Audrey Elliott (BY Her Litigation Guardian Shirley Peter) v Michael Cottrell - [2021] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
AUDREY ELLIOTT (BY HER LITIGATION GUARDIAN SHIRLEY PETER) v MICHAEL COTTRELL
[2021] SADC 103
Judgment of her Honour Judge Deuter
2 September 2021
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - MEDICAL AND HOSPITAL EXPENSES
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - KNOWLEDGE - KNOWLEDGE OF AGENT OR CUSTODIAN
The applicant sustained multiple injuries in a motor vehicle accident that occurred on 13 March 2017 (the accident). At the time of the accident the applicant was 98 years of age. She was a front seat passenger in the respondent’s motor vehicle when it was involved in a T-Bone type accident. Liability for the accident and the applicant’s injuries has been admitted by the respondent.
Prior to the accident the applicant suffered from a number of medical issues. She had suffered a number of falls and injuries as a result. However, she continued to reside in an independent living unit within a retirement village.
As a result of the injuries sustained in the accident the applicant was hospitalised for six weeks and was discharged to a supervised residential aged care facility. She has continued to live in residential aged care since that time.
The parties have a negotiated a resolution of general damages and costs. One head of damage has not been resolved, namely the extent to which the applicant's post-accident aged care costs relate to her accident caused injuries.
The court was asked to determine two issues:
1. On the balance of probabilities, was the applicant's need for residential aged care brought forward because of the injuries that she sustained in the accident?
2. If the answer is yes, when on the balance of probabilities, would the applicant have required residential aged care irrespective of her sustaining injuries in the accident?
Held:
1. The applicant’s need for residential aged care was brought forward as a result of the injuries that she sustained in the accident.
2. The applicant would have required supervised residential aged care within 18 months of the date of the accident, irrespective of the injuries that she sustained in the accident.
Aged and Infirm Persons' Property Act 1940 (SA) s 8 A; Health and Other Services (Compensation) Act 1995 (Cth) ss 7, 8, 9, 10; Health and Other Services (Compensation) Care Charges Act 1995 (SA) ss 5, 6,7, 8; Civil Liability Act 1936 (SA), referred to.
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; Watts v Rake (196) 108 CLR 158, applied.

AUDREY ELLIOTT (BY HER LITIGATION GUARDIAN SHIRLEY PETER) v MICHAEL COTTRELL
[2021] SADC 103
Civil
Overview

The applicant sustained multiple injuries in a motor vehicle accident that occurred on 13 March 2017 (the accident). She has commenced proceedings seeking damages for losses suffered as a result of her injuries.
At the time of the accident the applicant was 98 years of age having been born on 1 February 1919. She was a front seat passenger in the respondent’s motor vehicle when it was involved in a T-Bone type accident at the intersection of Old Port Wakefield Road and Port Wakefield Highway at Virginia. Liability for the accident, and the applicant’s injuries has been admitted by the respondent.
The parties have negotiated a resolution of all but one of the heads of damage of the applicant’s claim. On 30 July 2021 I made an order approving the compromise reached between the parties, and agreed to, by the applicant’s litigation guardian. An order was made:
1.That judgment be entered for the applicant for the sum of $27,550.00, inclusive of general damages, special damages and interest, (judgment sum), but in addition to aged-care costs attributable to the accident injuries, and party/party costs and disbursements to be agreed or taxed (the judgment).
2.That the respondent pay the judgment sum to the applicant’s manager and trustee upon the basis that:
2.1 Upon payment by the respondent of the amount of $27,550.00 to the applicant’s manager and trustee, the respondent be discharged from any further liability with respect to the applicant’s claim, save for any aged-care costs caused by the accident injuries, to be the subject of a trial;
2.2 Pursuant to s 8A of the Aged and Infirm Persons’ Property Act 1940 (SA), the Public Trustee be appointed Manager to take possession of and control and manage that part of the estate of the applicant which is ordered to be paid to the Public Trustee, and the Public Trustee have the powers and duties imposed and given by the Aged and Infirm Persons’ Property Act 1940 (SA) or any applicable Rules of Court;
2.3 The judgment addresses all issues between the parties except the respondent’s liability to pay the aged-care costs incurred by the applicant since the date of the accident to the extent that it is found that they were caused by the injuries sustained by the applicant in the accident.
The aged-care costs incurred by the applicant since the accident have been paid in part by the respondent’s Compulsory Third Party (CTP) insurer. It has paid the private component of the aged-care costs from the date the applicant entered a residential aged-care facility, until 31 July 2020. During this period the Commonwealth Government (the Government) funded component of the aged-care costs was not met by the respondent.
The respondent’s CTP insurer made a commitment to the aged-care facility to which the applicant was discharged from hospital, that it would meet all expenses over and above the Government contribution to the cost of the applicant’s care. The CTP Insurer continued to do so until 31 July 2020, when it stopped paying any aged-care costs upon the basis that by the date, the applicant would have required residential aged-care, even if not involved in the accident.
