Bittner by His Next Friend Judith Ann Hogben v Tavelli
[2006] WADC 145
•11 September 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BITTNER by his next friend JUDITH ANN HOGBEN -v- TAVELLI [2006] WADC 145
CORAM: MCCANN DCJ
HEARD: 31 JULY 2006
DELIVERED : 11 SEPTEMBER 2006
FILE NO/S: CIVO 78 of 2006
BETWEEN: PAUL THOMAS JUNIOR BITTNER by his next friend JUDITH ANN HOGBEN
Plaintiff
AND
PAULA TAVELLI
Defendant
Catchwords:
Practice and Procedure - Compromise of infant's claim - Turns on own facts
Legislation:
Rules of the Supreme Court of Western Australia, O 70 r 11(1)
Result:
Application for leave to compromise granted
Representation:
Counsel:
Plaintiff: Mr P G Kennard
Defendant: Mr C P O'Sullivan
Solicitors:
Plaintiff: O'Connor Lawyers
Defendant: O'Sullivan Partners
Case(s) referred to in judgment(s):
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 61, 706
Kelly v Fletcher, unreported, DCt of WA; Library No 4954; 28 June 1996
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Naxakis v Western General Hospital & Ors (1999) 197 CLR 269
Purkess v Crittenden (1965) 114 CLR 164
Sosa v Carter [1978] WAR 123
Villasevil v Pickering (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 7 ALR 571
Case(s) also cited:
Clarke v Mills (1998) FCt SCt of WA, unreported; Library No 970427; 6 August 1997
MCCANN DCJ: This is an application on behalf of the plaintiff by his next friend for an order pursuant to O 70, r 11(1) of the Rules of the Supreme Court granting leave to the plaintiff to settle his cause of action against the defendant. It is proposed to settle the plaintiff's claim for damages in the sum of $392,329, of which $67,329 is intended to compensate the plaintiff for the loss which he will suffer by having the settlement sum administered and managed on his behalf by the Public Trustee, who will charge fees and recover disbursements from the plaintiff's fund. The balance of the proposed settlement, namely $325,000, is intended to incorporate all other compensable heads of damage. It is this sum which has been the focus of the parties' attention in their negotiations and ultimately was addressed in counsel's opinion on the offer of compromise.
In my opinion leave to compromise the plaintiff's cause of action should be granted. However, whilst I am satisfied that the relevant criteria have been satisfied it is necessary and appropriate to make some brief observations of my own about counsel's opinion.
Factual background
The facts in relation to this matter are comprehensively set out in counsel's opinion and in the reports of the experts, all of which were annexed to the affidavit of Mr John O'Connor. It is apparent that those facts have mostly been derived from an extensive range of medical and other reports and from hospital records concerning the plaintiff. I am satisfied that the facts have been adequately researched and considered.
The plaintiff is a 16 year old aboriginal boy who was born on 28 December 1989. His claim arises from a motor vehicle accident on 28 May 1993 when he was struck by a motor vehicle on Wanneroo Road, Nollamara. He suffered severe head injuries and a fractured left clavicle and was hospitalised for some time. He has made a full recovery from the fractured clavicle. However, it is common ground that the plaintiff has suffered permanent brain damage which has left him with an intellectual disability.
The plaintiff spent four weeks in Princess Margaret Hospital followed by a further lengthy period at Lady Lawley Cottage where he underwent physiotherapy and occupational therapy. The plaintiff steadily improved and regained the full, normal range of physical capacities.
The plaintiff and his sisters were placed in foster care by the Department of Community Development in or about 1998 or 1999. The foster family initially lived in Carnarvon but has moved about the State on a regular basis by reason of the foster father's employment.
Dr Gubbay examined the plaintiff on 8 September 2004 and arranged for EEG and MRI scans to be carried out. The EEG results support the possibility of the plaintiff eventually suffering from post‑traumatic epilepsy. However, Dr Gubbay was of the view that the chances of this occurring were three per cent or less.
Counsel's opinion and the assessment of the proposed compromise
The defendant has admitted liability in this matter and accordingly the only issue to be considered is whether the quantum of the proposed compromise is reasonable and beneficial to the plaintiff.
The relevant principles are set out in par 70.10.2 of Seaman, Civil Procedure in Western Australia:
"The court cannot approve the settlement unless it is of opinion that it will be of benefit to the person under disability, and will need to be satisfied that all the facts relevant to the case with the person under disability have been brought together and considered by his or her legal advisers and…that the settlement is supported by independent counsel. It will consider the opinion itself and the reasons for it and if it appears that all aspects of the case have received proper consideration, will be slow to disagree with it, being aware of the risks of litigation and slow to force the person under disability to accept the risk which the Court cannot underwrite. It will also wish to be satisfied that the opinion of counsel has been considered and understood by the next friend or guardian ad litem, and will give proper weight to the wishes of the latter: Sosa v Carter [1978] WAR 123 at 124."
