Baldwin by his next friend Vivienne Baldwin v Heath - [2004] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BALDWIN by his next friend VIVIENNE BALDWIN -v- HEATH [2004] WADC 68

CORAM: O'SULLIVAN DCJ

HEARD: 15-17, 20-24, 27 & 28 OCTOBER 2003

DELIVERED : 8 APRIL 2004

FILE NO/S: CIV 1332 of 2001

BETWEEN: DEAN ALLAN BALDWIN by his next friend VIVIENNE BALDWIN
Plaintiff
AND
KEVIN JOHN HEATH
Defendant

Catchwords:

Damages - Personal injuries - 19yearold male (25 at trial) - Serious head injury resulting in tetraplegia - Life expectancy of 45 years - Future care - Past and future economic loss - Costs of administering fund

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Award of $7,229,320.96

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Edwards Lawyers
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Chan v Mills (1995) 22 MVR 391
Chulcough v Holley (1968) 41 ALJR 336
Farr v Schultz (1998) 1 WAR 94
Morris v Zanki (1997) 18 WAR 260
Pettersen v Bacha (1995) 21 MVR 71
Sharman v Evans (1997) 138 CLR 563
Todorovic v Waller (1981) 150 CLR 402
Wilson v McLeay (1961) 106 CLR 523

Case(s) also cited:

Arthur Robinson (Grafton) Pty Ltd v Carter (No 1) (1968) 122 CLR 649
Beasley v Marshall (No 1) (1986) 40 SASR 544
Chapman v Katheappa [2001] WADC 49
Chapman v Katheappa [2003] WASCA 50
De Sales v Ingrilli [2002] HCA 52
Diamond v Simpson (No 1) [2003] NSWCA 87
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Kars v Kars (1996) 71 ALJR 107
Medline v State Government Insurance Commission (1995) 182 CLR 1
Mills v Richards [2002] WADC 57
SGIO v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Smith v Gibson (No 1) unreported; DCt of WA; Library No 4970; 27 June 1996
Smith v Gibson (No 2) unreported; DCt of WA; Library No D980361; 22 December 1998
Southgate v Waterford (1990) 21 NSWR 427
Still v Bowler [2000] WADC 165
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake (1960) 108 CLR 158
Wyle v Aristondo 'Arriaza, unreported; SCt of WA; Library No 970359; 23 July 1997
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

O'SULLIVAN DCJ: The plaintiff received a severe head injury on 11 May 1997 when the car he was driving on Patterson Road, Rockingham was struck by a vehicle being driven by the defendant. Liability is not in dispute and the matter is before me for assessment of damages.

Plaintiff's background

The plaintiff was born on 14 March 1978 and was therefore 19 years of age at the date of the accident. He is the only child of Vivienne and Donald Baldwin and sues by his next friend, his mother. At the date of the accident he was living at home and had been working for some three months for Rolly Tasker Sales Pty Ltd as a trainee in its yacht spar maintenance and rigging division. Prior to that and after leaving school he had worked as a trades assistant for the Kwinana Insulation & Sheet Metal Company. He was born in Sydney and came to Western Australia as a young child when his father, who was in the Navy, received a posting here. He was educated at Bungaree Primary School and then at South Fremantle High School until Year 12 where he demonstrated significant academic ability. Nevertheless his main interests were in trades classes and this is reflected in his employment after school. His father said that before the accident he had been keen to pursue a career in yacht building and maintenance. It is clear from the accident that prior to his injuries he had been a popular and sociable young man, an enthusiastic sportsman and a keen participant in outdoor activities.

Plaintiff's injuries and treatment

Following the accident the plaintiff was taken to Fremantle and then Sir Charles Gairdner Hospital where he was found to have a laceration of the brain in the right temporoparietal region, a depressed skull fracture and fractures of the right femoral condyle and wrist. He underwent a right frontoparietal craniectomy and was then kept in intensive care for a long period. During this time he developed problems with high intracranial pressure and pneumonia. A tracheostomy and gastric tube placement were performed and his recovery was very slow.
The plaintiff was eventually transferred to the Shenton Park Campus of Royal Perth Hospital on 28 July 1997. At that time he had no movement in any limb and showed a considerable amount of brain stem instability involving high blood pressure, sweating, pyrexia and spasms associated with sudden surges in sympathetic outflow from the brain stem. He was treated with anti‑hypertensive agents and medications. Flexion contractures of the elbows were dealt with by serial plastering.
By 19 December 1997 Dr Ella Checkley, Registrar in Rehabilitation Medicine was able to write that there had been considerable recovery in the plaintiff's autonomic instability but he still required medication to decrease his tone and splints on both arms to maintain extension. He was able to stand with maximal supervision in physiotherapy but only showed purposeful movement in the right leg. He was only able to communicate using his thumb but was undergoing speech therapy. The gastrostomy tube had been removed but he was not then able to digest a normal diet and required thickened fluids. His swallowing was not completely safe because of a high tendency to distraction and he required careful supervision. At that stage Dr Checkley wrote that it was difficult to say what kind of cognitive recovery the plaintiff had made. He was very dependent on nursing care and was incontinent.
By 5 February 1998 consideration was being given to discharging the plaintiff home to the care of his parents. On that day Dr W P Merrick, a specialist in rehabilitation medicine wrote in a report to the Insurance Commission of Western Australia:
"His current disability consists of:
1.Tetraplegia. He is unable to walk and will require a hydraulic hoist for all transfers at home. He is dependent on others for wheelchair mobility. He will require considerable ongoing physiotherapeutic input at home to prevent contractures and maintain joint mobility.
2.He has lost the power of speech. He is able to communicate simple information related to basic needs with 'yes', 'no' answers through limited gesture.
3.He remains dysphagic requiring a thickened and pureed diet.
4.He is totally dependent upon others for personal self care and the management of incontinence, for all other daily living activities and for mobility within the community."
Dr Merrick also referred to a constant problem with "moaning" type noises made by the plaintiff on a continuous basis. He said there had been improvement in this area but the problem still occurred at night, and interfered with sleep and disturbed people around him. He continued:
"As you know nine months have now elapsed since the motor vehicle accident of 15 May 1997. Although further improvements are likely to occur they will be marginal and related to improved tolerance of dietary preparations increased communication by gesture and perhaps some limited ability to assist his carers during transfers."
On 28 September 1999 Dr Merrick wrote:
"His current disability which is permanent and in my view stable consists of:
·A severe spastic tetraplegia with the constant risk of the development of joint contractures and postural deterioration.
·Severe limitation of cognitive abilities and communication by speech and writing.
He is totally and permanently disabled for work, training for work, licensing to drive a motor vehicle and independently using public transport.
He is markedly dependent on others for all activities of daily living including;
·Personal self‑care.
·Domestic tasks and activities.
·Community mobility.
·Recreational activity.
·Social interaction.
He does not have the mental capacity to manage any large sums of money that may be granted in compensation. In my view his affairs should be subjected therefore to some form of Trust arrangement.
He needs 24 hour around the clock care which is currently provided by a mixture of his parents and paid and trained carers.
…"

The plaintiff's present condition

Dr Merrick's views have not changed over time and there is general agreement between Dr Kim Fong, the other specialist in rehabilitation medicine who gave evidence and himself that the plaintiff remains severely disabled. On 16 September 2002 Dr Fong wrote:
"My current examination findings are as follows:
1.Severe hemiplegia and moderate spasticity affecting his left‑sided limbs.
2.Severe generalised motor dyspraxia which affects both his communication as well as swallowing and general motor dexterity.
3.Severe communication difficulties due to the combination of dyspraxia and dysarthria.
4.Although Mr Baldwin has now regained a basic level of orientation and awareness it is certain that he has a severe level of residual cognitive impairment. His speed of information processing is clearly significantly slowed and he is reported to have severe short term memory deficits."

