CHANTELLE DAWN BURFORD (by HER NEXT FRIEND IAN ALLAN MCFARLANE) v. CLIFFORD EDWARD ALLAN No. SCGRG 90/1125 Judgment No. 3974 Number of Pages - 16 Damages - General Principles (1993) Aust Torts Reports 81-226 (1993) 60 SASR 428

[1993] SASC 3974

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), PERRY(1) AND DUGGAN(3) JJ

CWDS
Damages - general principles - Appeal and cross-appeal against award of damages to the respondent, a young girl seriously injured in a road accident resulting in permanent quadriplegia, described by the trial Judge as "the most serious imaginable compatible with life" - appeal and cross-appeal dismissed as to allowance of $320,000 for non-economic loss - appeal against allowance for future loss of earning capacity dismissed but cross-appeal allowed so as to increase the award of $350,000 before apportionment to $380,000 - allowance by trial Judge for future care of total amount of $3,846,326 before apportionment - attack by appellant upon trial Judge's rejection of defendant's contention that the case should be assessed upon the basis of institutionalised care - appeal as to that head of damages dismissed on the footing that the trial Judge properly accepted evidence that the respondent should be cared for at home, although award increased to compensate for error with respect to actuarial evidence - obvservations as to allowance on other heads of damage.
Tenhoopen v Nilson (1989) 150 LSJS 16; Todorovic v Waller (1981) 150 CLR 402; Skelton v Collins (1966) 115 CLR 94; Pickett v British Rail Engineering Ltd (1980) AC 136; Sharman v Evans (1977) 138 CLR 563 and Beasley v Marshall (1986) 40 SASR 544, considered.

HRNG ADELAIDE, 8-9 March 1993 #DATE 17:6:1993
Counsel for appellant:     Mr S Walsh QC
  with Mr A Hilditch
Solicitors for appellant:    Ward and Partners
Counsel for respondent:     Mr T Gray QC
  with Mr R Cameron
Solicitors for respondent: Genders Wilson and
  Partners

ORDER
Appeal dismissed and cross-appeal allowed.

JUDGE1 PERRY J The appellant, who was the defendant at first instance, appeals against a judgment in favour of the respondent for $5,765,318.47 by way of damages arising out of a road accident which occurred on 17 June 1986 when the respondent, who was then a young girl of 7 years, was hit from behind while riding her bicycle, by a car driven by the appellant. 2. The respondent cross-appeals with respect to some, but not all, of the elements in the award which are the subject of the appeal. 3. A compromise of the issue of liability pursuant to which it was agreed that the respondent would recover 90% of her damages to be assessed, was approved by the Court before the commencement of the trial, and the judgment sum represents that proportion of the assessed damages, less certain payments made by the appellant before the trial. 4. The respondent suffered what were described by the learned trial Judge as "calamitous injuries" resulting in permanent quadriplegia. He found that the degree of quadriplegia "was the most serious imaginable compatible with life". 5. The accident caused a disruption of the spinal cord at the C3 level of the cervical spine, below which there was a permanent and complete loss of motor power and sensation. The plaintiff also suffered a compound fracture of the right tibia and fibula. She required seven months' treatment in intensive care at Adelaide Children's Hospital. 6. One of the more serious effects of the plaintiff's injuries is the loss of the voluntary use of her respiratory muscles. She is unable to breathe satisfactorily without mechanical assistance. This will be the position for the rest of her life. As to this aspect of the matter, the learned trial Judge observed:
    "She was placed on what is called an oxylog ventilator at The
    Royal Adelaide Hospital and remained on this apparatus
    continuously until phrenic nerve pacers were surgically implanted
    in the phrenic nerves in her diaphragm on 9 February 1988. It
    'consists of an external battery-powered transmitter delivering a
    coded radiofrequency signal which is transmitted through the
    intact skin via a loop antenna to platinum electrodes placed
    around the phrenic nerve'. The pacers reduced the amount of time
    that she had to be physically connected to the ventilator to
    assist her breathing, and she was gradually weaned off the oxylog
    ventilator. From mid December 1988 until earlier this year, she
    was able to be on the phrenic nerve pacers for 24 hours a day. In
    January last she was admitted to The Queen Elizabeth Hospital for
    studies on the efficiency of the phrenic nerve pacing. As a result
    of these studies and since about February, she has been on the
    ventilator between midnight and 6.30 am 'to rest her diaphragm'." 7. The plaintiff's loss of sensory perception and the development of the condition of osteoporosis has made the plaintiff more susceptible to fractures of her bones. 8. In May 1989, she accidentally fractured her right tibia when she hit her foot on a doorframe, and required treatment at Adelaide Children's Hospital. In December 1989, a major operation was performed in an attempt to correct her spinal curvature. On a number of occasions she has suffered from significant urinary infections, and infections of the respiratory tract. Her skin has been susceptible to trophic ulcerations. She is subject to a condition known as autonomic dysreflexia, which is a complication of her injury to the spinal cord and which results in symptoms including sweating and hypertension. In February 1992 she suffered a further fracture, on that occasion to her left femur, resulting in treatment at Queen Elizabeth Hospital. As a result of that, her leg was in plaster for a month. 