BJ by his next friend Brian Edward Jones v Wilcox & Anor
[2008] NSWSC 1332
•11 December 2008
CITATION: BJ by his next friend Brian Edward Jones v Wilcox & Anor [2008] NSWSC 1332 HEARING DATE(S): 9 December 2008
JUDGMENT DATE :
11 December 2008JUDGMENT OF: Hoeben J DECISION: Judgment in favour of the plaintiff against the first defendant in the amount of $12,949,505.45. First defendant to pay the plaintiff’s costs of these proceedings. CATCHWORDS: Tort - assault on an infant - assessment of damages - non-application of Civil Liability Act 2002 LEGISLATION CITED: Civil Liability Act 2002 CATEGORY: Principal judgment CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161 PARTIES: BJ by his next friend Brian Edward Jones - Plaintiff
Graham Nathan Wilcox - First DefendantFILE NUMBER(S): SC 20286/2005 COUNSEL: Mr PA Regattieri - Plaintiff
Ex parte hearingSOLICITORS: MJ Duffy & Sons - Plaintiff
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONHOEBEN J
Thursday, 11 December 2008
JUDGMENT20286/2005 – BJ by his next friend Brian Edward JONES v Graham Nathan WILCOX and Anor
1 HIS HONOUR:
- Nature of Proceedings
The plaintiff was born in October 2001. On 29 July 2002 he was savagely assaulted by his mother’s de facto partner, who is the first defendant in these proceedings. As a result of the assault, the plaintiff suffered very serious injuries, including brain damage. He has brought proceedings against the first defendant seeking damages for the injuries which he suffered.
2 Default judgment against the first defendant was entered in favour of the plaintiff on 28 September 2005.
3 The first defendant is presently serving a sentence of imprisonment, as a result of the assault on the plaintiff. The matter now before the Court is the assessment of the plaintiff’s damages against the first defendant. The matter proceeded ex parte.
4 Evidence was placed before the Court which satisfied me that the first defendant is not only aware that the proceedings for the assessment of damages were to be heard on 9 December 2008 but that he was agreeable to that taking place. This was made clear in a letter which he sent to the plaintiff’s solicitors dated 19 October 2006.
Factual background
5 The plaintiff is now seven. He has a brother Kailum, who was born December 1999 and is now nine. The boys are believed to have the same father but he and their mother split up not long after the plaintiff was born. The father has now denied paternity and has had nothing to do with the plaintiff since the assault.
6 In July 2002 the plaintiff’s mother was living with the first defendant as her de facto partner in Dubbo. On 29 July 2002 the plaintiff was admitted to the Dubbo Base Hospital. On examination on his admission he had extensive bruising consistent with injuries having been inflicted on him over a period of time. He had bruising to the face, the scalp, the trunk, arms, legs and his groin area. He had a fractured skull. He had fractures of the ribs, a collapsed right lung, and widespread hypoxic encephalopathy (brain damage in the nature of a stroke). He also suffered haemorrhages behind both eyes and retinal detachment in the left eye.
7 Because of the seriousness of his condition, the plaintiff was transferred the same day to the Children’s Hospital at Westmead. He remained an inmate of the Children’s Hospital until 13 September 2002.
8 The plaintiff’s mother in her statements to doctors and to the police consistently supported the first defendant. She suggested that to the extent that the plaintiff had suffered injuries, these had been caused by his older brother (who would have been two and a half at the time!). Not surprisingly, when the plaintiff was discharged from Westmead Children’s Hospital it was into the care of his maternal grandparents.
9 On 21 January 2005 the Children’s Court ordered that parental responsibility for the two boys was to be entrusted to their maternal grandparents until each of the children attained the age of eighteen. The plaintiff’s mother resides on the Central Coast and only rarely sees the plaintiff. I am satisfied that the only persons willing and capable of caring for the plaintiff are his maternal grandparents.
10 The plaintiff’s maternal grandparents reside in Dubbo and have continued to look after him and Kailum up to the present time. They receive minimal assistance from State and Federal agencies. They have to pay for most of the plaintiff’s requirements. By way of illustration, the plaintiff is incontinent and there is a cost of $100 per month for disposable nappies.
