Green v Discombe
[1995] QSC 66
•19 April 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 3854 of 1988
[Green v. Discombe & Anor]
BETWEEN:
BRETT MARK GREEN (an infant by his next friend TONY
VERNON GREEN)
Plaintiff
AND:
ANDREW KEITH DISCOMBE
Defendant
AND:
FAI GENERAL INSURANCE COMPANY LIMITED
Defendant by Election
JUDGMENT - DERRINGTON J.
Delivered:19 April 1995
CATCHWORDS: NEGLIGENCE - Motor vehicle - Collision with cyclist - Cyclist riding from kerb to median strip of four-lane highway - Riding at angle away from approaching motorist in right-hand lane on same side of median strip - Driver not seen until last moment - Unobstructed view - Offside front corner of car striking rear wheel of cycle - Cyclist not taking proper look-out and riding at angle - 20% contribution negligence.
DAMAGES - Severe head injury - Thirteen-year old boy - Spastic incomplete quadriplegia - Walking greatly restricted - Talking totally destroyed - Communication by electronic means - Loss of much of dexterity - Can perform a number of actions for own care but need for full-time carer if lived independently - Some insight - Some loss of intellect - Pain suffering and loss of amenities award $175,000 - Total damages (including Public Trustee component) $2,555,939 before deduction for contributory negligence.
Counsel:C.E.K. Hampson QC, with him R.C. Morton, for the plaintiff
J.A. Griffin QC for the defendant
Solicitors: Ebsworth & Ebsworth for the plaintiff
Bradley & Co for the defendant
Hearing Dates: 23, 24 & 27 March 1995, 5 April 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 3854 of 1988
[Green v. Discombe & Anor]
BETWEEN:
BRETT MARK GREEN (an infant by his next friend TONY
VERNON GREEN)
Plaintiff
AND:
ANDREW KEITH DISCOMBE
Defendant
AND:FAI GENERAL INSURANCE COMPANY LIMITED
Defendant by Election
JUDGMENT - DERRINGTON J.
Delivered the 19th day of April 1995
On 9 February 1988, the plaintiff was a thirteen-year-old boy. He was riding his bicycle when he was struck by the defendant's vehicle, driven by him on Sunshine Boulevard on the Gold Coast. That street is a major road running south from Pacific Fair and parallel to the Pacific Highway which it joins at Miami. It had two marked lanes on each side of a raised median strip.
Both parties had been shopping at Pacific Fair and were travelling generally south to their respective homes when the accident occurred. The plaintiff and Craig Felici, his friend of about the same age, had been riding their bicycles in the left-hand laneway close to the concrete kerbing, the plaintiff ahead of Felici. A short distance past the intersection of Bordeaux Street he veered at an angle of about thirty degrees to his right and towards the median strip with the intention of crossing to the opposite side of Sunshine Boulevard. As he was crossing the right-hand lane of the south-bound side of the road, the rear wheel of his bicycle was struck by the front off-side corner of the defendant's vehicle, which had been travelling in that lane, and he was flung into the air and injured.
At this place Sunshine Boulevard was straight and flat. At the relevant time it was clear bright daylight, and although generally the traffic was moderately heavy, it was segmented by the operation of traffic lights two blocks north of Bordeaux Street. However, just to the south of those lights vehicles could enter Sunshine Boulevard from the parking area of Pacific Fair, as the defendant's vehicle had done. Consequently, at that time it is likely that for a short period the traffic was only moderate and that there was a break in it when the plaintiff chose to cross. The defendant's car was the leading one of the approaching group, which occupied both lanes. It was in the right-hand lane and at least three others were in the left-hand lane with the leading one a little to the rear of the defendant's car. A witness, Mr Day, was a passenger in the third of these.
There has been some disparity of evidence as to the progress of the plaintiff and his companion Felici before the accident. Clearly various witnesses have been afflicted by error in observation or recollection, partly no doubt due to the inconsequential nature of the events prior to the plaintiff's attempt to cross the road, and perhaps partly by the shock of what followed. The passage of seven years would also have contributed to error. Having regard to the respective strength of the various witnesses as they appeared, corroboration of detail of what they said where it could be found, and the likelihood of their respective interest in the various events at the time they occurred, the following narrative would appear to be their most likely course of events.
The two boys left Pacific Fair and rode south along Sunshine Boulevard close to the kerb and in single-file, with the plaintiff about five to ten metres in the lead. While crossing Bordeaux Parade, it is possible that they may have deviated somewhat to their left so that on the southerly corner of Sunshine Boulevard and Bordeaux Parade as they resumed their original course on the roadway close to the kerb, they may have appeared to the witness Ms Holmes to have emerged from Bordeaux Parade. It is however unlikely that they entered Bordeaux Parade to any greater extent than that, if at all, and the point is irrelevant except to offer a possible explanation as to Ms Holmes' error on this point.
