Fitzgerald v Dansey

[2002] HCATrans 394

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2001

B e t w e e n -

BRAD FITZGERALD by his tutor ROBYN LYNNETTE FITZGERALD

Applicant

and

CRAIG DANSEY

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2002, AT 10.51 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR I.D. CULLEN, for the applicant.  (instructed by Paul A. Curtis & Co)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MS P.J. GORMLY, for the respondent.  (instructed by W.R. Harvey & Associates)

GAUDRON J:   Yes, Mr Toomey.

MR TOOMEY:   Your Honours, I feel a bit like the Christian going into the den because I have 20 minutes in which to attempt to persuade your Honours that not only should a question of fact be granted leave, but a question of fact which relates to damages.  So I start with a number of strikes against me which I recognise and I will try to persuade your Honours that in this case there should be ‑ ‑ ‑

GAUDRON J:   It seems to me there is a more difficult problem even than that, and that is that it is not immediately clear that you have an arguable point in relation to the damages because it seems to have been based on a quote from Dial An Angel and you seem to have got some more money even than that.

MR TOOMEY:   No, your Honour, no, may I explain the ‑ ‑ ‑

GAUDRON J:   But we do not know what is in the quote, that is the problem.  We do not know what is in the quote.

MR TOOMEY:   Your Honour, I think, with respect, we do.  We know that the quote for $4,750 was a quote for three shifts a day.

GAUDRON J:   With three different persons through the day?

MR TOOMEY:   Three different persons, eight hours a shift.

GAUDRON J:   What sort of persons?

MR TOOMEY:   Not nursing people, just lay people who ‑ ‑ ‑

GAUDRON J:   What say that the Dial An Angel quote was for, I do not know, let us say for a total of three people, two of whom were going to do three days each and the third was going to do weekends.

MR TOOMEY:   Your Honour, with respect, the quote for Dial An Angel was for one person 24 hours a day, the same person 24 hours a day for five days and another person at the weekend doing 24 hours a day.

GAUDRON J:   So what is wrong with that?

MR TOOMEY:   What is wrong with it, your Honour, is that ‑ ‑ ‑

GAUDRON J:   It having been found that you did not need two people and you did not need a trained nurse and ‑ ‑ ‑

MR TOOMEY:   But, with respect, it was not found, your Honour.  That is how ‑ ‑ ‑

GAUDRON J:   Did not the trial judge find that professional nursing was not necessary?

MR TOOMEY:   Yes, he found that and we do not ‑ ‑ ‑

GAUDRON J:   He found that he did not need a couple.

MR TOOMEY:   Yes, but that is not the complaint, your Honour.

GAUDRON J:   What you have is, you say, logically that would be three shifts; that is all you could base it on. 

MR TOOMEY:   No, it is not only that, with respect, your Honour.  You have to understand the problems that this young man faced.  He was brain damaged, disinhibited, antisocial, violent, he would urinate in the street, he would wander at night, he would be brought home by police, he was a danger to himself and to the community.  He had assaulted his father, he had assaulted his sister, he would go into the street and make lewd suggestions to people he had never seen before.  He had to be, because of his aberrant sleeping habits, supervised 24 hours a day.

The plaintiff’s case was, “We want a live-in house couple so you have two people who can relieve one another.  Alternatively, there must be someone actively looking after him 24 hours a day.”  The $4,750 a day was for someone on hand with the plaintiff at all times.  The Dial An Angel quotation was for one person there 24 hours a day.  Logically, your Honour, that person could not possibly – the defendant argued they could but we say logically that person could not look after this young man 24 hours a day at night and during the day.

GAUDRON J:   I see the force of that but what you are saying is that the Court would have to go through the evidence and ‑ ‑ ‑

MR TOOMEY:   No, we say, your Honour, that the findings mandated a decision to that effect but we say that his Honour the trial judge made that finding and then did not give effect to it and there was a difference in the Court of Appeal.  Justice Fitzgerald said, yes, his Honour made the finding and did not give effect to it.  Justice Sperling, with whom Justice Powell agreed, said that is not right.

If I could take your Honours briefly to the findings.  If I start at page 18 of the application book, his Honour said at line 57:

In the light of the medical evidence set out above, the description of the plaintiff’s problems given by his father, mother, brother and sister in their evidence is clearly to be accepted.  This will be considered later.

The medical evidence, if your Honours go to page 16, Dr Pauline Langeluddecke who is a highly qualified neuropsychologist, said at line 11 he suffered from:

impaired social judgment, heightened aggression, poor impulse control, and impaired organisational ability.

At line 31 the judge said, quoting Dr Langeluddecke:

He is at high risk of involvement in criminal activities, alcohol or substance abuse and antisocial behaviour.  He is also a risk of impulsive acts.