The Government through Medicare has paid the applicable Government funded component of the applicant’s aged-care costs since 1 May 2017. On 14 May 2020 Medicare issued a Notice of Charge indicating an intention to recover from the applicant all of the Government funded component of the applicant’s aged-care costs since the date of the accident in the sum $219,644.15.[1] The Government’s claim is based upon an assessment that the applicant’s need for residential aged-care, from the date of the accident until the date of the notice was caused by the accident.
[1] Pursuant to ss 7, 8, 9 and 10 of the Health and Other Services (Compensation) Act 1995, under ss 5, 6, 7 and 8 of the Health and Other Services (Compensation) Care Charges Act 1995, where a claimant receives Medicare benefits for treatment, nursing home care, residential care or home care and is entitled to reimbursement of the whole or any parts of those benefits, Medicare is entitled to recover such past amounts paid accordingly.
The parties conducted a trial to seek a determination from the Court on the following two issues:
1.On the balance of probabilities, was the applicant’s need for residential aged-care brought forward because of the injuries that she sustained in the accident?
2.If the answer to the above question is yes, by when, on the balance of probabilities, would the applicant have required residential aged-care irrespective of her sustaining injuries in the accident?
In seeking this determination, the respondent by his CTP insurer has agreed and has given an undertaking that to the extent that there is a finding that it has overpaid any component of the applicant’s aged-care costs the CTP insurer:
1.Will not seek to recover those payments from the applicant;
2.Will not seek to apply such payments as an ‘offset’ against the judgment sum;
3.Will not seek to apply such over payment as an ‘offset’ against his liability for Medicare’s Notice of Charge for aged-care costs.[2]
[2] FDN 25.
Background
At the date of the accident the applicant was 98 years of age. She was a widow living in an independent living unit at the Grove Retirement Village at Campbelltown. The applicant’s husband had passed away on 16 March 2011. Prior to his death they had both lived independently in the retirement village, and the applicant was her husband’s full-time carer as he suffered from dementia. The applicant has two children her son Merv Elliott, and daughter Shirley Peter. She has a number of grandchildren and great-grandchildren.
By agreement no oral evidence was called at the trial. A large folder of documents containing 880 pages of the applicant’s medical records and expert medical reports was tendered by consent.[3] These documents contain all of the evidence tendered by the parties, and upon which I am to base my decision.
[3] Exhibit P1.
Applicant’s Pre-Accident Functioning
The tendered documents establish that the applicant was relatively independent before the accident, taking account of her age. A post-accident report of 6 September 2017 prepared by Ms Ellie Gaynor, a rehabilitation provider, records a history from the applicant’s daughter, that prior to the accident the applicant’s children would visit at least twice weekly, taking her out to lunch or to family gatherings. She was also regularly visited and taken out by her cousin Clarice. [4] Each Wednesday the applicant would travel independently to the city to attend a bridge club with friends.
[4] Exhibit P1 Document 1.1.
Doctor Bastian, in a report of 13 December 2017,[5] records that at the time of accident the applicant was living in a retirement village in an independent unit. She used a walker intermittently outside but not inside; would make her own lunch if she was not taken out; would do weekly shopping with her daughter or on occasions would catch a taxi by herself to go shopping; and would at times catch the bus on her own. The applicant was provided with some assistance for cleaning and had issues with her vision due to macular degeneration.
[5] Exhibit P1 Document 1.2.
The history recorded in the clinical notes of the Royal Adelaide Hospital (RAH), recorded that at the time of the accident the applicant’s retirement village provided not only weekly cleaning but also laundry services, and that a lunch if required, was provided in the dining room. [6] However, the applicant attended to her own breakfast and hot drinks etc. It was also noted that the applicant’s son and daughter would assist with not only her shopping but also community errands, although at times the applicant went out by herself into the community. Direct debits were in place for the payment of bills and the applicant was able to mobilise within her unit with the assistance of handrails and a static chair. She was reliant on regular podiatry visits for the care of her feet and toenails. The applicant was independent in transfers from chair to bed, and with her mobility with the assistance of a walking frame.
[6] Exhibit P1 Document 4.1.
Photographs of the applicant taken on 6 October 2016 and 1 February 2017 when out with her family show a bright-eyed older lady engaging with her family.[7] The evidence regarding the applicant’s pre-accident living situation is that there were no plans for the applicant to move into an aged-care facility prior to the accident. It was reported by her daughter, that the applicant was in fact resistant to more assistance.
[7] Exhibit P1 pp 42-43.
Health - Pre-Accident Medical Reports
The applicant’s RAH records,[8] and her General Practitioner records of (GP Surgery at Campbelltown)[9] were tendered. These pre-accident medical records reveal that the applicant suffered a number of medical issues prior to the accident, which of course would not be unexpected for a person of her advanced age. In particular, the applicant had suffered a number of falls prior to the accident. The first record of a fall was noted to be on 21 February 2010. The applicant’s husband was then still alive, and it was recorded that she was very independent. The applicant was still driving. She was her husband’s full-time carer, and fell onto her left hip when assisting him. She was described in the notes as a very bright and alert lady.[10] On 31 March 2010 the applicant sustained another fall when she fell onto her knees, and also suffered a minor head injury requiring referral to the Falls Risk Team.[11]
[8] Exhibit P1 Document 4.1.
