Chantelle Dawn Burford (by Her Next Friend Ian Allan McFarlane) v Clifford Edward Allen No. SCGRG 1125 of 1990 Judgment No. 3627 Number of Pages 22 Damages

[1992] SASC 3627

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Damages - Plaintiff, then aged seven, hit from behind by motor car while riding bicycle on 17 June 1986 - compromise of liability on a 9096/10% basis in plaintiff's favour already approved - plaintiff's injuries resulting in permanent quadriplegia below the third cervical vertebra - very lengthy treatment in Adelaide Children's Hospital and Regency Park Centre for Young Disabled but plaintiff living at home with mother since 22 September 1988 - permanent loss of respiratory muscles and subsequent dependence on ventilator or phrenic nerve pacers to breathe - ability to use pencil, paintbrush and computer stick with mouth - plaintiff requiring assistance in virtually all activities of daily living - loss of 20 per cent of normal life expectancy - totally and permanently unemployable - whether award for future care should be based on institutional or home care - whether discount rate of 3 per cent should still be used - protection order made and managers appointed - total assessment $7,415,075 - after deducting 10 per cent for contributory negligence and $908,248.53 already paid, judgment entered for $5,765,318.47. Shelton v Collins (1966) 115 CLR 94; Todorovic v Waller (1981) 150 CLR 402; Sharman v Evans (1977) 138 CLR 563; Beasley v Marshall (1986) 40 SASR 544; Wilson v McLeay (1961) 106 CLR 523; Griffiths v Kerkemeyer (1977) 139 CLR 161; Wieben v Wain and Anor (1990) Aust Torts Reports 81-051; Daly v General Steam Navigation (1980) 3 All ER 696; Guidera v GIO of New South Wales Unreported judgment delivered on 16/1/89 by Studdert J in Supreme Court of NSW; Campbell v Nangle (1985) 40 SASR 161; Gladwin and Gladwin v Gladwin and Collins Unreported judgment delivered 12/2/92 by O'Bryan J in Supreme Court of Victoria and Lynch v Lynch and Anor (1991) Aust Torts Reports 81-117, applied. Farr v Schultz (1988) 1 WAR 94, distinguished.

HRNG ADELAIDE, 4-22 May, 18-19 June, 15,18,22 September 1992 #DATE 24:09:1992
Counsel for plaintiff:        Mr. R.A. Cameron with
  Mr. R.K. Genders
Solicitors for plaintiff:     Genders Wilson and Partners
Counsel for defendant:        Mr. Stephen Walsh QC
  with Mr. A.M.J. Hilditch
Solicitors for defendant:     Ward and Partners

ORDER
Damages assessed.

JUDGE1 MATHESON J The plaintiff, who was born on 17 May, 1979, was riding a bicycle along Grand Junction Road, Rosewater on 17 June, 1986 at 4.30 p.m. when she was hit from behind by a car driven in the same direction by the defendant. She sustained calamitous injuries resulting in permanent quadriplegia. As a medical witness put it, her degree of quadriplegia is the most serious imaginable compatible with life. She sued the defendant for damages. A compromise of the question of liability whereby the plaintiff will recover 90 per cent of her damages to be assessed was approved on 3 December, 1991. 2. It was put to me that the plaintiff's injuries and losses are unique and are such that her damages should be assessed at a substantially higher figure than in any case yet heard by any Court in Australia, the highest yet apparently being the award of $5,192,230 to Shane Gladwin by O'Bryan J in the Supreme Court of Victoria on 12 February, 1992. I note that even counsel for the defendant suggested that if I was to assess the plaintiff's damages on the basis that she would be cared for at home rather than in an institution, her claim, exclusive of interest or management fees, would be in the order of $5.6 million. I also note that the plaintiff was injured in an accident that occurred before the commencement of the Wrongs Act Amendment Act 1986, which imposes restrictions, inter alia, upon the assessment of damages for non-economic loss, and provides that no damages shall be awarded to compensate for the cost of the investment or management of the damages awarded. 3. 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. I also caution myself against compensating twice over for the one detriment. 4. I formed a most favourable view of the plaintiff, and for that matter of her mother and step-father, both of whom gave evidence. I agree with Dr. Matthews that the plaintiff is a courageous and special girl. I am satisfied that prior to the accident the plaintiff was a pleasant, happy, lively and reasonably intelligent girl, who was doing reasonably well at school. Her father died when she was 16 months old, and she was brought up by her mother who is 41 years of age. At the time of the accident, she and her mother and half-brother were living with Mr. Scott Burford (who married her mother on 5 April, 1990), and they all lived and still live in Mr. Burford's house at 14 Jennifer Road, Rosewater. Mr. Burford is employed as a bus driver with the State Transport Authority. 5. After the accident, the plaintiff was taken by ambulance to The Queen Elizabeth Hospital and then transferred to The Royal Adelaide Hospital. She was found to have suffered a haematoma at about the C3 level of the cervical spine. Her spinal cord function was disrupted when C2 subluxated on C3, resulting in the permanent and complete loss of motor power and sensation below C3. She also suffered a compound fracture of the right tibia and fibula. As she was unable to breath normally, a tracheostomy was inserted on 20 June to facilitate long term mechanical ventilation. On 23 June, she was transferred to the Adelaide Children's Hospital where she remained in intensive care for seven months. Although the injury to her right tibia and fibula recovered after a prolonged period in plaster, I am satisfied that this injury proved quite troublesome. The plaster was progressively lowered during her time in the Adelaide Children's Hospital and changed approximately every month. The plaintiff was worried by the smell. When the plaster was finally removed, she was disturbed by the appearance of her leg. 6. Whilst at the Adelaide Children's Hospital, the plaintiff developed significant behavioural problems. She refused to eat and lost a lot of weight. She was required to have a naso-gastric tube inserted to provide sustenance, and it was not removed until 5 February, 1987. She was frustrated and tired. Fortunately her mother and step-father were able to give her enormous help and encouragement. Her mother actually visited her every day for the entire seven months period and frequently slept at the hospital. She abandoned her work as a teacher's aide in which she had been employed for four years. I am satisfied that Mrs. Burford's presence and help was necessary in the precarious situation that the plaintiff then was. 7. The plaintiff was transferred to Regency Park Centre for Young Disabled on 21 January, 1987. Her behavioural and eating disorders gradually improved, and eventually she was able to go to the Regency Park School during 1987 and 1988. In late 1987 a chin control was installed in her electric wheelchair. She returned home to live on 22 September 1988. During 1989 and until the middle of 1990, she attended Croydon Primary School rather spasmodically because the work was too difficult for her. She had correspondence studies as well. 8. As a result of the nature and severity of her spinal lesion, the plaintiff has permanently lost the voluntary use of her respiratory muscles and is dependent on mechanical or other equipment to breath for the rest of her life. 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 a.m. "to rest her diaphragm". 