In Sosa v Carter [1978] WAR 123 the Full Court also said that the caution which the Court should exercise before disagreeing with the opinion of counsel was particularly appropriate in a case involving an assessment of damages for personal injuries.
In his opinion counsel has supported the proposed offer of $325,000 by addressing various heads of damage (other than the cost of managing the plaintiff's trust fund). He initially assessed the plaintiff's damages in the sum of $390,000 comprising –
(a)general damages for pain and suffering and loss of amenities of life of $120,000;
(b)future economic loss of $250,000;
(c)vocational training expenses of $15,000; and
(d)future medical expenses of $5,000.
Counsel then expressed the view that it was appropriate to allow a discount in the order of 15‑20 per cent to take into account an issue between the parties as to whether pre‑morbid and other factors contributed to the plaintiff's intellectual disability, or would have but for the motor vehicle accident. Counsel noted that a discount in the range of 15‑20 per cent would reduce his assessment of the plaintiff's damages to a range of $312,000 to $331,500 and recommended acceptance of the proposed settlement of $325,000 because it fell within that range.
Counsel also recommended that an order be obtained that the settlement monies be paid to the Public Trustee and invested on his behalf until further order of the Court because Dr Gubbay expressed the opinion that the plaintiff would be incapable of managing his own financial affairs without close supervision. The defendant concurs with that view and, as I have said, it is agreed between the parties that a sum of $67,329 should be included in the settlement sum to compensate the plaintiff for the costs which will be incurred as a result of the need for a protective trustee for the plaintiff.
I turn now to consider the four heads of damage which were addressed by counsel in his opinion.
General damages, vocational training and future medical expenses
In my view the sum of $120,000 proposed by counsel for general damages is reasonable. I am satisfied that counsel's allowances for vocational training and future medical expenses are also reasonable and indeed the latter might be regarded as generous given that the plaintiff requires no further medical treatment and the risk of him suffering from epileptic seizures in the future is very low.
Future economic loss
It is necessary for me to comment in more detail in relation to counsel's opinion as to the plaintiff's economic loss. Counsel began by noting that Dr Gubbay and a neuropsychologist, Sylvana Oates had expressed views to the effect that the plaintiff's future employment prospects will be limited because of his intellectual disability. Dr Gubbay contemplated that the plaintiff would be restricted to some type of menial work involving simple tasks, and Ms Oates regarded structured or supervised employment as being necessary. Counsel expressed his opinion as to the plaintiff's future loss of earning capacity on the basis of a loss of $600 net per week to the age of 65 years, which equated to a loss of $441,831 (based on the 6 per cent actuarial tables) after allowing a discount for the fact that the plaintiff's award will be paid to him when he is 16 years of age whereas ordinarily adult full time employment would not commence until approximately 18 years of age. I am satisfied that counsel's opinion is reasonable and properly addresses all relevant aspects of this issue.
I now move on to a difficult issue which counsel addressed, namely the quantum of any discount that should be made for the plaintiff's retained earning capacity and contingencies. Counsel referred to Kelly v Fletcher, unreported, DCt of WA; Library No 4954; 28 June 1996 in which, based on statistical and factual evidence this Court made a finding ("unpalatable" as it was to the Court) that the working future of the aboriginal plaintiff in that case would not have been as favourable as that of a person of non‑aboriginal background. Ultimately counsel expressed the view that a sum of $250,000 would be reasonable for future economic loss, which represents a discount of approximately 43.5 per cent from a total loss of $441,831.
Having carefully considered the matter, I am of the view that the proposed allowance of $250,000 is reasonable in this case, but I have arrived at that view on the basis that the ordinary vicissitudes of life and retained earning capacity are of themselves sufficient to justify a discount in the order of 43.5 per cent. The statistical evidence which was taken into account in Kelly v Fletcher may no longer be reliable but, more importantly, as a matter of principle when looking at statistical chances the Court must not lose sight of the fact that it is the personal prospects of the particular plaintiff which fall for consideration (see Naxakis v Western General Hospital & Ors (1999) 197 CLR 269 per Gaudron J at [35]. Indeed in Fletcher v Kelly there was a large amount of evidence before the Court pertaining to the plaintiff's family's employment history and that was taken into account by the trial judge in making his findings.
In my view, it would be appropriate for settlement purposes to allow for a significant retained earning capacity in the plaintiff's case on the basis that it is arguable that the plaintiff will be able to obtain simple employment, whether supervised or otherwise, such as gardening, cleaning, basic plant operating (including driving vehicles) labouring and so on. An allowance of up to 10 per cent for the vicissitudes of life should also be made.
I note that counsel has made no allowance for the loss of future superannuation benefits in his opinion as to economic loss. By employing the approach to the assessment of loss of superannuation benefits which has been approved in this State (see Villasevil v Pickering (2001) 24 WAR 167 and Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 61, 706), and employing the same facts and methodology which were used to assess the loss of earning capacity of $250,000, an additional award of approximately $20,000 could be justified for loss of future superannuation benefits. Further, no allowance has been considered by counsel for the cost of professional case management for the plaintiff (save to the extent the same is covered by financial services which will be provided by the Public Trustee). I will return to those two aspects later when considering the reasonableness of the settlement as a whole. Meanwhile, whilst I am not inclined to endorse every aspect of counsel's approach to economic loss (which I understand from submissions was also the attitude of the defendant) I am satisfied that the allowance adopted by counsel of $250,000 for future economic loss is reasonable.
Discount for other precipitating causes
I turn now to the discount which counsel regarded as appropriate to take into account to allow for the defendant's alternative causation hypothesis. Counsel summarised two principles which have been established by the High Court, namely that a defendant's tortious conduct does not have to be the sole cause of the plaintiff's injury for the plaintiff to recover full damages for that injury (March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506), and if there is a fair chance that some other precipitating cause would have brought the plaintiff to the same state, then the Court must evaluate that chance and discount the damages accordingly (Wilson v Peisley (1975) 7 ALR 571 at 574 per Barwick CJ). It is also necessary in my view in this case to have regard to what the High Court said in cases such as Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. The onus of proof on this issue will lie on the defendant. The defendant will be obliged to prove not only the existence of the pre‑morbid and/or extraneous causal factors, but must also adduce evidence as to the propensity of the same to harm the plaintiff over time. Events which have in fact occurred (for example any pre‑morbid factor which actually caused brain damage to the plaintiff) must be proved to have occurred on the balance of probabilities. Hypothetical possibilities which could never be found as facts need not be proven on the balance of probabilities, but may be taken into account by way of percentage discount as appropriate, provided the prospect of the same occurring was more than merely speculative and less than certain.
Turning to the evidence, in my view counsel was entitled to support an additional discount for the defendant's alternative causation hypothesis, for which there is some circumstantial evidence at the defendant's disposal. I do not propose to set out all of that evidence. However, by way of example, there is a suggestion in the evidence that the plaintiff was wearing a nappy when he was playing on or near Wanneroo Road immediately before the accident occurred. The experts have opined that if that is true then that it might be indicative of the plaintiff's development being retarded at that point. (I stress that the evidence as to whether the plaintiff was in fact wearing a nappy is equivocal and depends on the reading to be placed on an entry in the plaintiff's clinical notes when he was originally admitted to Princess Margaret Hospital). Also when the plaintiff's speech was assessed by a specialist after he had begun his recovery in hospital it was noted that he had difficulty with some common or every‑day speech concepts and it is suggested by some experts that this may point to a pre‑morbid disability.
I note that Dr Gubbay is of the view that these matters have no causal relevance and in his opinion the plaintiff's intellectual disability was entirely caused by the motor vehicle accident. However, two neuropsychologists, namely Ms Oates and Mr Hannan, do not exclude the defence hypothesis and in fact Mr Hannan respectfully queried at least some of Dr Gubbay's factual assumptions.
I am satisfied that this is an instance where it was prudent to allow a discount for settlement purposes to reflect that it is at least arguable that other precipitating causes would have either brought the plaintiff to the "same state" (which is the phrase used by counsel) or would have damaged his prospects in life. The discount which is inherent in the settlement proposal of $325,000 (16.7 per cent on an award of $390,000) is reasonable in my view.
Conclusion
The assessment of a plaintiff's likely award of damages for the purpose of settlement negotiations is frequently difficult and this is particularly so in the present matter. There are a number of relevant factors about which there is very little firm evidence and even after a trial the task may still be very difficult. The assessment of damages involves the exercise of a discretion based on the application of principles to proven facts and it is not a precise science. The exercise of the discretion whether to grant leave to compromise also requires the Court to take into account the principles I have set out above.
The process by which the plaintiff's damages have been addressed by counsel has been sound, although my own approach would differ in relation to future economic loss and two factors were overlooked (at least they are not dealt with explicitly in the opinion), namely the loss of superannuation benefits and the costs of future case management. Having said that, I should point out that some other allowances are very reasonable, namely the allowances for general damages, vocational training and future medical expenses. Also, much will be done for the plaintiff by his trustee to meet his needs, such as paying for accommodation and bills and so on. Further, opinions may legitimately vary as to the premises upon which future economic loss could be assessed. Similarly the allowance (if any) which should be made for the defendant's alternative causal theory could legitimately attract differing views.
On the evidence, I am satisfied that thorough factual enquiries have been made. I also take into account that counsel's opinion and the appropriateness of the settlement have been considered by the plaintiff's next friend, namely an officer of the Department of Community Development, and I am satisfied that the next friend supports the compromise. Overall, notwithstanding that opinions may differ as to the components of the settlement, and as to counsel's approach, the settlement sum falls within a reasonable range in my view and is beneficial to the plaintiff.
Accordingly, I find that the proposed compromise should be approved.
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