[9] Exhibit P1 Document 4.2.
[10] Exhibit P1 pp 92-97.
[11] Exhibit P1 pp 52-55.
Between 6 December 2013 and 31 October 2014, the applicant suffered seven serious falls. The fall on 6 December 2013 led to the applicant being admitted to hospital with a right wrist fracture. It was noted at that time that the applicant had suffered a number of falls in the past causing a fractured sternum, fractured ribs, fractured vertebrae and pelvis. On this occasion she also suffered tenderness over the chest wall and lacerations to her right cheek and knee. I pause to note that this fall occurred when the applicant was on her own, and on her way to the bank. The applicant required open reduction and internal fixation surgery of the right distal radius, from which it is noted she made a reasonably good recovery.
As a result of the applicant’s recurring falls, a CT Scan of her head was arranged on 6 December 2013. There was a concern that the applicant was showing signs of confusion following her latest fall. The CT Scan Report indicated the presence of mild atrophic change, and small vessel ischemia in the brain, with no other intra-cranial pathology.[12]
[12] Exhibit P1 pp 685-686.
The next significant fall was on 17 March 2014 when the applicant sustained a full thickness tendon tear of the supraspinatus muscle in the right shoulder. This caused permanent difficulties with her range of abduction in the shoulder.[13] The applicant thereafter suffered falls at home on 7 May 2014, 20 June 2014, 8 July 2014, 21 July 2014 and 28 August 2014. In these falls the applicant suffered more moderate injuries to her buttocks, chest, shoulders and right knee.
[13] Exhibit P1 p 722.
The applicant was referred for a further CT Scan of her brain, as a result of these increasing falls. This scan of 8 September 2014 was reported as showing a brain consistent with the applicant’s age. There was no mass present of concern, although there was minor involutional dilation present of the CSF spaces.[14]
[14] Exhibit P1 p 724.
During October 2014 the applicant was reviewed by a Cardiologist as a result of her falls, given that she suffered from Takotsubo Cardiomyopathy and had displayed mild aortic stenosis and mild tricuspid regurgitation on an echo doppler preformed in 2012. However, Doctor Ywend, her Cardiologist at that time, was of the opinion that the applicant’s falls were unlikely to be cardiac in origin as her aortic stenosis was not significant enough to cause syncope.[15]
[15] Exhibit P1 pp 746-748.
A review of the applicant’s feet on 31 October 2014 by Ms Krzystoszek, Occupational Therapist, found that she had significant issues with clawing and over-riding toes, with reduced sensation in both feet. This was likely impacting her balance and mobility. The applicant also suffered from poor vision as a result of macular degeneration. She was noted as having a tendency to walk too fast, and change direction quickly. However, she was not keen to attend a balance / falls prevention group.[16]
[16] Exhibit P1 p 747.
The applicant continued to suffer falls between mid-2015 and January 2017. In late 2015 she suffered a shoulder dislocation as a result of a fall and required hospitalisation at Calvary Rehabilitation Hospital for two weeks. She was found at that time to be suffering from multi-level degenerative changes through her lumbar spine and facet joints.[17]
[17] Exhibit P1 p 759.
On 29 November 2015 the applicant underwent a further CT Scan of the brain and the cervical spine. This indicated degenerative changes throughout the spine. The brain scan displayed small vessel ischemic change, associated with generalised parenchymal volume reduction of a moderate to extensive scale. Non-displaced fractures of the nasal bones were also noted, likely caused by her recent falls. An x-ray of the same date of the lumbar spine, required because of chronic back pain, indicated loss of central and anterior height at L4.[18]
[18] Exhibit P1 pp 768-772.
As of 30 November 2015, it was recorded in the GP notes that the applicant was suffering from chronic lumbar spine pain, which had been exacerbated by a recent fall. She was also suffering facial pain and a haematoma on her face, as a result of that fall.
On 30 November 2015, it was also recorded that the applicant now had support three times per week for showering, and for cleaning once a fortnight. The applicant no longer cooked for herself. She purchased meals from the communal hall within the retirement village. She was more dependent on a walker. Although steady on her feet when using the walker, the applicant had a tendency to trip due to her painful feet. The applicant had difficulty getting off the toilet and required the use of a toilet raiser, the applicant also had a bed rail to assist her getting out of bed.[19]
[19] Exhibit P1 pp 180-185.
Following the medical investigations at the end of November 2015, the applicant had a period of respite care at a Bupa Residential Care Facility where she suffered another fall on 19 December 2015.
The applicant attended the Falls Assessment Clinic at the RAH on 12 February 2016 and a report was prepared by Doctor Reena Tewari, a Consultant Geriatrician.[20] The applicant reported still being relatively independent at 97 years of age, indicating that she managed her own shopping, finances and medication, and that in her opinion her falls occurred when she was rushing into activities. Doctor Tewari noted that the applicant did not report the normal symptoms associated with falls such as dizziness, palpitations, weakness or loss of consciousness. Her view was that most of the applicant’s falls were related to the hallux valgus deformities of her feet, which caused chronic foot pain.