General damages

There is no dispute that, in terms of the authorities this is "a most extreme case". The catastrophic impact of the plaintiff's injuries and the severe and permanent nature of the disabilities he has suffered require that general damages be awarded in the maximum amount permissible. Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 limits that sum to $249,000.

Past economic loss and superannuation

The plaintiff should have an amount of $164,300 in respect of these items.

Future economic loss (wages and superannuation)

I assess an amount of $631,521 in respect of this aspect of the claim.

Past gratuitous services

At first glance there does not appear to be much difference between the respective positions of the parties in relation to this item of damages. However the plaintiff also claims, under a separate heading, for accommodation and travelling costs incurred by his parents in visiting the plaintiff in hospital. I will deal with those claims in due course.
The plaintiff's claim here is put upon the basis that it is for an award for gratuitous services for the benefit of his parents, principally his mother.
It is said that at least from the time when the plaintiff was discharged to Shenton Park he was cared for by his mother who was, as counsel put it:
"… vitally involved in his rehabilitation; feeding him, caring for him, going to outside hospitals and the like."
The defendant argues that this aspect of the claim falls to be determined by reference to the principle expounded in Wilson v McLeay (1961) 106 CLR 523. In that case Taylor J thought it proper to make some allowance to permit the plaintiff to provide for the reasonable attendance of her parents at hospital because her injuries were serious "and such as to call for such comfort and consolation as her parents could provide". Counsel pointed out that the approach of Taylor J involved treating this aspect of the award as part of general damages and it was submitted that as a matter of principle there had to be medical evidence to establish that the visits were of some importance to the alleviation of the plaintiff's condition and it was proper to make an award by reference to costs and expenses incurred rather than as an allowance for time spent.
The defendant does not argue with an award for past services calculated by reference to s 3D(5) of the Motor Vehicle (Third Party Insurance) Act 1943 in respect of the periods when the plaintiff was at home. However, while the plaintiff was still in hospital it is submitted that the care which he received was in all respects adequate. Consequently such services as were provided by the plaintiff's mother were not necessary nor reasonable.
In my view that submission should be rejected. In my opinion it is abundantly clear on all the evidence that Mrs Baldwin provided much more than just "comfort and consolation". She did in fact play a prominent part in his rehabilitation after his discharge from Sir Charles Gairdner Hospital. As I note later in these reasons it was mainly as a result of Mrs Baldwin's insistence that the plaintiff was accepted on a trial basis for rehabilitation at Shenton Park. The advice initially given to his parents, and rejected by them, was that he was unsuitable and that he should be moved directly from Sir Charles Gairdner Hospital into a nursing home where he could be cared for, for the rest of his life. Towards the end of the trial he began to show some improvement and a prolonged rehabilitation programme began. While the staff at Shenton Park were clearly responsible for this, I am quite satisfied that the rate and the extent of the plaintiff's progress, as well as the initial critical decision to attempt rehabilitation at Shenton Park at all, was due in no small measure to the efforts of his mother.
I have already noted that the plaintiff left for Shenton Park on 28 July 1997. I would allow an award calculated in accordance with s 3D of the Motor Vehicle (Third Party Insurance) Act 1943 from that date.
It follows that I assess the plaintiff's entitlement to damages under this heading in an amount of $219,572.

Future care

The plaintiff turned 26 years of age on 14 March and the parties have agreed that any assessment of his future needs should be made upon the basis of an assumed life expectancy of 70. While there may have been a difference of opinion between Drs Merrick and Fong I see no reason to attempt to resolve it.
There is also no dispute between the parties as to the general approach to be taken in assessments of this kind. Counsel for the plaintiff accepted, as he must, that the task of the court is to make a fair and reasonable assessment and "not to attempt perfect compensation" (Chulcough v Holley (1968) 41 ALJR 336 per Barwick CJ at 337). As Windeyer J said in that case at 338:
"A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. What these are must depend upon all the circumstances of the case – including the particular plaintiff's way of life, prospects in life, family circumstances and so forth."
Time and again in cases such as this which involve catastrophic injuries the courts have emphasised the need to strike what Kennedy J referred to in Farr v Schultz (1998) 1 WAR 94 at 98 as a 'balance between the entitlement of the victim and the liability of the tortfeasor'. As Gibbs and Stephen JJ said in Sharman v Evans (1997) 138 CLR 563 at 573 – 574:
"The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is no doubt cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost‑involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest."
Sharman v Evans (supra) was in fact itself a case involving a consideration of the question of whether it was reasonable to allow in the plaintiff's award for the cost of home care. On the evidence the matter was resolved against her Gibbs and Stephen JJ saying at 574:
"The benefit to the plaintiff of being cared for at home rather than in hospital is not any benefit to her health but rather to her future enjoyment of life which would be enhanced by a home atmosphere; her life would not thereby be prolonged nor would her physical condition be at all improved; indeed she would be somewhat more at risk physically at home than in hospital. There is no evidence suggesting any likely psychiatric benefit, probable though these might appear to the layman."
Shortly put the plaintiff's proposal is that he should continue to be cared for at home and not in shared accommodation where similarly disabled persons can be looked after as a group. The defendant on the other hand submits that the cost of adopting such a care regime would be prohibitive and unreasonable and a number of alternative approaches are suggested.
Against this background it is clearly necessary to examine in some detail the evidence in relation to these competing submissions.

Dr Merrick

Dr Merrick is of the firm view that the plaintiff is in need of 24‑hour care. Being very immobile he is at risk of skin ulceration and needs turning at night as well as changing when there are episodes of incontinence. He also requires regular checking for any obstruction of the airways during the night hours and should be offered a drink and other comforts if he needs them.
During the day the plaintiff requires dressing, toileting, feeding, supervision, medication, transferring between bed and wheelchair and transportation.
It was put to Dr Merrick that while the defendant does not argue with the plaintiff's need for 24‑hour care he does not require it on a one‑to‑one basis. He replied:
"I don't see how you could do it without that. He needs one‑on‑one care. He has to be physically handled at the times that he is awakened. So that's one‑on‑one care.
Dr Merrick said that it was impossible to leave the plaintiff alone for any significant period of time "without raising the risks for him considerably". When he was asked whether he could not envisage a group home situation involving a sharing of carer services he said:
"Carer services are regularly shared in group home situations but they are much more ambulant people than this young man. They're young people who require a much lesser level of care. This young man's care is onerous, very onerous."
It was Dr Merrick's evidence that appropriate care in a group home situation was unlikely to be available. He said:
… It would be unusual to find group home situations where people are as disabled as this young man. There are nursing home accommodations which accommodate young men with this level of disability but they are in among a lot of patients who are of the geriatric age group and it's most unsatisfactory."

Dr Fong

Dr Fong agrees with Dr Merrick that the plaintiff is in need of 24‑hour care.
He wrote in a report dated 16 September 2002 that he "requires constant supervision and possible assistance. In my view it would not be reasonable to leave him unattended at any time."
Dr Fong did not go on in his report to deal with the way in which the 24‑hour care required by the plaintiff should be delivered. At present it is provided on a one‑to‑one basis by carers and the plaintiff's parents. When he was asked whether that was the only method by which 24‑hour a day care could be provided objection was taken upon the basis that there had been a lack of notice that evidence of this kind would be given. I nevertheless allowed it.
Dr Fong was asked and said:
"My question was in what manner or form can such care be provided, in your experience?‑‑‑I would start off my answer to that by making the observation that probably less than half of the severely head injured patients who come through the Royal Perth Rehabilitation system are actually compensable, so quite frequently we have to look at alternative models of providing care. I'm certainly aware that some of the agencies, particularly the Brightwater Care Group and Cerebral Palsy Association, do provide alternative facilities in terms of group homes and some of our patients have been transferred to those sort of systems for long term care because of the unavailability of funds to provide 24 hour individualised care or support. So there certainly exists alternative models.
Those patients that you have seen that have gone to group accommodation, have you had any reason to come to a view as to the quality of the care that they have received – from say the Cerebral Palsy Association?‑‑‑I would state that I haven't had any patients personally who have gone into that system but I certainly have had patients who have gone into group homes run by Brightwater and I have subsequently followed them up in the course of …
From that experience then what can you say about their care?‑‑‑The patients – and I think of two or three who have gone – seem to have been adequately managed."