9. In January 1987 she was transferred from Adelaide Children's Hospital to Regency Park Centre for Young Disabled. In 1987 and 1988 she was able to attend Regency Park School. During that time a chin control was installed in her electric wheelchair. She is confined either to bed or to a wheelchair, and when coming and going from school she is accompanied by a nurse or by her mother. She came home to live with her mother and step-father in September 1988, following which she attended, albeit spasmodically, at Croydon Primary School. From July 1990 and throughout 1991 she attended at Ferryden Park School, supplementing her tuition there with a correspondence course. In the year when the trial was held, that is in 1992, she attended Woodville High School where she was described by the learned trial Judge as "progressing reasonably well with her first year studies". 10. The learned trial Judge found that before the accident, the plaintiff was a "pleasant, happy, lively and reasonably intelligent girl who was doing reasonably well at school". 11. He found that she was now fully aware of her plight. At this point it is convenient to deal with the various heads of damage the subject of appeal. Non-economic Loss 12. The learned trial Judge assessed damages under this head, before apportionment, at $320,000, as to which he attributed $90,000 to the past and $230,000 to the future. 13. The appellant claims that that is too much, and the respondent that it is too little. The learned trial Judge found that the plaintiff had suffered a 20% loss of the normal life expectancy. In the course of his findings with respect to this head of loss, the learned trial Judge, after referring to the respondent's protracted period of hospitalisation and institutional treatment, and to certain behavioural disturbances indicating serious difficulties in adjusting to her state of total dependency upon others, went on to make some findings based on observations which he had made during the course of a visit to her step-father's house at Rosewater. His description was as follows:
    "She can perform very slowly and with difficulty certain
    activities involving the use of a pencil, paint brush or computer
    stick, all in her mouth, but these activities require great
    determination and persistence. On my visit to the house, I
    observed her doing these things. I also observed her undergo the
    humiliation of being trussed up and hoisted from the bedroom to
    the bathroom, and I observed a secretion being suctioned through
    her tracheostomy. This procedure is frequently necessary to clear
    her airways. The tracheostomy will remain in place for this
    purpose and also in case of pacer failure." 14. The learned trial Judge went on to observe that the plaintiff has a "lifetime of disability" ahead of her. For all intents and purposes, she has lost the ability to move her upper and lower limbs. She suffers from involuntary muscle spasms. Her loss of bladder and bowel function results in a need to use catheters and an enema throughout the day. She can perform none of the activities involved in day-to-day living without assistance, including washing, bathing, dressing and feeding. As the learned trial Judge commented:
    "It is very unlikely that she will marry, and childbirth is even
    more unlikely. She must live a completely sedentary existence and
    is likely to remain substantially isolated from her peers in
    respect of most daily activities, including social and sporting
    events. She will not be able to participate in wheelchair sports
    that other less disabled people can enjoy. She is unable to walk,
    dance, run or even drive a motor vehicle. She remains prone to
    fatigue as a result of the severity of her injuries, and her
    ability to concentrate for any length of time is thereby limited.
    Her situation has to be constantly monitored by suitably qualified
    people. She is aware of her needs in this respect and lives in
constant fear of respiratory failure and death." 15. Mr Walsh QC who appeared for the appellant, referred to an award for non-economic loss of $244,000, which was made in 1989 in favour of a young man who suffered from complete motor quadriplegia below C5 level, and other devastating injuries (Tenhoopen v Nilson, unreported, Olsson J, 23.3.89, 150 LSJS 16). However, in cases of this kind, no meaningful comparison can be made with other awards. 16. For the appellant to succeed as to this aspect of the appeal, he must demonstrate that the award of the learned trial Judge was wholly erroneous. In my opinion, he has not discharged that onus. Given the catastrophic nature of the injuries suffered by the respondent, the consequences of the injuries upon the quality of her life, her age, and her awareness of her plight, in my opinion, the award for non-economic loss, although high, was within allowable limits. Furthermore, as to the cross-appeal, no case has been made out which would justify an increase in this part of the award. 17. The appeal and cross appeal on this head should be dismissed. Future Earning Capacity 18. There was no claim for past loss of earning capacity, having regard to the fact that the plaintiff was aged 13 years at the time of the trial. For future loss of earning capacity, the learned trial Judge awarded $350,000 before apportionment. Again, this head of damages is the subject of both an appeal and a cross appeal. 19. His Honour found that the plaintiff is totally and permanently unemployable. That finding is not challenged. 20. The learned trial judge had the benefit of evidence given at the trial by a Ms McAuliffe, a clinical neuropsychologist, who worked as an employment consultant. She assessed the plaintiff's intellectual abilities, and offered a view as to what her career prospects might have been had it not been for the accident. In her report, which was before His Honour, she concluded:
    "The results of testing, perusal of school reports and assessments
    from prior to the accident and investigation of her history all
    indicate that Chantelle was of average to above average
    intelligence compared with others of her age prior to her
    accident. Formal testing demonstrates that she is currently of
    average intelligence, although she is behind others of her age on
