Dunbar v Carapellotti

[2001] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:              Dunbar v Carapellotti & Anor [2001] QSC 101

PARTIES:               ANDREW DUNBAR (by his next friend

KEITH DUNBAR)

(plaintiff)

v

RAYMOND CARAPELLOTTI

(defendant)

and

THE   TRANSPORT   ACCIDENT   COMMISSION   OF VICTORIA

(defendant by election)

FILE NO:                  No. 2418 of 1995

DIVISION:               Trial

DELIVERED ON:    9 April 2001

DELIVERED AT:     Brisbane

HEARING

DATES:  1 and 2 March 2001

JUDGE:  Helman J.

CATCHWORDS:       PERSONAL INJURIES – QUANTUM – permanent serious neurological disorder – application of Transport Accident Act

1986 (Vic), s 93(7)

Transport Accident Act 1986 (Vic), s 93(7)

John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109

COUNSEL:                W D P Campbell for the plaintiff

T Matthews for the defendant by election

SOLICITORS:          Murphy Schmidt for the plaintiff

Quinlan Miller & Treston for the defendant by election

[1]     HELMAN J:  This proceeding arises from a collision that took place in a street in Richmond, Victoria early in the morning of 9 December 1989.  The defendant was driving a motor vehicle registered in Victoria when it hit the plaintiff as he walked across the street.  As a result, the plaintiff suffered serious injuries and claims damages for negligence.  The defendant by election is a body corporate established by the  Transport Accident Act  1986 (Vic.).  The defendant did not appear at the trial, which then proceeded in his absence.  Liability to compensate the plaintiff is not in issue, so that the quantum of the plaintiff’s damages and the sum to be awarded to the plaintiff are the only issues for my determination.

[2]         The plaintiff was born on 14 February 1966 and so was twenty-three years old when he was injured.  He was taken by ambulance to St. Vincent’s Hospital, Fitzroy

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where he was found to be unconscious and to have sustained a severe closed head injury. He was admitted to the neurosurgical unit.  A computerized tomography scan   demonstrated   multiple   intracerebral   shearing   haemorrhages   particularly involving the deep right hemisphere structures and diffuse cerebral oedema.  X-rays showed a fracture of the left radial head, fracture of the right superior pubic ramus, and fracture of the mandible.  On 18 January 1990 he was transferred to Vaucluse Hospital, Brunswick for specialized neurosurgical rehabilitation.  He was in a coma for some months, slowly emerging from it after approximately five months.  It was then that he was able to demonstrate for the first time a capability to communicate, although he was ‘non-verbal’ for more than a year.  He underwent three operations to release contractures of limbs:  in September 1990, March 1991, and May 1991. He remained in the Vaucluse Hospital until January 1993 when he was transferred to the Maristowe Hospital.  He stayed there for another five months until he went home  to  live  with  his  parents  in  the  small  village  of  Maclagan  in  south-east Queensland forty-four kilometres from Dalby, near the Bunya Mountains.

[3]        The plaintiff’s injuries have now stabilized, but he has been left with serious neurological impairment which will be permanent.  Cognition is impaired;  he has limited   short-term   memory   capabilities,   and   limited   medium-term   storage processing capabilities.  He can, however, participate in an intelligent conversation. He suffers from diplopia, the effects of which he can overcome when using his computer by closing his left eye.  He also suffers from severe slurring dysarthria: his speech is slow, laboured, and poorly articulated, less comprehensible as he tires than when he is fresh.  He has bilateral spastic hemiparesis, which is worse on the right side than on the left.  He has very little use of his right arm, but there is strength in the left arm including in the hand and reasonable function in that limb. Ataxia is, however, evident in the left arm.  He is unable to write as he is right- handed.  The spastic weakness present in both legs is worse in the right leg.  He still lives in Maclagan with his parents, each of whom is sixty-five years old.  He is substantially dependent on them for his daily needs.  He is largely confined to a wheelchair and bed.  He can walk with a walking frame but only with help.  His mother assists him with showering, going to the lavatory, dressing, and preparing his meals.  A carer comes for two hours a day five days a week and takes him through exercises and provides some speech and occupational therapy.  Another carer takes him to Toowoomba once a week for a day’s outing:  at a cinema, hotel, or museum.  Three times a year he goes to a respite centre in Petrie near Brisbane for two weeks on each visit.

[4]         The  plaintiff’s  behaviour  and  emotional  responses  generally  are  stable  and appropriate.  He mixes well with neighbours and is generally cheerful.  He has no form of epilepsy and does not suffer from headaches or impairment of his senses of smell or hearing.  Before the incident which gave rise to the proceeding he was in good health.  He had had no previous serious injuries or illnesses.  He is on no regular medication at present.  He has complete insight into his condition.  His life expectancy is forty-two years:  see exhibit 24.

[5]          It is not in dispute that the plaintiff’s claim is governed by the provisions of the Transport Accident Act, the law of Victoria being the lex loci delicti:  John Pfeiffer Pty Ltd v Rogerson (2000) 74 A.L.J.R. 1109. By operation of s 93(7) of that Act an award may be made only for pain and suffering damages and for pecuniary loss damages, as those terms are defined in s 93(17). ‘Pain and suffering damages’ are

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defined to mean ‘damages for pain and suffering, loss of amenities of life or loss of enjoyment of life’, and ‘pecuniary loss damages’are defined to mean ‘damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage’.  There is a cap on each category of damages, $340,250 for pain and suffering damages, and $765,570 for pecuniary loss damages:  see exhibit 19.  There was no dispute before me about the figures in exhibit 19, but I note that the latest available version of the Transport Accident Act, no. 075, which incorporates amendments as at 1 March 2001, shows s. 93(7) as providing for caps of $305,250 and $686,840 respectively.

[6]          There is no evidence that the plaintiff now suffers from physical pain.  His loss of  amenities  and  enjoyment  of  life  and  the  attendant  anguish  are  of  course substantial.  An active healthy young man has been rendered a life-long invalid unable to work or to enjoy normal recreations.

[7]           There  was  some  debate  before  me  concerning  whether  only  comparable Queensland decisions on quantum of damages should be considered in reaching my assessment of the plaintiff’s entitlement, as Mr Matthews for the defendant by election  submitted,  or  whether,  as  Mr  Campbell  for  the  plaintiff  submitted, comparable decisions from all parts of Australia could be considered.  Since there is a common law of Australia (John Pfeiffer Pty Ltd v Rogerson at pp. 1110 and 1125 per Gleeson C.J., Gaudron, McHugh, Gummow, and Hayne JJ.), I see no reason to exclude from consideration any relevant Australian decision, while bearing in mind that such comparable decisions can at best constitute only inexact guides to an assessment.  I do not propose therefore embarking on an analysis of the cases mentioned to me with a view to examining points of similarity and of difference.  It suffices to say that the trend of awards for pain and suffering and loss of amenities of life in comparable cases shows that an assessment well in excess of $150,000 is warranted.    The  figure  I  conclude  is  appropriate  is  $200,000,  from  which

$36,973.33 must be deducted to comply with s 93(11) of the  Transport Accident

Act:  see exhibit 18.  That leaves $163,026.67 as pain and suffering damages.

[8]        The plaintiff left his school, Hallam High School, when he was seventeen years old after he had repeated year 11.  He gained pass grades in English, geography, trade mathematics, history, and accounting.  He was continuously employed after he left school until he was injured, except for a year in which he was employed only intermittently  as  a  fruit  picker  as  he  travelled  around  Australia.    He  was  an apprentice wood turner, a factory hand, and then a barman.  Before he was injured he had applied for entry into the Australian public service.  His application was successful, but his injuries prevented his taking up an offer of employment made to him.  He is now permanently and totally disabled, incapable of undertaking any form of employment.  He is, however, able to operate a computer with his left hand and spends some of his time playing computer games.  He writes letters and visits friends in Maclagan in his wheelchair which is motorized.  At the time he was injured he intended pursuing a career in the public service, although he was also interested in music.  He played the guitar in a band part-time.  He also may have supplemented any earnings in the public service with part-time work as a barman.

[9]        Exhibit 13 shows the levels in the Australian public service reached by people who were engaged at the lowest level, APS 1, in 1989-90, and who were still employed in June 2000.  Of the 8,693 engaged at that level 3,142 were still in the

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Public Service:  174 were still at APS 1 level, 391 had reached APS 2, 689 APS 3,

1,054 APS 4, 325 APS 5, 378 APS 6, and another 131 were at higher, executive, levels.  Over half of the 3,142, 1,743, were then at APS 3 or APS 4 levels - the largest single group, 1,054,  being at APS 4.  There is some distortion of the data in exhibit 13 as a result of what is called  ‘broad banding’, under the Public Service Classification  Rules,  but  the  general  picture  shown  is  accurate  enough  for  the purposes of my decision.  What emerges from exhibit 13 is that only thirty-six per cent. of those engaged in 1989-90 were still employed in the public service about ten years later and of those fifty-five per cent. were at APS 3 or APS 4 levels.  From that evidence I think it reasonable to base my calculation of the plaintiff’s damages for impairment of earning capacity on the assumption that the plaintiff would have reached the APS 4 level by now.  It would seem to me likely that the plaintiff would have remained in employment of some kind had he not been injured and that there is  a  high  degree  of  probability  that  that  employment  would  have  been  in  the Australian   public   service.   But   of   course   contingencies,   favourable   and unfavourable, must also be allowed for.

[10]         Exhibit 6 shows that had the plaintiff joined and remained in the Australian public  service  and  reached  the  APS  4  level  his  earnings  could  have  been

$241,889.82 from 1 January 1990 to 28 February 2001.   Allowing for another five weeks to now the figure becomes $244,889.82:  $241,889.82 plus $3,000 ($577.94 per week - see exhibit 7 - rounded to $600 for five weeks).  The calculations in exhibit 6 are made on the assumption that the plaintiff would have moved steadily upwards through the levels to arrive at APS 4 on 1 January 1999.  Included in the

$241,889.82 is a calculation of what the plaintiff’s earnings might have been in the first period of eighteen months after he suffered his injuries.  By operation of s.

93(10)(a) of the Transport Accident Act damages referable to that period cannot be included in an award.  Excluding the possible earnings in that period ($23,466 as conceded, consistently with the figures in exhibit 6, on behalf of the plaintiff), I reach $221,500 in round figures.  Adjusting that figure for contingencies I arrive at

$200,000 for past loss of earning capacity.

[11]          From the $200,000 must be deducted $156,167.27 ($154,770.03 plus $1,397.24, see  exhibit  18)  leaving  $43,832.73.    The  $1,397.24  is  for  payments  for  two fortnights following 2 March 2001.  It is possible that some adjustment of that figure will be necessary.

[12]          Interest on the $43,832.73 will be $21,368.46:  five per cent. per annum for 9.75

years.

[13]          For loss of past superannuation contributions there will be $10,000:  five per cent. of $200,000.

[14]          For future loss of earning capacity I arrive at $390,000.  Taking the weekly figure of $600 to which I have referred and applying the six per cent. table to it for twenty-five years, I arrive at $412,200.  (Section 93(13) of the  Transport Accident Act provides that the relevant discount rate for calculating the present value of the plaintiff’s loss is six per cent.)  I have taken twenty-five years as the period of loss for the plaintiff, who is now thirty-five years old, because, although there is now no compulsory retirement age in the public service, sixty years is a common retirement age for public servants. It is reasonable to add another $50,000 to the $412,200 to

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take into account the strong likelihood that the plaintiff would have been promoted beyond the APS 4 level.  I reject, however, the assumption made in exhibit 7 that the plaintiff’s damages for future loss of earning capacity should be assessed on the premiss that his progress would have been steadily upwards to the highest levels by the year 2031.  His modest academic achievement at school, his evident lack of interest in further study after he left school, and his work history do not reveal one sufficiently talented to achieve promotion to the highest levels of his chosen career. I have discounted the $462,200 to $390,000 to take account of contingencies.

[15]        Damages for loss of future superannuation contributions will be $31,200: eight per cent. of $390,000.

[16]         The plaintiff’s pecuniary loss damages will therefore be $496,401.19, subject to what appears below.

[17]        Conflicting opinions have been expressed by neurologists as to the plaintiff’s ability to manage his affairs.  Dr Gregory Ohlrich, in a report dated 1 June 1999, concluded that he may not be responsible with money, and so would require  ‘an over-riding authority in regard to the spending of his money’, although he has the capacity ‘to understand his situation and his affairs in general’.  Dr Barrie Morley, however, in a report dated 6 December 1999, records his ‘strong impression’ that the plaintiff is capable of managing his affairs  ‘in the event that he receives a substantial damages settlement’.  Bearing in mind those opinions, I shall invite submissions as to whether a protection order should be made in this case.  It was not in dispute that Public Trustee charges should be taken into account in assessing the plaintiff’s pecuniary loss damages should I conclude that a protection order is called for.

[18]        I shall also invite further submissions on whether any adjustment of the figure of

$1,397.24 I have mentioned is required, and costs.