9. On 8 May 1989 the plaintiff hit her foot on a door frame at school and fractured her right tibia. She was admitted to the Adelaide Children's Hospital. She had a major operation on 18 December, 1989 to correct her spinal curvature. She has had several significant urinary infections and several respiratory tract infections. She has had trophic skin ulcerations. Because her autonomic nervous system has been affected, as well as the central nervous system, she is subject to autonomic dysreflexia, a complication of high spinal cord injury, symptoms of which include sweating and hypertension. On 18 February 1992 she fractured her left femur and was admitted to the Queen Elizabeth Hospital. She was discharged with her leg in full fibre plaster, which was not removed until 19 March. Because of her loss of sensory perception and osteoporotic bones, she is more susceptible to fractures. She is permanently confined to bed or to a wheelchair, and dependent upon various forms of mechanical equipment of one kind or another to sustain her life. She is fully aware of her plight. 10. From 23 July 1990 and during 1991 she attended the Ferryden Park School and continued with a correspondence course. This year she is attending Woodville High School and is progressing reasonably well with her first year studies. Whatever school she has attended, she has been accompanied from leaving home to returning home by a nurse or by her mother. Non-economic loss It is clear that the plaintiff is entitled to a very substantial sum for non-economic loss, more particularly for loss of amenities and mental suffering, because she has not had pain. The award must also include an amount for loss of expectation of life. She had a very protracted period of hospitalisation and institutional treatment, and had great difficulty in coming to grips with the extent of her quadriplegia and her other problems. She was deprived of a normal family environment for a very long period of time. She had many problems with the initial fractures of her leg. Her behavioural disturbances, particularly at the Adelaide Children's Hospital, indicated the difficulties she experienced in adjusting to a state of dependency upon other people for every aspect of her existence. She has undergone operations for the implanting of the phrenic nerve pacers and for the straightening of her spine. She has had further leg fractures. 11. I observed the plaintiff in the witness box and at court, and at the request of her solicitors, I went to her step-father's house at Rosewater, and saw her bedroom and what has been done to alleviate her problems there and in other parts of the house. My visit made it easier for me to envisage how she went about her daily life. Many photographs depicting her activities and her equipment were tendered. 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. 12. The plaintiff was injured when she was very young and she has a lifetime of disability ahead of her. She has no effective movements in her upper or lower limbs. She has unpleasant and irritating and, indeed, dangerous involuntary muscle spasms. She has a paralysed bladder and must be catheterised every four hours. She has a complete loss of normal bowel function and requires an enema to make her bowels work. She tends to wet her clothing at odd times during the day and at night when she falls asleep. She regularly requires her linen and clothes to be changed and washed separately from other family members to prevent cross infection. She cannot dress herself. She cannot bathe or wash herself. She suffers a permanent predisposition to the effects and life-threatening complications of autonomic dysreflexia. She cannot feed herself. She requires assistance in virtually all activities of daily living. 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. As far as her life expectancy is concerned, there was really very little dispute, and I find on the probabilities that she has lost 20 per cent of the normal life expectancy. I award her $320,000 for non-economic loss, including loss of expectation of life, and of that sum I apportion $90,000 for the past and $230,000 for the future. Loss of earning capacity 13. Turning to the question of loss of earning capacity, there is no claim for past loss. I find that on the evidence of Drs. Yeo and Matthews and the psychologist, Ms. McAuliffe, that the plaintiff is totally and permanently unemployable. I do not understand the defendant really to argue to the contrary. I find on the evidence, and in particular of Ms. McAuliffe, that the plaintiff had average to above average prospects prior to the accident. I note that her mother is a steady, industrious, hard working person (as is her step-father), and it is significant that the plaintiff, notwithstanding appalling difficulties, has persevered well with her schooling. 14. Ms. McAuliffe said in her report, which I accept:
    "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." 15. On that evidence, the plaintiff's counsel asked me to start my assessment of damages for future loss of earning capacity on the basis of a loss of $425 net per week. I was reminded that in Shelton v. Collins (1966) l15 CLR 94 the High Court ruled that an award for future loss of earning capacity must have regard to the total period during which she could have been expected to earn income if her life span had not been curtailed by the accident. I propose to take a net weekly loss of $400 as a starting point. 16. It is convenient here to refer to the evidence of Mr. P.D.C. Stratford, a consulting actuary, and to a number of letters written by him to the plaintiff's solicitors and to the defendant's solicitors that were tendered in evidence. I also refer to the statement published by the High Court on 16 December 1981 before judgment was delivered in Todorovic v. Waller (1981) 150 CLR 402. The statement is published on p 409 and reads:
    "In an action for damages for personal injuries, evidence
    as to the likely course of inflation, or of possible future
    changes in rates of wages or of prices, is inadmissible. Where
    there has been a loss of earning capacity which is likely to
    lead to financial loss in the future, or where the plaintiff's
    injuries will make it necessary to expend in the future money to
    provide medical or other services, or goods necessary for the
    plaintiff's health or comfort, the present value of the future
    loss ought to be quantified by adopting a discount rate of 3 per
    cent in all cases, subject, of course, to any relevant statutory
    provisions. This rate is intended to make the appropriate
    allowance for inflation, for future changes in rates of wages
    generally or of prices, and for tax (either actual or notional)
    upon income from investment of the sum awarded. No further
    allowance should be made for these matters." 17. At p.424, Gibbs CJ and Wilson J in their joint judgment said: "We therefore concur in the view, to which we understand a majority of the Court is prepared to subscribe, that until this Court otherwise decides, a discount rate of 3 per cent should in future be applied and that no further allowance should be made for notional tax." (See also per Mason J at p.451, per Aickin J at p.460 and per Brennan J at pp.478-479). 18. In a number of Mr. Stratford's letters he uses an interest rate of 3 per cent per annum, and his letter to the plaintiff's solicitors dated the 17 September 1991 includes the following opinion: "The present value of an annuity of $1 per week net loss commencing on the attainment of age 16 and ceasing on the attainment of age 65 or prior death for a female born on 17th May 1978 is: $1,225." Senior counsel for the plaintiff, Mr. Cameron, submitted that for the purpose of capitalizing the plaintiff's future loss of earning capacity I should use $1,225 as the multiplier. 19. Senior counsel for the defendant, Mr. Walsh Q.C., sought to tender further calculations of Mr. Stratford in which he uses the interest rate of 5 per cent per annum. They give present values substantially lower than those calculated at the rate of 3 per cent. Mr. Walsh did not seek to call evidence from Mr. Stratford or anyone else to persuade me that 3 per cent was no longer the appropriate rate, but when I was considering my judgment, I decided that I should call the matter on for further argument. I queried with counsel whether 3 per cent was still appropriate nearly 11 years after the High Court statement. After hearing argument, and having regard to the terms of the High Court statement and judgments, and to the Wrongs Act Amendment Act 1986 which provides for the appropriate discount rate in causes of action arising after the commencement thereof, I decided not to reopen the case so that evidence could be called. I have decided that I should admit as exhibits Mr. Stratford's two letters dated 9 May 1992 and one dated 11 May 1992 (all previously marked D11 for identification) but ignore the calculations using an interest rate of 5 per cent. 20. The plaintiff accepts that some allowance must be made for expenditure which would have been incurred in producing the earnings (see Sharman v. Evans