The availability and suitability of 24‑hour care being provided to the plaintiff other than on a one‑on‑one basis was not further pursued with Dr Fong in examination‑in‑chief and he was not cross‑examined.

Janice Mary Bishop

Ms Bishop is a consultant in rehabilitation and care of the severely handicapped. She has been involved for many years in the care of young people with acquired brain injuries and the institutions set up to manage such cases. She is a university lecturer, a member or president of a number of organisations dealing with the care of head‑injured persons and is on the Standards Monitoring Committee of the Disabilities Services Commission.
Ms Bishop was firmly of the view that the plaintiff should not be institutionalised, a word which she did not define with any precision. She regarded "institutions" as incapable of meeting the needs of young people who had suffered severe brain injuries and in the mid‑1990's was involved in moving 71 such patients out of nursing homes and into group housing. Nevertheless she said that "group housing can be institutional".
In the end Ms Bishop conceded, reluctantly so it seemed to me, that it might be possible for a person such as the plaintiff to receive adequate care in a group housing situation but she doubted the availability of a place for him and was strongly of the opinion that he should not be forced to accept any arrangement with which he was not happy.

The plaintiff's present care regime and how it has been developed

Before turning to make any assessment in relation to this aspect of the claim I think that it is appropriate to note the present arrangements for the plaintiff's care and how they came to be as they are.
Mrs Baldwin gave evidence that while her son was still at Sir Charles Gairdner Hospital she and her husband were advised that he was unsuitable for rehabilitation at Shenton Park and that they should consider placing him in a nursing home. She rejected that advice and eventually managed to have him transferred to Shenton Park initially for a three‑month trial. Gradually under the care of the staff and assisted by almost constant attention from his mother the plaintiff began to show signs of improvement. He gained weight, became aware of his surroundings, commenced to have some movement in his limbs and began to eat a normal diet.
By April 1998 a decision was taken that the plaintiff should be cared for at home but extensive modifications had to be made first and it was not until nearly Christmas of that year that this took place.
Since then under the care and supervision of his mother the plaintiff has continued to improve although it is fair to say that in many respects the improvements have been only slight.
Upon his return home carers were employed for the plaintiff from 8.00 am to 4.00 pm every day. Outside of those hours he would be looked after by his mother assisted by his father.
In the year 2000 carers were engaged for a further 36 hours a month to provide Mr and Mrs Baldwin with some opportunity for respite. However, Mrs Baldwin continued to be largely responsible for the plaintiff's care 16 hours a day for most days and over most nights. She became exhausted and in 2002 a new arrangement was put into place.
Five carers are now employed working in shifts according to a roster prepared by Mrs Baldwin. A carer is on duty at all times for 11 days per fortnight except between the hours of 5.00 pm and 8.00 pm. For the rest of the time the plaintiff is looked after by his parents, particularly his mother.
The present regime is a great improvement on the past because it relieves the plaintiff's parents of a considerable burden. However, the proposal is that the plaintiff should be looked after by carers on a full time basis so that, as Mrs Baldwin puts it, she can "go back to being what I am supposed to be – just his mother."
The cost of this proposal is put at $4,461,415. This does not allow for the cost of training new carers and the cost of care provided by the plaintiff's parents.
I have already noted that the defendant submits that such a sum is unreasonable. The defendant accepts that the plaintiff is in need of care 24 hours a day but makes, as a first step in the advancement of its case, the submission that it is unreasonable to expect that care be provided to the plaintiff on a one‑on‑one basis. However that argument is based largely upon the proposition that group accommodation is available and appropriate for the plaintiff and I am far from satisfied on the evidence that it is.
Perhaps in the end counsel for the defendant did not strongly argue otherwise. In his final submission he put forward "for consideration" four financial models dealing with the cost of caring for the plaintiff but none of them reflected a proposal to care for him other than in his own home. Counsel expressly disavowed any notion that the Cerebral Palsy Association model was a firm proposal for the care of the plaintiff in a group home.
I will turn to discuss the models and their financial implications in due course but it is first appropriate to note the evidence of two other witnesses whose testimony is relevant.

Kirsty Wilson

Ms Wilson runs, through a company called Welcare Pty Ltd, the business of an employment agency specialising in placing carers for the aged and disabled.
She described the service which her company provides in these terms:
"It provides whatever is needed by the person requiring care and that can be anything from maintaining a house; including cooking and cleaning and then more personal care; attending to a person who needs showering, dressing and transferring if they are immobile, that sort of thing and verging on people who are actually bedridden and require a little bit more involved care as well."
Asked in effect whether there was any limit to the care which the company was able to provide Ms Wilson said:
"Well, I suppose there is a limit. I mean, there's such a huge range of people requiring care. Where we would be unable to provide care are probably people who would be deemed to be requiring say two people at one time to care for them and if finances didn't stretch to that, that sort of thing or if a personality of a person was so difficult and demanding that it was more or less impossible for someone to care for them but providing adequate equipment and all that sort of thing is available and installed in a private home, people can be cared for at home."
In a letter to the defendant's solicitors dated 9 October 2003 Ms Wilson stated:
"Live-in care is a particular type of care service, unlike any other and before implementing this type of care, it is extremely important to assess whether live‑in care is appropriate for the person requiring full time care."
No assessment has been made in this case.
Asked what she understood to be the extent of the plaintiff's disabilities to be Ms Wilson said:
"As I understand it, he is a gentleman who certainly does require someone to be with him to assist him in various aspects of his daily living but in some aspects he's independent and perhaps that he's not needing someone to be with him at his side every second of the day, as I said, he's quite independent at times, various times of the day being able to work on his computer and things like that."
The cost of live‑in care of the kind suggested by Ms Wilson would appear to be far less than that provided by other agencies because it is not based upon hourly rates normally paid to carers. The live‑in carer receives board and lodgings, and it would be assumed that he would not be fully occupied looking after the plaintiff all the time. As Ms Wilson said:
"For live‑in care it's not based on a normal hourly/daily rate and I think that's for obvious reasons, because the costs would be astronomical if it was based on an hourly rate. It's also based on the face that if live‑in care is appropriate, a carer is not actually physically working every second of the day sort of thing. They do have time to sit and read a book or whatever, so depending on, you know, when we assess a situation, we then determine the appropriate remuneration for that carer."
Ms Wilson said there are people available to work as live‑in carers. She said:
"There's not lots and lots of people available because people have to, in their own private situation, be able to be away from their own family so to speak if they're on a rotating roster like this but there are people that are available to do this sort of work."
Subject to an assessment of the plaintiff's needs it was Ms Wilson's view that a carer could be provided to look after him at a weekly cost of $1,774.50 including board and her company's fees.