    tasks that are related to her interrupted schooling (reading,
    arithmetic). She had been involved in callisthenics since age 2
    and has since developed some keen artistic talents (as judged by
    her art teachers). On the balance of information the evidence
    suggests that, prior to her accident, Chantelle had the capacity
    to develop a career suited to someone with an average to above
    average intellect. She has a vivacious nature and would have been
    successful in dealing with others and popular among her work
    colleagues. It is increasingly common for females to pursue
    careers as a life-long venture. This is both from a personal
    fulfilment point of view and from increasing financial burdens
    placed on families where it is common for more than one member to
    be working. While it is not possible to say exactly what career
    Chantelle would have moved into, her level of intelligence and her
    current nature suggest that she could have been involved in a
    varied range of careers and these may have been in the following
    areas: clerical and secretarial, nursing, teaching, personnel and
    sales as well as information processing. In summary, Chantelle
    could reasonably have expected to be capable of commencing her
    working career earning a salary in the approximate range of
    $20,500 to $24,000 per annum with the capacity to earn in the
    range of $27,000 to $33,000 per annum with increasing experience
and years of service." 21. On the basis of that evidence, as a starting point for the assessment of damages under this head, His Honour assumed a net weekly loss of $400. 22. His Honour then had regard to actuarial evidence as to the value of an appropriate annuity to express the present value of a net loss commencing on the attainment of age 16. The respondent tendered actuarial evidence as to that, based on an interest rate of 3% per annum. The appellant sought to persuade the learned trial Judge that although 3% had been approved by the High Court as an appropriate rate to apply in such instances (see Todorovic v Waller (1981) 150 CLR 402), as nearly 11 years had passed since that decision of the High Court, the time had come for a review of the percentage. 23. His Honour rejected that argument, and it was not suggested on the appeal that in doing so he was wrong. Based then on an interest rate of 3%, His Honour adopted a multiplier of $1,220, which applied to a net weekly loss of $400 yielded a figure of $488,000. His Honour then allowed for what he described as "favourable and unfavourable contingencies and other relevant circumstances" before reaching an award, before apportionment, of $350,000. 24. On appeal, the appellant complained that the approach adopted by the learned trial Judge is erroneous in two respects. The first argument advanced was that if the Court was prepared to accept the appellant's contention that the award for future care should have been postulated on the basis of institutional care (contrary to the finding of the learned trial Judge), given that institutional care would include accommodation, meals and the like, which would normally be paid for by the plaintiff out of her earnings, the amount to be awarded under this head should be reduced accordingly. 25. The other argument was that the learned trial Judge had failed to allow sufficiently for contingencies and for the cost of earning income. 26. Whatever merit there might have been in the first argument, in my opinion, it should be rejected, along with the view which I express later in this judgment, that the learned trial Judge has not been shown to be in error in assessing the damages for future care other than upon the basis of care in an institution. 27. As to the second argument, it must be accepted that given the fact that the plaintiff was a child of tender years at the time of the accident, the allowance for loss of future earning capacity is more than usually speculative. Be that as it may, it appears to me that there was an ample basis in the evidence of Ms McAuliffe, which was not challenged on the appeal, to support the primary calculation made by the learned trial Judge, and in my opinion, his deduction for contingencies has not been shown to be inadequate. 28. That is not an end of the matter. This head of damages is the subject of a cross appeal. The respondent advanced an argument that the award under this head should have been in the order of $500,000. In support of the cross appeal the respondent contended, inter alia, that in adopting an actuarial multiplier of $1,220, the learned trial Judge had wrongly made a calculation on the basis of the plaintiff's reduced life expectancy rather than the period over which she might have been expected to earn an income if her life span had not been curtailed by the accident. 29. The respondent is correct with respect to the learned trial Judge's choice of a multiplier. The multiplier of $1,220 was appropriate for a calculation commencing on the respondent's 17th birthday, projected during a period representing her normal life expectancy, reduced by 20%. Furthermore, the question of principle involved in the period over which the loss shold be calculated, should be resolved in favour of the respondent's contentions, having regard to the decision of the High Court in Skelton v Collins (1966) 115 CLR 94 (see also Pickett v British Rail Engineering Ltd (1980) AC 136). 30. The appropriate figure to have been adopted was $1,404, being the value of an annuity of $1 per week, commencing on the respondent's 16th birthday, and projected through the period representing the normal life expectancy for a woman of that age. Applied to a net weekly loss of $400, that would give rise to a gross calculation of $542,000. 