It is unlikely that the plaintiff and Felici stopped as suggested by another witness, Mr Gotting. His view was longitudinal according to the direction of travel of the cyclists, who had passed him, and if on beginning to veer a little to his right the plaintiff looked back to the north along Sunshine Boulevard, slowing down in the process, he may have appeared to Mr Gotting, in the distance and on casual observation, to have stopped and to have been facing towards Felici. Whatever the explanation the evidence that the cyclists' forward movement was continuous at the relevant time supported as it is by the evidence of Ms Holmes, is by far the most convincing. Once again, this point has little relevance except to explain the possibility of error in Mr Gotting's evidence which, even if correct, would not have changed anything.
It is quite clear that there was a break in the traffic at the time that the plaintiff chose to cross. He had completely traversed the left-hand lane and had almost reached safety across the right-hand lane when the impact occurred between the last parts of both vehicles that could collide. Had his cycle travelled a few feet forward, it would have escaped the car which had been neither significantly slowed nor diverted from its course before impact. He would not have been injured had the defendant slowed down or diverged a little to the left even a moderately short time before impact. As it was, the defendant did not see him until he was a very short distance ahead of the car, probably a metre or two as, in effect, he admitted in Mr Day's presence and later to the investigating police officer.
The plaintiff may have misjudged the position before crossing because he did not make a sufficiently careful observation, for the defendant's vehicle was travelling within the speed limit of 60 k/h; or he may have felt that the defendant would see him and slow down, if that were necessary. In either case, in this he was negligent to a relatively modest degree, even for a boy of thirteen years, and the danger in which he placed himself was enlarged slightly because he crossed at much less than a right-angle to the traffic. Had he crossed in the most direct line, he would probably not have been struck. This adds to his negligence, but only by a little.
The negligence of the defendant was much more serious. Although children on cycles and pedestrians were reasonably to be anticipated at that time and place, as he well knew, and although there was no obstruction to his view of the plaintiff from the time when the latter began to cross and earlier, he failed to see him until the very last moment. Had he seen him even a little earlier he should have been able to avoid any impact. He must have been looking in some other direction or failing to pay attention for a relatively significant length of time, having regard to the circumstances.
In accordance with the usual factors operating in relation to the attribution of fault to parties in these general circumstances, it is clear that the responsibility of the defendant far exceeded that of the plaintiff, whose contributory negligence was twenty per-cent only of the total operative fault.
Damages
The plaintiff suffered a severe closed head injury with a fracture of the skull producing cerebral oedema and a small acute subdural haematoma. As a result he has a severe spastic quadriplegia. His general status may be summed up in the following passage from the report of Dr Atkinson, ex.17:
"1.Mr Brett Green suffered a very severe closed head injury in the accident on the 9th February, 1988.
2.I consider his medical condition and, in particular, his neurological state, is now stable and stationary. As a result I consider that from the medical point of view an appropriate decision could now be made on his future requirements.
3.As a result of the severe head injury this man suffered diffuse axonal injury of the brain together with fronto-parietal cerebral contusions and a deep right temporal internal capsule haemorrhage.
4.This has resulted in severe permanent organic brain damage. It has resulted in permanent personality changes. There is an impairment of his cognitive function. He has a reduced ability to concentrate and to persevere with tasks. He has become impulsive and earlier this had caused significant interpersonal problems. He had become anti-social and this was affecting other patients within Casuarina Lodge and also the nursing staff. However, behaviour modification at the Bailey Henderson Hospital in Toowoomba did reduce this anti-social behaviour. He has a reduced capacity to learn and he rapidly tires with new learning experiences. He has shown enthusiasm to take up new learning but after a short term he loses concentration. He readily becomes frustrated and this problem is magnified by his expressive aphasia. He is unable to speak and he must communicate through an alphabetic board. He has difficulty using electronic communication systems.
5.As is often found in young head injury patients, he believes he is capable of much more than he is able to do.
6.Despite his personality changes he remains a young man who is very aware of events and people around him. He is obviously very devoted to his father. He has considerable insight into his disability and the restrictive problems in communication only frustrate him more. He is, as a result, emotionally labile. There has been some deterioration in his application recently and this is probably due to some degree of depression. It appears that he is not happy with his situation in the Casuarina Lodge.
7.Mr Brett Green is, for the most part, immobilised in a wheelchair because of his spastic quadriplegia. He has right severe spastic weakness with very little voluntary movement on the right side while he has some slow voluntary movement on the left side. He is capable of standing and walking a short distance. He can carry out some limited functions with his left upper limb and, in particular, he can use it to communicate through the alphabetical boards.
8.Mr Brett Green is a dependent invalid. He requires full-time care. He is on a Disability Support Pension.
9.In my opinion he is not capable of looking after his own financial affairs. However, I believe he should be consulted about all things affecting his life and his finances.
10.While it is very difficult to estimate, and there are no definite guidelines in this respect, I consider that his life expectation has probably been reduced by about 10 years.