At page 17 one Angela Fry – I am not sure what Ms Fry’s qualifications were, I think she might have been a social worker – set out the various problems he had:

lack of inhibition in certain situations, mainly in the form of loudly spoken comments about what he thinks when he sees girls he is attracted to.  Another is limited control over feelings of anger or frustration . . . He urinated on the floor in his room.  He displayed a destructive streak mainly aimed at other people’s property such as hitting cars in car parks and pretending to smash items in the kitchen . . . He goes through periods when he bashes his head against the wall.

At page 22 at line 26 the plaintiff’s father gave this evidence:

Q.  Did you notice things about his personality or his temper in the period between August 1997 . . . March/April 1999 when he went into Karawarra?
A.  Well, he was a changed person, obviously, and, yes, he did have a lot of bad temper tantrums or outbursts.

Q.  Anything in particular . . . 
A.  No, it could be some small thing and you may never know what it was . . . 

Q.  What did he do?
A.  Very violent outbreaks; holes in doors, holes in walls, he would bash his head against anything and make it bleed severely; he attacked me, as I say.

On page 24 at line 40:

He does not have a driver’s licence but rides a bicycle.  Evidence was given of a number of instances where he rode inappropriately, such as on the wrong side of the road in the teeth of oncoming traffic.  He also wanders off without warning from time to time and he mislays things.  The latter often leads to an outburst of temper and violent conduct.

Finally, on the facts, your Honours, page 25 at the top:

Because of his manner of walking, the slurring nature of his speech and his inappropriate remarks in public, taking him into public places presents major difficulties.  Mrs Fitzgerald described how, in her presence, her son was told to leave a shopping mall because he was intoxicated although he had consumed no intoxicating substances.  Mrs Fitzgerald conceded that at times her son’s demeanour is such that a person who did not know his problems could regard him as intoxicated.

When the family had to bring him from Nowra to Sydney for medical examinations and for the hearing of his case they stayed in Hotels near the court.  On one occasion the plaintiff walked off at night dressed in his pyjamas and ended up at St Vincents Hospital.  On other occasions he made audible abusive remarks about waiters who were of Asian appearance.  On one evening during the course of the hearing of this case he assaulted his sister.  On another evening his parents took him down to Circular Quay to see the pre Olympic lighting.  Whilst there he wanted to urinate on the ground.  His father managed to prevent this by finding an open toilet.

Now, your Honours that is a picture accepted by his Honour on the basis of the medical evidence and that is only part of the medical evidence which was graphic, that this man 24 hours a day is a danger to himself and to other members of the community.  The contest in the case , once liability was disposed of, was whether or not he needed care 24 hours a day or simply someone living on the premises, that is, looking after him during the day, then going to bed and sleeping.  The defendant argued that a person living in was enough and they argued that the fact that that person would have to get up from time to time from night to night on an unpredictable number of times during the week at night would not affect their ability to look after the boy, a proposition which, in our respectful submission, was demonstrably insupportable.

At page 36, your Honours, the learned trial judge turned to the question of what should be allowed and he set out the competing claims and he set out his findings.  He said at line 16:

On behalf of the plaintiff a claim is made for the cost of a carer 24 hours per day seven days per week.  On behalf of the defendant it is submitted that such a requirement is for a limited period only and that such a cost should not be visited upon the defendant for the rest of the plaintiff’s anticipated lifespan.

The evidence comfortably satisfies me that the plaintiff, as a consequence of his accident caused injuries, needs supervision 24 hours per day seven days per week.  This does not have to be from a qualified nurse but could be from a person (preferably male) with whom the plaintiff gets on well and who can build a rapport with the plaintiff to the extent that the plaintiff will do what he is told.

The reason why it was preferably male, your Honours, is because it is inappropriate behaviour to females whom he does not know or even whom he knows, and the fact that he is violent.

The evidence comfortably satisfies me that the plaintiff’s need for such care will persist indefinitely into the future.

He says the problem will not get any better.  Then, your Honours, we come to the crucial passage:

It is not easy to work out what is a reasonable allowance for such future care.

The plaintiff’s primary claim is for the cost of a live-in house couple to reside with him.  Whilst a house couple would be one of the appropriate courses of action it gives rise to difficulties arising out of the fact that two people are involved.  The presence of two people is not necessary for appropriate care to be given to the plaintiff.  The presence of one carer present at a time would be sufficient.  Of course it cannot be expected that the one person would be on duty 24 hours per day seven days per week.  Accordingly it would be necessary to have one person on per shift.  Logically each shift would be of 8 hours duration.

Now, your Honours, in our respectful submission, that is a plain finding by his Honour that you need someone on watch 24 hours a day and logically three 8-hour shifts.

GAUDRON J:   But he does sleep sometimes?