31. The learned trial Judge, after allowing for contingencies, awarded 70% of the capitalised net weekly loss. In my opinion, that approach was sound. Applying the same percentage to $542,000 yields a net figure of approximately $380,000, and increase of $30,000 over the amount awarded by the trial Judge. The appeal against this head of damages should be dismissed, and the cross appeal allowed to the intent that the award on this head be increased by $30,000 before apportionment. Future Care For this head of loss the learned trial Judge allowed, before apportionment, a total amount of $3,846,326. Against that assessment, the appellant and the respondent have both appealed. 32. As I have already indicated, at the time of the trial the respondent was living with her mother and step-father. Her mother, and to the extent that he had the opportunity to do so when not working, her step-father, devoted themselves to the respondent's welfare from the time of the accident. At the time of the accident, the respondent's mother was engaged in employment and earning approximately $300 per week net. She gave up that employment in order to care for the respondent, and she has not worked since. Given that the respondent requires, as His Honour found, attendant care for 24 hours a day, it is not surprising that for the period leading up to trial they also received some outside assistance. Despite the outside assistance, the main burden of looking after the respondent has fallen on her mother. Clearly she could not be expected to continue to do so indefinitely. The learned trial Judge accepted that, and observed: "Mrs Burford gave evidence that she was exhausted and felt unable to continue caring for her daughter in the manner and to the extent she has necessarily had to so far. Her evidence was supported by her husband and Dr Matthews." At the trial it appears that counsel on both sides agreed that the respondent needed attendant care for 24 hours a day for the rest of her life. Beyond the agreement as to that, however, there was a substantial divergence in the cases presented on each side. 33. The respondent sought an award on the footing that the cost of future care should include the cost of a registered nurse for 24 hours a day. On figures which were proffered to the learned trial Judge in support of that contention, and applying an appropriate multiplier, the weekly cost capitalised at a figure over $7.8 million, which would not allow for housekeeping, domestic, handyman or driving help. 34. The appellant, on the other hand, contended at the trial that if it was right to suggest that the respondent needed 24 hours registered nursing care each day, which the appellant disputed, this was more appropriately given at a hospital such as Julia Farr Centre which could be provided, on the contention of the appellant, at a weekly cost of $1,575. Having regard to evidence suggesting that the Julia Farr Centre would not receive the respondent until she was aged 16, and on the footing of actuarial evidence calculated from that age to age 60 years, the appellant contended at the trial that the appropriate amount to allow for care at Julia Farr Centre or some such institution would be $1,877,400, to which should be added an additional sum of approximately $340,000 for the two year period to the age of 16, making a gross sum of the order of $2.2 million. 35. It will be seen from the observations which I have so far made, that the learned trial Judge was confronted with submissions on each side leading to a vast difference in the amounts which the parties suggested it was proper to award on this head. 36. In approaching his assessment of this head of loss, His Honour referred to, and clearly accepted, the evidence of Dr Clive Matthews, a general practitioner who had seen the plaintiff regularly since November 1988, Dr Yeo, a spinal rehabilitation specialist and head of a spinal injury clinic at Royal North Shore Hospital, Sydney, Dr Harald Fodstad, described as "a world authority on phrenic nerve pacers", and Sister Reynolds, who had nursed the respondent at Adelaide Children's Hospital and subsequently at home since May 1992. 37. His Honour observed that all of those witnesses were strongly of the view that the respondent "should be cared for in her own home, and by the provision, inter alia, of 24 hours of registered nursing care each day". 38. His Honour heard evidence also from Dr Peter Last, the former Director of the Julia Farr Centre, whose evidence was that in his view the respondent did not need 24 hour registered nursing care. He thought that four hours registered nursing care per day would be adequate, preferably in two sessions, and that for the rest of the time she should be cared for by "a small group of trained care attendants with input from specialists". Although some particular skills were needed in order to see that the respondent coped adequately with the respirator and phrenic nerve pacer, there was evidence to suggest that such skilled care-givers were available. 39. His Honour eventually came to the conclusion that the proper basis upon which to assess the award for the respondent's future care was to proceed on the footing that the respondent would be cared for, and live with, her mother and step-father until the age of 18. He thought that from then on it was appropriate to assess the damages under this head on the footing that she lived independently in her own or shared accommodation. 40. On the basis of those findings, His Honour concluded as follows:

    "In assessing the award for the plaintiff's future care, I
    consider a starting point is the capitalized cost of 24 hours a
    day attendant care service at $15.75 an hour, which amounts to
    $2,646 per week. Using a multiplier of $1,173 (see Exhibit P27), a
    capital sum of $3,103,758 is required. In addition I propose to
    allow the cost of a registered nurse for 4 hours per day at $22
    per hour. That amounts to $88 per day or $616 per week. That is
    substantially less than what is being charged by the Nurses
    Specialling Bureau, but substantially more than what is currently
    being charged by Sister Hunt. Using the same multiplier, I reach a
    capital sum of $722,568. I do not see why the care attendants