David Lees Brown

Mr Brown is a former manager of adult services for the Cerebral Palsy Association of Western Australia, a position he held for over 13 years.
He was asked by the defendant's solicitor to consider accommodation options available for the plaintiff and to report on such matters as the level of care which could be provided.
Mr Brown said that in view of the "normalisation" process which began in the late 1980's the number of institutions available to house persons with disabilities in Western Australia were reducing.
In a useful and wide-ranging review of the sorts of group housing available to persons with disabilities in Western Australia Mr Brown referred to the group homes run by the Disabilities Services Commission but commented that they would be unlikely to be appropriate for the plaintiff.
However, Mr Brown made it clear that there were other group homes run by the Cerebral Palsy Association and other associations for which the plaintiff might be assessed as suitable.
In addition Mr Brown gave evidence that care can be provided to persons with disabilities at home at costs which he set out in his report and which reflect those currently charged by the Cerebral Palsy Association.
It was Mr Brown's evidence that for a person requiring full‑time care at home three carers would be needed all of whom would work no more than approximately an eight‑hour shift. In his view a single live‑in carer who was there for 24 hours a day was not appropriate. He said:
"We've found that the live‑in type individuals are not as reliable as individuals who are working on a shift basis. We've had some experiences with a couple of individuals where live‑in people have – how shall I take it, taken the clients for a ride in relation to financial issues and also neglected them. They've had friends around and what have you, there's not adequate supervision. We've also determined that you might get the younger sort of person that they're more likely to suddenly disappear and the client is left without a carer and it takes a while also to ensure that the client that you are providing service to has carers who are actually trained for what they really need so therefore the client is not getting the best out of live‑in carer situation and also it may be suitable if the person only wants supervisory care, but if a client wants their meals cooked for them and personal care needs met and all those sort of things, no, it's definitely not suitable."

Assessment of future care needs

I return now to the task of assessing this aspect of the claim.
I have already noted that in the end counsel for the defendant appeared to disavow any suggestion that the plaintiff should be cared for in group accommodation.
Of the mathematical models he put forward for consideration only one, based upon figures provided by the Cerebral Palsy Association, contemplated such care. However, counsel said in relation to it:
The Cerebral Palsy model is not there as the basis of any submission that Dean ought to be cared for in group housing. It is simply there to evidence what a prevailing standard is in this area."
The difficulty with that submission, I think, is that the "area" referred to is that of care in a group housing situation and, in the case of the plaintiff, I do not accept that he can or should be so accommodated. The evidence leaves me with significant doubts as to the availability and suitability of group housing, and in my opinion it is both reasonable and appropriate that the plaintiff should be cared for at home upon a full time one‑on‑one basis.
Accordingly it is necessary to consider what the reasonable costs of doing this might be.
I have already noted that the plaintiff seeks an award to cover the cost of future care in an amount of $4,461,415.09 excluding the cost of training carers and gratuitous services provided by his parents.
In my opinion this sum compares favourably both with the cost of in‑home care which might be provided by the Cerebral Palsy Association (based on the figures provided by Mr Brown) and the cost of the defendant's own models based upon the actual fees charged by TIS, the organization presently providing carers for the plaintiff.
Only if the plaintiff were to be cared for by live‑in carers engaged in the way suggested by Ms Wilson would there be substantial savings in cost.
However, in my opinion there are grounds for concern that the Welcare model provides an appropriate guide for assessment in this particular case.
Firstly, the plaintiff has not been assessed as suitable for care in the way suggested and I am by no means certain that he would be. Ms Wilson's evidence that she understood the plaintiff to be independent "in some aspects" and "not needing someone to be with him at his side every second of the day" adds to my concern in this regard. There is, I consider, a significant degree of speculation involved in the acceptance of the proposition that the plaintiff could be cared for by appropriately qualified persons prepared to live in for extended periods of time. While I have no doubt that the Welcare model would be suitable for many disabled persons, this plaintiff's disabilities and needs are very great indeed.
Secondly, the concerns voiced by Mr Brown and Ms Bishop are, I think, persuasive. Both have extensive experience in the care of disabled persons.
I accept Mr Brown's evidence of the difficulties perceived by the Cerebral Palsy Association with live-in staff and I think it is supported by the views of Ms Bishop.
In my opinion the plaintiff should not be required to resort to live-in staff for his care at home.
In my opinion the plaintiff should have the sum of $4.461,415.09 in respect of his future care.
There should be added to that amount the cost of training new carers totalling $72,826.08.
In addition it is necessary to make an allowance for the cost of gratuitous services which will be provided by the plaintiff's parents. The plaintiff submits that at least 40 hours per week will be provided by Mr and Mrs Baldwin in caring for the plaintiff and looking after his affairs over the next 20 years. I regard this as reasonable and I accept that the sum of $417,974.66 is an appropriate award in that regard.

Home maintenance

The plaintiff claims the sum of $62,000 in respect of the future costs of maintaining a home, garden and swimming pool. This sum assumes that $75 per week is needed.
The defendant argues that many minor tasks around the home are likely to be attended to by carers at no cost and I think there is some weight in that. It is also pointed out that the claim for a swimming pool has been abandoned but of course if the plaintiff acquires one it will have to be maintained.
I would allow an amount of $40 per week in respect of this aspect of the claim and in the result the plaintiff should have an amount of $33,200.

Past medical expenses

I understand that a figure of $2,610.36 has been agreed.

Future medical expenses

As to the items listed in the Scott Schedule and in dispute I make the following observations and determinations:

Item 89 – Intensive physiotherapy

I accept the evidence of Dr Merrick and Mr Mitchell, the physiotherapist that in addition to quarterly reviews the plaintiff is likely to require intensive physiotherapy from time to time because of the degree of his spasticity. I accept the evidence that the annual cost of such treatment would be $1,440.

Item 91 – Reviews by a clinical psychologist

Dr Fong, who was not cross‑examined, gave evidence that he anticipated that the plaintiff would require clinical psychology counselling as he got older and that he anticipated that six sessions every five years should be allowed for. The current cost of a session is $150. I accept this evidence and would therefore allow $180 annually.

Item 92 – Reviews by dietician

I accept that the claim for $130 per annum for review by a dietician is reasonable. It was supported by the reports of Dr Merrick which are in evidence and there was no challenge to his views.

Item 93 – Reviews by occupational therapist

I accept the evidence of Dr Merrick and Ms Sharp and would allow the claim upon the basis of an annual cost of $900.

Item 94 – Reviews by occupational therapist s

I allow the amount of $240 per annum in relation to this item.

Item 96 – Reviews by podiatrist

I allow $80 per annum.

Item 97 – Reviews by dentist

I am satisfied that the plaintiff has been left with special dental needs as a result of the accident and his disabilities. In my view it is reasonable to allow an annual amount of $120 in respect of this aspect of the claim.

Item 98 – Review by neurologists

I am not persuaded on the evidence that there is a need for regular neurological review.

Item 99 – Review by social worker

I am not persuaded on the evidence that there should be any allowance in respect of this item.

Item 103 – Treatment spasticity Botulinum

Dr Merrick stated in cross‑examination that "at this stage" there was nothing to indicate that the plaintiff would require anything more than regular physiotherapy and Baclofen. Counsel for the plaintiff submits that despite this evidence it is nevertheless reasonable to make an allowance for the use of Botulinum injections from time to time "to allow for critical care incidents or regular therapy". Despite a close reading of Dr Merrick's evidence I am not persuaded to the requisite degree that any sum should be allowed.

Item 104 – Treatment for possible pulmonary infection

An amount of $1,967.30 is claimed in respect of this item. In my view Dr Merrick's evidence should be accepted and the amount claimed is reasonable.

Item 106 – Baclofen tablets per annum

I understand it is agreed that an annual amount of $254.10 should be allowed for.

Items 116 and 117 ‑ Back lotion and sunscreen

I would allow the plaintiff's claim in these respects.

Item 119 – Ambulance cover

I allow this item.
Having regard to the above findings and the agreement between the parties in relation to other items the subject of this aspect of the claim I assess the amount which should be awarded for the plaintiff's future medical expenses in the sum of $102,719.85.

Past miscellaneous expenses

I make the following findings in respect of the undermentioned items.