11 As a result of the assault, the plaintiff suffers from the following disabilities. Severe spastic quadriparesis - this means that he is essentially wheelchair bound, although he can use a walker for short periods. He suffers from cerebral palsy and is severely intellectually disabled. He has limited understanding of what is said to him and is unable to speak. The damage to his eyes has rendered him almost blind. He has no dexterity in the left arm. He is entirely dependent on others for care. He has persistent seizures which will require anti-epileptic medication for the rest of his life.
12 In a sense this exercise is largely academic in that the first defendant has only limited assets. In 2005 he sold a property for $228,000. Orders have been made preventing the first defendant from dealing with that money. In July 2005 the first defendant was sentenced to imprisonment for 6 years with a non-parole period of 4 years for his assault on the plaintiff.
Consideration
General Damages
13 Because the plaintiff’s injuries were caused by an intentional act on the part of the first defendant, the Civil Liability Act 2002 does not apply to these proceedings. The plaintiff’s damages are therefore to be assessed under the common law.
14 I have already listed the plaintiff’s disabilities. There is no chance of any improvement. He has a life expectancy of 73 years, during which he will have to live with these disabilities. I assess general damages at $400,000. I attribute $100,000 of that amount to the past, which gives to the plaintiff $24,000 by way of interest.
Past out-of-pocket expenses
15 I have been provided with a Medicare statement which sets out past medical expenses of $3,275.45.
Economic loss
16 Given his age, the plaintiff has no entitlement to past economic loss.
17 In relation to future loss of earning capacity, it has been submitted on behalf of the plaintiff that in the absence of any other information, the Court should use as its yardstick the current average earnings of adult males in Australia. That figure is $967.54 per week after tax. It is submitted that the plaintiff would be entitled to that amount from the age of 18 to the age of 65, i.e. 47 years.
18 In the absence of other information, I generally agree with that approach. However, it would be unrealistic to expect the plaintiff to earn that level of remuneration from the age of 18 onwards. Instead of deferring the amount for 11 years, I propose to defer the amount for 13 years to have regard to the fact that it would take some little time after entering the workforce for the plaintiff to reach that earning level. This means that the plaintiff’s entitlement to future loss of earning capacity is $967.54 for 45 years deferred for 13 years. The 3% tables are applicable and I propose to deduct 15% for vicissitudes. The resulting figure is $727,239.
19 I propose to use the same approach in relation to the loss of future superannuation. I propose to use a figure of 9% on a gross amount of $1,217.35 per week. The resulting amount is $82,351.
Care
Past care
20 A claim is made for 24-hour care at a commercial rate of $47.60 per hour from 13 September 2002 until 9 December 2008, i.e. 6.26 years. Unconstrained by any statute, the plaintiff is entitled to the full benefit of the decision in Griffiths v Kerkemeyer (1977) 139 CLR 161. Nevertheless, Griffiths v Kerkemeyer is predicated on a plaintiff being entitled to damages calculated by reference to commercial rates. For a person requiring 24 hour care, I do not consider $8,000 per week to be a proper commercial rate.
21 The more likely approach would have been either three shifts of eight hours per day, or two shifts per day with an adjustment for night-time when the plaintiff would be asleep and the carer, although present, would be assisting on an “on call” basis. In the absence of an intervener, I have of course not been provided with other costing alternatives. Doing the best I can, I propose to allow half of that which has been claimed on behalf of the plaintiff, i.e. $4,000 per week which amounts to $1,301,559. There is, of course, no issue that the plaintiff’s maternal grandparents have been providing 24 hour care for him since he was discharged from hospital on 13 September 2002.
Future care
22 I accept that the plaintiff’s life expectancy is 73 years. The plaintiff’s claim is for gratuitous care for 10 years, followed by 63 years of a fulltime carer paid for at commercial rates and 63 years of care by a registered nurse. The requirement for a registered nurse comes from Dr Buckley. No real justification for a registered nurse is established in the evidence, or even in Dr Buckley’s report. Put at its highest, Dr Buckley opines that there may be a need for a registered nurse in the future but this will not be known until the plaintiff turns 18. I do not propose to make any allowance for a registered nurse.