11.Finally, there is the question of his placement. The Casuarina Lodge is one of two units in Queensland at present where the staff is well experienced in the management of severe young head injury patients. I consider there are two options in terms of his ongoing placement.
(a)He could continue to stay in the Casuarina Lodge where he is currently regarded as a longterm patient. There he would have the benefits of experienced staff and regular supervision by the medical staff and a rehabilitation physician experienced in the care of head injury patients. The disadvantages are that he is not happy in this surrounding and he feels that the staff treat him "as a baby". In this situation he is able to go home to his father and his family on weekends and the very good relationship between the two of them is maintained.
(b)There is the alternative that he could be placed in a house, maybe with a second invalid, where he would need the assistance of nursing staff twenty-four hours a day. He would need regular visits by a doctor although in that situation it is unlikely that he would be seen by a rehabilitation physician unless there were particular problems. The medical supervision, therefore, would be less than he is receiving at present in the Casuarina Lodge.
I also would question whether he would in the longterm be happier in that situation. I consider that he would be socially isolated and that visitors would become less and less and he would be dependent on the attention of his father and his brother.
I have reservations about the plan to place him in a house as I feel that the standards of professional management, medical supervision and social contact would be less than he is likely to receive in the Casuarina Lodge. In the event of the death of his father or if his brother went overseas then the isolation could become much worse.
(c)Lastly, I suppose there is the possibility that improved accommodation for young head injury patients might develop over the coming years as we already have seen in the last thirty years."
His injury has destroyed his capacity for vocal communication, although he can communicate by artificial means. He is almost incapable of using his arms and hands, and there is a very serious reduction of his capacity to walk. There is a marked intellectual deficit with some behavioural problems; but he still retains a fair degree of intellectual capacity and insight. In practical terms, although he can do quite a number of things for himself, he is very substantially dependent upon assistance for his normal needs.
Because of his mobility and some residual dexterity, he can and does assist substantially in his own toiletting, showering and dressing, but he needs some assistance with each. He can use a washing-machine and a drier for his laundry but he could not iron clothing of fold linen. He could prepare his own breakfast and lunch and, with appropriate vessels, could serve himself drinks; but he is incapable of cooking. If the food is suitably prepared he can feed himself. He does not have a full capacity to organise his domestic affairs.
He enjoys playing word games and computer games and can use a computer with appropriate adaptations, and he enjoys listening to discussions. He watches television but is not particularly interested in it.
With an electronic artificial voice apparatus he could communicate better, and by the use of environmental controls, particularly associated with a computer, he could answer the telephone, answer the door, turn household equipment and lights on and off and control the air-conditioning and security of his home.
He was born on 21 December 1974 so that at the date of the accident on 9 February 1988 he was thirteen years of age, and is now twenty. It is agreed that his normal life expectancy would have been fifty-five years from now, but that is reduced by ten years due to his condition.
He was in year eight at high-school and was an average student. He showed some proficiency in his art, earning a mark of "good progress", which is between very good progress and satisfactory progress. He was fond of drawing and had some ambitions to be a commercial artist, though his natural powers of persistent application are difficult to assess, for they were wanting in other areas. At that stage he was far removed from realising any such ambition, if it continued. Although his mark in graphics was poor, that subject was more closely related to formal and meticulous drawing and was not necessary any reflection of his creative artistic powers. However, his creative writing was also poor and while it is not possible to translate this directly to his drawing art, it demonstrates that he should not be assumed to have had the qualities that would have led to high success in commercial art.
His capacity to draw was reasonably good, if not particularly talented, for an art student. On this topic the evidence of the art expert showed a tendency to be overly generous and undiscriminating. Such of his drawings produced in evidence as may have been other than copies of the drawings of others were plainly in a popular style, but subject to that the style was reasonably well handled.
He was a normal happy, outgoing boy, popular with his friends and enjoying his sports with modest success. At that stage subject to the usual contingencies he seemed to be destined for a normal happy life with some prospects of achievement in his future employment and a remote possibility of more substantial financial success through his art, had he been persistent and successful and had suitable opportunities come his way.
In his impaired state he is totally incapable of earning an income and will require very substantial financial support for his needs. Despite his condition and some discontent with the necessary regimentation followed at the Casuarina Nursing Home for young disabled people, where he currently resides, and although he has some insight, he is reasonably happy, and he retains a sense of humour. He is very well cared for and is provided with outings and entertainments. Physically he has some sexual capacity and is interest in girls, but he is highly unlikely to find a suitable partner and he is totally incapable of undertaking the obligations of parenthood. He should be allowed something for some sense of loss in this respect, though it is probably very superficial at worst.
Although he is well treated and basically reasonably happy where he is, he is attracted by the idea of living independently. With suitable help this is feasible, and some of his professional helpers regard it as desirable. However, Dr Atkinson, a neurosurgeon who has had knowledge of him over some years, has serious well founded reservations as to the suitability of such an arrangement, but these doubts relate to the achievement of a happy result rather than to whether it can be done. It is reasonable to allow him the choice.