    cannot undertake any driving that is necessary for the plaintiff,
    and I make no allowance therefor. I allow a further sum of $20,000
    for domestic assistance from the date hereof until the plaintiff
    reaches the age of 18. The three sums added together amount to
$3,846.326." 41. The appellant submitted that in opting for an award based upon care in her own home as opposed to an institution, the learned trial Judge had wrongly accepted evidence of what was ideal for the plaintiff and in doing so had departed from the "touchstone of reasonableness" emphasised in cases such as Sharman v Evans (1977) 138 CLR 563 and in this Court in Beasley v Marshall
(1986) 40 SASR 544. At first sight, there is considerable weight in that submission, but on reflection I have reached the view that it should be rejected. It is true that it will rarely be the case that a plaintiff suffering from such calamitous injuries should obtain an award based upon the provision at high cost of nursing and other care to be made available around the clock, tailored to her individual requirements. At least where the physical or mental health of the plaintiff would not be adversely affected by care in an institution, the cost of care in such a setting should be the basis of the damages awarded on this head if such care can be provided in that way at lower cost than the cost of alternatives such as care at home. (See Beasley v Marshall (supra) per King CJ at 575). 42. Beasley v Marshall was, of course, a rather different case, in that what was allowed for by the learned trial Judge in that case was not "the cost of an attendant to provide skilled nursing care ... but the cost of an attendant to protect the mother from physical violence" while she cared for the plaintiff's ordinary needs (per King CJ at 575). In that case, it was held that it was unreasonable to expect the defendant to bear the burden of an assessment which proceeded upon that footing, given that the cost of care in an institution was much less. 43. Of course, in all cases, there is the need to balance out the cost of providing nursing and medical care against health benefits to the plaintiff (Sharman v Evans (supra) per Gibbs and Stephen JJ at 573). In the application of those principles in the present case, however, the appellant faces two difficulties. 44. In the first place, the learned trial Judge was clearly well aware that it was incumbent upon him to make an award which was reasonable rather than one which was necessarily ideal. During the course of his reasons for decision he observed:
    "The plaintiff's case was presented by counsel and solicitors who
    are very experienced in compensation cases, and they spared no
    effort to present her claim in a way that often seemed to demand
    an assessment based on what would be the ideal requirements for
    the plaintiff rather than what would be reasonable in all the
    circumstances. I do not criticise them for doing so, but my task
    is not the same. There cannot be 'complete' or 'perfect'
    compensation. My task is to make a moderate assessment that is
    fair to both sides, and that involves allowing for the plaintiff's
    reasonable requirements." 45. In this case, the ideal might well have been an award based upon the provision of qualified nursing care for 24 hours a day. His Honour rejected that in favour of the provision of care-givers, supplemented by visits by a registered nurse. The evidence in support of the view that it was in the respondent's interest to be cared for at home rather than at an institution was strong. 46. The other hurdle faced by the appellant is that although regulations under the South Australian Health Commission Act were tendered in an endeavour on the part of the appellant to prove the cost of care at Julia Farr Centre, those regulations refer to the cost of what is described as an "accommodation fee", which is otherwise undefined. The regulations do not make it clear what is included in the accommodation fee, the highest level of which, according to the regulations, was to be charged at $283 per day. 47. The respondent has special needs for constant nursing care. Those needs were a reflection in part of the fact that the phrenic nerve system and ventilator required regular monitoring. Furthermore, the combination of problems associated with the plaintiff's quadriplegia and the loss of normal breathing function associated with the very high level of her spinal lesion, and the autonomic dysreflexia creates a constant life-threatening situation which required a high level of care. 48. The appellant simply failed to prove whether the so-called "accommodation fee" would cover all of the costs of the respondent's care at Julia Farr Centre, and left open the possibility that other costs would be involved. It would have been a simple matter to call an appropriate witness from the Julia Farr Centre to establish that the fee in the regulations would have covered all of the plaintiff's requirements, if that was the case. Such evidence is routine in cases of this kind, and its absence in this case is inexplicable. In those circumstances it was simply impossible for the learned trial Judge to conclude that the costs of care in an institution, and in particular at the Julia Farr Centre, would have been less than the cost of the regime of care in her own home which formed the basis of his award. 49. In my opinion, looking at the matter broadly, it was the learned trial Judge who was in the best position, after hearing what amounted to a considerable body of evidence from a number of experts and other witnesses, to reach a view as to how best the respondent's future care could reasonably be provided. The case was unusual, and despite the high cost of the provision of care at home, in my opinion, this was a case where an award which proceeded upon that footing was justified. In reaching that view, it should not be thought that circumstances will often arise in which a plaintiff suffering from the level of disability such as is apparent in this case could expect to have an award made on such a basis. The award in this case was justified only by reason of the respondent's particular and special needs, the strength of the evidence pointing to the desirability of care at home, and the deficiencies in the evidence called by the appellant. 