[20] Exhibit P1 pp 213-216.
The applicant complained to Doctor Tewari of chronic low back pain, although she reported good sleep and a stable mood and no significant issues with incontinence. There were issues with the applicant’s vision as a result of her macular degeneration, and the occupational therapist who assessed the applicant as part of the falls assessment was of the view that she should use her glasses more often. The therapist noted that the applicant was a very independent lady, who was independent with self-care including dressing and donning her footwear. The applicant’s son and daughter were concerned regarding her vulnerability, and were keen for her to accept increased assistance, however, it was clear from the report that the applicant was not keen to have that interference in her life.
The applicant’s cognitive status was assessed by Doctor Tewari. She reported that although the applicant’s son had not indicated any significant issues with cognition, it was her opinion that during the interview the applicant displayed some mild cognitive impairment. However, she opined that this did not appear to be affecting the applicant’s functionality to any great extent.

After the assessment at the Falls Assessment Clinic, it appears from the medical records that the applicant had fewer falls. However, on 30 January 2017, some six weeks prior to the accident, she did fall when she tripped at a friend’s house, suffering some skin tearing and bruising.[21]
[21] Exhibit P1 p 848.
The applicant was seen 20 times between 30 January 2017 and 8 March 2017 at her General Practitioner’s surgery to manage the wound to the back of her left leg as a result of this fall.[22] Over that period, apart from being provided with wound care, there were no other significant medical issues raised by the applicant. There was no suggestion over those consultations that the applicant’s general health was deteriorating. The applicant’s daughter would often take the applicant to these appointments, and no other medical issue was raised by her. It was noted that the applicant’s cardiac problems were being managed by medication.
[22] Exhibit P1 pp 849-868.
I find that the applicant’s pre-accident medical records reveal a woman who, despite her advancing age, was determined to remain independent. This at times caused some frustration for her two children, who reported that they would have preferred that she accepted more help.[23] I am satisfied from the records that the applicant was showing the usual signs of advancing age. These included some cardiac issues and also some small vessel ischemic changes in her brain, with generalised parenchymal volume reduction. In 2015 this was described as being of a moderate to extensive scale. The applicant also suffered from degeneration in her spine from the cervical level through to the lumbar spine. This caused ongoing pain for her. She suffered from chronic pain in her feet.
[23] See report of Falls Assessment Clinic, Exhibit P1 p 214.
The applicant had however suffered multiple falls and was assessed as being a high fall risk. She was reluctant to address those risks by way of attending for regular reviews at the Falls Risk Clinic. The risk before the accident, caused by the applicant’s regular falls, was the injuries that she suffered as a result. These included a fracture of her arm, a dislocated shoulder on another occasion and multiple soft tissue injuries and lacerations. I am satisfied that the applicant had become increasingly reliant on a four-wheeled walker for her mobility in the months before the accident. The records also indicate that she had started to use incontinence pads on occasions. Her care supports had increased, although only moderately, and she was not receiving personal care support apart from regular podiatry assistance with her feet.
I am satisfied by my review of the pre-accident medical records, and find, that the applicant had no plan to move into residential aged-care accommodation at the time the accident occurred. She had not undergone the required ACAT assessment for such a move. She was resistant to a move into residential aged-care.
Motor Vehicle Accident Injuries
The applicant was retrieved to the RAH by Medstar following the accident, complaining of significant pain in her chest. Upon admission a number of investigations were undertaken which indicated she had suffered multi-trauma including:
1.A small subgaleal haematoma near the vertex on right-side of the brain. However, there was no skull or facial bone fracture and no intracranial haemorrhage;
2.Chest injuries involving fractures to the right ribs from 2 to 11; fractures to the left ribs from 3 to 8; and a sternal fracture. The CT findings were of a flail chest, but there was no pulmonary contusion and no pneumothorax beyond a bi-lateral small plural fusion;
3.A small laceration of the spleen with a urinary tract infection developing later;
4.Severe crush fractures of the L1 and L3 vertebral bodies of the lumbar spine. These had progressed compared to the previous lumbar spine x-ray of 2015.
As a result of her age the applicant’s family were advised that her injuries would likely be fatal, and they agreed that she should not undergo any invasive treatment such as surgery, ventilation or CPR.[24] However, the applicant recovered during her hospital admission.
[24] Exhibit P1 p280.
Although the applicant survived her injuries the notes from the RAH confirm that there was a significant decline in her general physical condition, her mental state and cognition, and her overall mobility as a result of the accident. Whilst in hospital the applicant frequently complained of significant pain and required pain control including the use of the very strong pain-relieving drugs including ketamine and fentanyl.
The applicant underwent multiple assessments while at the RAH. A speech pathology assessment found that the applicant had mild dysphagia, general deconditioning, and difficulty swallowing. She was assessed as requiring high level assistance with eating and drinking.[25]
[25] Exhibit P1 p 437.