His father and brother have maintained a close relationship with him. Until recently he spent each weekend with them with obvious beneficial results. It also provides him with respite from the institutional regime. This visiting arrangement has now been reduced to a fortnightly event, and will probably remain at this level, whether he is living in an institution or independently. There is no deterioration in this relationship but inevitably as his father grows older and should his brother leave the area, this respite will become less and less accessible until it will probably disappear. While this will tend to accentuate those features of unhappiness which he experiences in the institution if he remains there, it would also lead to increasing isolation if he were living independently in his own home. Moreover, he would be more vulnerable to the disadvantages of being dependent on employed carers, who might be unsatisfactory or tend to exploit him or be transitory.
Consistently with his residual awareness and general state of mind, he would also like to travel. This desire extends to overseas trips. He would have the capacity to enjoy them, though their lasting benefits would be limited. The more serious question is his capacity to undertake them in a reasonably tolerable way, even if accompanied by a carer. The difficulty of travel in his condition and complications in the event of illness make this ambition one of doubtful practicability in respect of overseas travel. Certainly he can and should travel on holiday within Australia. This accords with Dr Atkinson's views. Of course, his damages should provide only for increased costs due to his disabilities.
In this context, it is suitable now to discuss the various heads of damage.
Pain, suffering and loss of amenities of life
Pain does not appear to have been a major factor in this case because of the plaintiff's unconsciousness for a lengthy period after the accident. Nor does it constitute a serious continuing problem. His major injuries were limited to his head. No doubt there will continue to be some pain associated with physiotherapy and with occasional falls and knocks; but this does not seem to have been a large feature of his complaints. More serious by far is the loss of much of his ordinary mobility, his power of verbal communication, his dexterity and his capacity to answer his ordinary needs independently. This causes him frustration and temporary reactive unhappiness, and he suffers some general unhappiness consequent upon his insight into his condition.
However, he is fortunate to have an optimistic personality and a sense of humour which go far to relieve him of his distress. Despite his frustrations and occasional misbehaviour at the Casuarina Hostel, according to his father he is very well treated there and is generally reasonably happy. This might improve if he manages to achieve independence in living with the aid of a paid carer. At least, in that situation he would probably make further progress in providing for his own ordinary needs. His powers of communication will improve considerably when he is able to buy and use suitable electronic equipment, but the residual disability will still be gross.
These positive features are still only a moderate amelioration of the grave disruption to his life and of the substantial losses inflicted upon him, particularly in the years of his youth and early manhood. Further, he will suffer this loss for many years. He also suffers a ten-year loss of expectation of life. For this whole component, a figure of $175,000 should be allowed.
Interest on $60,000 representing the apportionment of that figure to past loss at 2% for 7.1 years is $8,500.00.
Past Economic Loss
Because when he was injured the plaintiff was still far from embarking upon a career, the difficulties of assessing his prospects and employment common in such cases are necessarily encountered. There is no factor that reduces the usual range of contingencies.
As it has been indicated, he had some talent at drawing, but his performance otherwise at school was generally mediocre. The prospects of his becoming a finished artist were not assured but possible, and his prospects beyond that are not shown to be other than remote. The witness, Mr Enright, who spoke about these matters, displayed some of the usual enthusiasm of an advertising executive, and his evidence should not be accepted completely. However, it would be reasonable to accept that a proportion of finished artists, who earn about $35,000 per annum, go on to be Art Directors earning between $50,000 and $65,000 per annum and, if particularly talented, substantially more. There is little or no acceptable evidence to justify the conclusion that the plaintiff would probably have done better than becoming a finished artist. The possibility of his achievement beyond that level are more than offset by the possibility that he may never have become a finished artist.
For that matter, there was certainly no assurance that he would have succeeded in qualifying as a tradesman plumber or carpenter. However, his manual arts results were commendable and it would be reasonable to assume a fairly high probability that he would have achieved some such qualifications. Allowance should be made for little more than the usual adverse contingencies of life which, of course, must include the chances of unemployment, injury, death as well as personal failure. It would be a just resolution of all the competing contingencies if it were assumed, without discounting for contingencies, that he would have become a qualified carpenter or plumber after an apprenticeship, and a generous approach should be taken in order better to reflect his lost chance of a more remunerative career in art.
After allowance for all of these factors and using the whole range of figures in the tables provided by his counsel, a global amount of $40,000 for his past economic loss should be adopted. On that there should be interest for 27 months at 6% per annum, which should be rounded off to $5,000.
Future Economic Loss
Consistently with the assumption in the last component that the plaintiff would have undertaken a trade apprenticeship, it should be assumed for the purpose of this component that he would shortly have been qualified and, taking all factors and chances into account, a figure of $450 per week should be adopted as his net wage when that occurs. Consistently with the generous approach necessary in response to the probabilities, this takes into account possible promotion, over-award payments and overtime, but it does not take into account the general contingencies of life such as unemployment or early disability or death, which are subsumed within the limitation of the projected period to thirty years.