23 In relation to gratuitous care, the plaintiff’s maternal grandparents are aged 60 and 61. They are both in good health. Provided some housekeeping assistance is provided, I am satisfied that they will provide appropriate gratuitous care for the plaintiff for the next 15 years. Thereafter, in accordance with the recommendations of Rothesay Partners, it seems to me that carers paid for at commercial rates will be required.
24 Applying that regime of care, the damages for gratuitous care for the next 15 years, plus housekeeping assistance for 4 hours per day for 15 years is $3,701,511.
25 For the balance of the plaintiff’s life, a personal carer will be required. I accept the figure of $6,011 per week as appropriate for such a carer. That carer may also require additional assistance from time to time and some additional allowance should be made for that. The cost for a single personal carer paid for at commercial rates for 58 years deferred for 15 years at $6,011 per week is $4,747,765.
26 I propose to allow a further $1,000,000 to make allowance for any additional assistance the personal carer might require over that period.
Vacations
27 A claim has been made for vacation expenses on the basis of a fulltime travelling companion in addition to his carer at the cost of $500 per day, plus accommodation and meals. It is suggested that such a person would provide his or her services for four weeks a year.
28 I disallow this claim. The plaintiff’s grandmother made it clear that although they had taken the plaintiff on holidays, he was not aware of his surroundings. In those circumstances it matters not to the plaintiff whether he goes on holidays or not. He will gain no benefit from such holidays. In those circumstances it is not a reasonable head of damage.
Case manager
29 I accept that there should be a case manager, independent of the plaintiff’s personal carer. I accept the claim for such a case manager to be a registered nurse or similarly qualified person who would provide assistance for 8 hours per month for the first 6 months and then 4 hours per month for the rest of the plaintiff’s life. The damages claimed for such a manager of $85,305 are reasonable.
Future medical expenses
30 The claim has been divided into two parts. There is a claim for future medical expenses to cover childhood and then medical expenses during the plaintiff’s adult life. Some of the components for childhood seem to me to be excessive. I do not see why a consultant paediatric physician should see the plaintiff 4 times per year and why the plaintiff should have speech pathology once per week when it is clear that no improvement is likely. Otherwise the regime for childhood seems reasonable and I propose to allow most of the claim, i.e. $200,000.
31 In relation to the claim for future medical expenses during adulthood, the claim is reasonable and I allow $59,000.
House modifications
32 The plaintiff is essentially wheelchair dependent and in those circumstances the modifications claimed are reasonable. I propose to allow those and running expenses. This amounts to a total of $164,000.
Transport costs
33 The claim for transport costs is predicated on a new wheelchair accessible vehicle being purchased every 5 years. This assumes a very high rate of usage which is not made out on the evidence. A more realistic regime would involve the replacement of a wheelchair accessible vehicle every 10 years. Using that approach, I propose to allow $584,500. This covers the capital cost of a replacement vehicle every 10 years, wheelchair conversion costs every 10 years and the standing maintenance and running costs for the next 73 years.
Computer
34 I am satisfied that despite his very extensive disabilities, a computer would be of some assistance to the plaintiff. I do not see why the plaintiff would need to have the computer and software replaced every 4 years. I propose to allow an initial setup cost of $4,000 and thereafter $500 per year, i.e. $19,000 in total.
Funds management
35 This presents a difficulty in that it is most unlikely that there will be any funds to manage, other than the proceeds of sale of the first defendant’s house of $228,000. Nevertheless, some allowance should be made. I propose to allow $50,000.
36 The total of damages which I assess in favour of the plaintiff is as follows:
| General damages | $ 400,000.00 |
| Interest on general damages | $ 24,000.00 |
| Past out of pocket expenses | $ 3,275.45 |
| Economic loss | $ 727,239.00 |
| Superannuation | $ 82,351.00 |
| Past care | $ 1,301,559.00 |
| Future care | $ 9,449,276.00 |
| Case manager | $ 85,305.00 |
| Future medical expense | $ 59,000.00 |
| House modifications | $ 164,000.00 |
| Transport | $ 584,500.00 |
| Computer | $ 19,000.00 |
| Funds Management | $ 50,000.00 |
| Total | $12,949,505.45 |
Orders
(2) I order the first defendant to pay the plaintiff’s costs of these proceedings.(1) I enter judgment in favour of the plaintiff against the first defendant in the amount of $12,949,505.45.
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