In relation to the applicant’s cognitive functioning there are many reports of the applicant presenting as confused during the six weeks that she was an in-patient at the RAH. She was particularly confused as to time. The applicant also reported having fallen in the bathroom on 16 April 2017. She was found with bruising on the left-hand side of her head.[26]
[26] Exhibit P1 p 415.
Before being formally discharged from hospital the applicant underwent an ACAT assessment. Again, it was noted on 18 April 2017 that the applicant was confused at times. The ACAT assessment approved the applicant for high level care, for both respite and permanent care.[27] The ACAT report assessment concluded the following in relation to the applicant:
[27] Exhibit P1 p 420.
·Short term memory problems with some confusion as to time;
·Full assistance required with nutrition and hydrating, with the applicant then on a ‘minced and moist’ diet;
·Full assistance required with toileting, including the need for pull up-pads as occasionally incontinent;
·Full assistance with hygiene, requiring two people and full assistance with showering and one person for grooming;
·Medium/high risk of falls. Full assistance by two people for bed mobility using a slide sheet and full assistance with two people for transfers and using a frame to walk;
·Noted difficulty with hearing, there being a need to talk slowly and clearly;
·A need to wear glasses for vision and for reading;
·Skin care required as skin noted as very fragile, and both legs still with skin tears from the accident which were dressed and bandaged.[28]
[28] Exhibit P1 pp 437-438.
A decision was made that the applicant would need to transition into permanent residential aged-care, as it would not be possible for her to be provided with the necessary support required if she returned home to her unit.
The applicant was discharged from the RAH on 24 April 2017 some six weeks after the accident, firstly to a transition nursing home, and then to a permanent placement at St Louis Aged-care facility at Parkside (St Louis). The applicant has remained living at St Louis since that time.
Soon after her discharge the applicant returned to the RAH having suffered a fall at St Louis on 11 May 2017. On that occasion she underwent a CT Scan of her head which confirmed no fracture, but there were diffuse periventricular hypo-attenuation, consistent with chronic ischaemic changes to the brain. The applicant had suffered no significant injury, apart from multiple lacerations and a large haematoma to her right forehead.
Apart from several podiatry reports which confirm that the applicant has required on-going podiatry treatment for her feet, and that they continue to cause problems for her, there are no other medical records tendered on the issue before me, and to be determined regarding the applicant’s medical status.
Expert Medical Evidence
(i) Ellie Gaynor, Occupational Therapist, Konekt Ltd, dated 6 September 2017
Ms Gaynor performed an Activities of Daily Assessment (ADL) on instructions from the CTP Insurer for the respondent.[29] At that time consideration was being given to whether the applicant could return to her previous residence. A case conference was held on 16 August 2017 at St Louis involving the applicant’s children, the St Louis Nursing Manager, and representatives from the CTP Insurer where it was agreed, at least at that time, that it was in the applicant’s best interests to remain living at St Louis as a result of the cognitive changes that had occurred since the accident. The applicant reported being very happy at St Louis, although keen to recommence her pre-injury activities, particularly regularly playing bridge.
[29] Exhibit P1 Document 1.1.
In performing her assessment Ms Gaynor noted that the applicant continued to require supervision with mobility and washing/dressing tasks due to her being at a high risk of falls. She now used a four-wheeled walker both indoors and outdoors, and required a carer or family member to always accompany her on any outings.
Ms Gaynor reported that the applicant required frequent toileting, and this involved assistance with pull up, hip protector pants, which were tight fitting. As a result it was recommended that the applicant should have a carer or family member present with her at all times when toileting. Although it is not clear if her vision had deteriorated, Ms Gaynor reported that the applicant required extra-large print and good lighting to read, due to her visual impairment. In relation to transport, the applicant had lost her independence in that she now needed transport by car, and assistance with getting into any car that was low. She could no longer use buses.
Ms Gaynor reviewed a Standardised Mini Mental State Examination during an ADL assessment conducted on 19 July 2017. The score arrived at indicated a moderate cognitive impairment. Ms Gaynor concluded from that assessment that the applicant may have difficulty performing activities of daily living which involved orientation and memory, such as meal preparation or taking her medication correctly. Ms Gaynor was keen to encourage the applicant to return to her normal activities, including attending bridge afternoons in the city and going out for activities with her family. However, the applicant would require a carer or family member to attend these activities with her to assist with toileting, mobilisation and transport. The applicant needed to take her four-wheeled walker with her on all outings, and that walker needed to be used at all times when mobilising, inside or out.
I find that the assessment of Ms Gaynor reveals that upon discharge from hospital it was clear that the applicant’s independence had markedly diminished, and that she now required a significantly higher level of supervision and care than prior thereto. Ms Gaynor’s assessment confirmed the detail in the ACAT assessment and the discharge letter in the RAH notes of 24 April 2017. There had been no improvement in the applicant’s function following her discharge from the RAH.
