Dixon v Foote & Calvary Health Care Limited (No 2)
[2012] ACTSC 119
•July 24, 2012
SUSAN VIRGINIA DIXON v ANDREW FOOTE & CALVARY HEALTH CARE LIMITED (No 2)
[2012] ACTSC 119 (24 July 2012)
NEGLIGENCE – out-of-pocket expenses – health insurance premiums not recoverable
No. SC 778 of 2007
Judge: Sidis AJ
Supreme Court of the ACT
Date: 24 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 778 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SUSAN VIRGINIA DIXON
Plaintiff
AND:ANDREW FOOTE
First Defendant
AND:CALVARY HEALTH CARE LIMITED
Second Defendant
ORDER
Judge: Sidis AJ
Date: 24 July 2012
Place: Canberra
THE COURT ORDERS THAT:
verdict and judgment for the plaintiff in the sum of $284,427.16.
the defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis as agreed or assessed.
the exhibits will be retained for 28 days.
my reasons are published.
My reasons for judgment in this matter were published on 27 June 2012 when the proceedings were adjourned to allow for further submissions on various outstanding aspects, in particular the plaintiff’s claim for out of pocket expenses.
The defendant did not dispute the plaintiff’s clarification of her claim for the following expenses:
Cancellation of the Lord Howe holiday $1, 067.49 Airfare to bring carer from Perth $849.56 Future medication costs $13, 791.34
The issue remaining to be determined related to the plaintiff’s claim to recover costs of private health insurance incurred in the past and anticipated for the future. The plaintiff claimed that her ongoing health problems persuaded her that it would be prudent to purchase private health cover, a precaution she had not previously considered necessary.
For the past, she claimed this cost in addition to the out of pocket expenses incurred for treatment to the date of the hearing.
I rejected this claim. I considered that the most the plaintiff could ask of the defendant on this head of damage was that he reimburse her for reasonable medical costs incurred in the treatment of her ongoing health problems.
For the future, the plaintiff pointed out that she faced an uncertain and unpredictable course. She proposed, as an alternative to the assessment of her likely future needs, that the defendant meet the cost of private health insurance premiums for the balance of her life expectancy.
I did not accept that this was an appropriate basis for assessment. Health insurance purchased by the plaintiff would cover not only her ongoing bowel problems but any medical condition from which she might suffer in the future.
I concluded that, notwithstanding the particular unpredictability of the plaintiff’s condition, her expenses for ongoing treatment should be assessed by the adoption of the traditional method of estimating her most probable future needs.
In addition to the future medication costs of $13,791.34 I assessed those needs as follows.
In considering Dr Korda’s prediction that the plaintiff would face potential hospitalisation for partial bowel obstruction at 5 yearly intervals for the 38 year remainder of her life expectancy, I noted that in the eight years since surgery there have been no hospital admissions. The plaintiff has obtained Emergency Department treatment only. I accepted, however, that the medical evidence indicated that there was potential for more serious episodes requiring hospital admissions and I allowed $20,000 to cover limited periods of hospitalisation and associated general practitioner and specialist treatment.
I also accepted that the plaintiff faced a risk of total bowel obstruction for which a longer period of hospitalisation and associated surgery would be required. I assessed this risk as limited and allowed $10,000 to deal with this contingency.
The plaintiff said that she proposed to continue to travel and no allowance was made in her general damages for the loss of this aspect of her lifestyle. I noted that the plaintiff was unable to secure travel insurance against her ongoing bowel condition. In the circumstances, I considered it reasonable that she be allowed a sum to deal with the future prospect that treatment will be required while the plaintiff is overseas. Again, I considered the risk to be limited and I allowed $15,000 to deal with this contingency.
The result was that there will be a verdict and judgment for the plaintiff in the sum of $284,427.16, calculated as follows:
General damages $ 140, 000.00 Interest on one half $10, 850.00 Past out of pocket expenses
(including Medicare reimbursement)
$ 47, 393.57 Interest on past expenses $ 22,852.25 Future out of pocket expenses $58,791.34 Domestic care $ 4,540.00 $284,427.16
ORDERS
Verdict and judgment for the plaintiff in the sum of $284,427.16.
The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis as agreed or assessed.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.
Associate: James Middleton
Date: 24 July 2012
Counsel for the Plaintiff: Mr D. Hirsch
Solicitor for the Plaintiff: Bradley Allen Lawyers
Counsel for the Defendant: Mr F. J. Purnell SC
Solicitor for the Defendant: Ken Cush & Associates
Date of hearing: 23 July 2012
Date of judgment: 24 July 2012
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