MR TOOMEY:   Yes, your Honour, but the thing is he is unpredictable.  You cannot say “I’ll take a punt tonight that he will sleep”  ‑ ‑ ‑

GAUDRON J:   No.

MR TOOMEY:    ‑ ‑ ‑ because that might be the night he gets up and injures himself or some other person.

GAUDRON J:   Yes.

MR TOOMEY:   That is why there must be someone ‑ ‑ ‑

GAUDRON J:   But what is a “highly experienced attendant carer”?  You see, I come back to what I said was the first problem.  One does not exactly know what was in the Dial An Angel quote but they are talking about a “highly experienced attendant carer”.

MR TOOMEY:   Yes, someone living in, your Honour, soothing him, looking after him, getting his meals, making sure he cleans himself and so on.  But one person 24 hours a day.  That was what ‑ ‑ ‑

GAUDRON J:   Yes, but not necessarily for all seven days is what I have been putting to you.

MR TOOMEY:   One five days, one two days, your Honour, that was what the Dial An Angel quote was and that was what the other quote was, the Macquarie Nursing Service quote.  The one quote which was for 24 hour a day care by people on duty, as it were, was the one given by the Illawarra Disability Trust’s arm, Care Solutions, and that was the trust which had looked after him.  His Honour said on 37 at line 8:

There appears to be some duplication in their figures.  There is an active nightshift loading of $696.  This assumes that three active night shifts per week are required.  If all that is required is an inactive sleep-over, then a week night would cost –

less and so his Honour says:

It does seem that $4939.78 is somewhat excessive and that, on their figures, a reasonable allowance would be about $4750 per week.

That would be, one would assume, on the basis that there would be nights when the night carer would not be disturbed, in which case the costs would be less.

Having said that, his Honour then went on:

Dial an Angel in its letter of 27 June 2000 states that care would be available 24 hours a day by a highly experienced attendant carer –

that is the one person for a week and the one person for a weekend, which we say is totally inappropriate.  A person who has been up for 16 hours looking after this man who needs care the whole time goes to bed and on that regime has to get up and look after him when he gets up, save him from himself and save other people from him, and then get up the next morning and start all over again, having had three or four hours sleep.  Quite impossible and, in our respectful submission, plainly why his Honour at page 36 had made the finding he did.

GAUDRON J:   But, you see, that quote also has “keep and agency service fees”.

MR TOOMEY:   Yes.

GAUDRON J:   Now, that I do not understand, but what I do understand is that they say they can get somebody for $250 a day plus $375 on weekends.

MR TOOMEY:   I am sorry, can your Honour tell me where your Honour is reading from?

GAUDRON J:   Page 37, second paragraph. His Honour allowed $2,800 but let us assume the daily figures.  If your weekend was $750, that still leaves 2,100.  If you give two shifts by ten, $2,500.  You are very close to allowing for two people per day, if you cut out – I do not understand what “keep and agency” fees are, and I do not ‑ ‑ ‑

MR TOOMEY:   “Keep” means that the person is living in, your Honour, and their keep has to be provided and there is a conventional ‑ ‑ ‑

GAUDRON J:   What do you mean the keep has to be provided?

MR TOOMEY:   I mean that they have to be provided with accommodation ‑ ‑ ‑

GAUDRON J:   Yes, it is going to be provided with accommodation but this ‑ ‑ ‑

MR TOOMEY:    ‑ ‑ ‑ and food and suchlike.  There is a conventional sum for that which is accepted in the cases and what Dial An Angel have done is to add them up and come to a little under $2,800 a week.  As I understand it, your Honour, the contest for a single carer was between 2,700 for Dial An Angel and 1,708 for Macquarie Nursing.  His Honour said he thinks Macquarie Nursing Services is far too low and that Dial An Angel is closer to realistic but, your Honours, that is for one person, one live-in person, where his Honour has found, in our respectful submission, at the bottom of the preceding page that what this man needs ‑ ‑ ‑

GAUDRON J:   Yes, but what his Honour has done is made an allowance.  You see, it seems to me that the trouble is you are asserting that the judge had to pick one of these quotes and make the adjustment like that.  He has not; he said he is allowing $2,800 per week.  How in fact it is spent is a matter for him or, if he is not capable of making those decisions, those who are empowered to make the decisions for him.  $2,800 per week is more than twice the amount of Macquarie Nursing Services.  Accordingly, therefore, they could get, presumably, two people on for $2,500‑odd through Macquarie Nursing Services.

