    inches in height and approximately 4 or 5 inches wide. They
    were all in extremely good condition and were also clean at
    the time." 17. The court's attention was also drawn to another answer which asserted: "....when towing the horse-float that I was towing at the time of the collision my view of traffic to the rear of my vehicle was not obscured either wholly or impart whilst the vehicle was travelling in a straight line or at any time during the execution of a turn of my vehicle from 0 degrees to 90 degrees." 18. The respondent stated that there were no mirrors protruding beyond the horse-float. 19. It is clear that his Honour was justified in finding that there were no extended side mirrors. But whether or not the respondent would have been able to observe the appellant's vehicle with the aid of the mirrors is not to the point in view of the finding that at the relevant time her lookout was defective. 20. For these reasons I would not interfere with the apportionment of responsibility considered appropriate by the trial judge. 21. I come then to the appeal against damages. It is convenient at this stage to set out a summary of the assessment of the respondent's damages by the trial judge. 22. Past   Future

   $                 $
Non economic loss 100,000.00         85,000.00
Economic loss        54,000.00        500,000.00
Visits to hospital 12,860.00
Gratuitous services 41,300.00
Future care   1,250,000.00
Future treatment   90,000.00
Special damages     28,312.44 The awards for non-economic and economic loss were challenged on appeal along with the award for future care. 23. I deal first with the award for non-economic loss. The force of the collision between the utility and the semi-trailer is evident from the photographs tendered at the hearing. The injuries suffered by the respondent were particularly serious and they have had a profound effect on her life. She was taken unconscious from the scene of the accident to the Whyalla and District Hospital and from there to the Royal Adelaide Hospital. According to the medical evidence her major injuries included a closed head injury, facial lacerations, hypo-volemic shock, a compound fracture of the right tibia and fibula with major skin and muscle injury and extensive contamination, a fracture of the upper shaft of the right femur, a chest injury including pneumo-thorax and rib fractures, fractures of the base of the second and third metatarsals, a dislocation of the left cuboid bone and two areas of skin loss on the left foot. Numerous surgical procedures followed including a below knee amputation of the right leg. 24. The respondent did not fully recover consciousness until the fourth day after her admission to hospital. She struggled against her treatment and had to be forcibly restrained. On 3rd October, 1986 she was admitted to the Hampstead Rehabilitation Centre and remained there for approximately two months. The stump of her right leg continues to trouble her through irritation and she has experienced difficulty in having a suitable artificial leg fitted. 25. In addition to these physical detriments resulting from the injuries, the respondent has suffered permanent frontal and temporal lobe damage resulting in considerable neuropsychological impairment. Before the accident she was a healthy and personable young girl of average intellectual capacity. She now functions in the borderline handicapped range. Disturbing behavioural problems have emerged. She is inclined to be rebellious and disinhibited. She has committed minor offences and is prone to mix with undesirable company. Before the accident she was a competent horsewoman, but outdoor activities are now severely curtailed. 26. Enough has been said to indicate that the combination of physical and neuropshychological impairment has had a devastating effect on the respondent's way of life. Her evidence reveals a capacity for enjoying life but she has been deprived of her independence and when to this is added the pain and suffering which has been visited upon her it must be said that the award for non-economic loss was well within the appropriate range. Accordingly I would not interfere with the assessment in this respect. 27. Next the awards for past and future economic loss were challenged. The respondent was not very competent at school work. It is clear that she was more interested in activities associated with horses. According to the evidence she was "horse mad". It was the view of the trial judge, therefore, that the respondent would have left school at the end of 1986 when she was still aged 16, perhaps worked in stables for a time and then obtained employment as an office clerk, either in a plumbing business operated by her family or with some other employer. Working on the assumption that the respondent would have worked as a clerk from January 1986 to the time of trial (December 1991) the total amount of her wages after the payment of tax would have been $54,149.16. His Honour observed that this amount may have been supplemented to a limited extent as a result of the respondent working in stables. On this basis he considered that an appropriate award for past economic loss was $54,000. If the appellant had worked solely as a stable hand for the same period she would have earned $40,575.77. 28. There is no doubt that prior to the accident the respondent was an active girl who would have been prepared to work enthusiastically for a living. She had the advantage of potential employment as a clerk in the family business and, although her interest in horseriding may have proved somewhat of a distraction, I think the learned trial judge was justified in assuming that she would have commenced employment as a clerk and general assistant almost immediately. According to her mother she had already exhibited a willingness and ability to assist in the business. I agree with the learned trial judge that there are no significant adverse contingencies over this period and that the respondent may well have supplemented her income with work in a stable. I would not interfere, therefore, with the award of $54,000 for past economic loss. 29. The assessment of the amount appropriate to compensate the respondent for future loss of earning capacity is more problematical. It is clear that she is totally and permanently incapacitated for employment. The trial judge proceeded on the assumption that the respondent would have commenced employment as a clerk in the family business receiving award wages for a period of time. The respondent's father, who founded the business, was killed in a road accident in 1988 and since his death her mother has continued to play an active role in the business, attending to the office work as well as other duties. The respondent's three brothers work in the business as plumbers. At the date of trial the mother was taking a share of profits of $500.00 per week after tax. 30. The trial judge thought it was likely that the respondent would take over her mother's role in the business in due course and that when she did she would receive a share of profits to about the same extent as her mother. After taking into account the fact that the respondent's mother was 50 years of age at the date of trial the trial judge assumed that she would have retired in 10 years' time. Applying the multiplier supplied by the actuary of $465.00 which was calculated on a loss ceasing on attaining the age of 32 years or prior death, to the clerks' award wage of $295.15 the trial judge arrived at a loss of $137,244. The application of a multiplier of $714.00 for loss commencing at age 32 years and ceasing upon age 60 years or prior death to the sum of $500.00 per week (the anticipated share of profits) produced a figure of $375,000. Accordingly the total loss on the actuarial calculations amounted to approximately $494,000. His Honour was of the view that the respondent may have earned some additional modest income from activities with horses. He thought that any adverse contingencies would have been offset by favourable contingencies and he awarded a total of $500,000 for future loss. 31. The assumptions underlying this award have been challenged on the grounds that the respondent's interest in horses would have resulted in her pursuing a hoped-for career as a jockey; that the respondent's outlook and lack of qualifications rendered a career in the family business unlikely; and that it was unrealistic to expect that she could and would have stepped into the shoes of her mother and taken a share of the profits. 32. The suggestion in evidence that the respondent would have pursued a career in the business came principally from her mother. When Mrs Footner married her husband he operated a fairly small plumbing business in Port Augusta. Mr Footner was a master plumber and he worked hard to establish a good business, particularly in the far northern pastoral area. Three sons are now working in the business; two are master plumbers and the other is a qualified plumber. The business had been operated as a partnership between Mr and Mrs Footner and Mrs Footner attended to a wide range of duties in the office at Port Augusta including book-keeping, assistance with the preparation of quotations and tenders, organising spare parts and supplies and preparing food for the workers when they were working in isolated areas. The business was incorporated after Mr Footner's death. The sons are now paid award rate salaries plus loadings for working in isolated areas. 33. Mrs Footner said that prior to her accident the respondent assisted in the business from time to time. She said that her daughter did not have a lot of spare time but she would always help if asked. The respondent was doing a typing course at school and sometimes helped with accounts or to write out cheques. Sometimes she would do the banking. She also helped to cook the food to be sent up to the working sites. Mrs Footner gave the following evidence:
    "Q. In relation to the partnership work you have told us
    about, did she enjoy that?
    A. She did enjoy doing that because, Angela enjoyed doing
    that and never not said she wouldn't do it.
    Q. Did you and your husband have any plans for Angela's
    future?