Items 126 to 136, 265 and 266

All these items relate to the cost of providing the plaintiff with a computer.
Among the authorities to which I have had regard in relation to this aspect of the claim are Pettersen v Bacha (1995) 21 MVR 71 where a computer was sought for educational and "social lifeline" purposes and Chan v Mills (1995) 22 MVR 391 where Steytler J was satisfied on the evidence before him, that a computer was an essential means of communication for the plaintiff and that an award on that basis alone was warranted (see p 412).
The defendant's short submission was as follows
"The plaintiff uses a computer but on the evidence he merely plays games and accesses email. He had a computer before the accident. The plaintiff does not need a computer to communicate. Most people have, or have access to, a computer. The expenses claimed do not correspond to actual needs and are not shown to be more than the plaintiff would have incurred in any event."
Mr T Jones, principal bio‑engineer at Royal Perth Hospital, said in evidence that:
"To me there is absolutely no question in the unique benefit to the person with a severe physical disability and in Dean's case some cognitive impairment of a computer."

It was put to Mr Jones that he had no particular expertise in the therapeutic benefits of computers to persons suffering from disabilities and he conceded as much.
Computers are of course now commonplace in the community and it may well be that the plaintiff would have come to own one and use one in any event but it seems to me that that does not militate against the assertion that as a result of the negligence of the defendant he has been left with an immediate and reasonable need. I do not accept that the expression "merely plays games and accesses email" is an accurate and complete description of the use to which the plaintiff puts his computer. It is in many ways his lifeline to the outside world. Whereas prior to the accident he was attracted to outdoor activities the computer is a major interest in his life and an essential requirement in his enjoyment of it. As his mother said in evidence he turns it on first thing in the morning and he uses it to communicate with people such as his carers and others as well as to pursue interests such as listening to music. He is unable to write, draw, express himself clearly, hold a book or a newspaper to read. With the aid of a computer he is able to overcome all these difficulties. In my view the provision and maintenance of a computer is clearly a reasonable need which has been created by the accident and the injuries which the plaintiff has sustained. I would allow the amounts claimed.

Items 137 to 141 – TAFE expenses

The courses which the plaintiff has undertaken were not courses which he would have undertaken if the accident had not occurred. They were, patently, reasonably necessary in order to encourage the plaintiff's rehabilitation and in particular his social adjustment and cognitive improvement. In my view the amounts claimed are reasonable and should be allowed.

Items 142 to 154 – Holidays, lunches and other outings

The plaintiff's submission is that these activities were embarked upon in order to assist with his rehabilitation. They were not holidays of the kind which would have been taken by the family in any event and they were not undertaken for the enjoyment of the plaintiff's parents.
The difficulty I have with this submission is that while a layman might readily think that there would have been therapeutic benefits which accrued to the plaintiff as a result of the expenses incurred, the evidence, it seems to me is not sufficient to ground a finding that they were all reasonably incurred and that the total cost of them is an accurate measure of damage.
It follows that I would not allow this aspect of the claim in its entirety. Doing the best I can upon the evidence available, I would accept that as a result of the plaintiff's disabilities significant extra expenses were involved in embarking upon his holidays and other outings.
Bearing in mind that "perfect compensation" is impossible I would allow one third of the amount claimed. The resultant amount is $1467.50.

Item 155

I understand this item is admitted.

Item 156

I would allow for the cost of a power board.

Items 157 to 163 – Parents' accommodation, food and travelling expenses

In my view the plaintiff should have the costs of travelling and accommodation incurred by his parents when they came to visit him and I would allow the amounts claimed. I have already dealt with and rejected the defendant's submission that the plaintiff is only entitled to an award for services rendered by his parents at times when he was out of hospital. In making that submission the defendant conceded that the plaintiff should nevertheless also have accommodation and meal expenses incurred by his parents when visiting him in Perth. These are items 157‑159 and I would allow them.
The defendant also concedes the travel expenses of the plaintiff's parents and I would allow them as claimed.

Item 164 – Legal Aid

I would allow the sum of $15.

Item 169 – RAC roadside assistance

In my view it is reasonable that the plaintiff should have the cost of RAC roadside assistance and I would allow this claim.

Item 171 – Ford van travel expenses

In his final submissions the plaintiff accepted that his claim for $28,862 should be reduced and was content to argue that an appropriate assessment would be in an amount of $18,320.
The defendant submitted that no more than $7,778 should be allowed.
There is no doubt that the most suitable method of transporting the plaintiff has been the use of an appropriately modified van. Before the accident the plaintiff's vehicle was a Toyota Corolla. In principle the amount which the plaintiff should have is the additional costs incurred by him as a result of the use of the van.
I am satisfied on the evidence that from the date it was purchased until 15 October 2003 the van had travelled a total of 54,546 kilometres.
If the accident had not occurred I think it appropriate to assume that in the same period the plaintiff would have driven his Toyota Corolla a distance of 60,000 kilometres. Using the RAC rates applicable to the running costs of vans and small cars the cost of running the van has been $46,544. The cost of running a Toyota over the same period has been $17,682. The difference is $28,862.
The defendant does not accept that a rate of 85.37 cents per kilometre should be applied in relation to the use of the van and 29.47 cents per kilometre in respect of the Corolla. It argues that rates of 75.54 cents and 30.95 cents respectively should be applied.
In relation to the van, the plaintiff points out that it is an extensively modified vehicle and that it is therefore difficult to value the precise cost of running it. The Royal Automobile Club rates apply to standard vehicles and are only a guide.
As to the Corolla, the plaintiff suggests a lower rate should be applied based on the assumption that the vehicle would have been driven 20,000 kilometres per year and not 25,000.
The plaintiff submits that the difference between the rates suggested by him and those suggested by the defendant should be divided in two and the result applied. It is by that method that the plaintiff arrives at a claim for $18,320.
I think that this is a reasonable approach and that the plaintiff should have an award in that sum.

Item 178 – Washing machine

It can I think be readily appreciated that over the time during which the plaintiff has been at home there has been a need for significantly more laundry. Mrs Baldwin said: "Unfortunately the machine – with the amount of washing that I had to do for Dean and the constant changing of his bed linen and loads it has completely destroyed my washing machine and we are just having to replace it more regularly than we should have had to have."
I would allow this claim.

Items 187 to 191 and 193 – Ironing, cleaning, lawn mowing, gardening and gardening bags

I would not allow these claims. To some extent it seems to me that they duplicate the claim for gratuitous services although I appreciate that they relate to actual expenses said to have been incurred by the plaintiff's parents so as to allow them additional time to look after the plaintiff. However if that is so the proper measure of the plaintiff's loss is the cost of the gratuitous services which he has incurred and not the expenses outlaid by the person rendering such services.

Item 192 – Enjo equipment

I would also disallow this claim for similar reasons.

Items 194 to 199

In my opinion the cost of a mobile phone is not something which can be laid at the feet of the negligent defendant. Given the plaintiff's need for constant attention, I do not consider that he has a reasonable requirement in that regard.

Items 200 to 222 – Telephone charges

This is a claim for a second telephone line and costs associated with its use, including Internet connection costs and service and call charges up until September 2003.
It can, I think, be readily appreciated that as a result of his injuries the plaintiff has been left with a reasonable need for a telephone dedicated to his use in the house, and I consider that he should have the cost of obtaining one as well as expenses incurred in connecting to the Internet. However, I would not accept that the evidence establishes that all the call charges have been reasonably and necessarily incurred as a result of the accident, and I consider that they should not be allowed. I would allow the service charges because it seems to me that in principle the need to pay them has been occasioned by the accident. However, Items 208‑222 do not differentiate between service and call charges and I am unable to allow anything in respect of them.

Items 252 and 253 – Manual and electric toothbrush items

I am not persuaded that these are costs reasonably incurred as a result of the accident. While Mrs Baldwin gave evidence that the plaintiff is "tough on his toothbrushes" I think that the amount claimed appears excessive and that it would be too speculative for me to embark upon an assessment of the difference between the expense which the plaintiff would have incurred in brushing his teeth in any event and that which he has now to incur.

Item 256 – Dynamo and Preen

I would not allow this claim which appears to be very large and entirely unsupported evidence save in the general sense that, as I have already accepted it may be assumed that the plaintiff has a need for more laundry than before the accident.

Item 257 – Nylon bath sponge

I would not allow this item.