50. For the reasons which I have given so far, I would dismiss the appeal as to this head of loss. It is necessary, however, to deal with the cross appeal. 51. In support of the cross-appeal, the respondent submitted that the learned trial Judge should have found that the respondent's condition required 24 hours a day registered nursing care, and that he erred in accepting the evidence of Dr Last that four hours registered nursing care per day, coupled with the provision of care by appropriately qualified care attendants, would adequately meet the plaintiff's needs. In my opinion, that submission should be rejected. Mr Last had wide experience in the management of quadriplegics over many years, and it was clearly open for the learned trial Judge to accept his evidence despite some other evidence to the contrary. 52. However, it is clear that there was an error in the arithmetical calculation by the learned trial Judge leading to the award under this head. 53. I have already quoted a passage from his reasons for judgment in which he sets out the calculations which he made. In the first two calculations referred to in that passage, His Honour adopted a multiplier of $1,173. That represented the actuarially calculated value of $1 per week continuing for the life of the plaintiff, discounted by 20%, but commencing from her 18th birthday. Insofar as these calculations were dealing with the cost of the respondent's care from the date of judgment, His Honour should have used the figure which is included in actuarial tables with which he was provided for the period commencing on 22 September 1992, which is close to the date of the judgment. Calculated from that date, the figure is $1,354. Adoption of that multiplier would increase the capital sum for day attendant care from $3,103,758 to $3,582,684, an increase of $478,926. 54. As to the second calculation, that is, the cost of a registered nurse for four hours a day, apart from arguing that His Honour had again adopted the wrong multiplier, an argument which must succeed for the reasons already given, the respondent contended in her cross appeal that $22 per hour was lower than a reasonable market cost for the provision of such services. The respondent pointed to the figures which had been put forward in the evidence of Mr Finlayson, the manager of an organisation known as Nurses Specialling Bureau, which would have involved an hourly rate higher than $22. 55. It is clear, however, from the passage cited above that His Honour did take into account the evidence as to the charges made by the Nurses Specialling Bureau, but he thought that something between those charges and the charge being levied by Sister Hunt was appropriate. In the circumstances, I do not consider that His Honour fell into error in coming to that view. 56. However, even at $22 per hour, if the correct multiplier of $1,354 is to be applied, the amount allowed for this element in the award increases from $722,568 to $834,064. 57. I would allow the cross appeal so as to increase the two amounts to which I have referred to the extent indicated, which would increase the total of the three sums referred to in the calculation under this head from $3,846,326 to $4,436,748, an increase of $590,422. Loss of Domestic Capacity The learned trial Judge approached the award under this head in the manner which finds expression in the following passage from his reasons:
    "I consider the plaintiff has proved an entitlement to an award
    for loss of domestic capacity (cf Daly v General Steam Navigation
(1980) 3 All ER 696 at 700-702). She has the ability to plan and
    supervise, but not physically to do the cooking, shopping,
    cleaning, washing and ironing. I am not persuaded that the
    defendant should also pay for the cost of employing a handyman or
    gardener. They are costs that the plaintiff would have incurred
    when she lived independently and without any disability. Mrs
    Burford currently pays a Mrs Small $10.35 per hour for domestic
    work. The plaintiff's counsel has suggested $500 a week for a
    live-in housekeeper. I propose to accept that figure and I allow a
    capital sum of $586,500." 58. In his Notice of Appeal the appellant complains that either no figure should have been allowed, or if it was proper to allow for anything under this head, the amount awarded was manifestly excessive. 59. While the respondent has not cross appealed as to this head of loss, she contended that if anything the learned trial Judge awarded less than was proper. The appeal as to this loss was not the subject of extended argument by the appellant, but if I understand the submissions of Mr Walsh, the gravamen of the appellant's complaint is that it was excessive having regard to the totality awarded on the other heads of loss. 60. There can be no doubt that the respondent has lost the capacity to attend to household chores, such as cleaning, washing and cooking. Furthermore, the impairment of her capacity to do those things is productive of financial loss, in that replacement of the lost capacity will be a recurrent expense to her. 61. It is true that one must avoid duplication under the various heads upon which as assessment proceeds, but I am unable to accept the contention that there is an over-lapping which would taint this aspect of the award with error. 62. I would dismiss the appeal as to this head of damages. Future Paramedical Supplies The appellant appeals against the learned trial Judge's award on this head of $405,000. 