(ii) Doctor John Bastian, Senior Consultant, Rehabilitation Medicine, Hampstead Rehabilitation Centre / Royal Adelaide Hospital
Doctor Bastian has provided two reports, the first being dated 13 December 2017[30] and the second, 17 December 2017[31]. These reports followed an assessment of the applicant arranged by the respondent’s CTP Insurer. The first report focused primarily on the extent of the applicant’s injuries for an assessment according to the Injury Scale Value, required for an assessment of damages pursuant to the Civil Liability Act 1936 (SA). That assessment is not relevant to the matters to be decided in this trial, as they form part of the matters that have already been agreed between the parties and as recorded in the judgment. However, in relation to the matters I am to decide, there is some assessment of the applicant’s general capacity. Doctor Bastian’s initial comments were as follows:
Mrs Elliott is a charming 98-year-old lady, who could not comment whether she was experiencing any ongoing problems as a consequence of the accident. I would stress here, there is significant cognitive dysfunction which sounds as though it has deteriorated since the accident, thought I have no way of determining this in view of the complexity of her presentation.
Mrs Elliott was unaware of the date but was able to work out it was a Tuesday. She presumed it was either October or November, but knew it was getting close to Christmas. On asking where she now lives, she stated she lives in a motel or hotel called Louis. She is very hard of hearing, with her daughter assisting with some of the questions that were asked.
[30] Exhibit P1 Document No. 1.2.
[31] Exhibit P1 Document No. 1.3.
The applicant was accompanied to the appointment by her daughter who provided a history of her pre-accident capacity which is consistent with what I have set out. In summary, she described the applicant as being reasonably independent despite her age.
The applicant had no recollection of the accident nor being transferred by helicopter to the RAH. In relation to her functioning since the accident the applicant’s daughter reported that she now required assistance with dressing and other self-care tasks, and that the applicant’s ability to mobilise had deteriorated, leading to her being totally reliant on her walker both inside and outside. She reported that the applicant’s ability to walk long distances had decreased, and she required supervision to mobilise. It was also reported that the applicant required assistance with toileting, and that her function generally was affected by her deteriorating vision. The applicant’s daughter reported to Doctor Bastian in December 2017, nine months after the accident, that her observation was that there had been a significant deterioration in the applicant’s cognitive function and that at times she had great difficulty working out where she was living, and what was happening around her. She described this as the applicant not really being orientated to time, place or person. Doctor Bastian confirmed that this was also evident to him during his assessment.
Doctor Bastian opined that the accident had caused a deterioration in the applicant’s cognitive and physical function, although he found it difficult to be absolute on his assessment of this, given the applicant’s difficulty with providing an accurate history. He noted that at the applicant’s age, cognitive and physical deterioration would have occurred at some stage, but it was not possible to give a definitive view as to when that would have occurred with the accident intervening.
Doctor Bastian’s second report was prepared after he had received a copy of the applicant’s discharge summary and radiological investigations from the RAH. From these documents, Doctor Bastian reported clear pre-existing degenerative changes in the applicant’s cervical spine, together with a grade one anterolisthesis of the C4 on C5, C5 on C6, and C7 on T1. Again, Doctor Bastian stated that even with this information he could not offer an opinion with regard to any deterioration in the applicant’s cognitive function as a result of the accident, taking into consideration her age. He strongly suspected that the accident had resulted in a more rapid deterioration in relation to the applicant’s general function, including cognitive function, but he could not take the matter any further.
(iii) Doctor Jane Hecker, Consultant Physician, Aged-Care and Rehabilitation, Special Interest: Memory Disorders, dated 29 May 2020[32]
[32] Exhibit P1, Document 1.4.
Doctor Hecker is a pre-eminent Geriatrician in Australia. Her opinion was sought from the respondent’s CTP insurer, particularly in relation to the issue of the anticipated decline in the applicant’s level of independent functioning had the accident not occurred.
In her report Doctor Hecker sets out the long list of the applicant’s pre-accident medical conditions, and the medications that she was taking between 2010 and 2017. Most of these have already been discussed and revolve around her recurrent mechanical falls, her osteoporosis, her heart disease, her macular degeneration with vision impairment, and her hearing impairment.
It was reported to Doctor Hecker that the applicant had originally lived at home whilst she was caring for her husband who had dementia, and that she was still driving in 2010. However, the applicant had gradually required additional support over the five years prior to the accident. She was told that in August 2015 the applicant was still independent with mobility and managing shopping independently, including bus trips. By November 2015 following several falls she began using a four-wheeled walker to mobilise as a result of ongoing back pain. The applicant was living in a unit at the Bupa Campbelltown Residential Care Facility. At that time, she was still regarded as being alert and cognitively intact.
Doctor Hecker reported on what appeared to be a decline in the applicant’s function as set out in the assessment at the Fall’s Clinic on 12 February 2016. In her opinion this decline was consistent with the plain CT head scan of November 2015, which indicated significant small vessel ischemia with moderate to extensive volume loss. Doctor Hecker noted that following that assessment extra supports were to be put in place for the applicant, but it did not appear that those increased supports had in fact been provided.
It was Doctor Hecker’s opinion that the pre-accident course for the applicant of recurrent falls was not likely to have changed in the future and would have been expected to worsen overtime with increased frequency, particularly on the background of the applicant’s osteoporosis and history of fractures. This history suggested that ongoing bony injury was likely to have occurred.