MR TOOMEY:   But, your Honour, his Honour has found that that figure is far too low for one person ‑ ‑ ‑

GAUDRON J:   No, I know, but what he has done is he has made an overall allowance.  He does not pick any particular one; he is going through the range.  I mean, it is not as though there are fixed awards in this area which are not negotiable.  His Honour has picked 2,800 per week.  It is not going to pay for something of the nature suggested by Care Solutions.  It is going to pay for twice whatever it was that Macquarie Nursing Service was proposing to ‑ ‑ ‑

MR TOOMEY:   Yes, but, your Honour, it may not because his Honour did not accept the Macquarie ‑ ‑ ‑

McHUGH J:   Yes, but, Mr Toomey, his Honour may have taken the view, rightly or wrongly, that the Dial An Angel letter meant that you could get somebody for $80 an 8-hour shift.

MR TOOMEY:   No, your Honour, with respect, the Dial An Angel report only went to the cost of a person for a day.  It did not direct itself to shifts.  The only report which did was the report of the Illawarra Disability Trust.  What we say is that, having regard to his Honour’s finding – and this is what appealed to Mr Justice Fitzgerald in the Court of Appeal - his Honour having made the finding of the necessity for three shift carers ‑ ‑ ‑

GAUDRON J:   He did not make that finding.  He said:

Logically each shift would be –

Now, that may be how things work out in certain areas, but one knows these days that some people work 12-hour shifts five days on, five days off.

MR TOOMEY:   But, your Honour, may I say with great respect that the distinction was not between the length of the shifts but whether 24-hour care was needed or not.  That was the distinction because the ‑ ‑ ‑

GAUDRON J:   He has 24 – on the Macquarie Nursing service ‑ ‑ ‑

MR TOOMEY:   It is only for one person living in, your Honour.

GAUDRON J:   Maybe, it may be ‑ ‑ ‑

MR TOOMEY:   No, no, it ‑ ‑ ‑

GAUDRON J:   It may be or it may be not, it is a figure.

McHUGH J:   It is a question of what is reasonable for the judge.  The judge picks 2,800.  He has allowed $400 a day to look after this person.

MR TOOMEY:   Well, your Honour, the question is whether, on the evidence before him and which he accepted, it was reasonable for the judge, having said ‑ ‑ ‑

GAUDRON J:   Could somebody tell me, was there evidence to the effect that you could not get two people one day, one night for a total cost of $400 a day?

MR TOOMEY:   I do not think there was, your Honour.

GAUDRON J:   No.  If there was not such evidence, how can you even get to first base in your argument when you have been allowed ‑ ‑ ‑

MR TOOMEY:   But, your Honour, the case was fought on this basis:  what is the cost ‑ ‑ ‑

GAUDRON J:   But it dos not matter what you say.  It is a question - you have to establish that there is something there really that says the trial judge could not possibly have come up with a figure of $2,800 which he did, and I do not ‑ ‑ ‑

McHUGH J:   Mr Toomey, if we granted leave in this case, they might as well repeal section 35 of the Judiciary Act and just give appeal as of right.  There is no special leave point  ‑ ‑ ‑

MR TOOMEY:   Not quite, for this reason.  There is in this case the particular dimension that this man is a risk to himself and to the community unless he is constantly supervised.  The result of this decision of his Honour, having found that he needs 24-hour care, is that the verdict is $2 million short of what it would have been, even allowing for the 50 per cent contributory negligence  ‑ ‑ ‑

GAUDRON J:   I do not see that.

MR TOOMEY:    ‑ ‑ ‑ the verdict is a million short, a million short, we say, of the money which should be used to safeguard him and the community, on his Honour’s findings.  That is why it is a special case.  It is not just a case of quantum, your Honour, and we would concede, with respect, that if it were just a matter of quantum without the other dimension we could not possibly get leave.  But it is this question of the community concern and the man’s concern for his own safety which, in our respectful submission, makes it special.  May it please your Honours.

GAUDRON J:   Thank you.  You did not want to say anything about interest?

MR TOOMEY:   Your Honours, I had seen that the red light had gone on.  I would be most grateful if I had an opportunity ‑ ‑ ‑

GAUDRON J:   You do press the interest question?

MR TOOMEY:   I do, yes.

GAUDRON J:   Yes.  Well, we have read your submissions.  We do not need to hear you, Mr Hislop.

MR HISLOP:   May it please the Court.

GAUDRON J:   The applicant seeks special leave to appeal to raise questions as to the appropriate allowance for attendance care and also interest on judgment in a verdict for a plaintiff in proceedings before DCJ Cooper, which proceedings were subsequently the subject of an appeal to the New South Wales Court of Appeal.

So far as concerns the allowance for attendant care, we are not persuaded that either the evidence or the findings of the trial judge precluded him from awarding the sum of $2,800 per week by way of allowance for attendant care.

On the question of interest, the trial judge was entitled not to have been satisfied by the applicant plaintiff that it was appropriate for the respondent defendant to make an offer of settlement.  For these reasons, the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave and special leave is refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED