Chadwick v Allen (No 2)
[2012] SADC 155
•19 November 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHADWICK v ALLEN (No 2)
[2012] SADC 155
Judgment of His Honour Judge Tilmouth
19 November 2012
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
Assessment of damages for paraplegic plaintiff injured in a motor vehicle accident.
Civil Liability Act (1936) (SA) s 52(2)(c), s 57, s 58(1), (2) & (3); Wrongs Act 1936 (A) s 35A; Motor Vehicles Act 1959 (SA) s 124AC; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297; Malec v Hutton (1990) 169 CLR 638; New Tax System (Goods and Services Tax) Act 1999 (Cth); Aged Care Act 1997 (Cth), referred to.
Beasley & Marshall (1986) 40 SASR 544; Gervan v Fenton (1992) 175 CLR 327; Baldwin v Lisicic [1993] NSWCA 18; BC 9301922; Terry v Leventeris (2011) 109 SASR 358; Garland v Clifford (1996) 67 SASR 47; Haines v Bendall (1991) 172 CLR 60; Weideck v Williams [1999] NSWCA 346; Grimsey v Southern Regional Health Board (1997) 7 Tas R 67; Crockett v Roberts (2002) 11 Tas R 393; Port of Melbourne Authority v anshun Pty Ltd (1981) 147 CLR 589; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297; Commonwealth v Amann Aviation (1991) 174 CR 64, applied.
CHADWICK v ALLEN (No 2)
[2012] SADC 155DCCIV-10-324
The issues
On 28 August 2012 judgment was delivered in the primary proceedings. Detailed findings were made in respect of the liability of the defendant to the plaintiff for damages for personal injuries arising out of a motor vehicle accident occurring on 13 March 2007, near Port Victoria on the Yorke Peninsula.[1]
[1] Chadwick v Allen [2012] SADC 105
In the result, the plaintiff was awarded 75 per cent of her damages to be assessed. In the course of those reasons a number of findings as to certain aspects of her damages claim were made, however no final assessment was undertaken. Further submissions from the parties were later taken under the respective heads claimed. Those findings – so far as they went - were brought together in the principal judgment as follows:
[349]1. non-economic loss - an allowance of $211,530 based on a value of 52 points pursuant to s 52(2)(c) of the Civil Liability Act;[2]
[2] Paragraphs [214], [215]
2.past gratuitous services – two hours per day until 3 May 2010, at an hourly rate yet to be fixed, subject to adjustments;[3]
[3] Paragraphs [229]
3.future personal care – 7 hours per week, 10 hours per week for all combined domestic assistance plus one week per year for critical events to age 40;[4]
[4] Paragraphs [244] - [247]
4.future care after age 40 - to include four weeks per year for critical event care,[5] and six hours per week for hydrotherapy, the parties to be further heard on the precise calculations;[6]
[5] Paragraph [244]
[6] Paragraph [248]
5.case management - 4.5 hours per week for 13 weeks, then 4 hours every six months for a maximum of three years. Counsel to be heard further on the applicable rate per hour and translation into a present day dollars and the application of s 57 of the Civil Liability Act on this aspect of the award for damages;[7]
6.future treatment and medication - to be subject to further submission and assessment, consistent with the primary findings made herein and as to the application of s 127A of the Motor Vehicles Act;[8]
7.equipment and consumables - the immediate provision of a powered wheelchair as a back-up, with a greater allowance from the age of 40, the projected cost to be further addressed by the parties.[9] The plaintiff is also awarded the cost for the provision for incontinence pads, which she has yet to quantify.[10] The parties should address the evidence supporting the provision of hoists in the future, bearing in mind the preliminary conclusions reached earlier in this judgment;[11]
8.special damages – the parties have liberty to make further submissions at large on this topic;[12]
9.interest – to be allowed on the award for past gratuitous services and outstanding special damages at the rate of 6.5 per cent;[13]
10.housing and accommodation – it is proposed to allow the cost of an AV Jennings Pinnacle 190 3 bedroom home at a cost of $175,000 plus additions at a cost of $115,582. The parties should make further submissions as to the precise dollar figure appropriate in accordance with the primary findings, as to the question of whether or not the cost of purchasing a block of land is, or should be allowed, as to any associated transfer or conveyancing costs and the question of what measure of housing costs were likely to be incurred irrespective of the accident;[14]
11.holiday or vacation costs – it is proposed to allow a modest $18,000 lump sum award under this head;[15]
12.transport costs – it is proposed to allow a broad-axe sum of $150,000 for the future transport needs of the plaintiff, plus a car maintenance allowance of $45 per fortnight, subject to further submissions as to potential reductions on account of pre-judgment payments, present day value and the cost of a vehicle that would have been expended anyway.[16]
13.pre-judgment payments - the defendant is to formulate precisely what sum is to be deducted from the plaintiff’s aggregate award as required by s 124AC of the Motor Vehicles Act.[17]
This judgment now proceeds to deal with the outstanding issues in the above order. As will be seen not all items claimed are susceptible of exacting calculation, nevertheless the Court is required to do the best it can on the evidence it has before it: Commonwealth v Amann Aviation.[18]
[7] Paragraph [271]
[8] Paragraphs [279] - [282]
[9] Paragraphs [284] - [285]
[10] Paragraph [286]
[11] Paragraphs [283], [287], [288], [289]
[12] Paragraph [290]
[13] Paragraph [291]
[14] Paragraphs [323] - [327]
[15] Paragraph [336]
[16] Paragraphs [248], [341]
[17] Paragraph [345]
[18] (1991) 174 CLR 64 at 83 and 125
Non-economic loss
The parties agree the appropriate award here is $211,530.00 and that no interest component is applicable with respect thereto.[19]
[19] Civil Liability Act 1936 (SA) s56
Past gratuitous services
As seen above, the court allocated two hours per day until 3 May 2010 to reflect the level of past gratuitous services provided to the plaintiff. No more detailed analysis taking the matter any further than that was made. That conclusion was based upon the provision of past gratuitous services rendered by the defendant himself, his parents and ‘what assistance [the plaintiff] can obtain from friends and for limited purposes, her daughter Hope’.[20] The court made additional findings rejecting a portion of the plaintiff’s evidence that her daughter Hope assisted with toileting and that she was incapable of independent transfer to and from her wheelchair.[21]
[20] At para [216]
[21] At paras [63], [216] & [220]
An award for gratuitous services is however only open for those provided by the class of persons specified in s58(1)(a) of the Civil Liability Act 1936 (SA), namely ‘a parent, spouse, domestic partner or child of the injured person’. The only person coming within those categories is the plaintiff’s daughter Hope. Therefore, the first question is what portion of the two hours of gratuitous care are attributable to Hope.
One aspect of the care that Hope no doubt rendered was what might be described as ‘standby’ assistance. That is to say to be available at any time of the day or night when her mother needed her. For instance, this would have entailed picking up items from the floor or in inaccessible places, cleaning up spills, and the sorts of things that you would expect any child would do in their situation. Furthermore, video evidence tendered by the defendant demonstrates that she assisted her mother in a wide range of activities. It shows Hope pushing her mother’s wheelchair, folding it up to place in the car, managing shopping trolleys and like activities, which are hardly surprising (Exhibit D5). More than this, there was an express finding that more help was given ‘especially on weekends when [Hope] was not at school’.[22]
[22] At [228]
As noted in the principal judgment, the plaintiff claimed Hope assisted her for about one hour a day on average, increasing to four hours a day when paid care was restricted. However, findings were made rejecting part of this evidence. It is impossible to be accurate or particularly scientific about this aspect of the assessment. One should not be ready to underestimate the utility of having someone nearby at hand to assist a wheelchair bound person, even if it is a five to eight year old child, and even assuming that not all that time can be attributed to services for which damages can be awarded: Beasley & Marshall.[23] Doing the best one can in what may be acknowledged as an imprecise exercise, I would allow 40 minutes per day, that is to say two-thirds of an hour for this purpose.
[23] (No 1) (1986) 40 SASR 544 at 565
The next question becomes at what rate? The appropriate commercial rate is $38.17, inclusive of GST and $34.70 exclusive of GST. These rates are based on those currently paid to care agencies on behalf of the plaintiff. In general it is the commercial rate which applies according to the principle in Van Gervan v Fenton.[24] That is also the rate applied by the New South Wales Court of Appeal in Baldwin v Lisicic,[25] per Kirby P with the concurrence of Priestly and Meagher JJA:[26]
The result of this reasoning is that the strong prima facie position in respect of A Griffiths v Kerkemeyer claim is that full commercial rates are payable as damages in respect of services provided for the injured person…. but, at least since Van Gervan, the statement that commercial rates cannot be considered because they contain a profit and overhead element must be seen as an error or law. Those rates, with those components, are now the very reference point for remaining claims under Griffiths v Kerkemeyer. A similar approach was taken by our Full Court in Garland v Clifford (1996) 67 SASR 47 at 59-60 per Lander J, Perry and Cox JJ concurring. It is enough to establish that the provision of that service obviated the necessity of engaging some other person to provide a similar service. If the need for the provision of the voluntary services has been established, ordinarily it would follow that the reasonable provision of those services has saved, or will save the injured person the cost of engaging another person to provide the services. The assessment therefore in that respect is similar to a common law assessment.’
In Terry v Leventeris,[27] the Full Court likewise appears to have impliedly accepted that the commercial rate was applicable.
[24] (1992) 175 CLR 327
[25] [1993] NSWCA 18; BC9301922
[26] BC13-14
[27] (2011) 109 SASR 358 at [42]
It follows then from the strength of the authorities that the commercial rate of $38.17 is prima facie to be applied. However the plaintiff proposes the damages award be invested with the Public Trustee because of the vulnerability of the plaintiff, given that she is likely to be entrusted with a relatively large sum of money. The plaintiff also proposes that any award for gratuitous services supplied by Hope be set aside for the benefit of Hope. Whilst there is no power to make such an order, the court can indicate that such a course of action would be entirely appropriate.
If the award of damages is to be managed by the Public Trustee, it appears that medical services rendered to the plaintiff will be GST exempt, whereas nursing services are not. The position of the defendant is that the lower rate free of the GST component is applicable, because it will be GST free in the hands of the Public Trustee.
That submission is further grounded in the exemption of ‘community care’ from GST, as defined in s38.30 of the New Tax System (Goods and Services Tax) Act 1999 (Cth), having the meaning ascribed to it in s45.3 of the Aged Care Act 1997 (Cth), which is:
Meaning of community care
(1) Community care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.
(2) The Community Care Subsidy Principles may specify care that:
(a) constitutes community care for the purposes of this Act; or
(b) does not constitute community care for the purposes of this Act.The fact that such services might prove to be GST exempt is beside the point. The authorities demonstrate the commercial rate applies. The insurer payments were allocated to such things as ‘community care’, ‘medical’ or ‘nursing’ services supplied at the market rate, but the services rendered by Hope hardly amounted to any of these kinds of services. No case referred to by counsel have reduced an award otherwise appropriate on this basis. At this point of the calculation then, it is proposed to begin with the hourly figure of $38.17. This base figure yields an award of $26,722.50 based on 40 minutes per day over a period of 150 weeks.
But this is not the end of the enquiry because s 58(2) of the Civil Liability Act limits the damages awarded for gratuitous services to ‘four times State average weekly earnings’. It was agreed by the parties that average weekly earnings in May 2010 were $1,190.80. Four times that sum amounts to $4,464.40, which according to the defendant’s position is the maximum that can be allowed.
The submission for the defendant must be rejected on this point as a matter of construction. Section 58(2) does not serve to limit the overall award for gratuitous services to just four weeks of average weekly earnings. If it did it would produce disproportionately small awards so that a ‘fairer’ interpretation is one that was likely to have been intended by the Parliament: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation.[28]Rather it serves to ensure that an award does not exceed what would otherwise have been the total of four times the weekly earnings over the entire period in question. Four times average weekly earnings in the period of 150 weeks on the average of $1,190.00 per week, comes to $178,620.00. That figure represents the cap in dollar terms, erected by s 58(2). This is in contrast to s 58(3) – reproduced below – which provides an hourly base rate for calculating an award in the event that the court was satisfied more than of 4 times weekly earnings was appropriate. That section reads:
[28] (1980) 147 CLR 297 at 321
58—Damages in respect of gratuitous services
(3)However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—
(a)the gratuitous services are reasonably required by the injured person; and
(b)it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration,
but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
The gratuitous services provided here by Hope were in any event reasonably required. Without them, it would have been necessary for the plaintiff to engage another person to provide assistance, someone close at hand to be available to assist in the kinds of awkward situations that Hope must have encountered. As Lander J observed in Garland v Clifford:[29]
If the need for the provision of voluntary services has been established, ordinarily it would follow that the reasonable provision of those services has saved or will save the injured person the cost of engaging another person to provide the services. The assessment therefore in that respect is similar to a common law assessment.
[29] (1996) 67 SASR 47 at 59
It might be noted that Lander J was referring to the former ss35A(1) and (2) of the Wrongs Act 1936 (SA) which contained, for practical purposes, identical limits to those provided for in ss58(2) and (3) respectively of the Civil Liability Act. Gray J was of a similar view in Terry v Leventeris:[30]
In most circumstances, one would surmise that if the services were reasonably required, it would be necessary to engage a person to perform those services for remuneration.
[30] Above at 370
For those reasons it is proposed to allow the plaintiff an award for past gratuitous services based on two-thirds of an hour per day at an hourly rate of $38.17, because general principle dictates that result and because, if it were necessary, an order under s 58(3) of the Civil Liability Act is justified. This yields an award in a sum otherwise accepted to be $26,722.50.
Personal future care
An allowance was made in the primary judgment for an award based on seven hours per week for personal care, plus 10 hours per week for combined domestic assistance, and one week per year for critical events to age of 40.[31] From aged 40 onwards, a finding was made that the plaintiff’s personal health was likely to deteriorate so that a further six hours per week was added for hydrotherapy, and four weeks per year of 24 hour care for critical events.[32]
[31] At paras [224-246], [349(3)]
[32] At paras 244, 248 and 349(4)
The defendant’s position on future personal care expressed in general terms is that as the potential award relates to non-predictable events, therefore due allowance must now be made for favourable contingencies, because some of the critical events may not occur. Submissions were again made as to the inferences that should be drawn from the x-rays and scans of the plaintiff’s wrists in particular, but the court has already made findings about that issue.[33] Moreover, it was pointed out during the course of argument that rather than having critical 24 hour care, hospital rates might be more appropriate. However, on the figures produced by the plaintiff the rates for hospital care would be even greater. On the defendant’s case, the appropriate figure is $1,077,361.00.[34]
[33] At [244]
[34] Letter from Hunt and Hunt 5 November 2012
The primary findings were based on the evidence of Dr Marshall, except that I considered the estimate of four weeks per year for critical care at the present time ‘significantly overstates the likely adverse events in the short to middle term’.[35] The conclusion had the effect of reducing the plaintiff’s ambient claim considerably, based on the accepted expert medical evidence as to the probable course of future events. That conclusion, inherently encompassed both adverse and favourable contingencies, so it is inappropriate to make any further reduction.
[35] At [244]
The remaining difference between the parties at this stage of the assessment is as to the applicable hourly rate, which is higher where overnight care is active. The resolution of this question depends on the interpretation to be given to the type of care to be supplied, an issue that arises from the following evidence of Dr Marshall:[36]
Q. I think you were asked particularly in one of your reports to comment upon the appropriateness of recommendations that Ms Alach made in regard to levels of care at various times in Danielle's life.