Item 258 – Toilet items

In my view the evidence does not allow me to assess anything in respect of this claim.

Item 264 – Special foods

I would not allow anything in respect of these items.
Having regard to the above findings, I allow the sum of $54,918.97 in respect of past miscellaneous expenses.

Future miscellaneous expenses

I make the following findings in relation to the items in dispute:

Items 284 to 287 – Future transport expenses

The plaintiff originally claimed the sum of $200,000 in respect of this item of the claim but in its amended submissions suggest that a figure of $163,350 is appropriate.
The defendant submits that an amount of $80,350 would be a reasonable award.
I have already indicated that I accept that the evidence establishes that the plaintiff has a reasonable need for transportation in a Ford transit van or similar vehicle. He should therefore receive a sum of money sufficient to compensate him for the additional cost of running such a van compared to the cost of a vehicle which he would have been likely to have used in any event.
The parties are agreed that the costs of providing the plaintiff with a van in the future will amount to $158,000. The main difference between them lies in the rate to be applied in calculating the amount by which that sum should be discounted to allow for the fact that the plaintiff would have had a motor vehicle of his own in any event.
The defendant contends that the RAC rate applicable to a medium car, under five years old, should be applied.
The plaintiff argues that the rate applicable to a small, medium car should be used. In my view a medium car should be allowed for. The relevant rate is 49.04 cents per kilometre. The amount by which the sum of $158,000 should be discounted is $102,572 and the result if $55,428.
The other principal difference between the parties concerns the allowance to be made for the cost of modifications to the plaintiff's vehicle. Again there is agreement as to a starting figure ($67,000) but the defendant argues that this sum should be discounted by one third "for the likelihood that the changeover would occur at longer intervals and that the wheelchair modifications would add resale value".
I do not consider that there is any basis in the evidence for adopting this approach and would not apply any discount.
In the light of these conclusions I assess the amount to be allowed for in respect of the plaintiff's needs for transportation in the future in the sum of $122,428.

Item 289 – Computer cartridges

I would allow this item.

Item 290 – Tickets to future concerts and shows

In my view this claim should not be allowed. While it may be accepted as a general proposition that the plaintiff will incur more expense in attending concerts and shows than he otherwise would have but for the accident I am unable to conclude upon the basis of the evidence that it is a claim which should be the subject of a discrete assessment.

Item 291 – Roadside assistance

I would allow this claim.

Item 293 – Carpet cleaning of lounge and dining rooms

I would not allow this claim.

Item 294 – Carpet fabric protection

In my view this claim should not be allowed.

Items 295 and 296 – Ironing and cleaning

I would not allow this item.

Item 297 – Purchase of bed linen

The amount claimed is $200 per annum. I think that $100 per annum would be reasonable.

Item 298 – Repairs to bed linen

I would not allow anything in respect of this item.

Items 299 – 303 Mobile phone costs

I do not consider it reasonable to make any allowance in respect of these items.

Items 304 ‑ 305 Telephone charges

This is a claim for a second telephone line and is quantified upon the basis of annual costs of $238.80. I consider that the plaintiff has a reasonable need for a telephone, and I would allow the amounts claimed.

Item 306 – Internet charges

This claim is quantified upon the basis of estimated annual costs of $203.28.
I have already held that a computer is a reasonable requirement of the plaintiff as a result of his injuries. I think that it is also a reasonable requirement that he be able to use it to connect with the Internet.

Item 313 – Special foods

I would not allow anything in respect of this item.

Item 319 – TAFE enrolment charges

The plaintiff claims for the cost of enrolling in courses at TAFE amounting to $2,800.
I allowed for the cost of TAFE courses in the past upon the basis of the evidence which I accepted that they had had a beneficial effect upon the plaintiff's rehabilitation. I am not so sure that the evidence allows me to take matters further and say that the cost of future courses will also have such a beneficial effect.
I do not consider that this claim should be allowed.
I assess the plaintiff's claim for future miscellaneous expenses in the sum of $144,265.55.

Future special needs rehabilitation programme

Item 323 – 3 year entry programme

Item 324 – Rehabilitation

The plaintiff claims an amount for what is described as a "three year re‑entry programme" costed at $90,024 and "home rehabilitation" at a cost of $6,360.
These claims are based largely upon the evidence of Ms Bishop.
Volume 1 of the document entitled Life Pathway Dean Baldwin (exhibit 32) states at page 19:
"It is recommended that Dean commences an at home re‑entry rehabilitation programme. It is recognised in brain injury rehabilitation that all skills learnt in a particular environment or situation may not necessarily transfer to a new environment or situation.
Individual rehabilitation in the home and community integration programmes have been established as the most successful method for clients to gain the optimum level of independence."
When asked what a home re‑entry rehabilitation programme was, Ms Bishop said:
"What it means is to give Dean the opportunity to move inclusively into the community and meet with other young people of his own age, and also build on Dean's weaknesses and increase his strengths. There's not going to be a huge amount of change in Dean physically but there certainly would be a great opportunity for Dean to attend TAFE and certain other areas like that, and also become more independent where possible and that's not always to the extent people expect, to be able, for instance to set a table, wash a bench top, get something out of the fridge or to be able to open the fridge and direct somebody else to do some work for him. There's many ways in rehabilitation."
Although a claim is made for a three year re‑entry programme, Ms Bishop stated that she believed "it would probably take a year" and that carers could be trained to carry on after that period.
The plaintiff argues that the cost of this programme should be additional to amounts allowed for to deal with ongoing review of his needs including occupational and other therapy needs.
I am far from satisfied that these proposed programmes have been adequately explained or justified by the evidence. They have not been the subject of any evidence from Dr Merrick nor any other specialist in rehabilitation medicine, and it does not seem to me that any particular benefit which might accrue to the plaintiff has been satisfactorily identified. It is now nearly seven years since the accident, and he has been at home for over five years, and his condition and routine is largely settled. I have no doubt that further gradual improvements in his ability to cope with every day life may be open, but it does not seem to me that programmes of the type proposed here are justified or reasonable.

Future cost of appliances and aids

Item 329 – Arm weights

I allow this item.

Item 335 – 337 ‑ 4‑wheel drive electric chair

Ms Gail Sharpe, an occupational therapist, with 20 years experience who was asked to assess the plaintiff's future needs and prepared reports detailing them did not suggest that a 4 –wheel drive electric wheelchair should be provided.
Ms Christine Hawkins, who is also an occupational therapist and the author with Ms Bishop of the three‑volumed report entitled Life Pathway: Dean Baldwin did recommend a 4‑wheel drive electric wheelchair, after assessing the plaintiff's requirements, as well as a manual wheelchair and a conventional electric one. She described the 4‑wheel drive wheelchair as a "need for his basic daily living". This was so she said so that:
"Dean has the opportunity if he wants to access other terrain other than your normal day‑to‑day sort of footpaths, he has the opportunity to do that and also be able to go out onto sand or ‑ you know, so that he's not completely limited in his choices in life."
While I think that there are obvious benefits which might accrue to the plaintiff if he were to be provided with a 4‑wheel drive electric wheelchair I cannot help but conclude that this item of equipment is something more than a reasonable need. It would cost, according to Ms Hawkins some $11,000 ‑ $12,000 and would require replacement every 10 years. It would not be used except in difficult terrain and in normal circumstances would simply be stored while the plaintiff used his conventional electric wheelchair or from time to time a manual chair. The evidence does not suggest that there would be any great likelihood that the plaintiff would use a 4‑wheel drive wheelchair very often and I do not think that it should be regarded as an item with which he ought to be provided at a cost to the defendant.

Item 338 – Tilt mirror

I would allow this item.

Item 339 – Long handled shoe horn

I would allow this item.

Item 340 – Bath sponge

I would allow this item.

Item 341 – Reacher

I would allow this item.