In addition, Doctor Hecker noted that the CT brain scan on 23 August 2015 showed a:
…generalised prominence of the ventricular system and luci with aged related involutional change. There was evidence of small vessel ischemia with hypo-density in the periventricular and deep white matter of both cerebral hemispheres. There are more focal lacunar infarcts at the external capsules bilaterally and the anterior limbs of the internal capsules.
Doctor Hecker also reported on the CT scans of the brain of 29 November 2015 and 16 April 2017. These revealed ongoing changes in the brain matter with some atrophy by 16 April 2017. Doctor Hecker reported that:
…the subcortical ischemia and lacunar infarcts would classically be associated with gait change (known as frontal gait apraxia) with a shuffling, shorter stepped gait associated with increased falls.
Doctor Hecker noted that this pathology is also associated with cognitive decline, particularly deterioration in executive function, due to the subcortical connections to the frontal lobes of the brain being damaged by deterioration. This damage also produces urinary urgency and incontinence. Doctor Hecker reported that this pathology is gradually progressive over seven to 10 years, producing immobility and vascular dementia, both of which are associated with a significant increase in care needs. She reported that this is very common pathology, particularly in older patients. The pathology is also associated with risk factors of hypertension and hypercholesterolaemia, both of which are noted in the applicant’s medical records. The hippocampal atrophy is a feature of Alzheimer’s disease and cognitive decline in the applicant’s age group.[33]
[33] Exhibit P1, p 28.
As a result of Doctor Hecker’s assessment of the applicant’s medical records it was her opinion that had the accident not occurred the applicant would have declined over the subsequent year from the time of the last scan (16 April 2017), and would have required full supportive residential accommodation within a year or two. This would have resulted from the applicant’s increasing lack of mobility and safety without supervision, cognitive decline with increased confusion, and likely increasing urinary incontinence.

No appointment was arranged for Doctor Hecker to physically assess the applicant, and she relied upon the RAH records and the reports of Doctor Bastian and Ms Gaynor. She agreed, having reviewed those records and reports, that the applicant required the high-level care and residential support, with 24-hour nursing supervision, that she was then receiving. The applicant was not safe to be left alone.
Doctor Hecker concluded that the applicant would have required that level of permanent, high care residential care, in any event regardless of the accident. It is her opinion that the accident is likely to have extenuated the problems and brought the need for such care forward by 12 months to two years. However, the main cause of the applicant’s ongoing need for care and supervision was the progressive decline in her cognition and mobility due to her pre-accident subcortical cerebrovascular pathology. Doctor Hecker was of the opinion that the applicant did not sustain any acute brain injury in the accident. As a result, any head injury suffered in the accident was unlikely to have had a great deal of impact upon the applicant’s cognitive decline. In her opinion, the applicant’s decline would have been expected on the basis of the progressive small vessel ischemia plus the Alzheimer’s pathology generally. That pathology was not caused by or exacerbated by the accident.
Doctor Hecker also noted that there were comments in the RAH records and in the Falls’ Clinic Assessment which supported an opinion that the applicant had been in decline for at least six months prior to the accident. This supported her view that the applicant’s progressive decline in mobility, was due to her brain pathology. In her opinion, the decline in mobility was not contributed to by the accident apart from some element of deconditioning due to a prolonged period of bed rest. She opined that the applicant’s decline in mobility would have continued as a result of her decline in brain function. Finally, Doctor Hecker was of the opinion that the applicant’s life expectancy had not materially worsened due to her injuries sustained in the accident.
Causation – Discussion
In this matter I am asked to determine the cause of the applicant’s need to move into an aged-care facility in April 2017, following the accident. In particular I am asked to determine the impact of the accident in accelerating the applicant’s pre-accident medical conditions and bringing forward her need to move into aged-care.
This is not a matter where I am asked to assess damages. The aged-care costs have already been met, with an acceptance by the respondent that it is responsible for some of those costs. The Government claims that the applicant and/or the respondent is responsible for all aged-care costs from the time they were first incurred until at least the date of the Notice. The Government was not involved in the trial, simply relying upon the recovery provisions of the Health and Other Services (Compensation) Act 1995 and the Health and Other Services (Compensation) Care Charges Act 1995. I am not asked to consider that legislation. I am asked to make a declaration in answer to two questions put to the court.
In relation to both questions, I am asked for a decision on the balance of probabilities. This is the burden of proof in most civil matters, and described by the Hight Court as follows:
A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach.[34]
[34] Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
I must make a judgment as to the consequences of what may have flowed from the worsening of the applicant’s pre-accident medical conditions if the accident had not occurred. I must evaluate the possibilities to determine the likelihood of what possible future events would have occurred.
In such a case, where an injured applicant suffers from a condition of a type that would have ultimately seen her require an increased level of care, the law is clear that the negligent respondent is liable only for the acceleration caused by his negligence.[35]
[35] Watts v Rake (196) 108 CLR 158 para 165 per Menzies J.