A. I felt that the suggestions made, the recommendations made in her report were very fair. She only commented on passive overnight care. This morning when I talked about Danielle needing extra care, in those situations I'm actually talking about around-the-clock not passive care. Passive overnight care means that the carer is asleep and only gets called in an emergency, so that's a bit different. But I, in general, agreed with her suggestions. I thought it was a very comprehensive assessment and report.
Q. So just to clarify that, what you said this morning about the average of four weeks a year of around-the-clock care, as we have called it, that involved, from your point of view, an overnight active shift.
A. That's active care, so that means that the carer would be getting up maybe two, three times a night. Once somebody has got up more than once, it is no longer considered passive.
[36] T1650.32-1651-.16
Although in this passage Dr Marshall spoke severally of “active care”, clearly what is spoken of as a matter of fact is standby care. Accordingly this specific head of damage will be awarded on the basis of standby care rates. That conclusion is also consistent with the understanding of the plaintiff’s present carer CLASS that “if an employee has a period of rest (sleep) during a shift, these hours are not paid, rather they are given a “passive allowance”.[37] Indeed Dr Marshall’s evidence-in-chief was to the same effect:[38]
A. Excluding any time taken aside when she is in hospital, … I think it would be reasonable to consider that she would need around-the-clock care or perhaps daytime care with somebody for what we call passive overnight care, so somebody who is sleeping there who can be called if needed…
[37] Exhibit D91
[38] T1639.3-.10
Once again, the rate applicable based upon the current costs of the plaintiff’s care provider is $38.17 per hour. There are additional rates for 12 hours after 8.00pm at night and on weekends and public holidays.[39] The parties should therefore recalculate what is an appropriate amount in light of these findings.
[39] See plaintiff's submissions post judgment paragraph 3.2
The defendant also made a submission that the rate applied should be reduced by a GST component, but that is rejected for the same reasons as it was under the rubric of past gratuitous services.
Case management
It is unnecessary to go into the details, except to record that in the primary judgment I allowed 4.5 hours per week for 13 weeks, then four hours every six months for a maximum of three years for the management of the plaintiff’s award funds.[40] The parties accept that s57 of the Civil Liability Act is not engaged and they have accepted the figure of $13,546.50 is correct.
[40] At [271] and 349(5)
Future treatment
The findings in this respect can be found in the primary judgment at [279]-[282]. A number of the consequential items are now agreed and some are not, so it is necessary to deal with them in sequence. Twelve general practitioner consultations per year are conceded at $16,616.95, as is a one per year for a rehabilitation physician at $4,299.53. So is one consultation per year plus an investigative test with a urologist at $9,564.35.
Turning to psychological or psychiatric treatment, the evidence of Dr Raeside was that the plaintiff would require two sessions per annum for 20 years.[41] It is to be recalled that the opinion of Dr Branson was that the plaintiff satisfied the criteria for mild to moderate Adjustment Disorder with depressed mood, the severity of which ‘should gradually reduce, provided of course that her physical condition itself does not deteriorate’.[42] He did accept that ‘psychological counselling… would be of some use to her… over an extended period of time’[43] and he suggested 15 sessions for a year and a half,[44] and Ms Powell conceded that once a year was in order.[45] Accordingly, an award will be made for 15 psychological consultations over the first 18 months and then one psychiatric consultation yearly thereafter for twenty years. Those first 15 sessions will be at a cost of $164.20 each, providing a present day value of $2,372.00.
[41] T1085.10-.34
[42] Exhibit D38 p200
[43] T3421.5-.12
[44] T3526.21-.23
[45] Transcript damages hearing T136.12-.28
The parties are however at odds as the rate per hour applicable to the subsequent psychiatric consultations. Both acknowledge the rate is limited to those prescribed for the purposes of s 32 of the Workers Rehabilitation and Corporation Act 1986 (SA); s 127A Motor Vehicles Act. The differences between them lies in the fact that the plaintiff chooses to assess at a rate of $507.10, which applies to the situation in which the patient is referred to a consultant psychiatrist for the provision of assessment and developing a 12 months management plan. On the other hand the defendant opts for $350.00 per hour, which relates to an initial consultation with a new patient of no more than 45 minutes. Since my conclusion is that the evidence supported the fact that the first sessions would be of use to the plaintiff, by the time she comes to see a psychologist after 18 months, her treatment should be well established. However, it is reasonable that she be given a thorough assessment for the first session at $507.10, but thereafter the appropriate cost is $350.00.
On the other hand, it would only be doubling up to make any further award for further psychological assessment, so that part of the claim is disallowed. Four physio therapist attendances per year amounting to $12,411.00 are also conceded by the defendant, as is occupational therapy at six hours per year, coming to $18,665.75.
The next item claimed based upon the evidence of Dr Marshall and Professor Flett was for hydrotherapy at 2.5 hours per week. This is conceded as to frequency, but not as to the hourly rate. The defendant contends unsupervised hydrotherapy is all that is justified. Plainly the plaintiff requires assistance getting in and out of a swimming pool (as her evidence implies),[46] and it would not be safe to allow a person with her disabilities to remain in the water without a supervisor close at hand should difficulties arise. The figure of $59,100 claimed under this head is therefore reasonable, especially given the primary findings as to the mobility of the plaintiff and the underlying medical evidence which supports the need for that kind of treatment.
[46] T246.6-.24
Massage therapy at one session per month is next sought by the plaintiff. The evidence on this topic was somewhat speculative and aspirational and given the allowances made under other heads, such as physiotherapy and hydrotherapy, further massage therapy would be unnecessary. Consulting a podiatrist every six weeks is accepted at the figure of $11,426.00.
A claim is next made for ultrasound and cortisone injections to the shoulders and hips, two per year at a total projected cost of $15,947.15. This was said by Ms Atkins to be based on a six-monthly pattern of injections. However, the evidence does not support that view of matters. Rather, the submission appears to have its origin in the report of Ms Allach,[47] which for reasons articulated in the primary judgment have to be treated with caution. The best the evidence reveals is that these treatments were given on an episodic and needs basis, but they are more likely to become necessary after aged 40 than they will be beforehand. Accordingly, it is proposed to allow the cost of such treatments at $207.50 and $210.50 respectively once every four years to the age of 40, and once per year thereafter. The adjusted figure for this is $9,784.00.
[47] Exhibit P7 para 5.22
A final topic of contention under the rubric of future treatment was the possibility of carpal tunnel surgery. Dr Marshall estimated hospitalisation for this would cost $526.90 per day over the necessary period of six weeks to allow for recovery. In view of the findings previously made about the prospective need for carpal tunnel surgery, it is highly probable that this will be required at some time in the future.[48] Accordingly, it is proposed to allow for this item, together with the accompanying surgeon’s fees and hospital charge of $32,511.00.
[48] [209]
Medication costs
Turning then to the cost of medication for the future, the supply of the cost of the following items are accepted by the defendant, namely enemas at $9,377.20, Baclofen to control spasms at $2,442.80, Coloxyl at $1,379.00, Nurofen at $3,447.50, Panadeine Forte at $3,132.30, multivitamin tablets at $4,363.55, Caltrate Plus at $965.30, health capsules at $3,802.10, Dermaid cream at $1,576.00, and Endep at $6,097.15. Despite the concessions as to the cost, the defendant continues to maintain that there was insufficient proof of the level of frequency or dosage in the plaintiff’s case, however these items are allowed on the basis of the primary findings and that such medications seem modest and reasonable, given the plaintiff’s proven ailments. The provision of normal strength Panamax tablets on a monthly basis would appear to be unnecessary in view of the painkillers already approved.
The Gabapentin prescribed by Dr Marshall for carpel tunnel syndrome is justifiable on her evidence as a necessary component of conservative treatment before surgery. However, a claim is made for supply of this drug every 100 days at $35.40 a time, yielding a present day value of $2,442.80. The evidence of Dr Marshall was that she prescribed low doses of Gabapentin once for ‘sleep disturbance because of pins and needles in her hands’.[49] There was no mention of this drug in the medication summary Exhibit P28, at the time this evidence was given. This item will therefore be limited to $35.40.