63. The respondent proved a need for a large number of paramedical supplies which would have to be regularly replaced for the rest of her life. His Honour received in evidence a schedule tendered by the respondent (exhibit P15). The schedule set out a description of the various items which would need regularly to be replaced, for example, catheters, enemas, surgical gloves, tracheostomy tubes, various pads and dressings and batteries. The schedule then set out the cost of each individual item, or pack of items, and in subsequent columns tabulated the average weekly usage and the average weekly cost. 64. The total appearing in the schedule of the amounts set out under the heading "Average Weekly Cost" was $594.98. That figure must in some way have been adjusted, as His Honour indicates that the average weekly cost of the items contained in the schedule was $521.48. 65. Be that as it may, using a multiplier of $1,350, counsel for the respondent invited the learned trial Judge to award not less than $700,000 under this head. 66. The appellant referred to a book of calculations (D32), which had been tendered at the trial by the appellant, which took the form of an analysis of the items set out in the schedule , based upon the historic cost of what had been paid for corresponding items in the past. It appears from the evidence that the respondent had not been put to any expense with those items in the past, in that they had been supplied by the Regency Park Centre. From those figures, the appellant was able to extract an average weekly consumption in terms of expenditure of only $105.87 per week. 67. A good deal of evidence was given by the respondent's mother as to this item of loss. She was clearly accepted as a witness of truth by the learned trial Judge. Other evidence was given by Dr Matthews, and by Dr Yeo. 68. On the appeal, Mr Walsh of counsel for the appellant contended that this Court should accept that P15 could not be regarded as representing the usage that was applied in the past, or that was going to apply in the future. However, if by usage he refers to frequency of use, it appears clearly from the evidence that Mrs Burford testified as to the average weekly usage in terms of the schedule which was presented by the respondent, and it was open to His Honour to proceed on that basis. 69. In dealing with this element in the assessment, the learned trial Judge observed:
    "Mr Walsh further relied strongly on Exhibit D32 which showed the
    cost of paramedical supplies supplied to the plaintiff by or
    through the Centre to the date of the hearing and they averaged a
    weekly consumption of only $105.87 per week. Mr Walsh made other
    criticisms. He submitted that the use of trachea suction catheters
    appears to be excessive, and particularly at night when the
    plaintiff does not have a cold. Further, if the bladder tapping
    procedure proves more successful, which is distinctly possible,
    some of the bedwetting supplies will not be required. A microwave
    oven may reduce the number of urinary catheters used. Greater, if
    not full time use, of the pacers will reduce, if not eliminate,
    the need for supplies associated with the ventilator. Paramedical
    supplies to date have been supplied by or through Regency Park
    Centre pursuant to arrangements between the defendant's insurer
    and the Centre. The plaintiff, of course, is not a party to these
    arrangements. Clearly there will always be a difference between
    bulk purchasing by semi-charitable government institutions and
    purchasing by private individuals. When the plaintiff is
    compensated by an award of damages she will be left to her own
    devices and her own funds to purchase these items." 70. Mr Walsh submitted that there was no evidence to support the view expressed towards the end of that passage when His Honour referred to the likely difference between bulk purchasing by semi-charitable government institutions and purchasing by private individuals. 71. In my opinion, it was not unreasonable for His Honour to allow for the fact that bulk purchasing (irrespective of the purchaser) is likely to result in a lower cost. His Honour very substantially discounted the calculations proffered by the respondent. In doing so, he exercised a judgment which he was in a far better position than this Court is in a position to make. In my opinion, he has not been shown to be in error in allowing the sum awarded. 72. I would dismiss this part of the appeal. Future Medical and the Like Expenses His Honour allowed $140,000 for future medical expenses. The appellant complains that that amount was "manifestly excessive and cannot be justified on the evidence before a (sic) court". 73. It is true that there was a paucity of evidence on this topic, and His Honour remarked during the course of his reasons that he "found it very difficult to fix what is reasonable". 74. It was the general practitioner, Dr Matthews, who spoke of what he anticipated to be routine medical requirements which would arise in the future. The learned trial Judge was invited by the respondent to make an award based on a weekly figure of $200, which by applying the multiplier of $1,350 became a capital sum of $270,000. 75. In awarding substantially less than that amount, it has not been demonstrated that His Honour fell into error. Clearly, the respondent will have substantial ongoing expenses of this kind. 76. I would dismiss the appeal on this head. Future Transport Requirements 77. His Honour found that the respondent "undoubtedly needs a specially modified van that can accommodate a wheelchair, that is aid-conditioned, that has a hydraulic hoist and a car phone facility". 78. Up to the time of trial, she used a van which had been an ambulance and which was converted to answer to her needs. That had been bought in September 1990 at a cost of about $45,700. It appears that its useful life was, by the time of the trial, all but spent. 79. The respondent submitted at the trial that the allowance for the rest of the plaintiff's life, including the cost of a driver and the cost of replacement vehicles, should be of the order of $500,000. His Honour described that claim as "manifestly excessive". 