    A. We certainly did. We always talked and thought that
    Angela would be part of the business, the same as the boys
    had been part of the business.
    Q. Did you speak to Angela about those plans?
    A. Yes. When she was only in high school and she was
    typing, I told her to take that course so she would be able
    to continue helping in the office and eventually take over
    and be a good help to me and relief."
    ...
    "Q. What was the plan as far as her education was concerned,
    if you had one?
    A. All Angela really wanted to do was with the horses but if
    she had the opportunity I suppose and we asked her, hopefully
    she would have done the business work as well in the office.
    Q. Did you intend that she go back to school for Year 12?
    A. Yes. If she couldn't get a job, otherwise be in the
    office with me." 34. There was evidence that the respondent's school performance was average to low average and that she allowed her considerable interest in horses to distract her from her studies. She had an ambition to be a jockey and she rode track work for a cousin who was a horse trainer. He said he would have agreed for her to be indentured to him as an apprentice jockey if she had so desired. Despite this interest and her skill with horses, however, I am inclined to the view that the idea of being a jockey, and in particular making a living as a jockey, was over optimistic. In the light of her family's wishes, the earlier promise of some aptitude at working in the business and the fact that it was not an office job in an ordinary plumbing business but was associated with outdoor work, the likelihood is that the respondent would have become employed in the business at an early stage. 35. Nevertheless I do have considerable difficulty with his Honour's view that in the space of 10 years she would, in all respects, take her mother's place and receive remuneration through a share in the profits. Although the business has expanded considerably it now has to provide income for the respondent's three brothers. None of them are married and two were living at home with their mother at the time of trial. 36. Mrs Footner's role in the business was exceptional. She had been an active partner with her husband, but after his death she was required to direct its operations. The business may well have to support the families of the respondent's three brothers should they marry and it cannot be said with any degree of confidence that the respondent would have inherited her mother's role in the company in all respects including profit sharing. In my opinion the proper basis for calculating future economic loss in the circumstances of this case is to acknowledge that the respondent would have joined the business in order to perform mostly clerical duties as an employee. In these circumstances if the multiplier of $714.00 referred to above as being appropriate for calculation of loss commencing at age 32 were to be applied to a clerk's net weekly wage of $295.15 and the product added to the present day value of earnings as a clerk up to the age of 32, the resultant figure would be approximately $348,000. This may have been supplemented to some extent by income derived by doing stable work and the limited adverse contingencies would be cushioned to a significant extent by the availability of employment in the family company. On this basis I would reduce the award for future economic loss to $350,000. 37. The next challenge to the assessment was directed at the award for the future care of the respondent. It was not in dispute that the respondent would require care and supervision on a permanent basis. It was also common ground that this assistance was best provided outside an institution. However the appellant put forward the proposition that the respondent could lead a satisfactory life with the assistance of domiciliary care workers calling on her morning and evening for visits of approximately one hour's duration. The appellant also argued that a suitable psychotherapy and rehabilitation programme would be of considerable assistance to the respondent in attaining more independence and reducing the need for extensive supervision. The appellant relied heavily on the evidence of Mr Walsh, a neuropsychologist, in advancing this model for the future care of the respondent. Mr Walsh was of the view that depression was an important contributor to the respondent's disabilities and he considered that it was able to be treated as part of the rehabilitation programme. The trial judge saw the need for much closer supervision and he preferred the evidence of a number of other expert medical witnesses to that of Mr Walsh. 38. In order to deal with the arguments raised on this issue it is necessary to refer in some detail to the medical evidence. Mr Walsh acknowledged that the respondent suffered from brain damage. He was of the view that the effects on her abilities and personality were moderately severe. He was also of the opinion that she suffered from depression brought on by the deficits consequent upon the injury suffered in the accident as well as the death of her father. Mr Walsh considered that the respondent would respond to a programme of rehabilitation which would focus on overcoming the emotional effects of her disabilities and help to provide her with living skills. He envisaged that after this training the respondent could manage with the assistance of some supervision and help with everyday living provided in the course of visits by care workers of approximately one hour's duration morning and evening. 