[49] T1646.24-.36
Future equipment and consumables
The plaintiff re-agitated her basis for various awards for ‘equipment and consumables’, commencing with the recommendations of Ms Allach, which were based in turn upon the Guidelines for Lifetime Care, Exhibit D29. For reasons articulated in the primary judgment, the opinions of Ms Allach in this respect must be qualified because of the consideration that she was misled into thinking the plaintiff was more disabled than she actually was.[50]
[50] [241]
Nevertheless, there is a degree of consensus between the parties as to some of the applicable items. A manual wheelchair replaced every five years at a predicted future cost of $16,475.00 is therefore allowed, as is the sum of $4,524.00 for maintaining the wheelchair. Given the findings in relation to the need for a powered wheelchair as a standby in the years up to age 40, providing for a powered wheelchair after every five years is too generous. It is therefore proposed to allow two powered wheelchairs before the age of 40, and for one every five years thereafter. This finding produces the initial cost of a wheelchair of $8,500.00, $6,011.00 to age 40 and $18,312.00 afterwards, a total of $32,823. A replacement battery pack every seven years is reasonable at a projected future cost of $445.00, as are roho cushions at $1,393.00, replacement cushions at $490.00 and an adjustable bed table at $286.00.
In view of the findings in the primary judgment,[51] it is also reasonable to allow four continence pads a day. Whether they may or may not be the subject of subsidy under the Cap scheme, that scheme must be ignored as a matter of general principle and because it is uncertain whether it will, or will not apply to the plaintiff in any event. This item is therefore allowed at $15,754.00.
[51] At [286]
An award for a self-propelled shower chair is reasonable on the basis of replacement every 10 years at a projected cost of $3,247.00. The service of shower chair every year is allowed at $1,756.00, a wheelchair ramp is reasonable every 15 years at $543.00, sliding boards are allowed at $1,152.00, as is a manually operated lounge chair at $1,714.00, and service thereof of $1,695.00. Given the other awards and allowances, there is no clear evidence supporting the acquisition of an adjustable bed. An allowance for a shower bench was withdrawn on the basis that in the proposed Penglase plan, one is included.
Turning to the provision of a mobile hoist, as mentioned in the principal judgment the evidence is rather scant about this.[52] The evidence of Dr Marshall at the trial appeared to suggest a ceiling mounted hoist might be desirable ‘if this is needed in the future’ but it does not appear as if she was anymore definitive about it than that.[53] The New South Wales guidelines earlier referred to make no provision for such hoists. Ms Allach merely suggested a mobile hoist might be needed ‘when she gets older’.[54] Given the primary findings of a likely deterioration in the plaintiff’s health from the age of 40, a one-off award for a hoist at the present day cost put forward by Ms Allach of $4,803.00 will be approved.
[52] At [289]
[53] T3049.1-.13
[54] T2937.25
A tumble dryer replaced every six years at a projected future cost of $1,308.00 is reasonable and therefore allowed, but service of the dryer every year seems unnecessary. Two services over each six year period is all that is warranted at a projected cost of $580.00.
The question of a provision for an electric razor arises from a fleeting reference by the plaintiff to shaving her legs in the shower,[55] but that is as far as the evidence went, apart from a non-responsive answer given by Professor Flett on the subject,[56] and apart from an unsupported recommendation for the provision of an electric razor every five years at a cost of $190.[57] This item is disallowed for the lack of proof that one is needed and because it is likely the plaintiff would have purchased an electric razor anyway.
[55] T291.6
[56] T2394.10-.22
[57] Exhibit P7, p192
No award will be made for an ironing board either, on the basis that ironing boards can be readily adjusted to suit a person in a wheelchair and because the plaintiff would have required one as an everyday item in any case. However, an award is made for a fixed shower dispenser at wheelchair height of $297 because of the plaintiff’s evident and understandable difficulty in maintaining a grip on things whilst showering.[58] Her evidence about that is supported by the evidence of Ms Correll.[59]
[58] T291.2-.17
[59] T3754.20-.25
Finally under this heading is the question of wrist splints. The plaintiff herself made a passing reference only to wearing a wrist brace ‘that gets dirty and I have gone through a fair few of them’.[60] Whereas Dr Marshall spoke of ‘going down the path of protective splints or probably neoprene soft wrist guards and trying to delay surgery for as long as possible’.[61] There was precious little evidence that the plaintiff actually wore them or how the base figure of $300 every year is reached. It seems likely that splints might become more necessary as time goes on, so a broad-axe lump sum of $2,000 is awarded.
[60] T362.22-.23
[61] T3039.29-.37
Special damages
The plaintiff produced a table of special damages that was not disputed as to quantum by the defendant, totalling $13,738.60. However the defendant claims some of these should be set off as against sums already paid by the defendant’s insurer. That question is dealt with later. As it happens, $9,400.00 of this sum attributable to Housing SA relates to modifications made by it to the plaintiff’s present home. Such modifications were first undertaken in December 2008 at a cost of $5,023.00. A second modification costed $4,381.75. The defendant resists an award here because it says the insurer did not authorise the second payment and ‘they were incurred at a time when the plaintiff was saying she wanted to move out’.[62]
[62] T150.12-.17, damages hearing
The plain fact of the matter is that Housing SA’s Manager of Quality Assessment Mr Holland, gave evidence that $9,400.00 was expended on modifications to the property (including installed a garage and air conditioner) on account of the plaintiff’s wheelchair bound status, which it seeks to recover from her, so that sum will be awarded as part of the total component of $13,738.60.[63]
[63] T4734.18-4737.38
Another disputed item of special damage relates on account for the Strathalbyn Medical Clinic for attending a conference at the Hampstead Centre of $462.25. Since this involved the development of a cross-disciplinary recovery plan for the plaintiff and her treatment, the attendance of her general practitioner was wholly reasonable. The sum is therefore approved.
Finally there is purchase of an ‘upside down’ fridge, more suitable to the plaintiff’s incapacity to reach. This was said to have been purchased for $1,420.00, but as to which there is no documentary proof. There was no evidence about what the plaintiff did with her previous refrigerator. However, purchasing of such a refrigerator for a paraplegic seems reasonable. Even though there is no evidence about the additional costs that might entail, I am prepared to infer that such a refrigerator would be more costly than a conventional one, which the plaintiff would have needed anyway. I allow a relatively arbitrary sum of $420.00 for that item.
Other miscellaneous claims for building an exercise shed said to have cost about $4,000, and garage said to have cost $2,200 for laying associated concrete works and purchasing an air-conditioner must fail for a complete lack of proof. In any case the evidence tends to rather suggest these were met by Housing SA.
Interest
A claim is made for interest on the award for past gratuitous services. A rate of 4% is accepted by the parties as appropriate. The period in question is between April 2007 and May 2010, although the plaintiff has formulated for the entire period to trial of 5.4 years. The submission for the defendant is that as his insurer has paid the plaintiff sums well in excess of the costs awarded on account of ‘personal assistance’, ‘home help’ and the like, the plaintiff is not entitled to interest because she would then ‘recover more than she has lost’: Haines v Bendall.[64]
[64] (1991) 172 CLR 60 at 63
It is important to note that the award for past gratuitous services was limited to Hope. The plaintiff’s actual non-compensable need of care in the relevant period was in fact far greater than two hours per day actually allowed for.[65] For reasons that will become apparent later, it might be that the plaintiff’s carers were paid more than she was entitled to, however none of that related to care provided by Hope. That being so, there is no basis for declining to award interest on the discrete amount that can be properly allocated to gratuitous services provided by her.