Item 342 – Electric hoist

There does not appear to be any dispute as to the need for an electric hoist but the defendant would accept liability to provide one at a cost of $2,713, based on the evidence of Ms Sharpe as opposed to a cost of $4,344 as suggested by Ms Hawkins.
There does not seem to be any reason why the evidence of Ms Sharpe should not be accepted as a basis for assessing the plaintiff's reasonable needs in this regard.

Item 344 – Anti pressure foam cushion for manual wheelchair

I would allow this item.

Item 346 – Towbar for manual wheelchair

This item should more accurately be described as a towbar mounted wheelchair carrier. The plaintiff's case is that there is a need for such a carrier so that a manual wheelchair can be taken with him when he goes out in a vehicle to destinations where his electric wheelchair could not suitably be used. I think that the claim is reasonable and should be allowed.

Items 347 and 348 – Pump pack and soap holder

I would not allow these items as reasonable and necessary expenses resulting from the plaintiff's injuries.

Items 351 to 360 – Various kitchen items

I would not allow these items.

Item 361 – Large sling for hoist

Based on the evidence of Ms Sharp, I assess the plaintiff's claim for this item in an amount of $320.

Item 365 – Maintenance for hoist for vehicle

I assess the plaintiff's claim in an amount of $264 per annum.

Item 373 – Maintenance of 4‑wheel drive wheelchair

I would disallow this item.

Item 374 – Maintenance of electric hoist

I accept the evidence of Ms Sharpe that the cost of maintaining such a hoist is likely to be in the order of $100 per annum.

Items 387 and 388 – Environmental controls support and maintenance

Item 387 is a claim for what are described as "support and maintenance costs" for items required by the plaintiff to control his environment and Item 388 is in respect of such costs relating to what is described as a "minder system".
Both claims rely heavily upon the evidence of Mr Jones, the principal bio‑engineer at Royal Perth Hospital.
Mr Jones prepared a report (exhibit 37) setting out the equipment which it was claimed the plaintiff would need to control his environment within the home.
Shortly put the defendant's submission is that the plaintiff is able to exercise sufficient environmental controls at the present time and no need has been demonstrated. I would reject that submission. Mr Jones was extensively cross‑examined on the need for these items and I am satisfied that it is entirely appropriate that the plaintiff should have them so as to enhance his ability to live as independently as possible.
Upon the basis of Mr Jones' evidence I accept that the cost of supporting and maintaining environmental controls would be as set out by the plaintiff.

Item 389 – Voice enhancer maintenance

I would not allow this item because I do not accept that there is sufficient basis in the evidence to warrant any assessment.

Item 390 – Urinal ‑ spill proof

I would allow this item at an annual cost of $65.40.

Item 391

I have been unable to find a basis in the evidence for allowing this item.

Item 392 – Anti‑pressure cushion

I would allow this claim and assess it at $19 per annum.

Item 393 - Soap holder

I allow this item.

Items 395 to 397 – Kitchen items

The plaintiff has claimed for the cost of certain kitchen items (see Items 354 to 357). This is a claim for the cost of replacing such items because it is said they will not last for 45 years.
I do not believe that these items should be allowed as a reasonable requirement of the plaintiff resulting from his disabilities.

Item 398 ‑ Exercise band

I allow this item assessed in an amount of $32 per annum.

Items 399 to 400 – Manual and electric toothbrushes

I reject the claim for any assessment in this regard.

Item 413

I allow this item.

Item 406

I disallow this item.

Item 414 – Miracle grip matting

I allow this item.

Item 418 – Fixed commode maintenance

I would not allow this item.

Item 420 – Large sling for hoist

I would allow this item.

Item 421 to 426

I would not allow these items.

Item 433 ‑ Promed sling

I have already allowed for a sling for a hoist in an amount of $320 (see Item 361).
The evidence of Ms Sharpe was that slings have a three‑year life span and need to be replaced every three years. I accept that evidence and the plaintiff should therefore have an amount calculated upon the basis of the cost of such replacement.
The plaintiff has claimed $960 every three years and I think that this is reasonable.

Item 434 – Wheelchair and occupant restraints

I would allow this claim.

Item 435 – Tilt table straps

I allow this claim.

Items 437 and 438 – Beaded neck float and beaded hip float

When the plaintiff makes use of a swimming pool a beaded neck float and beaded hip float are required. I think that the claims are reasonable and should be allowed.

Item 439 ‑ Speech enhancer

Although the plaintiff's written submissions state that the initial cost of a speech enhancer had been allowed under Item 332 that is not so. Under Item 332 the plaintiff states that the claim for a speech enhancer is withdrawn.
Perhaps the plaintiff meant to say that the initial cost of the speech enhancer had been allowed at Item 79F in an amount of $489.95.
Ms O'Reilly‑Carter, a speech pathologist who gave evidence stated that "an amplifier that's used extensively would probably need to be replaced every two years." I understand Ms O'Reilly‑Carter to be referring here to a speech enhancer.
It seems to me that the plaintiff's claim for the replacement of a speech enhancer at a cost of $500 every three years is reasonable and should be allowed.

Item 440 ‑ Maintenance of battery charger

This is a claim for a battery charger used in connection with the plaintiff's electric wheelchair. I think the claim is reasonable and should be allowed in an amount of $307 for every three years.

Item 441‑ Portable commode

I would allow this claim in an amount of $837.72

Item 446 – Electric wheelchair

I have already disallowed the claim for a 4‑wheel drive electric wheelchair.
This item is a claim for the cost of an ordinary electric wheelchair.
The plaintiff claimed the sum of $12,000 every five years upon the assumption that that would be the cost of replacing a 4‑wheel drive wheelchair. The cost of replacing an ordinary Glide 6 electric wheelchair would be $7,300 every five years. I would allow for that amount.

Item 447 – Manual wheelchair

A claim of $2,332.30 is made for the cost of a manual wheelchair every five years. I would allow this item.

Item 450 – Extra bracket for headrest

I allow this claim.

Item 453 – Transfoam mattress

I would allow an amount of $320 every five years for the cost of a replacement mattress.

Item 457 – Automatic card shuffler

I would not allow this item.

Items 458 to 470 – Computer items

I have already dealt with the claim for the provision of a computer. These items relate to claims for costs incidental to the running of computerised systems.
It follows from my earlier reasons that the plaintiff should have the reasonable costs associated with the running of computerised systems and I allow the claim.

Item 471 – Standard bed rail

I accept the evidence of Ms Sharpe, who was not challenged, that an allowance should be made for the provision of a standard bed rail every five years.

Item 472 – Fold-down bed rail

I allow this item.

Item 473 - Drop side bed rail

I allow this item.

Item 475 – Hoist for vehicle

This claim is withdrawn.

Item 479 – Promed Delta hoist

This is a claim for the cost of replacing a Promed Delta hoist every 10 years.
I have allowed for the initial cost of purchasing a hoist under Item 342.
The plaintiff should clearly be compensated for the need to replace the hoist and I accept the evidence that it will require replacement every 10 years. The plaintiff claims that the cost of a new hoist will be $4,345 but as I have pointed out in relation to Item 342 I would allow for the cost based on Ms Sharpe's evidence that it would be only $2,713.

Item 480 – Delta telescopic ramps

I would accept that the plaintiff has a need for telescopic ramps to be replaced every 10 years. I would allow this claim.

Item 482 – Fixed shower commode

The defendant submits that this item has not been made out on the evidence.
This is an item of equipment which Ms Hawkins stated in her report (exhibit 31) was required by the plaintiff. She gave evidence that she made enquiries of suppliers and obtained the information which she set out in Appendix 4 Addendum 4 of her report. In the case of the mobile shower commode the information is that it requires replacing every 10 years at an approximate cost of $999. I would allow the claim.

Item 483 –Pan carrier

I would allow this item.

Item 484 – Card holder

I do not consider that this item should be allowed.

Item 490 – Quest keyboard

I accept the evidence of Mr Jones and would allow this item.