The present value of $450 for 30 years on the 5% tables is about $370,000, which should be allowed.
Future Superannuation Loss
Consistently with the above figures, the allowance for this component should be $35,000 after allowance for the contingencies of life.
Relocation Expenses of Father
The plaintiff claims the cost of his father's move from the Gold Coast to Brisbane in the sum of $380. This is said to have been undertaken to facilitate the father's visits to him. It is allowable upon the same basis as the cost of the visits themselves, and although it is becoming somewhat remote, it is not too remote to be allowed. Interest of $280 should be allowed on this item
Past Care and Assistance
This component falls into different categories. The first relates to visits to the plaintiff while he was in an institution, the Gold Coast Hospital, the Mater Hospital and the Montrose Home respectively. These were made by his father and brother for his benefit and although they performed little by way of actual services for him, the comfort of their presence was manifestly desirable for a boy in such a grave condition. Accordingly, the travelling costs associated with such visits should be allowed by analogy with the Griffiths v. Kirkemeyer principle.
No allowance should be made to compensate him for the services provided by their simply being present during such visits. The authorities that have supported a claim by parents for the costs of visiting injured children have never included any recompense for services of that nature, though the restitution of lost wages has been allowed because that has been an actual loss. Besides, the presence of a parent with a sick child might well be regarded as being within that area of parental care which, apart from costs expended, the principle in Griffiths v. Kirkemeyer would regard as noncompensable. This applies to all ordinary features of parental care. In addition, there is no satisfactory evidence as to suitable remuneration for such a service, and the adoption of any rate would be nothing more than a guess.
For this part of this component, there should be an allowance for 270 visits at $5 per visit making a total of $1,350 on which there should be interest of $500.
The other part of this component relates to services provided to the plaintiff by his family during his regular home visits. They began in about January 1989 when he was discharged from the Mater Hospital and admitted to the Montrose Home. They continued until 31 October 1994 at 2 days per week and thereafter at a rate of 2 days per fortnight.
It is difficult to estimate the average time spent in providing services to him in these circumstances, partly because they probably diminished substantially over the years as his capacity improved and his need reduced. In addition, it would seem that part of the care which he was given related to the normal domestic arrangements that would have applied even if the plaintiff had not been injured. Some of it would have consisted of the provision of company and outings, such as the races, which his father would have provided to him and undertaken for his own enjoyment in any case. Other parts such as the preparation of meals as part of the family's meal would have caused little additional work. Otherwise the carers' mere presence in his or her own home while resting or going about normal affairs, though beneficial to the plaintiff, was not really the provision of a service to him.
In those circumstances, the average time devoted to compensable services, including travelling time in collecting or returning the plaintiff, should be limited to an average figure of eight hours per day. There should be no administration fee included in the commercial rate adopted because no such charge was incurred.
The appropriate calculation is therefore as follows:-22.01.89 - 29.02.92 458 days @ 8 hours @ $9 $32,976.00
1.03.92 - 22.03.95 450 days @ 8 hours @ $9.50 $34,200.00
TOTAL $67,176.00
Interest on that sum should be rounded to $8,250.
Past Travelling Expenses of Plaintiff
These are agreed at $27,000 upon which interest should be allowed at $11,500.
Future Travelling Expenses
His present condition demands the benefit of regular home visits. They are on quite a different basis from the normal family visits of an uninjured person. Although it is true that allowance must be made for visits that might have been made if the plaintiff had not been injured, the strong likelihood flowing from the close relationships of the plaintiff with his father and brother is that, being unmarried, he would have continued to live with his father, so that no travelling would have been involved. Alternatively, he would probably have lived in the near neighbourhood, incurring little by way of travelling expenses; or, at worst, he would have been able to visit his father's home when it was convenient.
It is reasonable to allow the cost of the travelling involved in the plaintiff's weekend visits to his father fortnightly for another twenty years. It is also reasonable to accept a forty kilometre round trip in order to cover the various contingencies relating to the plaintiff's location. Having regard to the danger of isolation because of the distance from his family, the plaintiff would be well advised and will probably choose to abandon his wish to live at the Gold Coast.
Some small reduction should be made from the arithmetical calculation based on the above figures to allow for adverse contingencies including circumstances which might interfere with the projected visiting arrangements. A suitable global figure for this item is $10,000.00.
Future Care
The cost of future care will depend upon whether the plaintiff will live independently and if so, whether that arrangement will be permanent. It is probably desirable that he should try to do so after a transitional stage, and even if it is not entirely successful, he will probably prefer it to institutional life. He will certainly be happier if it is successful and will probably be discontented with his lot if he does not at least try it. However, it would not be reasonable to adapt a house fully to his present needs nor to build a new purpose-designed one until some degree of certainty of endurance is reached. It would not be reasonable to include a component of damages to obtain such a home and to compensate him further upon the basis that he would return to a nursing home after a short time.
Conversely, there should be no diminution of compensation because he may share the home with another person who may enjoy the benefits of the presence of the carer engaged by the plaintiff. It cannot be assumed that there is any real likelihood that he will find another disabled person who can contribute significantly to the cost of such a carer. The only benefit of such an arrangement that is relevant is the amelioration of the loss to his amenity of life by his having company.
To return to the main point, the cost of help which he will need because of his disabilities, it will be necessary to consider the alternative contingencies despite the likelihood that he will leave the institution. It is best to investigate the cost of independent living first and this has two parts, the cost of domestic care and the costs of assistance from others such as doctors and therapists. The cost of home modifications and their maintenance will be considered separately.
It is most just to assume that he will have a single carer on a twenty-four hour basis. The present value of this on the 5% Tables for forty-five years is $798,000.00. The period taken reflects the reduction in the life expectancy of the plaintiff as applied to his average life expectancy on the Statistical Tables which, ex hypothesi, reflects the relevant contingencies of life. Apart from the results of his injuries, there is nothing about the plaintiff that would suggest any departure from the norm, and his present good general health supports this conclusion.
No issue was taken by the defence with these matters. However the point is fairly made that over the period covered there will be many family visits during which the carer will not be required; and because these will take place in the family's home, the costs should be limited to the services actually provided for his benefit, which should be less expensive than paid care, particularly but not only because administrative costs will not be involved.
This reduction will have limited duration, particularly because of the father's advancing years, but as it occurs in the earlier rather than the later part of the relevant period, this has a greater effect upon the result. All things considered, a global figure of $775,000 should be adopted to include all future domestic assistance, including that provided by the plaintiff's family.
He will also need medical and therapeutic attention. If he is living independently, then, as the witness Ms Stephenson says, this can be largely undertaken by his attendant care worker with occasional supervision by visiting specialists.
Assessments will be made on the basis of a cost of $90 per hour for therapists and $60 per visit by doctors. In summary, the award for these services is as follows:
Physiotherapy $ 22,800.00
Speech Therapy 75,000.00
Occupational Therapy 41,600.00
Rehabilitation Specialist, and Doctor 600.00
$140,000.00
As Dr Atkinson says, after some preliminary instruction of the carer, he would need a physiotherapist only in the event of flare-ups of his problems which would involve a group of sessions about twice a year. Between this and the reasonable need for some supervision from time to time by a physiotherapist, it would be reasonable to allow for about eight visits per year, that is, about $1000 per year. The training of the carer would require attendance of a physiotherapist for about three hours per week for the four months after he commences to live independently, costing about $4600. The present value of $1000 per year for forty-five years is $18,200 so that the total figure for this item is $22,800.
He will require speech therapy in the form of training with electronic equipment. This would occupy three hours per week for about four years, having a present value of $51,300, and thereafter at the rate of an hour and a half per month, which would have a present value of about $23,700. The total figure for this item is $75,000.
He will require the assistance of an occupational therapist, commencing at the rate of three to six hours per week for about 18 months, reducing to two hours per week which has a present value of about $35,000. After that he would need such attention only about once every three months in accordance with Dr. Atkinson's view. The present value of this cost is about $6600 and so the total for this item is $41,600.
He would also need some medical visits for a period after he commences independent living. At first this should occur at the rate of about once per week until he settles in, and thereafter about fortnightly for a further short period. A figure of about $600 is sufficient for this. After that it is difficult to see why there should be further visits except in the event of illness, and he manifests no particular unhealthiness from his condition. Moreover, it might be expected that this feature of general supervision would then be in the hands of the occupational specialist.
It is necessary now to consider the alternative contingency, namely that he might properly remain in or return to an institution rather than live independently. There has been considerable discussion on the cost of this because the cost at the Casuarina Home will be $432.00 per day, whereas in a comparable home for incapacitated young people at Bald Hills the cost will be only at about $58.50 per day.
The reason for this huge difference is that the former is regarded as a hospital while the general residential section of the latter is regarded as a nursing home. The difference is emphasised where, as here, the patient has received third party damages. In such circumstances, even the Bald Hills home would make the same charge as Casuarina in respect of its respite beds, which provide the same services as those at Casuarina.
These services consist of specialist nursing, medical and therapeutic services, and although the plaintiff needs them from time to time and by way of general supervision,at Bald Hills he could be a nursing home patient, at that lower rate, while having such private visits from doctors and therapists as he may need. In that event he would probably need their services more often because he would not have his private carer there to provide substitute care; and the ordinary carers at the home would not provide such services unless he were a respite patient. He would also probably need to engage a private carer to take him on outings outside those provided by the institution. As against that, the cost of his upkeep provided by the institution which he would have had to provide for himself, if he had not been injured, must again be taken into account: Sharman v. Evans (1977) 138 CLR 563, 576.