(1977) 138 CLR 563 at p 577 and Luntz "Assessment of Damages" 3rd Edn. pp 43-44). I agree with her counsel that this must be done in a broad axe way as it is impossible to say precisely what that expenditure would have been. The defendant called an experienced chartered accountant, Mr. G. B. Brewer, who said that "the average direct cost for (the plaintiff) to earn income is $2500 per annum". I understand that figure to cover such expenses as transport to and from work, special clothing and union fees. In my opinion, the figure suggested is too high, but I will make some allowance. I also have regard to the observations of King CJ in Beasley v. Marshall (1986) 40 SASR 544. At p 577, his Honour said:
    "The assessment of the figure for the future impact of the
    totally destroyed earning capacity presents special problems in
    cases such as the present in which the injured plaintiff was a
    mere child at the time of the accident. Earning capacity
    depends upon acquired as well as natural talents; it depends not
    only upon the possession of talents but upon the desire and the
    will to use those talents for the production of income. Many
    children never enter the work force; others enter the work force
    but drop out for one reason or another. Many are victims of
unemployment, injury or illness." 21. I propose to use $1,220 as my multiplier (see Exhibit P27) and capitalizing a net weekly loss of $400, I reach a sum of $488,000. Weighing the scales between the plaintiff and the defendant, and allowing for favourable and unfavourable contingencies and other relevant circumstances, I award the sum of $350,000. Wilson v. McLeay and Griffiths v. Kerkemeyer damages 22. I turn to consider the claim for the visits of the plaintiff's mother to her in hospital and at Regency Park (see Wilson v. McLeay (1961) 106 CLR 523), which undoubtedly afforded comfort and assisted her recovery, and the claim for the many gratuitous services rendered to her by her mother and step-father ever since the accident (see Griffiths v. Kerkemeyer (1977) 139 CLR 161). The plaintiff was in The Royal Adelaide Hospital from 17 to 23 June, 1986, and Mrs. Burford spent very long hours visiting and caring for her. When the plaintiff was at the Adelaide Children's Hospital from 23 June, 1986 to 21 January, 1987, a period of thirty weeks, Mrs. Burford said that she was there every day from about 7 a.m. to 8 p.m. Indeed, she frequently slept at her daughter's bedside in uncomfortable circumstances. She decided to join the team providing nursing care to the plaintiff, and became expert in such matters as catheterising the tracheostomy tube and in the function of the ventilator. 23. The plaintiff was then at the Regency Park Centre until 22 September, 1988, a period of eighty-six weeks. Again Mrs. Burford visited the plaintiff every day without fail. Initially this was from 8 a.m. to 8 p.m. with a short break to enable her to pick up her son from school. When the plaintiff commenced school at the Regency Park Centre, her mother would visit her every week day from 3.30 p.m. to 8 p.m. and on Saturdays and Sundays between 9 a.m. and 8 p.m. Mrs. Burford devoted most of her life to the support and well being of the plaintiff. At the time of the accident Mrs. Burford said that she was earning approximately $300 per week net in the job she had to give up. She would have been earning substantially more six years later. I agree with counsel for the plaintiff that when a very young person is in a tense and frightening hospital environment with grave injuries and in a condition where her life is at stake, it is entirely reasonable for her to have as much comfort and consolation as her mother could provide. 24. Since the plaintiff has come home from the Regency Park Centre, Mrs. Burford has acted as a nurse for the plaintiff for significant periods. Her care has gone far beyond mere minor reorganisation of every day life and the usual parental chores. I accept that Mrs. Burford has cared for the plaintiff at least five hours per day every weekday and at least 12 hours per day on every weekend. During school holidays, Mrs. Burford has been required to care for her at least 12 hours per day. At various other stages, Mrs. Burford has filled in at very short notice when nurses were unavailable. She has frequently accompanied the plaintiff to school and attended to her while at school. She remains on call every night. Both Mr. and Mrs. Burford have been forced out of necessity to nurse her at night on occasions when circumstances have prevented the attendance of suitable nurses. Until late 1990, Mrs. Burford, had to take the plaintiff back to Regency Park Centre every afternoon after school for bathing for several hours. Each weekday morning she is engaged from 6.30 a.m. to 8.20 a.m. caring for her. She performs four to six loads of washing for her every day. She has attended to the onerous task of co-ordinating the large volume of equipment, medical and para-medical supplies that are required daily by the plaintiff. She has had a large amount of extra housework to do. Since the plaintiff returned from Regency Park, Mrs. Burford, on average, has co-ordinated nursing and ancillary staff for an hour to an hour and a half each day, and she has undertaken the processing of Workcover and taxation paperwork. She has also had to arrange and co-ordinate frequent doctors' appointments and has been required to have constant liaison with the plaintiff's teachers and schools. 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. It is not a case for a precise calculation, but for a broad axe assessment. Because Mrs. Burford provided nursing services to the plaintiff before she returned home, as well as affording comfort and consolation by her visits, I will fix one amount for Wilson v. McLeay and Griffiths v. Kerkemeyer damages. I award $100,000 for the past. I will consider whether an award for Griffiths v. Kerkemeyer damages for the future should be made after considering the award for future care. Special damages 25. Special damages are claimed at $877,572.23. Of this sum, $858,248.53 has been paid. What has not been paid is mainly fees for Dr. Matthews. Counsel for the defendant complains that in his accounts he has not differentiated between medico-legal attendances and purely medical attendances, and moreover he argues that his fees of $250 per hour were excessive. Unfortunately no real attempt was made to establish what were medico-legal attendances, and I do not think the evidence enables me to undertake the task. I formed a very favourable impression of Dr. Matthews who is clearly an outstanding and knowledgeable general practitioner. He has obviously taken enormous pains in relation to the plaintiff, and I have no doubt he helped alleviate many of her physical problems and many of her anxieties. However, I think it is unreasonable to expect the defendant to have to pay for consultations at $250 an hour. I think that $200 is reasonable, a fee which seems in fact to have been charged for some of his visits. It is quite impossible to work out how much should be deducted for these considerations, but wielding a broad axe I am prepared to allow a further sum of $17,000 for special damages, bringing the total to $875,249. Future care 26. The most difficult and potentially by far the biggest item in assessing damages in this sort of case is the award for future care. Mr. Walsh agrees that the plaintiff must have attendant care for 24 hours a day for the rest of her life, but Mr. Cameron submits that I should make an award for future care that would include the cost of a registered nurse for 24 hours a day. Her counsel has produced the following schedule of the weekly cost thereof (P.14):