Review of Medical Evidence
The medical history as set out in the applicant’s medical records, including the pre-accident RAH records confirm that, although the applicant had a number of medical and mobility issues, she was still living a relatively independent lifestyle. The applicant’s children have reported that she was very independent, and I note that several of her falls occurred when she was out shopping or banking on her own.
The medical evidence also reveals that from late 2013/early 2014 the applicant began to suffer more frequent falls, and that the care she received at her independent living facility gradually increased. The applicant began to rely more on a four-wheeled walker when outside, and had by February 2016, been referred to the RAH Falls Assessment Clinic as a result of concerns for her mobility. At that time, the applicant was 97 years of age and was displaying an unsteady, wider base of support gait, difficulties with her vision which had stopped her attending bridge, and was receiving increased ADL supports with cleaning, gardening, shopping and transport.
In relation to the increase in falls before February 2016, Doctor Hecker in her report opines that the applicant’s course of recurrent falls was ‘not likely to have changed in the future and would have been expected to worsen over time with increased frequency’. Doctor Hecker was of the opinion that the findings on the CT scans of the applicant’s brain, revealed pathology that would have led, not only to cognitive decline, but also to changes in gait which would have been associated with increased falls over time.
Despite these findings that the applicant would have suffered increased falls and cognitive decline, she had no plans prior to the accident to move into an aged-care facility. There is no evidence from any of the pre-accident medical records that this was being discussed as an option with any of the applicant’s doctors, or the applicant’s children. There was no ACAT assessment for a move to residential aged-care.
The accident was a very serious accident, and the applicant was not expected to survive given her age and the injuries she had suffered. She spent a lengthy period in hospital which caused some deconditioning for her. Doctor Hecker states that although the applicant would have required a permanent high care residential care in any event, regardless of the accident, the accident was likely to have extenuated problems and brought forward the time this was required. She opined that if the accident had not occurred, that the applicant would have declined over the subsequent 12 months and would have required full supportive residential accommodation with a year or two.
Doctor Bastian in his first report of 13 December 2017 stated that he suspected the accident had resulted in a deterioration in the applicant’s cognitive and physical function which resulted in the need to move into more supervised accommodation.
There is no evidence that at the time of the accident the applicant was considering a move to a high level aged-care accommodation nor that there were any plans in place for her to do so. On a review of all the evidence I find, on the balance of probabilities, that the applicant was required to move into residential aged-care on 24 April 2017 as a result of the injuries that she sustained in the accident, and which exacerbated her pre-existing medical conditions to an extent that she could no longer live in an unsupervised environment.
Regarding the question of when the applicant would have been required to move into a fully supervised aged-care environment if she had not been involved in the accident, I can do no more than rely upon the opinions and the medical expertise of Doctor Bastian and Doctor Hecker. Doctor Bastian in his first report of 13 December 2017 opined that although the applicant would have required more supervised accommodation at some stage in the future, the need for that level of care had been brought forward. In his words, ‘if it had not been for the accident it may have been months, or a year, or so later…’. He went on to state that it was not possible to state definitively what the timeline would have been in view of the applicant’s advanced age.
Doctor Hecker has more experience and professional expertise in the treatment of the aging. She has worked in the medical care of the elderly for the last 40 years and is a Senior Consultant Physician/Geriatrician at the RAH, together with running a private practice as a Geriatrician, and having established a memory disorder study unit at the Repatriation General Hospital. She has extensive experience in the assessment and management of memory disorders and cognitive impairment and dementia in older people. As a result of her experience and the detailed records she had to review from the RAH, I prefer her opinion, although it is not that different to that of Doctor Bastian.
Doctor Hecker has provided a very detailed assessment of the CT scans of the applicant’s brain between 2015 and 2017. As a result of her experience of these matters she was able to assess from the pathology shown on the scans what the applicant’s decline would have been, both cognitively and in relation to her mobility, over the next several years as she aged. The matters that she set out as being relevant in the CT scan of 16 April 2017 including gait issues with increased falls, cognitive decline, and urinary urgency and incontinence are all issues that have been reported that the applicant suffered from after the accident.
Doctor Hecker’s conclusion is that, had the accident not occurred then the applicant would have declined over the subsequent year (that is from March 2017) and she would have required full-time supportive residential accommodation in any event, due to increasing immobility, safety issues without supervision, cognitive decline with increased confusion, and increasing urinary incontinence, within one to two years.
Given her experience I accept the detailed opinion of Doctor Hecker and adopt it. Taking into account the applicant’s level of independence prior to the accident, rather than adopt a figure at the lowest end of Doctor Hecker’s range, I find on the balance of probabilities that the applicant would have required residential aged-care in a fully supervised aged-care facility within 18 months of the accident, even if the accident had not occurred.
Conclusion
In response to the two matters, I am asked to determine, I conclude, on the balance of probabilities that:
1.The applicant’s need for residential aged-care was brought forward as a result of the injuries that she sustained in the accident.
2.The applicant would have required supervised residential aged-care within 18 months of the date of the accident, irrespective of the injuries that she sustained in the accident.