39. Psychiatric or psychological treatment would also be necessary from time to time but, in the opinion of the witness, institutional care or the supervision of the Guardianship Board may be required if seriously reckless behaviour took place. Mr Walsh said that full-time supervision would be unnecessary and, indeed, counterproductive. He conceded that there were risks of the respondent making poor judgments in various areas, becoming disinhibited, losing her temper, neglecting herself or her child and, perhaps, harming herself or the child. However, whilst acknowledging the experience of Mr Walsh in the rehabilitation of brain damaged persons, the learned trial judge stated that he preferred the evidence of Drs Ravindram, Schaeffer, Lucas and Wood. 40. Mr Steele argued that the trial judge wrongly polarised the views of Mr Walsh on the one hand with the evidence of the other experts on the other. In particular counsel pointed out that the other experts had agreed that there was an element of depression in the respondent's behaviour and the fact that some attempt at rehabilitation was desirable. However, upon consideration of the relevant evidence, it is apparent that there is a significant difference of opinion between Mr Walsh and the other experts referred to above as to the extent to which rehabilitation is likely to overcome the respondent's problems and the degree of care and supervision which would be required after attempts at rehabilitation. 41. Dr Ravindram, a surgeon by training, is the Medical Director of the South Australian Head Injury Service. He expressed the view that in the light of the respondent's uninhibited and undisciplined behaviour she ought to be placed under the control of the Guardianship Board. He said he thought the respondent's child was at risk as long as the respondent was unsupervised. He said the respondent would need supervision wherever she might be. In response to questioning by the trial judge Dr Ravindram gave the following evidence:
    "Q. Do you see that there is a need, in effect, of a
    constant level of supervision?
    A. Yes I do.
    Q. First, I want to understand what is meant by that?
    A. Supervision in the sense of 24 hour presence, if you
    like, so that she doesn't hurt herself and is able to
    organise where she lives.
    Q. You don't see it as a situation where she could live in
    independent accommodation and have somebody there at
    different times of the day?
    A. I think unless the environment is very well controlled
    there is a source of danger, also the question arises if
    Angela walks out and goes into the bush what happens to her
    place of residence.
    Q. So you see it as full-time supervision?
    A. Full-time presence, not necessarily watching over Angela
    full-time, certainly full-time presence.
    Q. For life?
    A. Yes.
    Q. Let's assume for the moment that doesn't work and can't
    work. What is the next option?
    A. At the present time very few options exists, except to
    take her, if she is harming herself, then the only option
    available is a closed ward." 42. Dr Ravindram was of the view that rehabilitation was unlikely to alter the respondent's attitude and behaviour to any great extent bearing in mind the time which has elapsed since the accident and the nature of her behaviour and attitude in the intervening period. 43. Dr Lucas, a psychiatrist, provided some comprehensive medical reports on the respondent's condition and gave oral evidence. He said the brain damage had resulted in a reduction of the respondent's intellectual capacity to below normal. The personality changes included a large anti-social component. He said she could not look after the baby and herself and he suggested that some form of control over her, perhaps by the Guardianship Board, was necessary. He argued that the suggestion of her living in a country area under supervision from a person or persons living with her may well be appropriate, but its success would depend upon her co-operation. In the absence of a reliable assessment, Dr Lucas appeared to be reticent about agreeing with Mr Walsh's diagnosis of depression, but he said the respondent might be "a bit depressed". He warned against optimism as to the success of rehabilitation. He said it was an "incomplete alternative" having regard to the brain damage. 44. Dr Wood, a neuropsychologist, said that he had not become aware of any specific symptoms of depression in the course of his interviews with the respondent. He said that she was incapable of managing her own affairs and would require fairly close supervision for the rest of her life. He said supervision would be required for most of the day and at night. The witness was asked about the requirement of care by the trial judge:
    "Q. Do you see that that would always be 24 hours?
    A. With the addition to her family, I would have thought one
    is looking to at least the next half dozen years or so, and
    after that I think it is difficult to answer.
    Q. I will put this question to you in the context of there
    being no baby. Would she ever be in the position of being
    able to live independently, without supervision?
    A. No, I don't think she would. I think she has no planning
    ability and does not seem to be able to manage on the basis
    of the experiences she has undergone over the last several

    years, to develop sufficient independent skills." 45. Mr Shaeffer, a neurosurgeon, was of the view that the respondent received frontal and temporal lobe damage in the accident. He said this had resulted in a total lack of responsibility. There was also an element of depression. He said that it was obvious that the respondent was unable to look after herself and that she could not look after her child by herself. 46. A reading of the evidence of the witnesses accepted by the trial judge reveals ample support for his conclusions that the respondent would need full-time care and supervision for the future; that anything less will expose her to risk; and that attempts at rehabilitation or treatment for depression will not reduce the necessity for such supervisory care. The requirement to look after the child has no doubt made the respondent's position more difficult, but it is clear from the evidence relied upon by the trial judge that constant supervision would be required in any event. 47. Relying upon the principle expressed in Sharman v Evans (1977) 138 CLR
563 at 573 that the plaintiff is entitled to recover expenses for future care which might reasonably be incurred and cannot insist upon what are, in effect, ideal requirements, the trial judge rejected the argument that provision should be made for the employment of two full-time persons caring for the respondent at a property where horses could be kept. However, in the light of his Honour's findings that full-time care was required, he also rejected the appellant's argument that two supervisory visits per day would be sufficient. In his Honour's view the full-time care which was required could be provided by one suitably trained person living with the respondent. The amount of $1,250,000.00 by way of damages for future care was based on the estimated cost of this proposal and also took into account the possibility that the respondent may require institutionalised care on occasions and eventually on a permanent basis. It should be pointed out that the capital sum which would be required to provide the respondent with full-time care at the Julia Farr Centre would be $2,036,265.00. 48. I can detect no error in the approach of the trial judge to the medical evidence upon which the assessment as to future care was based. His Honour found that treatment for depression would not improve the capacity of the respondent to the extent that she could care for herself. It is true that some of the experts accepted by the judge agreed that there may have been an element of depression present in the respondent's condition, but none of them reposed the confidence in the remedial aspects of that treatment which was apparent in Mr Walsh's evidence. Mr Steele criticised the trial judge's view that the Beck Depression Inventory tests used by Mr Walsh to assess this condition were of minimal value in the light of his Honour's assessment of the unreliability of information given by the respondent. But in making this assessment the trial judge was entitled to rely on the evidence of Drs Lucas and Wood as to the importance of the reliability of the information given by the subject of the tests and to rely further upon his own assessment of the respondent and her ability to provide the necessary accurate information. 49. One matter which does give rise to concern is the practicability of the proposals for future care accepted by the trial judge. In the light of the respondent's irresponsible behaviour and defiance of those who have tried to assist her since the accident, there is some doubt as to whether she will accept the strictures of living under the care of another person. If the model accepted by his Honour is unlikely to succeed then it cannot be said that these measures are within the reasonable requirements of the respondent. These concerns were also in the mind of the trial judge. Nevertheless, to my mind, there are two important factors which are relevant to this aspect. An order was made that the Public Trustee be appointed manager of the respondent's financial affairs so that this will provide a measure of control over the respondent's lifestyle. Furthermore the Guardianship Board may well have a role in the supervision of the respondent in the future. If it becomes necessary to protect the respondent through a guardianship order the exercise of the Board's powers under s.27 of the Mental Health Act, 1977 would provide further control. 50. Mr Steele submitted that in assessing the amount to be allowed by way of future care the needs of the respondent's child are irrelevant. In support of this contention he referred to the majority decision in Burnicle v Cutelli
(1982) 2 NSWLR 26. In that case the plaintiff claimed the cost of providing services to her husband and family which she could no longer provide by reason of disabilities resulting from the defendant's negligence. It was held that these circumstances did not come within the Griffiths v Kerkemeyer principle. Although such a loss might be compensated for in the award for general damages, it was an unjustified extension of Griffiths v Kerkemeyer to take into account the cost of providing services previously performed for others. Burnicle's case was cited with approval in Hodges v Frost 53 ALR 373 at 381. 51. In my view this issue does not arise in the present case. There is no question of identifying certain services which the respondent can no longer render to her child and compensating her in respect of them under the headings of past or future care. Some of the witnesses referred to the difficulties which the respondent had and would experience in living alone. One of the complicating factors was the difficulty of looking after the child. In my view the court was entitled to take this matter into account in considering the general circumstances of the respondent in the situation in which she found herself after the accident. Furthermore there was ample evidence to support the view that the respondent would be in need of the degree of care considered necessary by the trial judge even if she did not have the child. There was no compensation for the cost of looking after the child. His Honour said:
    "It was submitted on her behalf that her pregnancy and the
    resultant need for child care services are causally linked to
    the negligence of the defendant and there is no reason as to
    why damages should not be awarded for the cost of that care.
    The defendant contended to the contrary. In view of the
    conclusion which I have reached as to the appropriate model
    for the future care of the plaintiff, it is unnecessary to
resolve this issue." 52. In the result I am of the view that this court should not interfere with the award for future care. 53. As part of the argument on the aspect of future care Mr Steele contended that the trial judge should have determined the issue of liability, made an interim assessment of damages and adjourned the final assessment until a later date. This, it was argued, would have enabled the respondent to undergo rehabilitation and psychotherapy. According to the argument the respondent had a duty to mitigate her damage and it was appropriate for her to undergo such treatment which, if successful, would have materially affected the awards for pain and suffering and future care. 54. Whether or not such an order is made is entirely within the discretion of the trial judge. (Ikonomos v Lesiuk and Ikonomos (1973) 6 SASR 111). In the light of the trial judge's findings there was good reason for not adopting this course. He did not accept Mr Walsh's view that the treatment would have the effect suggested by the witness. In these circumstances the requirement of the plaintiff to mitigate her loss by undergoing such treatment did not arise. But in any event it can be inferred from the trial judge's view of the matter that an adjournment would not have enabled a more precise assessment of the respondent's needs. I would reject this ground of appeal. 55. In my view no error has been demonstrated in the trial judge's approach to the difficult task of awarding damages for future care. He accepted those witnesses who recommended a higher degree of supervision than that suggested by the appellant. There are practical difficulties involved in all of the options debated, but in my view the basis of the award cannot be said to be unreasonable. In all the circumstances I would not interfere with the assessment under this heading. 56. Finally it is necessary to deal with the notice of alternative contention filed by the respondent. According to the notice the trial judge, in assessing damages for past and future voluntary services, incorrectly excluded from his calculations provision for services which would have been provided even if the respondent's injury had not occurred. Since preparing my reasons for judgment in draft I have had the advantage of reading the remarks made by the Chief Justice as to the purpose and function of a notice of contention filed in a case of this nature and I agree with the views he has expressed. 57. The trial judge awarded $41,300.00 for compensation for past voluntary services. The services referred to in the notice of contention were rendered by the respondent's mother. The sum of $30,000.00 was awarded for the period from October 1986 when the respondent was admitted to the Hampstead Rehabilitation Centre at the end of 1987. Eight hours per day was allowed during this period. The sum of $7,500.00 was awarded for the next period up to October 1991 when therespondent moved into her own accommodation. This assessment was based on 20 hours per month. Finally, $3,800.00 was allowed for the period October 1991 to the date of trial on the basis of four hours per day. 58. In the course of his reasons the learned trial judge commented:
    "In assessing damages under the Beck v Farrelly (1975) 13
SASR 17 and Griffiths v Kerkemeyer (1977) 139 CLR 161
    principle, care must be taken not to compensate for voluntary
    services which would have been provided even if the
    disability had not occurred. The mother would have done the
    cooking, washing and ironing for the plaintiff if she had not
    been injured and would have exercised general parental
supervision. I have had regard to those matters." 59. There was no specific mention of the extent in monetary terms to which these considerations were taken into account. 60. According to the respondent the trial judge was in error in the light of the decision in the recent High Court case of Van Gervan v Fenton (1992) 109 ALR 283. In that case the appellant, who was injured in a motor vehicle accident, was in need of almost constant care which was provided by his wife at home. After holding that the cost or value of those services was the fair and reasonable value of such services the majority went on to say (p.291):
    "In this case, the appellant's need is essentially for
    constant care and attention. No doubt some of the services
    which are now needed by the appellant were provided for him
    by his wife before the accident. But with great respect to
    those judges who have taken the contrary view, (see for
    example, Johnson v Kelemic; Kovac v Kovac; Maiward v Doyle;
    Carrick v Commonwealth) no allowance in favour of the
    respondent can be made for such matters. A defendant is no
    more entitled to have the pre-accident voluntary contribution
    of a spouse taken into account than a defendant would be
    entitled to have the pre-accident work of a paid housekeeper
    taken into account. If the defendant has created the need
    for the services, that person is not entitled to have the
    damages reduced because, before the accident, the plaintiff
    elected to pay for similar services or had the benefit of
    having them performed gratuitously. By the tort, the
    defendant has transformed the choice of the plaintiff to pay
    for such services or to have them done voluntarily into the
    need for the plaintiff to have those services performed for
    him or her. If the defendant was entitled to credit in
    respect of services which has been proivded for the plantiff
    before the accident (either gratuitously or by contract), the
    plaintiff would receive a smaller amount of damages than a
    plaintiff, with the identical need, who had not had any
    services performed for him or her. It would not be
    consistent with the law relating to third party arrangements
    to distinguish between the plaintiff who, before the
    accident, had none of the services performed for him or her
    and the plaintiff who, before the accident, either paid for,
    or had performed gratuitously, some of those services. (See
    National Insurance Co of New Zealand Ltd v Espagne (1961) 105
    CLR 569." 61. It is important to bear in mind that the court is there speaking of the creation of a need by reason of the accident. Some domestic services as between husband and wife may well be provided "as part of the give-and-take usually involved in domestic arrangements" (supra at 300). However there will obviously be pre-existing needs in the case of children. It is inappropriate in the case of the relationship between parent and child to speak of the choice of paying for pre-accident services or having them done voluntarily. The need for services such as domestic assistance and general parental supervision will decrease as the child becomes older, but until the age of say 18 it is not inappropriate to speak of a need in this respect, particularly as to supervision. The respondent was 16 at the time of the accident and so it was appropriate for the trial judge not to compensate for certain voluntary services at least until the age of 18. Accordingly the broad statement by the trial judge in his reasons for judgment cannot be criticised as having no relevance to the present case. The claim made under this heading at trial was $124,000. The trial judge allowed $41,000. As I have pointed out the principle was correctly stated for the purposes of this case and it is not apparent from the calculations made by his Honour that the actual assessment is erroneous. 62. In my view the appeal against the apportionment of liability should be dismissed and the appeal against the award of damages should be allowed so as to reduce the amount to be awarded for future economic loss before apportionment by $150,000. The total amount of the damages and interest before apportionment as assessed by the trial judge was $2,284,480.44. After apportionment this award reduces to $2,056,032.40. However, according to the sealed judgment, the award is $2,066,032.40. Using the correct figure of $2,056,032.40 and subtracting the sum of $135,000 (the reduction in the damages after apportionment) the judgment should be varied by reducing it to the sum of $1,921,032.40.