Quite clearly, because he is fit to live independently, he would also be fit to live in the Bald Hills home as a nursing home patient, and if he were to live in an institution there is no good reason why he should not do so. The better evidence is that it is the equal of Casuarina, and it is probably at least as convenient for visits to his father. Should he decide to live in an institution, he will undoubtedly choose it because of the enormous financial benefits and the absence of adverse features. His only problem may be delay in obtaining entry, so that he may be obliged to stay temporarily in Casuarina. As these institutions have both recently come into existence there is obviously salutary development in this field, and suitable alternatives might appear before he comes to need them.
There are other relevant considerations but it is unnecessary to go through them, for they do not alter the result. There are really two conclusions. The first is that it is extremely difficult to predict with any satisfaction what the plaintiff's course will be in this whole question of accommodation and care, with consequent difficulty as to assessing its cost. The second is that on an overall view the figure reached on the basis of his living independently together represent a fair assessment, whatever the contingencies, so far as it is possible to make one. The figures adopted and the modifying features applied in that exercise reflect in part some influence of the need to allow for the alternative contingencies.
Capital Cost of Home Modifications
It is now common ground that the hoist which is included in the proposals of Mr Deshon, an architect, will not be necessary for about 20 years. The present value of that is about $1,730.
The other items recommended by Mr Deshon that are in dispute are a spa bath and the air conditioning of some parts of the living area. Justification for the former is not made out but, having regard to the plaintiff's state, some air conditioning as suggested is of such a degree of practical desirability as to be justified.
Professional fees should be allowed in order to ensure that the work is done properly, but there is no reason to exclude professional fees in respect of the cost of a conventional house with which this is to be compared. That would place the cost of the conventional house according to Mr Deshon's assessment at $91,734. If the hoists and spa are removed from his calculation of the cost of a specially designed house, the resulting cost is $156,901. The additional capital cost of building a special house would then be $65,167.
This is clearly the more suitable course to follow, assuming that a house designed for a disabled person is not already available on the market. Having regard to the length of time for which the premises will be used the increase in the capital value of the asset on the open market by reason of the additional features will be minimal except for the effect of the provision of air conditioning. This may be fully allowed for by reduction of the figure to $65,000.
The cost of temporary accommodation, allowing for off-setting features should be allowed at $5,000.00.
Cost of Maintenance of Dwelling
The schedule provided by the plaintiff of the present value of recurring costs of running and maintaining his home in respect of his special needs is correct except that the amount shown for running costs includes the costs of a hoist and running and maintaining the spa, and an allowance for depreciation of the spa. If these are excluded, the annual cost is $1,172 which has a weekly value of $22.4767. The present discounted value of that on a forty-five year basis is $21,352. This means that the correct total for this component is $55,476.
It should be noted that because this provides for painting, mowing, gardening and repairs, the plaintiff should not be compensated again for his disability in not being able to perform those tasks for himself.
Ordinary Future Recurring Costs
The schedule prepared by the plaintiff of the present value for these items is reasonable. The life expectancy of a manual wheelchair is calculated on about five and one half years of life whereas the evidence speaks of a life of five to seven years. The difference is negligible. The maintenance costs of the wheelchair during its life are not established by evidence but the amount claimed is fairly nominal and quite reasonable.
The plaintiff is able to eat at a regular table but would obviously benefit from a cut-out table adapted to his wheelchair, and this is justified having regard to the small cost involved. It is true that the plaintiff no longer requires callipers, but no provision is made for them in the schedule. Accordingly this head of damage should be allowed at $144,863.
Institutional Costs to Date
It is agreed between the parties that, following his award of damages, the plaintiff will be required to make payment to the four institutions which he has occupied and to the Health Department. Although the rates are not all admitted, this amounts to $480,484.00. No interest should be allowed because it has not been paid.
In addition, he has made payment to them from his pension in the sum of $22,084.89, but this should not be allowed as an item of damages since it represents no more than the cost of providing for himself if he had not been injured: Sharman v. Evans (supra).
Holiday Travelling Expenses
As it has been said, realistically the plaintiff's travels should be confined to Australia, and preferably to road travel. It is reasonable to limit it to cover a period of twenty years, as his submissions have accepted. He should be compensated for the additional costs involved in one holiday every second year for two weeks accompanied by his carer. Having regard to the reduction in the carer's domestic work because of hotel accommodation and purchases of meals, it is difficult to see any serious need for a second carer in these circumstances. Dr. Atkinson said that a second carer would probably be needed but he did not explain why. It may be that he was thinking of air travel or overseas holidays.
It is in the plaintiff's own interest and highly likely that he would choose to travel in the quieter times of the tourist year so that he would not be discomforted by crowds; and he is free to travel at any time he chooses. This has the obvious benefit of lower accommodation costs. Further, it is unlikely that he and his carer would have three restaurant meals per day as the schedules presented on his behalf for this item would suggest.
This arrangement would incur an additional cost of about $3,000 per holiday or about $1,500 per year. Accordingly, for this component the sum of $20,000 should be allowed.