80. The learned trial Judge took into account the evidence of the witnesses who spoke in one instance of a converted Toyota costing $13,200, and a Mitsubishi van which cost $25,000, including the installation of a hydraulic lift. 81. The appellant suggest to the learned trial Judge that he order a total amount on this head of $90,000. 82. While it is true that there is a good deal of uncertainty in the evidence, it does not appear that $150,000 is an unreasonable amount to allow for the extra expenses likely to be incurred by the respondent in modifying and fitting out vehicles to meet her requirements for the rest of her life. The appellant had the benefit of a finding excluding any allowance for a driver, as he considered that driving could be done by the care attendants I would dismiss both the appeal and the cross appeal as to this item. Future Housing Requirements 83. Under this head the learned trial Judge awarded $150,000. The respondent's cross appeal alleging that that amount was inadequate was not pressed, but the appellant has maintained its appeal against that award. 84. At the trial, the respondent's claim fluctuated substantially. She led evidence from an architect, Mr Earle Scott, as to the cost of a house, excluding land, which would be suitable for the respondent, her family and the nurses at approximately $2.1 million. His Honour found, however, and was clearly right in doing so, that the design offered by Mr Scott was for the respondent's "ideal rather than reasonable requirements". 85. It appears that the final submission of the respondent's counsel was that it was appropriate for an award in the region of $300,000. 86. An issue arose as to whether or not it was correct to approach this aspect of the matter upon the footing that what should be allowed for is the cost of erecting a special extension at the rear of the respondent's step-father's house. In my opinion, His Honour was correct on the evidence in declining to approach the matter in that way. Instead, he allowed what he considered to be the reasonable cost of "adapting the sort of house that the plaintiff would live in if she was not disabled, to meet her special requirements". 87. It is unnecessary to go through the evidence of the various witnesses who were called on this topic. It is sufficient to indicate that, in my opinion, the attack mounted by the appellant fails, and I would not disturb this element in the award. Fund Management Fees His Honour awarded $230,000 for this head of loss. In his Notice of Appeal, the appellant complains:

    "That the sum of $230,000 for management fees ought not to have
    been awarded at all. Alternatively, management fees should have
    been awarded on the basis only that the plaintiff required a
    manager to age 18 years. Further in the alternative, that the sum
    of $230,000 was manifestly excessive and cannot be justified on
    the evidence before the Court." 88. On the hearing of the appeal, the appellant contended, that while she was physically disabled, the respondent's mental condition was unaffected by the accident injuries, and that at least from the age of 18 years there was no reason why she should not be regarded as competent to make her own decisions as to the investment and application of the fund represented by the award. 89. The appellant then referred to the evidence of Public Trustee, Ms Worrall, who gave evidence that if the funds were managed by Public Trustee there would be an initial capital payment to Public Trustee of some $32,000, and that annual charges would approximate $300 per week if the fund was as high as $5 million, or $150 per week if it was as low as $2.5 million. 90. The appellant's contention before the learned trial Judge, and before this Court, was that on the basis of that evidence, and on the assumption that an award should only be made to the age of 18 years, some four years only should be allowed at, say, a periodic cost to Public Trustee of $15,000 per year, amounting to $60,000, together with the so-called capital sum of $32,000, giving a total of $92,000. 91. In my opinion, the approach suggested by the appellant is erroneous. While it is true that the respondent is not mentally incapacitated, unquestionably the need to manage a fund of the magnitude of the award will compel her to engage professional advisers for the rest of her life. Her physical immobility means that those advisers will either have to come to her, or she will have to have transport and assistance to attend upon them. 92. It is clear, having regard to those matters, that the respondent will have additional costs of managing the fund referable to her disabled condition. 93. In my opinion, the basis upon which the appellant suggests that this award should be assessed is rejected, and the appellant has not demonstrated any other ground upon which this element in the award should be interfered with. 94. I would dismiss the appeal as to this head of loss. Summary In the result, in my opinion, the award, before apportionment, should be adjusted by increasing the assessment for future earning capacity by $30,000, and for future care by $590,422, a total increase of $620,422. 95. The final judgment should be varied as appears from the following calculation: 96. Total damages as assessed by the learned trial Judge, inclusive of interest $7,415,075
    Increase by $620,422.00=$8,035,497.00
    Less 10% for contributory negligence $803,550.00=$7,231,947.00
    Less paid before trial $908,248.53=$6,323,698.47 97. I would dismiss the appeal and allow the cross-appeal for the purpose of increasing the judgment sum from $5,765,318.47 to $6,323,698.47.

JUDGE2 KING CJ I agree with the order proposed by Perry J and with his reasons therefor.

JUDGE3 DUGGAN J I agree with the view of Perry J that the appeal should be dismissed and the cross-appeal allowed for the purpose of increasing the judgment sum to the extent referred to in his judgment. I also agree with the reasons given by Perry J for the order which he proposes.