Item 491 – Adaptation costs

I would allow this item.

Item 492 – Voice activated call bell

I allow this item.

Item 493 – Adaptation costs

I allow this item.

Item 494 – Double electric bed

I accept the plaintiff's submission. There should be a reduction in the amount claimed over 10 years from $3,000 to $2,000.

Item 495 – Tilt mirror

I would not allow this claim.

Item 496 – Modified cutlery

I would allow this item.

Item 502 – Ibis lift chair

I would allow this item.

Items 503 to 514 – Technology costs

These are costs specified by Mr Jones in his report and relate to computerised systems recommended by him. In my view they should be allowed for the reasons set out in relation to Items 387 and 388.

Item 517 – Minder system equipment and installation

On the basis of Mr Jones evidence which I accept, I would allow this item.
It follows that I would allow a total amount of $143,079.01 in respect of the plaintiff's claim for the future cost of appliances and aids.

Future architectural expenses

The plaintiff claims an amount of $150,000 to compensate him for the cost of building a house to cater for his special needs. The defendant concedes that an amount of $100,000 would be appropriate.
The evidence in relation to this issue came from Mr Steve Dubczuk, an architect specialising in the design of housing for the disabled. Mr Dubczuk prepared a report based upon his investigation of the plaintiff's needs and estimated that the cost of a purpose designed house would be $270,600. In comparison the cost of a conventional house of similar proportions would be $125,500.
Mr Dubczuk's estimate of the cost of the purpose designed house includes an amount of $24,000 for a hydro-pool and fencing and paving, $12,000 for air‑conditioning and nearly $27,000 for items including a roof over the pool.
It does not seem to me that it has been established that the plaintiff has a special need for a pool and the defendant argues that this is not a case where the plaintiff has suffered an injury to his nervous system of the kind where body temperature is difficult to maintain and so the air‑conditioning cost is not something which ought to be borne by the defendants.
In my view the plaintiff should have the sum of $120,000 in relation to this aspect of the claim.

Additional holiday expenses

The plaintiff submits that an allowance for the additional costs of the plaintiff going on holiday should be made upon the basis that he is likely to holiday within the state for two weeks a year, in the Eastern states every second year and overseas every third year.
Evidence was led from Ms Trish McGinley, a disability tourism consultant, as to the costs of travel and the claim as quantified is in an amount in excess of $500,000.
The defendant's short submission is that while there should be an allowance under this head of damage the amount should be assessed globally and conservatively. In addition it is submitted that the award of general damages includes an amount for loss of amenities and this aspect of the claim overlaps with that.
It is clear that while it would not be impossible for the plaintiff to undertake long distance travel he would face formidable problems. Dr Merrick stated in a report of 5 June 2002 that flights of more than five hours duration should not be envisaged and he pointed out that while the plaintiff was technically fit, in a medical sense to fly as a passenger in a pressurised aircraft transfers to standard in-flight seating would be difficult and travel in a secured wheelchair would be preferable and use of standard in-flight toilets would not be possible.
In my view it is likely that the plaintiff will go on holidays within the state on a regular basis and from time to time take holidays in the Eastern states. Overseas travel while possible will I think only be undertaken infrequently.
Ms McKinlay prepared a report and gave detailed evidence of the cost of travel by disabled persons. Her evidence is a useful guide as to the matters which have to be considered by a person suffering from a disability who decides to go on a holiday and the extra costs which will be incurred.
I would allow $100,000 for this aspect of the claim.

Interest on past losses

The plaintiff should have interest calculated at the rate of 6 per centum per annum on past economic loss, past miscellaneous expenses, past medical care and past gratuitous services. I assess that in an amount of $91,590.78.

Administration costs

Mr Steven Taylor, manager of investments in the office of the Public Trustee gave evidence that the Public Trustee would charge fees for managing the fund which is to be set aside for the benefit of the plaintiff calculated upon the following basis:
•An establishment fee of 1.25 per cent of the amount received.
•A fee of 1.1 per cent on the purchase of a dwelling house.
•6.6 per cent on income earned outside the common fund.
•$110 per hour for the preparation of annual tax returns.
•$192.50 per hour for periodic reviews of investments by Paterson Ord Minet.
Applying this scale and after making certain assumptions Mr Taylor estimated that the total fees payable over the life of the trust fund would range from $614,068 to $420,687 depending upon whether the corpus was $9,000,000 or $6,000,000.
The assumptions upon which these calculations are based include that:
•The income from investments outside the common fund would be at a rate of 4 per cent.
•Income from within the common fund would accrue at a rate of 4.5 per cent.
•Tax returns would take three hours to prepare each year.
•Investment reviews would occur quarterly.
•Approximately 95 per cent of the corpus would be invested outside the common fund.
As I understand it the defendant does not quarrel with any of these assumptions.
However, in the course of Mr Taylor's evidence it became clear that in making his calculations he also allowed for inflation at the rate of 3 per centum per annum in the fees charged to prepare tax returns and to consult investment advisers.
As I understood him counsel for the defendant submitted that inflation was already allowed for in the 6 per cent discount rate and that no further provision should be made. Counsel referred to Todorovic v Waller (1981) 150 CLR 402 in support of his submission but I do not understand that case to be applicable to an exercise of this kind. The question was discussed in Morris v Zanki (1997) 18 WAR 260 at 289 – 290. It seems to me that Mr Taylor's assumption of 3 per cent inflation is reasonable in the circumstances.
Another reservation which counsel had about Mr Taylor's approach was that no allowance had been made for the tax deductibility of fees paid for preparing tax returns and obtaining investment advice. It does seem to me that this submission should be accepted. The plaintiff is only entitled to the estimated actual costs of administering the fund.
Finally, counsel also argued that the trustee's annual charge of 6.6 per cent on income earned outside the common fund should be averaged because the corpus will diminish to zero over its lifetime. I accept that submission.
Adopting Mr Taylor's approach as modified to the extent indicated above the relevant sums in calculating the amount to be awarded for the future costs of administering the fund are as follows:
Award (not including an amount under this heading)        $7,008,992.80
Less
Gratuitous services payable to Mr and Mrs Baldwin          $219,572.00
Estimated cost of a home to be purchased for
the plaintiff (say)  $300,000.00
Amount to be invested in common fund   $350,000.00
Balance to be invested outside common fund                 $6,139,420.80
Annual charge
(4 per cent income = $245,576.83 x 6.6 per cent)                  $16,208.07
Preparation of tax returns net of tax assumed   $2,713.00
at the rate of 48.5 per cent
Quarterly investment advice fees net of tax  $19,728.00
assumed at 48.5 per cent
Total annual fees ($16,208.07 per annum x 830.4 ÷ 2)       $129,415.20
On this basis I assess the total of fund management expenses as follows:
Establishment fee  $87,612.41
Housing fee  $3,300.00
Annual fees  $129,415.20
$220,327.61

Summary

General damages  $249,000.00
Past economic loss  $164,300.00
Future economic loss  $631,521.00
Past gratuitous services  $219,572.00
Future care  $4,952,215.83
Home maintenance  $33,200.00
Past medical expenses  $2,610.36
Future medical expenses  $102,719.85
Past miscellaneous expenses  $54,918.97
Future miscellaneous expenses  $144,265.55
Future cost of appliances and aids  $143,079.01
Future architectural and land expenses  $120,000.00
Future additional holiday expenses  $100,000.00
Interest on past losses  $91,590.78
Administration fees  $220,327.61
Total award  $7,229,320.96

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Citations

Baldwin by his next friend Vivienne Baldwin v Heath [2004] WADC 68

Most Recent Citation

Heath v Dean Allan Baldwin by his next friend Vivienne Baldwin [2006] WASCA 12

Cases Citing This Decision

1

Heath v Dean Allan Baldwin by his next friend Vivienne Baldwin [2006] WASCA 12

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