[65] At [229]
Housing and accommodation
Here the primary judgment allowed for a house at $175,000.00, plus alterations at $115,582.00. The question of whether an additional allocation was appropriate for purchasing a block of land and the associated transfer and conveyancing costs, were left for future determination.[66]
[66] At [323]-[327], [349](10)
Scant evidence was produced at the trial suggesting a suitable block of land would cost $200,000.00. The defendant produced in the damages hearing equally scant evidence that a more compatible block could be purchased for as little as $120,000.00. The single block of land selected in the plaintiff’s case was clearly about a third larger than her precise needs, based on the Penglase design. On the basis of the little evidence adduced on this topic, I consider that $150,000.00 is the most likely cost of land acquisition.
The defendant’s case at trial was that the plaintiff always would have lived in rented accommodation or public housing, hence the plaintiff contends she should recover the full cost of acquiring a block of land because the need to purchase such a block is the consequence of her injuries. As the New South Wales Court of Appeal noted in Weideck v Williams:[67]
‘… if the plaintiff has lived prior to the injury, not in his or her own accommodation, but in a boarding house or a caravan or in rental accommodation, the award of damages must take this into account’.
[67] [1999] NSWCA 346 at [10]
It is not possible to predict with any certainty whether the plaintiff would or would not ever have been in a position to own her own home (including a block of land), although it might be observed based on her past history over a relatively short number of years, that prospect was not a promising one. Then as defence counsel points out, it may well have been acquired jointly with a partner, and still further she may not have contributed any monies for its purchase. The evidence was that although she has had some intermittent work in the past, she had not for some time before the accident. Rather she was the home keeper. That fact does not however preclude her from acquiring a legal or equitable interest in land.
On this topic the following observations were made on the judgment delivered on 28 August 2012:[68]
[305] It is of course a matter for the court to make an assessment of the reasonable requirements of the plaintiff on the basis of the evidence adduced, a matter not to be left to the experts: Arthur Robinson (Grafton) Pty Ltd v Carter,[69] and Dasreef Pty Ltd v Hawchar.[70] The situation was that the plaintiff had always lived in rental accommodation and that she was relatively unsettled, remaining at any one time for the longest period of maybe ‘a couple of years’.[71] At the time of the accident she was living with Mr Allen in rented accommodation at Stirling.
[306] Mr Allen maintained relatively steady employment over the years before this accident and as already considered, there is no reason to suppose (all other things being equal) that they might not in due course have endeavoured to purchase their own property to live in. The fact that the plaintiff has remained in modest rental accommodation since the accident is very much the product of the accident itself. She in fact made an application to purchase the property,[72] a course approved by Dr Marshall as mentioned earlier.[73] It emerges that by 29 July 2009 she was advised of an approval, in principle, for a loan from Home Start, however she was offered only $20,000 which she considered to be insufficient for the purposes of a deposit.[74] No evidence was led to refute these assertions.
[307] The fact remains that the plaintiff’s evidence in relation to her expectations and indeed her intentions with respect to accommodation options was vague and somewhat equivocal. At first she considered it an excellent opportunity to purchase the property,[75] whereas at other points she said she would consider the possibility of moving to somewhere in Queensland.[76] As mentioned earlier she has never given direct evidence of any plans to build or buy a house of her own.[77] Her reasons for wanting to move from Strathalbyn were related to getting away from the defendant and his parents, but not so far as to stop them from seeing the children.[78]
[68] Paragraph [305] - [306]
[69] (1967-1968) 122 CLR 649 at 661-662
[70] (2011) 243 CLR 588 at [93]
[71] T323.2-.5
[72] T1329.30-1330.2
[73] T2697.19-.36, Exhibit P22 RAH Notes 27.05.09
[74] T1331.1-.12
[75] T1329.30-1330.12
[76] T321.23-.24
[77] T320.37-321.21
[78] T321.3-.12
At first I was inclined to deal with this issue by assessing the chances of the plaintiff acquiring an interest of some kind or joint interest in a home in accordance with the principle of Malec v Mutton.[79] On reflection and after taking further submission from counsel, I have formed the view that the rental history so far and the mercurial nature of the plaintiff herself, is such that it is simply too speculative to reach a soundly based conclusion on the matter. It also has the capacity to produce a clumsy and complicated series of calculations, particularly considering that a corresponding counter adjustment would be required to account for what the plaintiff would have otherwise paid by way of rent.
[79] (1990) 169 CLR 638 at 643
Accordingly, on the footing that the evidence suggests only that the plaintiff would have remained a life long renter, the fact that she now is entitled to a modified house in order to satisfy her accident related accommodation needs, it must follow that there is no alternative other than to award the full cost of $150,000 for the purchase of land. For the same reasons the actual stamp duty transfer cost of $4,830 will also be awarded.
There is one further issue with respect to this subject. The plaintiff would have to pay for housing of one kind or another irrespective of her injuries. At this point of the inquiry therefore, it becomes relevant to assess the likely expenditure she would have incurred in providing accommodation for herself: Grimsey v Southern Regional Health Board,[80] Crockett v Roberts.[81]
[80] (1997) 7 Tas R 67 at 98
[81] (2002) 11 Tas R 393 at [194]
As mentioned in the principal judgment, the plaintiff suggested ‘an unsubstantiated nominal $200.00 per week with reference to little evidence to support it’.[82] The defendant argues that a better way to measure the value of the appropriate reduction is to take what the plaintiff was actually paying for accommodation, such as it was. The plaintiff’s own evidence was that she rented houses at between $240.00 and $260.00 per week in 2008. Nevertheless, the evidence continues to remain in a rather unsatisfactory state, however $200.00 does seem to be too low. Accordingly, it is appropriate to allow a reduction on the basis of the anecdotal evidence of what likely rental costs would have been irrespective of her injuries, suitable to the plaintiff’s needs at $250.00 per week.
[82] At [318]-[319]
It was suggested by the plaintiff’s counsel that it is likely such expenses were likely to be shared with a partner, but there is simply no evidence in support of that contention at all. The plain fact of the matter is that a projected rent of $250.00 per week is extremely modest and it is to be remembered the plaintiff had always maintained that $200.00 per week was appropriate anyway. On these conclusions, it is accepted that the appropriate figure is $199,162.00.
Holiday or vacation costs
These had already been awarded at the sum of $18,000.00.[83]
[83] Para [34] (11)
Transport costs
There was some debate about the proper interpretation of the findings the court actually made on this topic, so it is best to restate in full what those findings were. At [349] (12) of the primary judgment it is recorded that, ‘it is proposed to allow a broadaxe sum of $150,000 for future transport needs of the plaintiff’. That conclusion was drawn from the following process of reasoning:
[340] The cost of a suitably modified conventional vehicle is estimated at about $30,000. The cost of a van to accommodate a powered wheelchair is about $130,000.[84] For the reasons already articulated it is not likely that the plaintiff would need this level of support calling for a van for perhaps several decades, but as time goes on and she becomes more and more dependant on a motorised wheelchair, her needs in this respect are likely to become correspondingly greater.[85] The plaintiff, through her counsel, acknowledges that it is ‘impossible to predict exactly when she will require a van.’[86] It may be accepted that public transport is not a reliable option, at least whilst she continues to reside in Strathalbyn. There are limitations on public transport in the metropolitan area anyway.
[341] The plaintiff puts forward again a broad-axe assessment for an award of between $75,000 and $150,000. If we were to assume a reliable vehicle were purchased once every 10 years, that would cost $60,000.00 and take the plaintiff to age 46 when the prospect of requiring a van would become more pronounced. The higher sum of $150,000.00 leaves $90,000.00 for a single van, which is a modest residual amount given the present day costs of such vehicles. It might be noticed however that in Crockett v Roberts the trial Judge made an award for a motor vehicle but then reduced ‘the claim for the cost that the plaintiff would have incurred in any event by owning and running a car for her own use’.[87] Neither party appears to have countenanced this particular contingency. Accordingly, the parties ought to be further heard upon these questions and whether it is necessary to reflect present day value, bearing in mind vehicles are likely to cost more in 10 and 20 years time, and thereafter than they do now.