Sexual Matters
It is desirable that the plaintiff have the counselling sessions recommended by Ms Stephenson. A present payment of $900 is sufficient for this purpose.
The chances that the plaintiff could find a suitable partner to reproduce are minimal, and the overwhelming undesirability of his doing so exclude this as a suitable item for compensation except to the extent that it has be included as a factor in his loss of amenity of life.
Speech Assistance
The cost of electronic equipment for this purpose at $7,550 is admitted.
Public Trustee Charges
Because of his intellectual deficit the plaintiff is incapable of managing his own financial affairs and a protection order should be made. The consequent charges of the Public Trustee which are recoverable are as follows:
| Commission | $100,000.00 |
Summary
The damages are as follows:
| $ | |
| Pain, suffering and loss of amenities | 175,000.00 |
| Interest thereon | 8,500.00 |
| Past economic loss | 40,000.00 |
| Interest thereon | 5,000.00 |
| Future economic loss | 370,000.00 |
| Loss of superannuation | 35,000.00 |
| Cost of father's removal to Brisbane | 380.00 |
| Interest thereon | 280.00 |
| Cost of father's visits to hospital | 1,350.00 |
| Interest thereon | 500.00 |
| Care provided on past home visits | 67,176.00 |
| Interest thereon | 8,250.00 |
| Plaintiff's past travelling expenses on visits | 27,000.00 |
| Interest thereon | 11,500.00 |
| Future travelling on visits | 10,000.00 |
| Future costs of domestic assistance | 775,000.00 |
| Future costs of therapists and doctors | 140,000.00 |
| Future cost of hoist | 1,730.00 |
| Additional cost of house | 65,000.00 |
| Temporary accommodation | 5,000.00 |
| Additional maintenance cost of house | 55,476.00 |
| Recurrent general expenses | 144,863.00 |
| Pre-trial costs of institutions | 480,484.00 |
| Holiday travel | 20,000.00 |
| Sexual counselling | 900.00 |
| Speech assistance equipment | 7,550.00 |
| $2,455,939.00 |
Prepayment
The defendant by election has wisely pre-paid $14,465.00, which was applied towards some appliances needed by the plaintiff, and it is agreed that this should be deducted from the judgment.
Amount of Judgment
The award will be assessed as follows:
Amount of damages
$2,455,939.00
Less deduction of 20% for contributory negligence
491,187.00
1,964,752.00
Plus agreed Public Trustee charges
100,000.00
2,064,752.00
Less prepayment
14,465.00
Total:
$2,050,287.00
Judgment and Orders
There is judgment for the plaintiff against the defendant by election in the sum of Two million, fifty thousand, two hundred and eighty-seven dollars ($2,050,287.00) together with costs including reserved costs, if any, to be taxed.
It Is Ordered That there be a Protection Order in respect of the money.
It Is Ordered That of the sum of $2,050,287.00 referred to in paragraph 1 hereof the sum of $515,686.20 be paid to the trust account of the solicitors for the plaintiff herein on their undertaking to forthwith upon receipt of the money attend to payment of the following amounts:
(i)the sum of $13,230.00 or such lesser sum as may be the subject of a charge to the Gold Coast Hospitals Board whose receipt therefor shall be a sufficient discharge;
(ii)the sum of $76,530.00 or such lesser sum as may be the subject of a charge to the Mater Children's Hospital whose receipt therefor shall be a sufficient discharge;
(iii)the sum of $115,810.70 or such lesser sum as may be the subject of a charge to Montrose Home whose receipt therefor shall be a sufficient discharge;
(iv)the sum of $8,293.37 or such lesser sum as may be the subject of a charge to Queensland Health whose receipt therefor shall be a sufficient discharge;
(v)the sum of $266,620.65 or such lesser sum as may be the subject of a charge to Casuarina Lodge whose receipt therefor shall be a sufficient discharge;
(vi)the sum of $35,202.20 or such lesser sum as may be the subject of a charge to the Department of Social Security whose receipt therefor shall be a sufficient discharge;
I Direct That the solicitors for the plaintiff upon obtaining receipts to satisfy the charges referred to in paragraphs 2(i), (ii), (iii), (iv), (v), and (vi) forward the balance of the sum of $515,686.20 (if any) forthwith to the Public Trustee of Queensland whose receipt therefor shall be a sufficient discharge.
It Is Ordered That the balance of the sum referred to in paragraph 1 above be paid to the Public Trustee of Queensland whose receipt therefor shall be a sufficient discharge to the Defendant by Election for the payment of such sum.
I Direct That the Public Trustee hold the sums paid to it pursuant to this order and the income thereof and apply the same in such manner as the Public Trustee of Queensland shall think fit for the maintenance, education or otherwise for the benefit of the plaintiff herein.
I Direct That the Defendant by Election pay to the plaintiff his costs of and incidental to this action, including reserved costs if any, to be taxed.
There is liberty to apply.
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