    "5 x early weekday shift         $1,14.00
    5 x late weekday shift         $1,145.00
    5 x nightly weekday shift        $1,05.00
    3 x Saturday shifts             $975.00
    3 x Sunday shifts                $1,119.00
    Allowance for Public Holidays    $63.00
   $5,752.00 " 27. If a multiplier of $1,358 is used, as Mr. Cameron argues is appropriate (see Exhibit P16), the weekly cost capitalises at over $7.8 million, and that figure does not allow for housekeeping, domestic, handyman or driving help. 28. Mr. Walsh argues that if the true view is that the plaintiff needs 24 hours registered nursing each day, which he disputes, she should be institutionalized at a hospital like the Julia Farr Centre, the fee for which would be $225 per day, making a weekly cost of only $1,575. On the evidence of Dr. Last, it appears that Julia Farr Centre would not take the plaintiff until she was 16. The defendant's counsel submitted I should therefore make a calculation using a multiplier of $1,192 being the cost of an annuity of $1 for the plaintiff from the age of 16 years to the age of 60 years, which leads to a capitalised sum of $1,877,400.00. He agreed that the cost of two years' home care would have to be added. On the evidence of Mr. Schiller, attendant care would cost $378.00 a day. To this, counsel submitted, I should add the cost of a registered nurse for four hours a day, namely $88, (Mr. Schiller's figure), making a total daily cost of $466, or a weekly cost of $3,262, and an additional sum of $339,248 for the two year period to the age of 16. The two sums added together amount to over $2.2 million. I have said enough to demonstrate that potentially there is a vast difference in the amount to be awarded on the differing approaches. 29. It is convenient to state here that the only evidence before me in relation to the cost of care at Julia Farr Centre was contained in Regulations under the South Australian Health Commission Act that were tendered. I think it is likely that the Julia Farr Centre fees for the plaintiff with all her problems and the need to monitor them closely would actually include substantial fees above mere accommodation fees. However, I was not supplied with those details, and the exercise of comparing the cost of future care at home and institutional care is made more difficult than usual. 30. The plaintiff made it clear to me that she wishes to live independently, and to use her words, "to be like everybody else and try and support myself". She clearly did not want to return to the Regency Park Centre, and although she was not actually asked the question, I have no doubt she would be upset to be institutionalized again after being home for four years, perhaps particularly at Julia Farr Centre where the other patients are mostly substantially older and often gravely handicapped. 31. The plaintiff called three medical witnesses, her general practitioner, Dr. Clive Matthews, who has seen the plaintiff regularly since November, 1988, Dr. John Yeo, one of Australia's foremost spinal rehabilitation specialists and head of a very large spinal injury clinic at The Royal North Shore Hospital in Sydney, and Dr. Harald Fodstad, a world authority on phrenic nerve pacers. She also called Sister F.A. Reynolds, who had nursed her at the Adelaide Children's Hospital, and has nursed her regularly at home since 4 May 1992. All these witnesses were strongly of the view that the plaintiff should be cared for in her own home, and by the provision inter alia of 24 hours of registered nursing care each day. I acknowledge that there is no express evidence that institutional care would be detrimental to the plaintiff, a gap in the evidence which in some cases might be decisive, but I regard it as significant in this case that the defendant's counsel did not put to the plaintiff's witnesses that it would be appropriate for the plaintiff to live and be cared for at the Julia Farr Centre or any other institution, notwithstanding that at pp.335-336 of the transcript the following exchange took place between Mr. Walsh and me when Dr. Matthews was in the witness box:
    "HIS HONOUR: Is it the defendant's case this girl should be
    in an institution?
    MR WALSH: As a matter of argument at the end of the day?
    HIS HONOUR: That's what I'm asking.
    MR WALSH: Yes, or alternatively, I don't wish to discuss
    what we will be putting to your Honour at the end of the day
    now, particularly in front of witnesses, but it involves a
    comparative process, a comparison process, or process of
    comparison.
    HIS HONOUR: I wonder whether you want to put that to the
    witness.
    MR WALSH: I think we know his views. He has already given
    that view and he knows - I don't want to discuss this,
    particularly in front of the witness.
    HIS HONOUR: All right.
    MR WALSH: The difficulty with this witness is that he
    doesn't know the institutions, so I don't think I can
    explore that any further." 32. In connection with the cost of future care I refer to Beasley v. Marshall
(1986) 40 SASR 544 where the plaintiff had sustained brain injuries and was aged 14 at the date of the assessment. I propose to quote at length from the judgment of King CJ At pp.574-576 his Honour said:
    "The learned trial Judge did 'not find it proved on the
    evidence that the accommodation which could be provided for
    Jason in any institution in this State is sufficiently adequate
    for him when compared with that in his mother's home' and on
    that basis held that 'it is reasonable that the defendant should
    be required to bear the very substantial additional cost of
    allowing Jason to remain in Mrs. Beasley's home for as long as
    practicable'. To enable the respondent to remain in his
    mother's home it would be necessary to employ an attendant
    full-time, except for the respondent's sleeping hours, to
    protect Mrs. Beasley against physical assault by the respondent.
    The Judge considered that that was reasonable and on that
    basis assessed damages for the cost of future care at $700,000.
    This sum is greatly in excess of the cost of the respondent's
    care at an institution. The principles which govern an
    assessment for the cost of future care in a case such as the
    present were considered by the High Court in Sharman v. Evans
(1977) 138 CLR 563. An issue in that case was whether damages
    for the cost of the future care of the respondent should be
    assessed upon the footing of care in a hospital or care at home
    at much greater cost. I quote from the joint judgment of Gibbs
    and Stephen JJ:'The appropriate criterion must be that such
    expenses as the plaintiff may reasonably incur should be
    recoverable from the defendant; as Barwick CJ put it in
    Arthur Robinson (Grafton) Pty. Ltd. v. Carter "The question
    here is not what are the ideal requirements but what are the
    reasonable requirements of the respondent" and see Chalcough v.
    Holley, per Windeyer J. The touchstone of reasonableness in the
    case of the cost of providing nursing and medical care for the
    plaintiff in the future is, no doubt, cost matched against
    health benefits to the plaintiff. If cost is very great and
    benefits to health slight or speculative the cost-involving
    treatment will clearly be unreasonable, the more so if there is
    available an alternative and relatively inexpensive mode of
    treatment, affording equal or only slightly lesser benefits.
    When the factors are more evenly balanced no intuitive answer
    presents itself and the real difficulty of attempting to weigh
    against each other two incomparables, financial cost against
    relative health benefits to the plaintiff, becomes manifest.
    The present case is however one which does to our minds allow
    of a definite answer; it is a case of alternatives in which the
    difference in relative costs is great whereas the benefit to the
    plaintiff of the more expensive alternative is entirely one of
    amenity, in no way involving physical or mental wellbeing.'
    The evidence does not establish to my mind that the physical or
    mental health of the respondent would be adversely affected by
    care in an institution. There is evidence that remaining at
    home with his mother would be the ideal method of coping with
    his problem but there is also some conflict in the medical
    evidence as to whether care in his mother's home would be
    advantageous to his wellbeing, especially as he grows older. It
    is to be remembered that what has been allowed by the learned
    Judge is not the cost of an attendant to provide skilled nursing
    care to the respondent but the cost of an attendant to protect
    the mother from physical violence while she cares for his
    ordinary needs. One must question the psychological value to
    the respondent of living in a situation which is so frustrating
    to him as to lead to physical violence to his devoted mother.
    The evidence is that he displays no such violence to other
    persons. But even if living at home would be of psychological
    benefit to the respondent, there is no evidence that residence
    in an institution would be detrimental to his health or that it
    would involve a risk to his mental health of sufficient
    significance to justify the greatly additional cost of providing
    protection for his mother at home. It is true that there is no
    institution in Adelaide which is ideally suited to the
    respondent's condition. Patients all have their individual
    needs dictated by their particular condition of physical or
    mental health. It is not unusual to find that there is no
    institution precisely tailored to the needs of the individual
    patient. Perhaps such an ideal matching of institution to
    particular need is rare. A patient whose condition or
    disposition renders home care impossible must choose between the
    available institutions that which is most suited to his needs.
    Reasonableness in allowing damages for future care must be
    determined in the light of the standard of health care
    prevailing in the community. An injured plaintiff is entitled
    to the cost of future care according to the prevailing
    standards. It seems to be that according to the ordinary
    standards prevailing in the community, a person who is unable to
    remain at home because of a disposition to be violent towards
    others must be cared for in an institution. That is the
    ordinary method prevailing in the community of dealing with such
    unfortunate cases. The evidence does not show that the adoption
    of that method would be detrimental to the respondent's mental
    or physical health or that the method of remaining at home with
    his mother, protected by an attendant, would produce a benefit
    to his health commensurate with additional cost involved. I do
    not think that the learned Judge was justified in assessing the
    damages on the latter basis." 33. It is convenient to mention here that I regard the facts in Beasley v. Marshall and in another case referred to in argument, namely Farr v. Schultz
(1988) 1 WAR 94, as distinguishable from the facts here. I add a reference to the remarks of Kneipp J in Wieben v. Wain and Anor (1990) Aust. Torts Reports 81-051 at p 68189. 34. Apart from the thrust of the medical and nursing evidence to which I have referred, the evidence given by several defence witnesses, which I accept, (including Mr. Richard Llewellyn, himself a quadriplegic and a former adviser to the Premier on the disabled, Mr. Dunn, an architectural technician employed by the South Australian Housing Trust, and Mr. Schiller, also a quadriplegic and a Director of Professional Home Care Services) indicated, what I myself have increasingly noticed, that there has been a swing in community attitudes in favour of deinstitutionalization, in favour of independent living and in favour of reintegration into the community as soon as possible of gravely disabled people. I think this probably accounts for some institutions closing recently. 35. In all the circumstances, I have decided that I should compensate the plaintiff on the basis that she continues to live with her mother and stepfather until the age of 18 and then lives independently in her own or shared accommodation. Her mother will then be 46, and without intending her any disrespect, I think she will be an old 46. I have also decided on the whole of the evidence that I should not compensate her on the basis of providing 24 hours' care by registered nurses. The defendant called quite a body of evidence indicating that people with comparable disabilities to those of the plaintiff can be satisfactorily cared for in their homes by care attendants who are not registered nurses. This evidence was the more persuasive because it is obvious to me that this plaintiff knows what is necessary for her care very well indeed, and is quite capable of instructing her care attendants. 36. In addition, the defendant called Dr. P.M. Last, a very experienced physician, whose appointments include that of clinical superintendent at the Julia Farr Centre from 1983 to 1990. He said a lot of quadriplegics were cared for there including a woman aged 19 who was on a ventilator and he was familiar with their needs. He said that care attendants can be trained to do all the specific tasks that are required in the care of a quadriplegic, including suction catheterisation of the tracheostomy, urinary catheterisation and performing enemas. They can develop skills in the observation of and monitoring of dials, read blood pressure and so on, and learn to observe (and react promptly) to such things, for example, as sweating and colour changes. They can learn to exercise judgment, including the negative judgment of when not to summon help. Dr. Last said he had seen all this occur repeatedly. He recommended for the plaintiff a small group of trained care attendants with input from specialists. The training and the relevant specialists are available at The Queen Elizabeth Hospital. He said the plaintiff does not need 24 hour registered nursing care, and he pointed out that until early May this year she has not had that. He said four hours registered nursing care per day would be adequate, preferably in two sessions. He said the critical thing was for the care attendants to know the person involved. I accept Dr. Last's evidence on these matters. 37. The defendant also called a Mr. P.A. Schiller, who is a quadriplegic himself and a director of a company called Professional Home Care Services. About 50 per cent of the company's clients are confined to wheelchairs. He has one client who is a quadriplegic reliant upon a respirator and phrenic nerve pacers called Kiralee Wilson. She is 21 years of age. He has arranged a group of about eleven care attendants for her and they are trained in her individual needs. They provide 24 hours' care. They have provided the service to her since October 1990. She lives with her sister in a private home at Malvern. They have not had to use a registered nurse so far. All the care givers have been trained at The Queen Elizabeth Hospital in relation to the ventilator. Mr. Schiller's company charges $15.75 all inclusive per hour for care attendants. The plaintiff's counsel criticized the defendant for not calling Kiralee Wilson, but I accept Mr. Schiller's evidence. 38. Finally, the defendant called a Mr. David Foster. He gave evidence about his wife, Hilary Crawford. She had a lesion at C1/C2 and is a quadriplegic. They live together in a house at Strathalbyn. She also has phrenic nerve pacers and has built up the use of them to 22-23 hours per day. The rest of the time she is on a ventilator. He does everything for her including suctioning secretions from her lungs, changing urinary catheters, changing tracheostomy tubes and so on. She has an in-dwelling supra pubic catheter. Care attendants provide 28-30 hours per week, and registered nurses 10 hours per week. Her care attendants provide a complete range of care services. 39. 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. Loss of domestic capacity 40. 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 pp 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. 41. Although as will be seen later in these reasons, I make allowance for fund management costs from the date of this judgment, I propose to allow for the gratuitous services of the plaintiff's mother and stepfather from the date hereof until the plaintiff reaches 18. Those services will include some work in connection with arrangements for care attendants, nurses, doctors and so on, but gradually lessening as the fund managers do more. In allowing for 24 hours of care attendants and four hours per day for nursing, it is unnecessary to allow as much as I otherwise would for the actual care of the plaintiff, but Mrs. Burford especially will undoubtedly continue to do extra housework, washing, driving and so on for the plaintiff. I allow $20,000 for the period until the plaintiff is 18. Future paramedical supplies 42. A substantial item in the plaintiff's damages is the cost of future paramedical supplies. A comprehensive schedule thereof was admitted in evidence as Exhibit P15 and explained in the evidence by Mrs. Burford. The average weekly cost of the items contained therein is $521.48. Using a multiplier of $1,350 Mr. Cameron has sought an award of not less than $700,000. Mr. Walsh has argued that Exhibit P15 is not correct, and that there is no independent evidence to justify the frequency of use of the items listed therein claimed by Mrs. Burford. He argues that supporting evidence should have been called from one or more of the specialists concerned with the plaintiff's treatment at The Queen Elizabeth Hospital. 43. 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. 44. 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. 45. Wielding a broad axe, I think I should compensate the plaintiff on the basis of a weekly cost of $300, and using a multiplier of $1,350, I award the sum of $405,000. Future medical and like expenses 46. Dr. Matthews listed the following future routine medical requirements - probably one or two monthly visits to the spinal injury clinic, probably three-monthly assessments at The Queen Elizabeth Hospital thoracic unit, probably bi-yearly urinary tract assessments, probably yearly orthopaedic assessments, probably three-monthly examinations of the urine by microscopy and culture, regular psychiatric consultations at a frequency to be determined by prevailing circumstances, probably two or three visits to hospital per year for respiratory/urinary tract infections and regular access to general practitioner advice and treatment. Counsel for the plaintiff suggested I should award an amount based on a weekly figure of $200 using a multiplier of $1,350, or a capital sum of $270,000. I think that is an excessive amount. I am bound to say that I have found it very difficult to fix what is reasonable, but obviously it should be substantial for a young person with her grave disabilities. Doing the best I can, I award $140,000. Future phrenic nerve pacer requirements 47. The plaintiff's counsel has submitted that I should include an amount in the plaintiff's damages for future phrenic nerve pacer replacements. Dr. Fodstad gave evidence that approximately every ten years the plaintiff will require further surgery to replace and update her phrenic nerve pacers at a cost of $US30,000, plus hospital and surgeon fees. Counsel for the plaintiff submitted, therefore, that I should allow $A40,000 every ten years or approximately $75 per week. On this basis he reached a capitalized sum of $A104,461.54. Dr. Fodstad said that although the pacers only have a 10 year warranty from the manufacturer, the manufacturer also states that they will last a lifetime. I accept that new receivers and a new transmitter will be necessary at the same time, but I think the approach of the plaintiff's counsel was unduly pessimistic. I accept that the replacement procedure is done surgically and that probably two days need to be spent in hospital. The defendant's counsel argued that I should assess compensation under this head on the basis of the plaintiff requiring replacement twice in her lifetime and suggested a figure of $50,000-$60,000. I allow $70,000. Future wheelchair requirements 48. Turning to the claim for the provision of wheelchairs, I find that the plaintiff has a need for three wheelchairs, an electronic wheelchair so that she can propel herself, a folding manual wheelchair that she can take in a car and a shower chair. No evidence was called from any manufacturer as to the cost of these chairs. Mr. Cameron submitted on Dr. Yeo's evidence that I should allow $10,000 every five years or $2,000 per year for the electronic wheelchair. This is equivalent to $48 per week. He submitted that I should allow $1,000 every four years for a manual wheelchair. This is equivalent to $4.80 per week. Finally he submitted that I should allow $600 every four years for a shower chair. This is equivalent to approximately $2.88 per week. These sums total $55.68 per week, and the capitalized sum is approximately $75,000. 49. Mr. Walsh reminded me that Mr. Llewellyn said that his electronic wheelchair cost him $8,000 and on that basis he submitted that I should allow $36 per week or a capitalized sum of approximately $25,000. That would not cover the replacement of the manual wheelchair or the shower chair. Once again it is impossible to make anything approaching an accurate assessment, and doing the best I can in all the circumstances, I allow $40,000. Future beds and associated requirements 50. Turning to bedding and associated requirements, it is not disputed that the plaintiff needs a special bed. The plaintiff tendered by consent letters from Sime Darby Furniture Pty. Ltd., manufacturers. They say that the cost of a fully electric bed with hi-low tilter and Fowler backrest being all electric operated, including bedsides and mattress is $7,650. They state that the expected life of such a bed is 15 years under normal use and with regular maintenance. 51. The defendant called a Mr. A.C. Payton, a divisional manager employed by S.A. Surgical Suppliers Pty. Ltd. His employer markets hospital beds, including one manufactured by a company called Nesbit Evans, which is an electrically operated tilting bed, and which can be broken at the base of the bed enabling what is called a knee bend or a cardiac break. It costs $3,600 including bed sides and mattress. He says the bed is manufactured to last 15 years under normal circumstances, but that they are in fact lasting a lot longer. The defendant's counsel pointed out that three of such beds in the plaintiff's lifetime would cost on today's money $10,200 but allowance must be made for an accelerated payment. He pointed out that there is no evidence as to the cost of the alleged additional linen and clothes, and he further argued that with the success of the bladder patting or an in-dwelling catheter, the problem with wetting should be solved. I allow $15,000 for beds, bedding and additional linen and clothing. Future transport requirements The issue of the plaintiff's transport requirements is a difficult one. She undoubtedly needs a specially modified van that can accommodate a wheelchair, that is airconditioned, that has a hydraulic hoist and a car phone facility. The plaintiff claims that the present van has reached the stage where it is no longer appropriate to her needs. It was formerly an ambulance and was adapted partly to meet the plaintiff's needs and partly to suit a family situation. It was acquired in about September 1990, and it would appear that it has cost about $45,700, including painting and some work on the brakes. Although it has only been off the road once for repairs, its rear door is becoming harder for the plaintiff to enter as she grows taller, and it gives her a rough ride over some level railway crossings. 52. The plaintiff called a Mr. Johnstone of Moeller Industries, and the effect of his evidence was that a van with the modifications that the plaintiff required would cost in excess of $100,000. The plaintiff also claimed that I should allow for the cost of a driver for four hours per day at $10 an hour or $280 per week. Mr. Cameron submitted that I should make an allowance of not less than $500,000 to include the cost of replacement vehicles. This sum allowed $38 a week for extra costs for the sort of vehicle required for fuel, maintenance, insurance and parking fees (I agree the award should allow for these things), and the present value of two subsequent vehicles. 53. I agree with the submission of Mr. Walsh that the amount claimed is manifestly excessive. I cannot ignore the evidence of the witness Llewellyn who has a converted Toyota that cost him $13,200, or of Mr. Foster who for transporting his quadriplegic wife has a Mitsubishi that cost $19,000 plus $6,000 for a hydraulic lift. Mr. Walsh conceded that I should make an award on the assumption of a twenty year life for the appropriate van and on the assumption that two further vans would be required. He argued that I should not allow more than $80 a week and that I should award approximately $90,000. My decision is to award $150,000, but I make it clear that I have not allowed for the cost of the driver in that amount, because I consider that the driving can be done by the care attendants. Alterations to house 54. Mr. Scott Burford gave evidence that he has outlaid moneys on his house to meet the plaintiff's needs, and the defendant does not dispute that the plaintiff should be awarded the approximate cost thereof. Payments include $10,000 to convert a room to become the plaintiff's bathroom, $2,500 for the driveway, $200 for concreting a garage extension, $4,000 for a storage attic, $600 for a wooden kitchen floor and the unspecified cost of the carport. Mr. Walsh suggests an award of $20,000, a figure which appears to me to be reasonable in all the circumstances, and I award that sum. Future housing requirements 55. The plaintiff called an experienced consultant architect, Mr. Earle Scott. He gave evidence relating to a house that he had designed which he said was suitable for the plaintiff and her family and nurses. He initially calculated that the cost of such a house, excluding the land, but including architects' and engineers' fees, was approximately $2.1m. There were a number of mistakes in his calculations, but apart from them, it became clear that he was designing for the plaintiff's ideal rather than reasonable requirements, and the plaintiff's own counsel in his final submission contended that an award in the region of $300,000 for future housing would be appropriate. 56. Notwithstanding the dedicated and competent work of the plaintiff's stepfather, I do not think it appropriate to compensate the plaintiff on the basis that she stays in the present accommodation. It is still cramped, understandably claustrophobic and unsatisfactory. Bearing in mind that the house is registered in the name of Mr. Burford, who has in any event been married before and has children of his first marriage, I do not think it appropriate to compensate the plaintiff on the basis of the cost of erecting special accommodation for her at the rear of Mr. Burford's house, albeit there is adequate space. I think the correct approach to compensation here is to allow 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. It is not possible to be very precise as to what those special requirements will be, but they obviously must include her own bathroom, air-conditioning, a hydrotherapy pool, permanent accommodation for a housekeeper and overnight accommodation for a care attendant. 57. The defendant called several witnesses on this issue, the evidence of whom substantially weakened the evidence of Mr. Scott. Mr. K.F. Dunn is an architectural technician who has been employed by the South Australian Housing Trust since 1984. He is constantly in contact with various institutions and housing cooperatives that provide housing for the disabled. The Trust builds or adapts premises for disabled persons. It has private clients. 58. The defendant also called Mr. B.R. South, a purchasing service supervisor employed by A.V. Jennings Homes for the last five years. He gave evidence about a standard home, to use his word, "customised" to meet the needs of a gravely disabled person. The total cost was $175,000 including the land. 59. Evidence was also given by Dr. Last and Mr. David Foster that was relevant to the cost of housing. 60. In Guidera v. GIO of New South Wales, an unreported judgment delivered on 16 January 1989 by Studdert J in the Supreme Court of New South Wales, substantial sums were awarded for the future housing of a male paraplegic aged 29 at the date of the assessment. His Honour said that the plaintiff must provide for his own home adapted to the needs of a paraplegic with the plaintiff's level of disability. The parties apparently agreed that the cost of appropriate modifications were $80,240. They also agreed on $3,486.88 for recurring costs for carpets. His Honour fixed a total of $32,882 for air-conditioning, including recurring and running costs. The capital costs of a heated, enclosed, normal sized pool were agreed at $40,260, recurring capital costs for pumps and the like were agreed at $3,486, and the capitalised cost of heating cost was agreed at $40,466.16, making a total sum of $84,212.16 for providing for a pool for 40 years including its heating. 61. In Gladwin and Gladwin v. Gladwin and Collins, Unreported Judgment delivered on 12 February 1992 by O'Bryan J in the Supreme Court of Victoria, O'Bryan J allowed the sum of $100,000 for the cost of what he called "a modest addition to the house of the" plaintiff's parents. 62. If I were to decide to compensate the plaintiff on the basis that she would live independently, Mr. Walsh suggested the sum of $90,000 in addition to the cost of the alterations already made by Mr. Burford. There are so many permutations both in the evidence and in contemplating the plaintiff's future that my task is extremely difficult, but doing the best I can in all the circumstances I award the sum of $150,000. Extra cost of telephone calls, water and electricity 63. Next, there is a claim for an award to meet the additional costs resulting from her disability for telephone calls, water, electricity and so on. Clearly the plaintiff will have additional telephone calls in connection with arrangements for care attendants and nurses, medical and hospital appointments and so on, and additional water will be required in connection with the substantially greater washing of bedding and so on, and additional electricity because of the various electrical equipment the plaintiff needs, including ventilators, suction units, wheelchair battery recharging, washing machines, driers and so on. Mr. Cameron suggests that I should allow a sum in the vicinity of $50-$75 per week or $65,000-$100,000 under this head. The defendant on the other hand points out that if the bladder tapping is successful and/or the plaintiff has an in-dwelling catheter, the plaintiff's wetting of the bed and clothes will be substantially reduced if not eliminated. The defendant agrees that there will be some additional use of the telephone, but points out how sketchy the evidence of Mrs. Burford was. He suggested a figure of $15,000 at the most. I allow $30,000 under this head. Increased entertainment and holiday costs 64. The plaintiff also makes a claim for what her counsel calls increased entertainment and holiday costs. There is no doubt that she needs to be accompanied by another person whenever she goes out on a social or recreational occasion. If she goes away on holiday, several people must go with her, (as was seen when she and her mother and stepfather went to the Gold Coast with a nurse in October 1991), and special arrangements will have to be made. Undoubtedly there will be occasions when the plaintiff's care attendant will be able to accompany her on outings at no extra cost, but I agree that some allowance must be made for this aspect also. The plaintiff claims $2,000 per year or a total of $50,000 under this head. I award $40,000. Interest I propose to allow $27,000 by way of a lump sum for interest on past non-economic loss, special damages allowed but not paid, the amounts awarded for Wilson v. McLeay and past Griffiths v. Kerkemeyer damages and for alterations to the house. I have allowed a small discount for the fact that the defendant paid $50,000 on account of damages on or about 19 October 1990. Fund management fees 65. The plaintiff has brought this action by her next friend Ian Allan McFarlane. He is a practising chartered accountant. The plaintiff's counsel has asked me to make a protection order under the Aged and Infirm Persons Act 1940, and to appoint Mr. McFarlane and his partner Patrick Henry Holroyd Hill joint managers of her estate pursuant to s.10. 66. Mr. Walsh conceded that I should make orders under the Act, but submitted that they should only last until the age of 18. As the plaintiff was not mentally infirm, Mr. Walsh submitted that after attaining the age of 18, the plaintiff would be capable of managing her estate. I do not agree. The Act can be invoked "by reason of physical infirmity", and the plaintiff has most grave and permanent physical infirmities. Apart from investing capital and applying the income therefrom, much care and time will need to be given to arrangements for care attendants, nurses, medical appointments and so on. I make a protection order pursuant to my powers under s.8a, and I appoint Messrs. McFarlane and Hill joint managers of the plaintiff's estate. Upon the undertaking of Mr. Hill that his firm will have the plaintiff's estate endorsed upon its professional indemnity policy which provides a cover of $15,000,000, I will not require a fidelity bond. Mr. McFarlane has already undertaken some "management" work for the plaintiff, but the plaintiff does not seek an award therefor. In his evidence, he said his firm would charge $166 an hour for a partner's time and $43 an hour for a secretary's time, but although he was pressed he could not really assist me on what I should award for fund management fees. His firm would not charge capital or income commission like Public Trustee. However, King CJ said in Campbell v. Nangle

(1985) 40 SASR 161 at p 192: "The reasonable and proper measure of a defendant's liability for fees of management are the fees which the Public Trustee is authorized to charge", and Mr. Cameron accepted that my assessment should proceed on that basis. 67. Mr. Walsh actually called Ms. JH. Worrall, who is the Public Trustee, to give evidence. Notwithstanding that the Regulations under the Administrationand Probate Act authorise a higher capital commission, she said that Public Trustee would only charge $32,000 for a fund over $2,500,000. On the sort of award that I told counsel I was contemplating awarding, the Regulations authorized a capital commission of about $63,000. Pursuant to the Regulations, Public Trustee would charge 5 per cent commission on income. 68. In Lynch v. Lynch and Anor 1991 Aust. Torts Reports 81-117 Grove J said at p 69,102, in a passage that I adopt:
    "Despite the capacity of actuaries to perform calculations
    it is my view that this ingredient of damages must be
    approached by very broad assessment. Two factors at least would
    prevent reliance upon mathematics, no matter how sophisticated.
    First, there must be an assumption of the rate at which the
    fund will earn interest which rate is likely to vary markedly
    over the span of fifty years... Second the capital is not
    designed to remain intact. The theory of damages award does
    involve an assumption that during and therefore at the end of
    life the compensated plaintiff should be no better placed than
    she would have been had the injury not occurred. It would not
    be anticipated that she would have a fortune in her elder years.
    Many of the items are for the purchase of goods and services
    and the hypothesis should not ignore that this will occur." (See
    also Campbell v Nangle, supra, per King CJ at p.193 and
    Beasley v. Marshall, supra, per Lunn AJ at p 572 and per
    Olsson J at p 584.) 69. I make it clear that in assessing the amount under consideration I make no special allowance for items such as financial institution duty, brokerage fees, preparation of income tax returns, legal costs, stamp duty and like expenses, (see Beasley v. Marshall, supra, per Lunn AJ at p 569 and per Olsson J at p 584). Further, in assessing the amount for fund management fees, I will exclude items which would not be part of the fund to be invested, namely the interim damages payment of $50,000, past Wilson v. McLeay and Griffiths v. Kerkemeyer damages of $100,000, special damages of $875,249.00 and alterations to Mr. Burford's house of $20,000. 70. I have had regard to the calculations handed to me by both counsel, but both assume a precision that is not appropriate. Taking a very broad view, I fix $230,000. 71. I summarize my assessment as follows:
  Past                Future
    Non economic loss         $ 90,000            $ 230,000
    Loss of earning capacity -   $ 350,000
    Wilson v. McLeay (past only) and Griffiths v. Kerkemeyer
    damages $ 100,000 $ 20,000
    Special damages (including $858,248.53 already
    paid) $ 875,249
    Future care   $ 3,846,326
    Loss of domestic capacity   $ 586,500
    Future para-medical supplies  $ 405,000
    Future medical and like expenses                $ 140,000
    Future phrenic nerve pacers   $ 70,000
    Future wheelchair requirements                 $ 40,000
    Future bedding   $ 15,000
    Future transport requirements                 $ 150,000
    Alterations to house  $ 20,000
    Future housing   $ 150,000
    Extra cost of telephone calls, water and
    electricity   $ 30,000
    Increased entertainment and holiday costs     $ 40,000
    Interest  $ 27,000
    Fund management fees  $ 230,000
    $1,112,249    $6,302,826    $1,112,249
   $ 7,415,075
    Less 10 per cent for contributory negligence    $ 741,508
   $ 6,673,567 72. From this figure I must deduct the sum of $908,248.53 already paid ($858,248.53 + $50,000). The plaintiff will have judgment for $5,765,318.47.