[84] Exhibit P7, p 192
[85] Exhibit P7, p56 & 171, T1770.14-.17, T2946.9-.17
[86] Submission in reply, para 24.4
[87] Above at 414 [170]
The plaintiff interprets these remarks as justifying the purchase of two cars, one now and one in ten years time at $30,000.00 each, and four vans at $130,000.00, each ten years thereafter. The defendant on the other hand seeks to reduce these costs by $5,000.00 in each instance to take account of the notional cost of a vehicle the plaintiff would have to expend anyway.
It is apparent from the passages extracted from the primary judgment that no concluded view was reached about what cars were appropriate, how often they should be purchased, and at what cost, or anything of the kind. All the court did in those paragraphs was to embark upon a simple analysis of projected costs on certain assumptions in order to draw the conclusion that a figure of $150,000.00 was reasonable on any view of the facts. This limited process of reasoning came about only because of the written submissions of the plaintiff in reply, which were:
Summary
Danielle needs an appropriately modified vehicle now and will need a wheelchair converted, self-drive van to accommodate a powered wheelchair, sometime in the future. Danielle also has additional transport expenses as a result of her need to attend therapy and treatment. A ‘broad axe’ approach is appropriate within a range of $75,000 - $150,000.
Danielle has a current need for a suitably modified vehicle as recommended by Ms Alach at P7, page 192. It is estimated that this would cost about $30,000.
It is appropriate that Danielle be awarded the cost of a van that can accommodate a powered wheelchair at some time in the future.
The cost of such a van is about $130,000.[88]
It is impossible to predict exactly when Danielle will require this van but by using Table 1 in Luntz ‘Assessment of Damages for Personal Injury and Death’ (4th Ed) it is noted that the present value of the initial cost of the van in 5 years is $101,855, in 10 years is $79,807 and in 15 years is $62,530.
In addition, Danielle will incur additional transport cost by reason of a need to attend medical treatment, hydrotherapy etc, as a result of the accident. Public transport is not a reliable option for her anymore meaning overall transport costs are greater.
The court is entitled to take a broad axe approach to the assessment of damages under this head and an award of between $75,000 and $150,000 would be reasonable for Danielle’s lifetime transport costs.
[88] P7, page 192 per Allach
This ‘broad-axe’ approach by the plaintiff’s counsel did not necessarily entail any concession as to further reduction on account of ‘present day value and the cost of a vehicle that would have been expended anyway’.[89] So much is implicit in the above submission. As it happens, the sum of $150,000.00 represents the present day cost of five conventional vehicles, or one van and one conventional vehicle, to be provided however over a predicted life expectancy to aged 87. Even though the evidence was that the plaintiff drove for the most part, far more modest vehicles, it is not proposed to make any further deduction for the nominal difference between what she would have driven, as she would necessarily incur additional travelling costs because of her injuries attending medical appointments, therapy sessions and the like.
[89] Para [349] (12) and [341]
It remains only then to consider if this sum is to be reduced to reflect present day value. The analysis contained in the first judgment did not consider that question. The fact of the matter is that no concrete findings were made and certainly there was no concluded view that I considered the cost of a car at $30,000 now and again in ten years and the cost of a van at $130,000 every ten years thereafter, as the plaintiff contends.[90] Nor for that matter was an opinion expressed that all that was approved were six conventional vehicles to be supplied every ten years. That contingency is the (false) premise behind the defendant’s calculation of $73,542.00 after applying the applicable deferred multiplier.
[90] Plaintiff's post judgment submission paragraph 11.2
It is convenient then to recapitulate the critical findings in respect of this issue. These were:
·The recommendations for a large vehicle later in life were soundly based on the likely advent of shoulder and wrist problems;[91]
·As time goes on the plaintiff will become more and more dependant on a motorised wheelchair, so her transport needs are likely to become correspondingly greater;[92]
·The provision for a car is both reasonable and necessary to her specific identifiable needs.[93]
[91] at [338]
[92] at [340]
[93] at [342]
These findings necessarily convey the view that the provision of adequate transport was a demonstrable need as a result of the plaintiff’s disabling injuries and her abject need to remain mobile for treatment purposes. They also convey a conclusion that at some time after the age of 40 a van – as opposed to a conventional modified vehicle – is likely to become a necessity. The plaintiff has calculated the adjusted value of two cars and three vans at $157,292.00. Since a replacement car just once every 10 years is completely modest, and since the probabilities are that a van will be required perhaps earlier than aged 47, the plaintiff’s proposal remains a most reasonable one. On that basis of looking at matters the sum of $150,000 is allowed. Otherwise, the plaintiff is bound by the conduct of her case on this aspect of the damages award: Port of Melbourne Authority v Anshun Pty Ltd.[94]
[94] (1981) 147 CLR 589
The defendant’s proposition that the appropriate figure is $73,542 is rejected because it allows only for conventional vehicles. In twenty years the plaintiff will be 46 years of age and given her life expectancy, such vehicles could not be expected to satisfy her entire needs for upwards of thirty to forty years thereafter.
An issue as to pre-judgment payments with respect to vehicles will be considered later. It is also more than reasonable to allow the plaintiff the cost of RAA membership at an accepted present day cost of $2,352.13, and car maintenance, which has already been agreed by the parties on an actuarial calculation of $22,133.00.
Cost of care since defendant stopped paying for care
The evidence was that care was provided in one form or another following discharge from Hampstead Hospital to 10 September 2012 by the defendant’s insurer. Those payments were made in accordance with the commercial rates charged by the plaintiff’s current care provider CLASS. In the end, the plaintiff mounted a confined submission for a ‘gap’ period from 1 September to 16 October 2012, expressed in dollar terms on the premise of 1 hour per day, coming to $4,273.89 inclusive of GST. Once again, the defendant claimed a credit of this amount, so that issue should now be considered.
Pre-judgment payments - ‘Clawback’
Schedules were submitted by the defendant at the damages hearing, which will be admitted as Exhibit D90. The total payments were said by Ms Powell to be $339,476.12 ‘special damages paid to date’, plus ‘interim payments’ of $67,000.00.[95] Such payments were expressed in various ways, including ‘home help’, ‘part personal assistance’, ‘part home help’, medical or massage treatment, pharmaceutical or chemist costs, physiotherapy and so on. These sums were paid direct to the service providers. There was also a payment on 3 October 2007 for a Calais, which was modified at a total cost of $23,871.00.
[95] T148.31-.32, damages hearing
The schedules also show that there is an additional amount of $181,539.78 paid over as of 21 September 2012. In the schedules entitled ‘Interim payments’, $9,139.33 was paid to the ‘Collector of Public Monies’ and $237,860.07 was paid direct to the plaintiff’s solicitors. The earliest of these payments was on 14 May 2007, all for ‘interim pain and suffering’, except for $82,426.28 attributable to ‘future treatment’.
Ordinarily, such payments would be dealt with in the manner provided for by s124AC of the Motor Vehicles Act 1959 (SA):
124AC—Credit for payment of expenses by insurer
If an amount claimed as expenses incurred as a result of death or bodily injury caused by or arising out of the use of a motor vehicle is paid by an insurer to or on behalf of the claimant, the amount of any damages payable to the claimant in respect of the death or bodily injury is reduced by the amount so paid.
The primary submission for the defendant really boils down to the fact that it is seeking to recover what it regards as overpayments for the provision of care in the past, in light of the finding that the plaintiff was not as disabled as she claimed to be. No such remedy was pleaded in the defence. All that was claimed in paragraph 6 of further amended defence was ‘a credit pursuant to section 124AC’. Moreover s 124AC of the Motor Vehicles Act is mandatory in its terms ‘is reduced’, so that the manner of dealing with this issue is clearly spelled out by the legislation. The issue became of more significance during the course of two damages hearings when the defendant better articulated what was initially a confusing submission as to what he wanted to achieve by this submission.[96]
[96] T22.20-23.8, 43.11-.34, 8/11/12
In an elaborate calculation of the respective periods (which were tabulated in the primary judgment)[97] the defendant proffers an all in figure of $84,570.54 After making some allowance for weekend and public holiday rates over a period of almost four years, the defendant claims a credit rounded to $90,000 in respect of past care payments’.[98] The resolution of this issue depends on what level of care was reasonable and necessary in the past. Those findings have now been made above.
[97] At [231]
[98] Defendant’s care claw-back written submission 17/10/2012
For her part, the plaintiff submitted at the trial that ‘the defendant is not entitled to any credit for past paid care’ and that the plaintiff had been ‘under funded’ with respect thereto.[99] This stance was however predicated on contemporary recommendations of Dr Marshall and Mr Campanella (the plaintiff’s Occupational Therapist) as to the appropriate level of care from time to time, which Mr Krupka maintained they did not resile from. Moreover, this calculation presumes 17 hours per week over the entire period from the date of discharge from the Hampstead Centre to 10 September 2012, when care payments were withdrawn. This comes to $177,795.86 as compared to a figure of $182,343.28 actually paid and which translates to 17.43 hours care per week, calculated on the base hourly rate of $38.17.
[99] Outline of submissions paragraph 14.1-15.8
The deficiency in this approach is that it encompasses the period from discharge to 21 January 2008, for which care was non-compensable, except for that provided by Hope.
As to Mr Campanella, it is to be recalled that in his assessments of 10 February 2010 and 12 May 2010, he reported that the plaintiff needed assistance to transfer and that she was not able to administer her own enemas.[100] The plaintiff’s evidence on these points was rejected in the primary judgment. Mr Campanella said in evidence-in-chief after watching the transfers shown in the surveillance footage Exhibit P5, that the fact ‘that Ms Chadwick could perform these transfers did not really surprise him’ because it had never ‘been the case that she was physically prevented from doing those transfers’.[101] Under cross-examination he conceded:
· that the film showed the plaintiff transferring without seeking any assistance ‘apart from holding the wheelchair steady’,[102]
· that she presented in May 2010 ‘in a very much more debilitated condition than as [he] observed her on the video’,[103]
· the plaintiff’s ‘subjective complaints and what she said she could and couldn’t do, …. was very much worse…. in May 2010 than the way [he] observed her in the film video P5’,[104]
· that in terms of functionality, the film Exhibit D5 would show that the plaintiff seems to have…. the same functionality as she had back in 2008’, apart from shoulders and wrist problems – to which he deferred to the medical experts.[105]
[100] Exhibit P7 p224 & p228
[101] T2257.1-.6
[102] T2278.29-.36
[103] T2281.26-.34
[104] T2284.26-.31
[105] T2285.26-79, T2286.2-.19
These are significant concessions fundamentally because in mid January 2008 Mr Campanella reported that the plaintiff was quite capable of safely transferring and toileting independently.[106]
[106] Exhibit P7 pp 12
It is true that at one point Dr Marshall said her views as to the plaintiff’s “ability or care needs” had not changed after watching the surveillance films.[107] This however must be seen in its context.
[107] T1626.36-1627.3
Dr Marshall agreed with the proposition put to her under cross-examination that the films demonstrated the plaintiff had ‘learnt confidence and techniques…. to facilitate a transfer’, that her tolerance limit and stamina for pushing a wheelchair was very good, that she ‘certainly had improved’, and that she had not developed bad habits with respect to transfers.[108] Later she volunteered that she ‘watched the film with interest and I was pleased to see that Danielle Chadwick was functioning as well as she was…. to see what she was able to achieve’.[109]
[108] T3004.25-3007.19
[109] T3052.36-3053.3
Dr Marshall recommended six hours of care in April 2010 and 24 hour care in August that year.[110] In April 2011 she recommended “at least 25 hours per week” of care.[111] She could hardly be recommending just “a couple of hours every morning” by November 2011 if her views about the physical capabilities of the plaintiff were the same.
[110] Exhibit P7 p 90 and p 94
[111] Exhibit P7 p61
Her evidence as to that was:[112]
….Therefore, in answer to your question I think that it hasn't changed my opinion, I still think she would be better off having some personal care assistance every morning, particularly I think Monday to Friday, to ensure that she is assisted to get up and get going as quickly as possible without putting herself at risk and without putting her children at risk so that she can then provide the care that she needs to, to her children to enable them to get to school in a timely fashion. If she were to slip while she is doing a transfer and injure her shoulder, what does that mean? Then for the children. So I think that a couple of hours every morning is - would make a huge difference in terms of her safety, the reduction in her risk of injury and allow us to ensure that we continue to see her getting around in a wheelchair in the community as much as possible.
This is a completely different picture from that originally posed by Dr Marshall, whom as I have said, had earlier recommended much higher levels of care.
[112] T3053.12-.28
Furthermore, the evidence of Dr Marshall must be read in conjunction with an earlier concession to the effect that assuming from April to October 2010 the plaintiff ‘was independent as to transfers from chair to toilet, chair to shower bench, chair to bed, and chair to vehicle, and vice versa, and was as well independent as to shopping and independent as to dressing and grooming, she would not need any personal care at all….’.[113]
[113] T3011.2-.12
It is to be recalled that findings to that very effect that were made in the judgment of 28 August 2012,[114] the other critical aspects being:
·An acceptance of the expert evidence of Dr Marshall and Mr Campanella that shoulder and wrist problems were likely to recur.[115]
·An acceptance of the evidence of Dr Marshall that ‘at least 2 hours per day for personal care is required.[116]
·An allowance for critical care one week per year to aged 40, and four weeks per year thereafter.[117]
·10 hours per week for combined domestic assistance.[118]
[114] At para [63] primary findings
[115] at [234]
[116] at [244]
[117] at [244]
[118] at [246]
I take it from the evidence of Dr Marshall summarised or quoted above, that her estimate of two hours per day is her considered estimate after having seen the video surveillance film and assimilated the views and concessions made by Mr Riesthbeth, put to her under cross-examination. In other words, that assessment was a baseline or yardstick measure of the need for care, Dr Marshall having factored in all considerations and especially the proof of her capacity to transfer.
That being so, the starting point for measuring the need of care in the past, and for that matter for the future, must begin with this assessment. This means that on the face of the accepted evidence, the appropriate level of care is 17 hours per week. The appropriate level of past care must therefore begin with this premise.
There are however several phases requiring an adjustment upwards. These are:
1For the period ‘towards the end of [her] pregnancy’[119] say from 12 June to 12 November 2009, that is for three months before the birth of Isabella and two months thereafter at 4 more hours per week bringing the level to 21 hours;
2For the period of recovery from the broken leg between 24 December 2009 to the end of March 2010, that is a few weeks after the plaster was removed, by an additional 3.5 hours per week to 20.5 hours;
3For the unsettled, difficult and depressing period when Ben Earle was her “carer”, commencing in June 2010, ending in early January 2011.[120]
[119] T1584.2
[120] See primary findings at [218-219]
The finding made at 1 in the previous paragraph is consistent with the evidence of Ms Correll that the plaintiff needed more assistance when she was five or six months pregnant and when she had put on a considerable amount of weight. Despite what Dr Jackson said about the minimal effect a plaster cast might have, it is a matter of common sense that it would only serve to restrict movement and the capacity to do everyday things for a wheelchair bound person such as the plaintiff. The conclusion at 3 above is based upon the observations referred to in the primary judgment and the evidence of the carers that the plaintiff’s lifestyle and disorganisation around the house was at rock-bottom in the period that Mr Earle was around.
The plaintiff calculates the value of past care at $159,622.84, uplifted by 10% for ‘weekend and public holiday rates’ bringing it to $175,585.12. The defendant’s calculation comes to $147,647.66. The difference between them is explained by the fact that the defendant does not accept any uplift is appropriate for the third period above. Quite apart from the findings made previously in respect of that, the evidence was that in this period the house was in a ‘cramped and chaotic state’,[121] and that the plaintiff ‘was less involved in duties around the house’.[122] This situation was bad enough for Ms Correll to notify FAYS that:[123] 'the mother's attitude, the home environment and the excessive workload has resulted in a high turnover of personal carers which creates further instability for the children'. In addition, there was evidence that during this period the house was particularly unkempt.[124]
[121] T3740.6-.7
[122] T3814.20
[123] T3824.27-.31
[124] T3702.6-.31, 3704.34-3705.17, 3711.34-3712.15, 3784.35-3785.7, T4474.3-.23
The defendant submitted that the ‘yardstick’ for measuring the needs level of past care was 10 hours per week. This stems from the evidence of the carers, Leah Correll, Ms Stephens, Lyn McIver, and Sarah Bariesheff as analysed in the defendant’s extensive written submission on the topic.[125] It distils into the conclusion based on the evidence of these women that they spent, in the case of Ms Correll 50 per cent of her time looking after Isabella, Ms Bariesheff between 70 to 80 per cent of her time devoted to looking after the children, and Ms McIver about 60 per cent of her time was spent on baby care. That premise or yardstick was quite simply as Ms Powell QC expressed it ‘we took off whatever percentage hours they said they were engaged in looking after Hope and Isabella….’[126]
[125] Trial written submissions Part II Tabs 3 and 6.2
[126] T45.5-.8, 8/11/12
This view of matters cannot be sustained. In the first place it is inconsistent with findings the court has already made as to the level of care required and the additional conclusions reached above. In the second place, it takes a rather literal and rigid view of the evidence. The above percentages were simply estimates. In some instances they conflict with the actual case records maintained at the time. Moreover, there was evidence from three women that suggested more direct domestic care was actually provided than these percentages suggest, viz:
·Ms Bariesheff
-Worked additional hours over and above the approved 6 hours.[127]
[127] T3738.32-3739.5
-The first estimate was 50 per cent “having the baby in my presence and doing other things at the same time and on weekends that would jump to 70 to 80 per cent if Hope was home with her friend.[128]
[128] T3230.20-25
·Ms Correll
-Would always be within earshot.[129]
-More assistance given when the plaintiff was five or six months pregnant and put on weight.[130]
-Gave assistance by stabilising the wheelchair for affecting transfers.[131]
-The estimate of 50 per cent only occurred when the hours of paid care increased to 30 hours per week (in May 2010) and even then “I would be doing homework with Isabella in my vicinity so I would have her either on the floor or in her baby seat or in the pram, so it would be 50:50 in that respect.”[132]
·Ms McIver
-Apart from feeding, changing and keeping an eye on Isabella, was at the same time doing other tasks and chores around the house.[133]
The arbitrary assumption of 10 hours per week upon which the defendant’s submissions so heavily depends, is not therefore supported by the evidence of the carer witnesses.
[129] T3754.63
[130] T3754.20-.32
[131] T3755.27; 3758.1
[132] T3775.22-35
[133] T4493.35-4494.8
Based on these findings, the appropriate award for past care is then $182,343.28. This must be factored into the award before the applicable reductions are made under s 124AC of the Motor Vehicles Act. And on this basis of this conclusion the plaintiff’s care payment ‘gap’ between 1 September and 16 October 2012 - based as 17 hours per day - can be accepted at $4,273.89.
It is agreed on both sides the applicable reductions pursuant to s 124AC of the Motor Vehicles Act are either $339,476.12 or $341,015.99, together with $67,000 by way of interim payments, in addition to $180,000 paid after the liability judgment was delivered.
It remains only to return to issues postponed earlier in these reasons and it relates to a payment by the insurer of $23,871.00 in October 2007 for the purchase of a modified Calais the plaintiff could drive with hand controls. The defendant seeks to deduct that sum from the award for transport costs. The submission must fail for the reason that the present award for transport costs is prospective, whereas the Calais was purchased for antecedent needs.
Summary and conclusion
The above findings may therefore be summarised as follows:
1.Non-economic loss - $211,530.00;
2.Past gratuitous services - $26,722.50 plus interest of $2,939.00;
3.Past care - $182,343.28;
4.Future care - $1,077,361.00;
5.Case management - $13,546.50;
6.Future treatment:
·twelve general practitioner consultations per year - $16,616.95;
·one per year for a rehabilitation physician - $4,299.53;
·one consultation per year with a urologist, plus investigation - $9,564.35;
·15 psychological consultations for the first eighteen months, then one psychiatric consultation per year thereafter for 20 years at the rate of $164.20 for the first 15 consultations, and $507.10 for the first psychiatric consultation, and at the rate of $350.00 for each consultation thereafter;
·four physio therapist attendances per year at $12,411.00;
·occupational therapy - $18,665.75;
·$59,100.00 - hydrotherapy;
·consulting a podiatrist every six weeks - $11,426.00;
·ultrasounds - $9,784.00;
·carpal tunnel surgery - $32,511.00;
7. Future medication:
· enemas - $9,377.20;
· Baclofen - $2,442.80;
· Coloxyl - $1,379.00;
· Nurofen - $3,447.50;
· Panadeine Forte - $3,132.30;
· Multivitamin tablets - $4,363.55;
· Caltrate Plus - $965.30;
· health capsules - $3,802.10;
· Dermaid cream - $1,576.00;
· Endep - $6,097.15;
· Gabapentin - $35.40.
8. Future equipment and consumables:
· a manual wheelchair - $16,475.00 and $4,524.00 for maintenance;
· 2 powered wheelchairs - $32,823.00;
· replacement battery pack every 7 years - $445.00;
· roho cushions - $1,393.00;
· replacement cushions - $490.00;
· adjustable bed table - $286.00;
· continence pads - $15,754.00;
· self-propelled shower chair replaced every 10 years - $3,247.00, plus
service every year - $1,756.00;
· wheelchair ramp every 15 years - $543.00;
· sliding boards - $1,152.00;
· manually operated lounge chair $1,714.00, and service thereof of $1,695.00;
· mobile hoist - $4,803.00;
· tumble dryer - $1,308.00; service once every three years - $580.00;
· fixed shower dispenser - $297.00;
· wrist splints - $2,000;
9.Special damages - $14,620.85, including $9,400 for Housing SA, $462.25 for the Strathalbyn Medical Centre, $420 for a refrigerator;
10.Housing and accommodation – purchase of a home - $175,000.00, alterations $115,582.00. In addition I allow $150,000.00 for the purchase of a block of land, $4,830.00 for conveyancing costs – a total of $495, 412.00 less rental costs of $250.00 per week - $199,162.00;
11.Holidays and vacation costs - $18,000.00.
12.Transport costs - $150,000.00, RAA membership at $2,352.13, and car maintenance of $22,133.00.
13.‘Gap’ payment of - $4,273.89;
14.Credit for payment of expenses – the defendant to have an order that damages awarded to the plaintiff be reduced by the amount paid by the insurer, the precise figure to be further addressed by the parties.
The above conclusions therefore tabulate as follows:
·Non-economic loss (52 points) $211,530.00
·Past gratuitous assistance $26,722.50
·Interest $2,939.48
·Past care $182,343.28
·Future care $1,077,361.00
·Case management $13,546.50
·Hospital expenses (RAH and Hampstead) $50,286.28
·Other special damages and equipment to date $108,386.34
·Future medical treatment $180,386.34
·Future medication $36,618.30
·Future equipment and consumables $91,285.00
·Outstanding special damages $14,620.85
·Future housing and accommodation $199,162.00
·Holidays $18,000.00
·Transport $150,000.00
·Car maintenance $22,133.00
·RAA membership $2,352.13
·Gap in care payments $4,273.89
Sub-total $2,392,486.65
Less 25% for contributory negligence $598,121.66
Total: $1,794,364.99
Less section 124AC payments $339,476.12
Total $1,454,888.87
Less interims paid before judgment $67,00.00
JUDGMENT SUM $1,387,888.87
Less amount paid since judgment $181,539.78
TOTAL: $1,206,349.09
Judgment is therefore entered in favour of the plaintiff for the sum of $1,206,349.09. Counsel should be heard on the question of costs.
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