Harvey v Restall and 2 Ors
[2000] NSWSC 597
•12 July 2000
CITATION: Harvey v Restall & 2 Ors [2000] NSWSC 597 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20228/97 HEARING DATE(S): 8, 9, 10, 11, 12, 15,16 & 17 May 2000
12, 18 & 24 July 2000JUDGMENT DATE: 12 July 2000 PARTIES :
Melissa Ann Harvey
(Plaintiff)Lisa Renee Restall
(First Defendant)Macsak Pty Limited
N & M Alexandrou Pty Limited
(Second Defendant)
(Third Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr C Stevens QC with Mr T Alexis
(Plaintiff)Mr P O'Connor
Mr J Stewart
(First Defendant)
(Second Defendant)SOLICITORS: Ms Nicole Rockliff of
Rockliffs
(Plaintiff)Ms A Houlahan of
Mr Mark Siebold of
Ferguson Holz
(First Defendant)
McCulloch & Buggy
(Second Defendant)CATCHWORDS: Assessment of damages - tetraplegic - GST LEGISLATION CITED: Motor Accidents Act 1988 CASES CITED: The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49
Van Gervan v Fenton (1992) 175 CLR 327
Sullivan v Gordon (1999) 47 NSWLR 319
Malec v J C Hutton (1990) 169 CLR 638
Assessment of Damages for Personal Injury and Death, Harold Luntz, 3rd Ed Butterworth 1990 at 272DECISION: See paras 152 & 153 of judgment dated 12 July 2000 ; See paras 2 to 14 of judgment dated 24 July 2000
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
WEDNESDAY, 12 JULY 2000
20228/97 - MELISSA ANN HARVEY v
JUDGMENT (Assessment of damages; tetraplegic)
LISA RENEE RESTALL & 2 ORS
1 MASTER: This judgment relates to the assessment of damages for the serious permanent injuries the plaintiff suffered when she was a passenger involved in a motor vehicle accident. The accident occurred on 18 January 1996. At that time the plaintiff was 23 years of age and has sustained C6 tetraplegia. The first defendant is Lisa Renee Restall, the second defendant Macsak Pty Limited trading as Jax Tyres Bondi Junction (Jax Tyres) and the third defendant is N & M Alexandrou Pty Limited as operator of Dominion Tyre Services Pty Limited (Dominion). Dominion did not appear at the hearing. A fax to the plaintiff’s solicitors from Dominion’s solicitor dated 16 March 2000 stated that they did not have instructions to appear at the hearing but they were aware of the hearing date (Ex A). The third defendant was called three times outside court and did not appear during the eight days of the trial.2 On 15 April 1998 Newman J gave judgment on liability in favour of the plaintiff against all three defendants and apportioned responsibility as to 10% to Miss Restall, 70% to Jax Tyres and 20% as to Dominion. No contributory negligence was apportioned to the plaintiff. Newman J ordered that the extent of the liability of Miss Restall be indemnified by Jax Tyres. Miss Restall’s apportionment of the damages is to be calculated in accordance with the Motor Accident Act 1988 (MAA) whereas the Jax Tyres and Dominion apportionment of the damages are calculated in accordance with common law principles. I shall assess the damages at common law and at the conclusion of that assessment, I shall assess the first defendant’s portion of the damages pursuant to MAA. The plaintiff seeks damages in the sum of $13,702,645 and the second defendant concedes damages in the sum of $5,720,125.50.
3 The plaintiff was born on 20 June 1972. When the plaintiff was in Year 9 at school her parents separated. Her father left the family home. Her mother commenced working in a legal office and studying law at night with the Solicitors Admission Board. During this time the plaintiff was responsible for looking after her younger sister and brother as the family resided on the Central Coast and her mother left home at 6.00 am and attended lectures three nights per week in Sydney, which meant that she did not return home until 7.00 pm.
4 In Year 10 the plaintiff suffered emotional problems because of the impending divorce and she did not perform as well at school as she had in previous years. The plaintiff’s mother gave evidence that in primary school and Years 7 and 8 at high school the plaintiff did well at school but she too, had the view that the plaintiff was more affected by the family break-up than the other siblings and this affected her performance in the latter years at high school. The plaintiff played hockey at a regional level and was involved in competitive swimming. Prior to the accident the plaintiff was in good health. She had had no injuries other than a cut to her thumb six months before the accident requiring micro-surgery.
5 When the plaintiff was 17 years of age she won a commendation in the Sydney Morning Herald short story competition. She put more effort into writing and English at high school although overall she did not put much effort into her studies. After completing the HSC in 1990 she did not know which career path she wanted to follow.
6 In 1990/91 the plaintiff was employed as a sales clerk in the video section of Grace Bros and worked for a short time on a factory floor. At Christmas 1990/91 the plaintiff went overseas with her father but had a falling out with him and came back early. From October 1991 until March 1992 the plaintiff worked with Media Insight which was a media monitoring company. The plaintiff read newspapers, monitored what the clients wanted and sent clippings to them. She left that job due to the emotional problems which she had with her father and because she was not performing well in her job.
7 Between July 1992 and January 1995 the plaintiff was employed at Rockliff solicitors as a registration clerk. She enjoyed that work but did not want to do it indefinitely. During that time she completed a limited HSC at Seaforth TAFE at night. She matriculated and gained an admission to university but chose to defer for one year. At this time the plaintiff had an interest in following a career in journalism. Between February 1994 and September 1994 she worked for Gallaway and Company as a registration clerk. In October 1994 she took a two month trip overseas to the United States and the United Kingdom.
8 At the beginning of 1995 she commenced studying for a Bachelor of Arts at the University of New South Wales (UNSW). The plaintiff’s mother formed the view that it was at this stage that the plaintiff became more focused, had direction and drive with her career. About mid-way through the year the plaintiff moved out of home to live with friends from university at Erskineville. The plaintiff was learning to play the drums. She took up cycling to university and to work at Bondi Junction. She would sometimes catch a ferry to Manly and then cycle to her mother’s home at North Curl Curl and returned by the same method. The plaintiff also undertook a fitness program of swimming laps in Victoria Park. She enjoyed music, films, going to see live bands and dancing, reading and writing short stories. She experienced emotional and physical relationships with men.
9 At university she was majoring in environmental studies with her second major in film. Towards the end of 1995 the plaintiff changed her second major from film to sociology. At the end of 1995 she passed seven subjects gaining one distinction, four credits and two passes. This was a very good result. While at university in 1995 she received Austudy payment and supplemented this grant by working part time at Bakers Delight from June 1995 until it ceased trading in October 1995. She worked about three shifts per week of four hours duration.
10 Towards the end of 1995 the plaintiff decided she would transfer across to the University of New England (now Southern Cross University) to a degree in Applied Science majoring in conservation technology and/or coastal management because the course she was undertaking was mainly theory based and she was more interested in hands-on work. It is both the plaintiff’s view and her mother’s view that, had it not been for the accident, the plaintiff would have completed her degree. I share that view.
11 The accident occurred at about 2.15 pm on 18 January 1996. A car in which the plaintiff was travelling as a passenger left the road at high speed and overturned several times on the Monaro Highway approximately 10 kilometres south of Cooma. The plaintiff was trapped inside the car. The injuries she suffered in the accident had a catastrophic effect on her lifestyle. The plaintiff was taken to Cooma hospital. From there she was transferred to the Royal North Shore Hospital (RNS). She remained in intensive care at RNS from 18 January until about 28 January 1996. The plaintiff was then transferred to the spinal unit until 21 March 1996. When the plaintiff was in intensive care at RNS she did not sleep, suffered from hallucinations, nightmares and anxiety. It became necessary for a member of her family to stay there with her all of the time including overnight to provide comfort and reassurance. Details of the plaintiff’s daily life throughout her period in RNS and Moorong and her initial period at home are more fully recorded in the plaintiff’s mother’s contemporaneous diary (Ex E).
12 Clinical examination of the plaintiff on admission to RNS revealed a complete loss of strength and sensation below the C5/6 spinal vertebra involving the pedicles, lamina and transverse processes with dislocation of the C6/C7 vertebral bodies and obliteration of the spinal canal at the C6 level. Fracture-dislocation of the left C5/C6 facet joint and fracture of one transverse process of C7 were also noted. She was placed in cervical traction until open surgery was performed by Dr W Sears on 21 January 1996. She underwent a posterior cervical fusion using lateral moss plates and bone graft between the C5 to C7 vertebrae. She suffered post-operative complications which included a left lower lobe lung collapse with respiratory impairment.
13 The plaintiff also experienced post traumatic stress and anxiety which required a great deal of psychological support. Dr Middleton, a rehabilitation expert who treated the plaintiff at RNS, gave evidence that although post traumatic stress (PTS) only occurred in 5-10% of the population he remembers vividly that the plaintiff suffered flashbacks, anxiety attacks and nightmares. Dr Middleton said that the plaintiff fell into one of the most severe cases that he had observed.
14 Initially, when the plaintiff was admitted to hospital she had a tube down her throat and was unable to speak. The only way she could communicate was to bite on the tube so that an alarm would go off. She had to communicate with her family members by using an alphabet board and nodding her head and blinking to spell out words. Her mother washed and brushed the plaintiff’s hair. Hair, grit, glass and grass came out. The plaintiff was raging and crying and suffered fear and depression. Sometimes due to her behaviour she was taken to a separate room because she was disturbing other patients. The nurses made her feel guilty about needing her family around her. The plaintiff contracted pneumonia and had difficulties breathing.
15 In the spinal ward, the plaintiff used to think that when her family members or friends left the room that had been gone for a few hours when in fact they had only been gone for a few minutes. Initially the plaintiff suffered panic attacks when she had to get up from the bed into a commode chair or go in a wheelchair and to have a shower. The symptoms which she experienced were that she could not breathe properly and on a few occasions she passed out. She felt claustrophobic and started yelling. After a few weeks the plaintiff learned to deal with her anxiety attacks a bit better. She said that her time at RNS hospital was the worst thing she had ever had to do and she could not imagine that there could be anything worse.
16 The plaintiff wanted to commit suicide and asked a few family members if they could assist her. Prior to the accident the plaintiff had been a very private person and even now there are some things about her loss of privacy she does not want to talk about, (for example Ex D). At times she was depressed and did not want to get out of bed at all during the day. The plaintiff said that she felt that it was like being in prison virtually at the mercy of any one around her as she had no physical power to do anything. She felt that she had lost her independence and that people were making decisions for her. She felt that she would never leave the hospital and go to Moorong Rehabilitation hospital. Then she would get more depressed and lack motivation. At various times the plaintiff suffered unbearable muscular pain in her neck and had to take pethidine, panadol and digesics. The plaintiff underwent occupational therapy and physiotherapy while in hospital.
17 In the early stages after the accident the plaintiff was unable to lift her hands to scratch her head. She came into conflict with the nurses. She became friends with another patient called Paul, who was in the bed next to her and he helped her out when it came to dealing with the nurses. The plaintiff described their friendship as a type of “spinal kinship”. However the plaintiff was moved away from Paul so that she could not cause any more trouble. Once again she felt as though she had no power and her lifeline had been taken away. At this stage she was obsessed with other people’s movements and fantasised what her life would have been like had it not been for the accident.
18 From 21 March to 30 September 1996 the plaintiff was a patient at Moorong Rehabilitation Hospital. At this centre she was expected to undergo daily occupational therapy and physiotherapy. She learnt how to use finger splints to develop her writing skills and use a keyboard and use a Palmar band to enable her to use a toothbrush. She learnt to use both hands-free and mobile telephones but cannot change or recharge the battery of a mobile phone. She also could chop food with a specially designed knife with some success provided that the food and chopping board were set up for her. The plaintiff’s daily physiotherapy was directed towards building strength, handling weights, handling pain management issues and getting used to making transfers from the bed to the wheelchair and the commode chair.
19 At Moorong the plaintiff noticed that she had difficulties controlling her body heat. At night she would overheat and her bed had to be moved outside or into the gym. The nurses had to put a fan in her room or give her a sponge bath. The plaintiff described the heat as making her feel as if her blood was boiling and her brain was in a panic. Over the years the plaintiff has gradually built up an awareness as to when the temperature of her body is not right, but her body continues to be unable to adequately regulate its temperature.
20 At Moorong the plaintiff did not want to undergo the exercises and spent time in bed. She did not want to face the day and was depressed. Part of her mind could see the point of the exercises yet the other part wanted to block it out. She cried and wanted to die. She felt that it was easier if she was not around because she felt she had no future. The realisation that she could not walk or use her hands was overwhelming her. The future looked bleak and grim.
21 As time passed she realised that some days were better than others and on the good days realised that things might work out. She experienced glimpses of hope and she said that this fuelled her desire to keep going. The plaintiff has maintained contact with school friends from The Entrance High School but has lost contact with a lot of her Sydney and university friends after the accident. She no longer feels suicidal and she has returned to university on a part-time basis. She sought out some voluntary work with an environment centre in Manly. She completed short courses in screen writing and other general writing courses at community centres. She has taken holidays including travelling to Canada and has been to the movies and concerts.
1. General damages
22 The plaintiff submitted that an appropriate range for general damages is between $375,000 to $425,000. The second defendant submitted that an appropriate range for general damages is between $300,000 to $325,000. I have taken into account the injuries and disabilities mentioned earlier in this judgment.
23 The plaintiff was trapped in the motor vehicle. She is a tetraplegic at C6 and a quadriplegic below C5/C6. She has extremely limited movement in her arms. She has no movement or feeling in her trunk from just below her shoulders. She is very limited in what she can do. At the time of the accident the plaintiff was a young woman and she was looking forward to the interesting, challenging and fulfilling life ahead of her. She was motivated in attaining her university degree and was working part-time to finance this. She was enjoying university life having moved out of the family home into shared accommodation. At school she had played representative hockey and swimming. She had taken up cycling and protesting.
24 She suffered one of the most severe cases of post traumatic stress. She had fluctuating moods, but often was depressed and unmotivated to get out of bed. Aside from some basic home modifications, she did not have any funds to improve her quality of life and maintain a regular exercise regime. Some basic home modifications were made but she could not go out of the house as she could not afford to pay for a carer to accompany her, until she received an advance in April 1998. During the time between the accident in 1996 and April 1998 the plaintiff’s life was effectively put on hold. I have already referred to the limited tasks the plaintiff can perform herself earlier in this judgment. She has a vertical scar 20 centimetres in length over the back of her neck. She will not make any further recovery. She may gain a pincer grip with each hand and some further reach of her arms if she undergoes a further four operations. At this time she has elected not to undergo those operations for good reason. Any improvement she would gain from them would not greatly improve the quality of her life. Her left middle and ring fingers tend to curl so the plaintiff has to sleep with a splint on her hand.
25 She can use a computer but her typing, with the aid of splints, is very limited. It takes two hours each morning for the plaintiff to have her legs exercised, to be toileted, showered and dressed with the assistance of two carers. She cannot get out of the house in under two hours from the time the carers arrive in the morning. Her loss of dignity is immeasurable. She currently experiences neck and shoulder pain. Since May 1997 she has had continual severe problems with painful bloating of her stomach. She has a catheter which has to be changed regularly and it entails a tube that runs down the plaintiff’s leg. She needs meals to be left out for her. Any books, clothes etc., she requires during the day have to be left within her reach. She needs someone to prepare her lunch and dinner. She needs someone to transfer her to bed. Once transferred to bed there she remains for the rest of the night as she cannot move. She cannot make a spur of the moment decision to go to a restaurant for dinner or a movie or the like. She can take her dog Blitz for a walk down to the end of the street.
26 Taking all this into account and the disabilities mentioned earlier in this judgment I assess the plaintiff’s general damages at $380,000.27 Interest on past general damages is calculated at 4.33 years @ 2% on half the amount of $190,000 = $16,454. A deduction to reflect the payment of advances by the first defendant of $20,000 on 26 January and $1,000,000 on 1 May 1998 should be allowed. I assess interest on past general damages at $14,500.
2. Interest
28 The plaintiff claims the sum of $54,012. The defendants conceded this amount and I allow it.
3. Past economic loss
29 Interest on past economic loss is calculated at 10% for 4.33 years and halved. This equates to $11,693.60. The defendants make no provision for interest. The plaintiff is entitled to interest on past economic loss and I allow the sum of $11,693.60.
4. Interest on past economic loss
5(a) Future Economic loss
30 The plaintiff submitted that she would have commenced full time employment as an environmental engineer on a starting salary of $30,000. With promotions she would have earned a salary of $90,000 at today’s rates by the year 2037. The defendants submitted that the plaintiff would have graduated in Arts and earned a salary of about $40,000 per year average. Alternatively the defendant submitted that she would have earned the average weekly earnings of females in full time employment in New South Wales, namely the sum of $720.60.
31 The defendants submitted that there was no evidence as to the minimum requirements for the course of Bachelor of Applied Science which the plaintiff was contemplating at Southern Cross University nor of the course content (t 231.35-232.5). The defendants further submitted that the chance of the plaintiff obtaining work as an environmental engineer was unlikely due to her lack of mathematical and scientific skills which would be required to graduate in engineering. The plaintiff sat for her HSC in 1990 and again in 1993 but did not study any maths or science. However, the plaintiff was only 23 years of age at the time of the accident. If she decided to change courses, she had the ability to undertake studies in mathematics, statistics and/or science. She can still do so if she so chooses. Her passion was and still is the environment. If she needed to study mathematics, statistics and/or science to obtain her qualifications, she would have done so. She certainly has that intellectual ability. The plaintiff also has a highly refined ability to express herself in the written word.
32 As previously stated, the plaintiff was undertaking a bachelor of Arts at UNSW and doing very well. She had moved out of home to shared accommodation and intended to continue working on a part-time basis to supplement her Austudy payment while completing her four year university course. The plaintiff was planning to change universities and courses as she had been studying theory based environmental subjects. She wanted to have the skills to be able to undertake any level of environmental work whether it be field work or policy based work, and working on local council projects. In short she had decided to obtain a more versatile degree. It is my view that it would be more likely on the balance of probabilities that the plaintiff would have completed a Bachelor of Applied Science.
33 After the plaintiff completed university she intended immediately to re-enter the workforce using her qualifications. During her period at university the plaintiff had matured. She had become more focussed and motivated with her studies and career path. She would not have had any difficulty in completing her university degree within four years, ie., by the end of 1998. She would have (and still has) achieved a high academic standard. It is my view that upon graduation and after the Christmas vacation she would have immediately entered the work force.
34 As previously stated, but for the accident, it is likely on the balance of probabilities the plaintiff would have followed a career as an environmental engineer or an environmental scientist which may have included coastal management. She would have re-entered the workforce on a full time basis at the beginning of 1999. She would have continued to work as long as she needed an income. She is an independent person and it would have been important for her to be financially independent. She had been self-supporting in the years prior to the accident. I accept that if the accident had not occurred the plaintiff would have had children, probably two and would have had the capacity to juggle the roles of a mother and a professional working life.
35 Mr Graham Neilson, Director of Classic Executive Recruiting gave evidence. His business is involved in the recruiting, primarily for employers in private industry, for jobs with a particular focus in engineering and technology areas. He gave evidence that in December 1998, when it was anticipated that the plaintiff would have graduated there was a strong demand for environmental graduates. The whole area of environmental engineering and environment science is a growth area and its growth has just begun. The classification of environmental engineer had only been recognised as a separate discipline in the last three to five years. In this type of work, the person is often called out to do field work. Apparently there is no discrimination against women in the discipline of environmental engineering and there are no difficulties to a women’s career if she takes time off to raise children. Part-time work is available for an experienced person.
36 According to Mr Neilson, the plaintiff would be employed as an environmental engineer and paid a commencing salary of between $30,000 to $35,000 including superannuation. After 5 years, if the plaintiff proved to be an enthusiastic environmental engineer, she would be promoted to a project engineer or senior engineer and earn between $45,000 to $60,000 (not including other benefits). After 10 to 15 years experience, if the person was still enthusiastic and competent, they could earn between $75,000 to $90,000 as a project manager. There are less of these jobs available at the project manager level.
37 It is my view that it is more likely on the balance of probabilities that the plaintiff would have taken the career path in what is now known as the discipline of environmental engineering as outlined above. This discipline is evolving and in the future, job descriptions will change. Even though jobs in the higher salary range are less in number, it is my view that the plaintiff would have been motivated, competent and successful, such that she would most likely on the balance of probabilities have reached this level of seniority.
38 However, some allowance should be made for the time the plaintiff would have opted out of the full time workforce while she was engaged in raising children. The plaintiff has given evidence that she was maternal, having looked after her younger siblings while she was in her more senior years at high school. Although this is difficult to assess, the more likely course would be that the plaintiff would have taken 12 months out of the workforce with each child so she could nurture and bond with each child. The plaintiff has given evidence that she would have liked to have had two children who were born two years apart. It is more likely that she would have children after a few years in the workforce, ie., when she was 32 to 34 years of age. There is flexibility in her line of work such that she could have opted to work at least part of the time from home or worked part time or on a contract basis. She would most likely have worked part time until the children commenced school. From 1 January 2004 to 31 December 2004 the plaintiff would not have earned an income. From 1 January 2005 until 31 December 2006 the plaintiff would have worked part time at about 24 hours per week at $45,000 per annum. From 1 January 2007 until 31 December 2007 the plaintiff would not have earned any income. An allowance should be made for two years out of the workforce on a full time basis. She would have split the rest of her working career between full time and part time work, probably part time continuing while the children were in primary school and full time after that until 65 years. From 1 January 2008 until 1 January 2019 up to the last child completing primary school the plaintiff would work part time 24 hours per week at $50,000 per annum. From 2019 until 2037, the plaintiff would earn an average of $70,000 on a full time basis. I have not calculated the plaintiff’s earnings at the very top of each scale because I have taken into account that there may have been short periods where the plaintiff may have chosen to work part time or chosen to take some short breaks. It also takes into account that the plaintiff may not have been paid at the top rate. The parties are to calculate this amount.
39 I turn now to consider the plaintiff’s residual earning capacity. On 1 July 1998 the plaintiff resumed her study for a Bachelor of Arts majoring in sociology at UNSW. She sat an exam and gained a distinction. In 1999 the plaintiff completed two more subjects at university. She passed both subjects and also with distinctions (t 66). At the beginning of this year she enrolled in two subjects but deferred her studies at university after two weeks attendance as she felt she could not cope. This in part was due to the pressures of this court case.
40 It is anticipated that the plaintiff will complete her degree in eight years time, ie., by the end of 2008 when she is 36 years of age. It is common ground that the plaintiff has a capacity to return to the workforce for 10 years, ie., until she reaches the age of 46 years. The plaintiff’s evidence is that she may be able to earn something but at the present cannot envisage in what way this can be done.
41 Associate Professor Yeo, who is a very experienced and well recognised rehabilitation expert gave the opinion that once the plaintiff completed her degree this would assist her in gaining employment. His view was that she would enter into the workforce and from his experience, a woman with this level of disability and assuming that her psychological problems are controlled would be able to work up to 50% of a normal working week on a part time basis (t 168.30) but she would not work beyond the age of 50 years. Similar evidence has been expressed by the other rehabilitation experts. The plaintiff is capable of working between the ages of 36 and 46 years. The plaintiff will be limited in the type of work place she can access and she may not be able to carry out field work in rough terrain as is often required in this type of work. However she is passionate about the environment and she is able to use her intellectual ability and her computer skills to carry out work in the discipline of environmental engineering. Her computer skills may be enhanced in the future with the use of voice recognition programs (t 180).
42 The defendant submitted that residual earning capacity was $200 net per week. I have taken into account that the plaintiff will be disadvantaged in obtaining a job in the open job market in that she will need to find a flexible employer. She can only work part-time for about 50% of a working week and she may be able to do contract work. The minimum time it would take for the plaintiff to get ready for work in the morning would be two hours. She has to fit into her working schedule her regular weekly exercise. She may also be hospitalised on occasions in the future. After taking these factors into account I think that $200 net per week is a reasonable sum and I assess the plaintiff’s residual working capacity between the years 2009 to 2019 at $200 net per week at present value. It was agreed that the appropriate deduction for vicissitudes is 15%.
43 The parties are to agree on the arithmetic.
5(b) Superannuation benefits
44 The parties are to agree on the arithmetic on the basis of the above.
45 It is agreed that the appropriate deduction for vicissitudes is 15%.
5(c) Long Service leave entitlements
46 The defendants submitted that the claim for long service leave assumed that the plaintiff would not have taken leave during her course of employment. The plaintiff may have saved up her annual leave to take overseas holidays or combined holidays with conferences and/or work. For the above reason I allow long service leave without the general reductions suggested by the second defendant. However, long service leave entitlements should be calculated in accordance with the plaintiff’s future earnings as previously mentioned.
47 It is agreed that the appropriate deduction for vicissitudes is 15%.
48 The parties are to agree on the arithmetic.
6. Past out of pocket expenses
49 The plaintiff claims the sum of $514,134 for past out of pocket expenses. The parties have agreed to out-of-pocket expenses as set out in a schedule in the sum of $438,870.97. The plaintiff did not press the sum of $28,810.75 paid to Centrelink and I have not allowed the sum.
50 The sum of $46,078.62 remains in dispute. These disputed expenses are set out in a schedule. They can be broken down into four main categories, firstly, a computer and desk; secondly, weekly massages, exercise regime by Stuart Mashman and yoga classes; thirdly, the trip to Canada which includes car hire and accommodation of the plaintiff and two carers; fourthly, a sum of $4,000 paid on 7 August 1998 to Westpac Private Bank for investment advice and review of financial circumstances.51 The computer provided a means of communication when the plaintiff was housebound with limited assistance available. The desk is one which fits her wheelchair underneath. There was no other desk in the house that could fit the wheelchair underneath. Although the plaintiff would have, at some time in the future, purchased a computer while at university she did so earlier due to her spinal injuries and physical isolation. Later she purchased a laptop which she can use in bed when she experiences too much shoulder and neck pain from being positioned in front of the computer desk. It is reasonable to allow this amount of $2,972 and I do so.
6(a) Computer and desk
6(b) Massages, training and yoga
52 Medical advice recommended that the plaintiff undertake hydrotherapy. However, Mona Vale swimming pool did not have change rooms for disabled people. Nevertheless, she tried hydrotherapy for a couple of weeks. The plaintiff gave evidence that without participating in her regular exercise routine she would not be able to do half as well and her body would suffer a lot more (t 77.30). Massage was recommended by Dr Oakeshott in his report dated 2 December 1998.
53 Associate Professor Yeo stated that without hydrotherapy it was reasonable for the plaintiff to undergo three hours of exercise per week as therapy (t 196.5). Dr Middleton said that in addition to hydrotherapy it was reasonable for the plaintiff to undergo one to two hours per week of exercise. In the absence of hydrotherapy I allow the equivalent of three hours of exercise per week at $40 per hour which equates 177 x $120 = $21,240 from December 1996 to date.
54 The massages ($5,230), Stuart Mashman ($5,680) and yoga ($860) result in the total sum of $11,770 which is less than the amount I would have considered to be reasonable. Accordingly I allow the amount of $11,770.55 The sum in dispute of $27,336.62 relates to a six week holiday taken by the plaintiff to visit her sister in Canada during June and July 1999. The plaintiff did not attend her sister’s wedding in Canada in 1997. The cost relates to two carers and their accommodation and flights, the hire of a vehicle that could accommodate the plaintiff, her sisters and two carers and wheelchair. The plaintiff made private arrangements with her carers which was less than the weekly costs for care provided in Australia. The defendants reports, namely those of Southern Cross Community Healthcare dated 1 October 1999 and Domestic Support Requirements dated 5 October 1999, recommend two carers to accompany the plaintiff on holidays. The plaintiff’s mother gave evidence that it was her experience that it was too tiring to take the plaintiff on holidays and be the only carer. It is reasonable for the plaintiff to take two holidays and the expenses are reasonable and I allow them. If the plaintiff had not had a spinal injury she would have stayed with her sister and relatives in Canada. In February of this year the plaintiff went to Byron Bay for two weeks. She would have stayed with friends but for the accident. The plaintiff and her one carer’s accommodation is claimed. I allow all of these amounts. I allow the sum of $27,336.62.
6(c) Holidays
6(d) Westpac Private Bank
56 After the judgment on liability the plaintiff received an advance from the second defendant in the sum of $1,000,000. She sought advice into the best way to use these moneys. The adviser comes to her house to give her advice in relation to the investment portfolio and prepares tax returns. The plaintiff did not know how long the funds had to last until the determination of this trial. Accounts were established, one of which would allow the carers to access it. On advice the plaintiff bought a house and borrowed a further $200,000, bought a laptop, electric bed, increased her level of care, paid some outstanding out-of-pocket expenses and invested some of the funds. The disputed out-of-pocket expenses which have been allowed amount to $46,078.62.
57 In The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49 the High Court held that where the tortious injury has not affected the capacity of the plaintiff to invest moneys, her physical state with confinement to a wheelchair and difficulty in writing makes it likely that some expense will be incurred in managing her financial affairs. The plaintiff’s intellect has not been affected by the accident. I accept that it would be physically difficult for the plaintiff to prepare tax returns and forms necessary for setting up bank accounts and investments. I allow the sum of $1,200. The total of past out-of-pocket expenses allowed is $482,149.59.58 The second defendant has conceded the claim for past gratuitous assistance provided by the plaintiff’s family and Noakes Nursing Assistance from the date of the accident to date in the sum of $251,886. Accordingly, this amount is allowed.
7. Past gratuitous services - Griffiths v Kirkemeyer
Life expectancy
59 The plaintiff is presently aged 27 years and 11 months. It is agreed that the plaintiff’s life expectancy would have been 58.38 years. The defendant submitted that the plaintiff’s life expectancy is 80% of the years that would normally remain, whereas the plaintiff submitted that the plaintiff’s life expectancy is 90%. Both Dr Middleton and Associate Professor Yeo held the view that the plaintiff’s life expectancy has been reduced. Dr Middleton assessed the plaintiff’s life expectancy as being at least 80% of the years that would normally remain. When Dr Middleton gave evidence he increased the plaintiff’s life expectancy at 90%. Both Associate Professor Yeo and Dr Middleton are highly qualified experts and impressive witnesses.
60 In his report of 5 February 1997 Associate Professor Yeo said that recent studies of patients treated through the RNS and continuing to live in New South Wales with appropriate level of follow-up care and attendant care, indicated that the average “complete” tetraplegic would have a life expectancy approaching at least 75% of the years that would normally remain. In his later report Associate Professor Yeo assessed the plaintiff’s life expectancy as approaching 70% of the years that would normally remain. He adjusted life expectancy downwards due to the fact that the plaintiff was having emotional and physiological problems and had irritable bowel syndrome. At the hearing Associate Professor Yeo said that a more up to date figure, taking into account that four years have passed since the accident and the plaintiff aside from one visit to casualty has had no hospitalisations, her life expectancy as at this date was that she would have 77% of the years that would normally remain.
61 Associate Professor Yeo stated that he has seen the plaintiff in his capacity as a consultant on two occasions and that he is giving evidence in that capacity not as a treating doctor (t 193.5). Both doctors were involved in a study and were authors of an article entitled “Mortality Following Spinal Cord Injury” ( and based their opinion on the post accident good health of the plaintiff, her psychological state and findings on this study. Dr Middleton was the principal author of the paper and has recently been involved in updating the paper. Dr Middleton is also the plaintiff's treating specialist both at RNS and Moorong and has had regular contact with her. Taking both these views into account, and doing the best I can, I assess the plaintiff’s life expectancy at 85% of the years that would normally remain.
Calculation of life expectancy using the life tables
62 If 58.38 years is reduced by 15%, the plaintiff’s life expectancy is 49.623 years. The 3% multiplier is 1358.
63 The plaintiff quoted a passage from the well known text Assessment of Damages for Personal Injury and Death, Harold Luntz, 3rd Ed Butterworths 1990 at 272, at paragraph 6.2.4 where it said:
“Although there are available to lawyers in accessible legal sources a number of clear explanations of the nature of actuarial evidence, misunderstanding seems to persist. As already mentioned (in 6.1.6) some courts confuse arithmetical or mathematical calculations with actuarial ones. So long as this confusion remains one of terminology, it is unimportant. Danger exists, however, in failing to recognise that true actuarial calculations already take into account the contingency of death (and sometimes if the actuary is so instructed other vicissitudes of life as well) and, therefore, when dealing with some figures no further allowance must be made for the contingencies incorporated by the actuary; whereas such allowance must always be made when dealing with purely arithmetical figures. But in some cases, though the evidence appears to have been truly actuarial, allowance is, nevertheless, erroneously made for premature death.”
64 The calculation in the tables gives the life expectancies in 1998 for Australian males and females. The mortality rates assumed are those projected by the Australian Bureau of Statistics in “Projections of the Populations of Australia 1995-2051”. It has long been evidence that any set of life tables is by definition an underestimate of future life expectancy. Life tables reflect average life expectancy of those who have already died. Those who remain alive will on average have a better life expectancy and the only question is by how much.
65 The defendants’ approach was to make the calculation based on the multiplier of 58 ie 1447.4 and then deduct 15% from that sum. As I can use the tables to calculate the life expectancy, it is my view that I should use the plaintiff’s figure of 1358 to calculate the plaintiff’s future entitlements as it is already an underestimate of future life expectancy.
8. Future cost of care (including future handyman and housekeeper costs )
66 This is the most expensive component of the plaintiff’s damages, so I have examined the following reports in detail. Reports by Associate Professor Yeo, Dr Middleton, Dial-an-Angel dated 9 July 1997, 8 March 2000 and 1 April 2000, Dr Oakeshott of Medlaw and Associates dated 2 December 1998, Professor Jones dated 2 July 1997, Noakes Nursing Services dated 29 March 2000, Cost and Assessing Injury Management Services (CAIMS) dated 2 December 1998, Macquarie Nursing Service undated, Southern Cross Community Healthcare dated 23 September 1999 and 1 October 1999, Silver Circle dated 23 September 1999 and 7 October 1999 and Intercede Pty Limited dated 26 October 1999 were tendered.
67 The plaintiff submitted that the weekly amount that should be allowed is $6,223. The plaintiff used two methods of calculation, firstly, by costing 24 hour nursing provided by Noakes or secondly, a live-in couple/housekeeper plus gardener/handyman and an additional carer for 21 hours per week as costed by Dial-an-Angel. The defendants submitted that the plaintiff would require one live-in housekeeper with a live-out daily housekeeper plus an attendant carer or enrolled nurse for 21.37 hours per week for personal care, catheter care once per month and the services of a gardener/handyman of 4 hours per week. The defendant submitted that a live-in carer should be allowed in the sum of $2,592.86 which is the average cost of Dial-an-Angel and CAIMS plus $80 per week for the gardener/handyman. This brings the total weekly cost to $2,672.86. The defendant made no allowance for a driver.
68 To determine the applicable amount to be awarded for home care services it has to be identified which services the plaintiff would reasonably need, as a result of the defendants’ wrong. Or expressed another way the plaintiff is to be compensated for the loss of her capacity to look after herself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. The principles were recently restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319.
69 Dr Middleton in his report dated 23 February 1999 stated that 21 hours of care assistance per week would be required. The amount of care would increase by 4 hours every 15 years. At end of life the plaintiff would require 33 hours per week, and the average equals 27 hours per week. He stated that the plaintiff would require a live-in carer and 4 hours per week handyman assistance. He did not make any provision for a driver. Associate Professor Yeo in his reports dated 5 February 1997 and 10 February 1999 stated that the plaintiff would require 21 hours per week from home carer/nurse being two hours each morning and one hour in the evening. This is currently the amount of care that the plaintiff receives. Associate Professor Yeo also agreed with Dr Middleton that she would require monthly catheter care, a live-in housekeeper and handyman assistance of at least 4 hours per week. Associate Professor Yeo favoured a live-in couple rather than a single housekeeper.
70 Associate Professor Yeo gave evidence that no quadriplegic should be left without some observation for greater than 1 hour and in the main less if it is possible. This view was supported by other doctors. There needs to be someone within calling distance because quadriplegics can fall from their wheelchairs with spasticity and have breathing difficulties due to lack of balance (t 175.35). If the plaintiff drops her mobile phone on the floor and an emergency occurs she cannot pick it up to call for assistance and the situation she finds herself in may be life threatening. For example, her dog Blitz has pulled out electrical cords and that left her without power to operate air conditioning and her electric bed and the like.
71 Both the plaintiff and Associate Professor Yeo referred to the importance of the continuity of carers so that the plaintiff obtains and maintains the standard of care she requires and avoids complications which occur with loss of balance, contractures of paralysed limbs, pressure areas in skin that no longer has normal sensation, adequate drainage of the bladder through the catheter and proper bowel care and dangers of sudden rises in blood pressure due to postural hypotension which can be life threatening (t 175, 176).72 Before the plaintiff can employ a live-in housekeeper the renovations to the house at Manly will need to be completed. This will take 9 to 12 months. There is a swimming pool in the backyard. Once modifications are made, the plaintiff will be able to use the pool for hydrotherapy. There is no dispute that the plaintiff will require care consisting of 24 hour nursing plus 21½ hours per week assistance of carers while she remains living in her mother’s house at North Curl Curl. The plaintiff wants to retain as much independence as she can and to this end has never wanted her family members assisting in her domestic care, particularly her personal care. Up until now, despite the fact that she has had limited amount of care provided by carers, family members have not been involved in the plaintiff’s personal care. Understandably, she wants to be as independent as she can possibly be. Prior to the accident, she had left home and lived independently. She would have continued to live independently but for the accident.
8(a)(i) The next 9 to 12 months
8(a)(ii) Costing of the next 9 to 12 months
73 The plaintiff’s first method of calculation was by using the Noakes report. The cost of 24 hour care of three people of eight hours shifts plus an extra nurse for two hours each day equates to $6,679 per week including GST. This assumes that the carer will also be the driver but makes no allowance for the four hours of handyman assistance that is required. The plaintiff’s other method of costing is that a live-in couple be provided by Dial-an-Angel. As a live-in couple is not an option for the next 12 months, I do not use that method to calculate costs of future care during this period. However, if it were feasible to use as a guide, passive sleep overs from 10.00 pm to 6.00 am costs $110 per night x 5 + 120 x 2 = $790 + 6.00 am to 10.00 pm nursing at 5 x 16 x $25 + 16 hours x 27 + 16 hours x 28 = 2,000 + 432 + 448 = $2,800. $2,800 is the weekly amount of 24 hour care. To this has to be added 21.5 hours extra care at $27.50 x 21.5 =$591.25. $5,135 plus GST and agency fees = $5,135 + $513.50. The agency fee is calculated from $15 to $50 per day. If the agency fee is calculated at $30 per day x 7 = $210 the weekly amount for 24 hour care is $5,858.50.
74 The report of Costing and Assessing Injury Management Services (CAIMS) recommends that the plaintiff’s current needs be assessed on the basis of 24 hour care but does not include the cost of a live-in housekeeper. CAIMS recommends a housekeeper/gardener for 12 hours per week, a registered nurse for 1 hour per day, a personal carer for 4 hours per day plus an additional personal carer for 12 hours per week. Macquarie Nursing Service costs a carer with nursing experience for 24 hours on a live-out basis at $3,143.20 but to this needs to be added a further 21.5 hours of care = $1,150.50 = $4,293.70 + GST $429.37 = $4,723.07. Southern Cross Community Healthcare costs 24 hour attendant care with 8 hour inactive night at $2,937.60. To this needs to be added 21.5 hours ($1,570) = $4,507.60 + GST $450.76 =$4,958.36. Southern Cross Community Healthcare assessed 24 hour care at $2,555.78 per week + 21.5 hours = $1,362 = $3,917.78 + GST $391.78 = $4,309.56. So the costs of care for the next 12 months range between $6,679 down to $4,309.56. I allow an amount of $5,674 per week which is within the mid range for care for the next 12 months.
75 To this has to be added the costs of 2 hours per week of gardener/handyman assistance. Less maintenance is required at North Curl Curl than at Manly. (see CAIMS report - tab 51). This amounts to $44 per week including GST. $5,674 + 44 = $5,718 per week x 52 = $297,336. The amount allowed for care for the next 12 months is $297,336.
8(a)(iii) Driver for the future, including the next 12 months
76 In addition Associate Professor Yeo allowed for a driver for 10 hours per week. Both Associate Professor Yeo and Dr Middleton thought that it was borderline whether the plaintiff would be able to obtain her driver’s licence. Associate Professor Yeo stated that if the plaintiff does not obtain a licence and was therefore unable to drive her own motor vehicle, she would be unable to use public transport apart from taxis. He said that she should be provided with additional attendant care to assist her with the provisions of a personal driver for up to ten hours per week. Recently the plaintiff attempted to learn to drive at Moorong. She did not have the physical strength in her arms to drive for more than five minutes and she did not manage to drive outside the grounds. She will need a driver to travel to university to complete her studies and also to get around. Ideally the driver for university should be the carer who assists the plaintiff with note taking etc.
77 Although Associate Professor Yeo stipulated the plaintiff required a driver for 10 hours per week Dr Middleton, Dr Oakeshott and Professor Jones do not suggest that such a driver is necessary. It is acknowledged that the additional 21 hours of care is solely for hygiene and preparation of meals and does not include any driving duties. Nevertheless, it is my view that if a live-in carer is provided for, then he or she should be able to undertake the required driving. While the plaintiff remains at North Curl Curl the 24 hour carers should be able to undertake driving duties. I do not think an allowance for a driver is reasonable.
8(b) After the renovations are complete
78 Dr Oakeshott in his report dated 2 December 1998 stated that the plaintiff would require 24 hour attendant care and a registered nurse for 20 hours per day for other duties around the house including meal preparation. The defendants submitted that a live-in housekeeper could perform the additional three hours of other duties around the house. Dr Jones in his report dated 2 July 1997 stated that the plaintiff would require 17½ hours per week in personal care and monthly catheter care. He stated that a carer was not required during the day but one would need to be available at short notice. As previously stated Associate Professor Yeo and Dr Middleton also supported the view that a live-in housekeeper is required and an additional 21 hours per week of home care. The hours recommended by the doctors averaged out at 21.37 per week. I allow 21.5 hours of home care assistance. The defendants calculated amounts on the basis of 21.5 hours per week. Associate Professor Yeo supported a live-in house couple, whereas the other doctors thought that a single live-in housekeeper was reasonable.
79 The defendants agreed that the plaintiff should have a live-in housekeeper because it is preferable for the plaintiff to have a relationship so far as possible with a single person with whom she can develop a rapport, rather than having a succession of persons, none of whom would live in her home. The plaintiff submitted that she should be entitled to a live-in couple as distinct from a single person housekeeper who lives-in. As housekeepers’ duties, driving and handyman and carers’ duties may overlap, I have tried to identify the duties that can reasonably be expected of a live-in housekeeper couple as the claim for future care amounts to a substantial sum of money. Dial-an-Angel has identified the services that the plaintiff requires as:
“Companion-Care Services includes emotional support guidance companionship, the organisation of activities, supervisory care, motivation and encouragement to attend and participate in activities of interest and social pursuits. A carer within this category would be available to accompany the plaintiff on vacations, to appointments and to assist with domestic/housekeeping tasks if required.
Domestic/Housekeeping assistance: washing, ironing, changes of bedlinen, bed making, the general maintenance cleaning of the home, attentions to hot plates/oven and freezer/refrigerator, the preparation, cooking and service of meals, and shopping for household provisions.
Shopping for personal items (clothing, toiletries etc)
Transporting and accompanying on all excursions from the home and with transfers in and out of the motor vehicle.
The fetching, carrying and general attentions required for the care of a totally disabled adult.”80 CAIMS in its report dated 25 October 1999 stated that a live-in housekeeper would drive the plaintiff to and from university, assist her at university and take her to and from appointments and outings as required. The housekeeper would provide all the domestic requirements of the home which would include preparing all meals, shopping, cleaning, washing and ironing. The report also canvasses that the role of housekeeper/carer could alternate between two to three people. As previously stated, and from the above, it can be expected that the live-in housekeeper can undertake driving duties for the plaintiff so I make no allowance for this item. As meals are prepared by the carers, it seems reasonable that the live-in housekeeper’s duties should include the domestic chores and shopping.
81 According to Dial-an-Angel the obvious advantages of a live-in carer are that the extreme demands upon both the physical and emotional resources of the primary carer would be shared. The arrangement of a live-in couple is usually more tenable and stable than if a single carer is employed; a second person is nearly always immediately available for the lifting and transfer and for emergency situations and the appropriate care level is more likely to be maintained, particularly when there is no emotional or familial attachment to compensate. Associate Professor Yeo recommended a live-in house couple, whereas Dr Middleton and Dr Oakeshott stipulated a live-in housekeeper. It must be remembered that the plaintiff cannot and is not expected to in the future be able to perform transfers by herself and it is preferable for two carers to perform the transfers. However most of the transfers are done by two carers in the morning with showering and toileting etc. The provision for two carers each morning has been allowed.
82 On this issue I prefer the evidence of Drs Middleton and Oakeshott. I think it is reasonable that the plaintiff have one live-in housekeeper not a live-in couple. I allow the costs of a live-in housekeeper. A live-in housekeeper is expected to be on duty five days per week. I allow for the plaintiff’s weekend care on the basis that the carer does not live at the plaintiff’s residence.
8(b)(i) Costing of future care (after 12 months)
83 It is agreed that the plaintiff is expected to provide food as well as accommodation for the live-in carers. Cost of keep has been calculated at $21.25 per person per day based upon the Australian Bureau of Statistics 1996 figures for average household expenditure. Keep includes food only - see report of Macquarie Nursing Service (undated), $21.50 x 7 = $150.50. Alternatively, $120 per week has been recommended. I allow $135 per week for keep.
84 It is agreed that the plaintiff requires a handyman for 4 hours per week at $22 per hour. This equates to $88 per week. It is agreed for a nursing attendant at 21.5 hours per week. I allow $30 per hour x 21.5 = $645.
85 Dial-an-Angel costs a live-in housekeeper as follows. For weekdays the cost is $1,250 gross ($825 net) plus keep and superannuation, placement fee and GST. The weekend care is allowed at $340 per day plus keep, agency fees, and service fees. This amount equals $1,930 plus keep, agency fees, superannuation and service fees. According to Dial-an-Angel when it is contracted by a third party (the customer who is invoiced for payment) to manage the client’s (the person receiving the services) care, the charges are higher due to the time involved in case management, administration costs, total insurance cover and the lodging of superannuation payments with an approved fund. Only staff angels are used. Wages are paid in accordance with the Miscellaneous Worker’s Homecare Industry NSW State Award. This includes entitlements to penalty rates and annual and sick leave entitlements for permanent employees. With the additional taxes and levies another 50% - 75% may be added to the basic salary quoted when the agency is required to employ the carer. This seems a very large weekly sum. Not all agencies impose a sum of this magnitude but the reports are imprecise as to a total amount that would cover all these additional expenses that the plaintiff would be liable to pay.
86 The defendant submitted that the plaintiff would be likely to hire the housekeeper directly and thus would not have to pay GST. If this proposition is accepted, the plaintiff would be responsible for the housekeeper’s superannuation, long service leave, holiday pay. The plaintiff would be expected to complete the paperwork which could prove physically difficult. The defendant allowed $200 per week for holiday pay, keep, agency fees and incidentals.
87 Southern Cross Community Healthcare recommends that the plaintiff requires up to 24 hours per day attendant care with an inactive sleepover. The plaintiff could be left for short periods, but a full assessment in her home by Southern Cross Community Healthcare would be appropriate to determine the specific levels of care provided. The attendant care would preferably be in three, eight hour shifts. The care attendants would need to be skilled in caring for people with spinal injuries and be able to attend to all personal care needs, including bowel care. The care attendants would be able to attend to domestic tasks, shopping, transport and accompany the plaintiff to university and on social outings. If the plaintiff were to live alone then additional domestic assistance would be required for window cleaning and cleaning cupboards. Gardening and home maintenance would also be required. This regime is costed at $2,937.60 per week and covers professional indemnity and workers compensation but not superannuation or GST or leave entitlements. If these items are added weekly care would be around $3,522 per week.
88 CAIMS costs an attendant/live-in carer/housekeeper with no public holiday allowance for seven days per week at $1,785. This sum includes superannuation, annual sick leave, insurance and administration costs but not GST. If GST is included it amounts to $1,963.50 plus some extra allowance needs to be made for public holidays.
89 Macquarie Nursing Service costs a live out carer with nursing experience for 7 days at $314.20 which includes agency fees and public holidays but not superannuation or GST. The costs of a live-in carer in 1999 was $181.03 per day inclusive of agency fees = $1,269.10 plus 5 weeks leave, plus 17% loading, plus 76 hours sick leave, keep of $120, plus superannuation and GST.
90 Silver Circle in its report dated 7 October 1999 (tab 56) costs 24 hour care at $2,555.78 per week which includes 24 hour care, public holiday surcharge, heavy duty housekeeping, transport and case management. Ms Pam Davis of Silver Circle is of the view that the live-in carer could manage all of the plaintiff's personal care and most of the housekeeping tasks but required a driver. In addition a nurse once per month would be required to change the plaintiff’s catheter.
91 Intercede in its report dated 26 October 1999 costs a carer who rotates shifts and other duties on an hourly basis. It assessed the total care at 202 hours plus 15 minutes. The report does not include a dollar value of this assessment.
92 The amount for 7 day live-in care quoted by Dial-an-Angel and CAIMS is similar, namely $1,930 and $1,785 respectively. To the CAIMS amount has to be added a public holiday allowance (plus 50% of daily wage) and GST. Public holiday surcharge amounts to about $30 per week. $1,785 + 30 = $1,815 + 21.5 hours, using Dial-an-Angel rates at $645, plus keep of $135 = $2,595 per week plus GST of 10% = $2,854.50. To this must be added 4 hours of gardening/handyman at $88 making the total amount of weekly care at $2,942.50 x 1358 = $3,995,915.93 As the plaintiff ages, she will require greater care provided by carers. Associate Professor Yeo and Dr Middleton stipulated that the plaintiff will need four hours extra care every 15 years. The defendant does not allow for any increase in care being required. As previously stated, I accept the views of Associate Professor Yeo and Dr Middleton. I allow for increase in care as the plaintiff ages. This equates to $100 per week plus agency fee of $25 plus GST = $137.50. Over the plaintiff’s lifetime this sum amounts to $353,856.80.
9. Additional future care
94 This item is agreed in the sum of $315,802. I allow this amount.
10. Home construction expenditure
11. Additional home expenditure
95 The plaintiff claims an additional $13,075 per annum including the sum of $605 for additional telephone/electricity. The plaintiff claims the sum of $342,881. The defendant submitted that the additional telephone and electricity costs are allowed in the $200 per week cost of keep. The defendant accordingly adjusts the weekly sum to deduct these expenses and the adjusted sum is $12,570 per year. Even though I have allowed for only a single housekeeper/carer, this extra amount is reasonable.
96 As discussed under the heading of “Future costs of care” keep does not include the electricity and telephone but the food. The costs of electricity and telephone are to be paid by the plaintiff as she is responsible for this expenditure. I allow the higher sum of $13,075 per annum. I allow the total sum of $342,881 for this item.97 Associate Professor Yeo in his report dated 5 February 1997 recommended that the plaintiff’s attendant carers be advised by a physiotherapist at least six times per year, with consultations to instruct the attendants in active and passive movements to avoid the plaintiff developing contractures and to maintain adequate strength in those muscles which have been spared. He also recommended that the plaintiff should continue to be seen by her local doctor for review and urine tests at least every three months and by the visiting district nurse for a catheter change every month. An intravenous pyelogram or ultra sound should be repeated yearly for the first three years and then once every three years. The Professor agrees with Dr James Middleton, the plaintiff’s treating specialist, that she continue to be reviewed by the spinal specialist every two years.
12. Future medical treatment expenses
98 The plaintiff allows between $330-$660 per annum. Associate Professor Yeo recommends one home visit every three months. The defendant has allowed for a home visit every two months at $55 per visit. I allow a visit of the general practitioner every two months. This equates to an amount of $330 per year or $6.35 per week.
12(a) General practitioner
99 Associate Professor Yeo and Dr Middleton say that the plaintiff should be reviewed by a spinal specialist every two years. The defendant has allowed for this at the rate of $81 as stipulated by Associate Professor Yeo each two years or $40.50 each year or 81 cents per week. I allow this amount.
12(b) Specialist consultation
100 The plaintiff claims two weeks per year at $10,110. The defendants submitted that striking a balance between medical and surgical accommodation, the appropriate amount is $6,800. I have taken into account that the plaintiff has not had any hospital admissions for the last few years but it is more likely that she will as she ages. There are two possible operations that the plaintiff may have to undergo, namely an implant which will allow a pincer grip between the thumb and index finger and thumb and second finger. It allows eating with more dignity and easier use of the computer keyboard. The shoulder operations would give the plaintiff further reach. The plaintiff has decided against these operations at present as she does not want to go back to hospital and it may psychologically set her back. The benefit from the operations is limited. There is one operation for each shoulder or hand and the hospitalisation is a few weeks with the plaintiff being rendered almost helpless for three to four months. While at this stage it is unlikely that the plaintiff will undergo any of these operations, in accordance with the principles in Malec v J C Hutton (1990) 169 CLR 638 I should make allowance for this possibility. Catherine Lambert, Director of Clinical Services of The North Shore Private hospital in her report dated 15 September 1999, costs beds at $470 to $510 per night and theatre fees at $500 to $2,000 (tab 41). Accordingly, I allow the higher amount for hospital admission, namely $10,110 per annum or $194.42 per week.
12(c) Hospital admissions
101 The defendant made no allowance for a kidney x-ray or ultrasound. Associate Professor Yeo recommended that an intravenous pyelogram or ultrasound should be repeated once every three years. This amount is $133 each three years or $45 per annum or 19 cents per week. I allow this amount.
12(d) Kidney x-ray or ultrasound
102 The physiotherapists are required to review the plaintiff’s situation and to instruct carers in the proper care of her joints and neck. The plaintiff has claimed six to eight home visits per year at between $60-$80 per visit. The defendant has allowed eight home visits at $60 per visit = $480 per year. I allow $480 per annum or $9.23 per week.
12(e) Additional physiotherapy
103 The Medical Law Association recommends that the plaintiff will need an occupational therapist to assess her equipment needs for five hours per month for the rest of her life. An occupational therapist assists in making splints and other equipment. When the plaintiff has the alterations done to her house, she will need the occupational therapist to help her overcome unforeseen problems. As new equipment comes on the market, the plaintiff will need the input of occupational therapists to assess it. Also equipment will need to be replaced for which the plaintiff will need an occupational therapist. The defendant made no allowance for an occupational therapist. I allow this sum, namely $5,340 per annum or $102.69 per week.
12(f) Occupational therapy
104 Nursing staff and carers do not perform podiatry. The plaintiff has a consultation at her house every six weeks at a cost of $45 per treatment (tab 37). That is 9 treatments per year. This cost needs to continue during the plaintiff’s lifetime. I allow this amount. The weekly costs for further podiatry treatment is $7.79.
12(g) Podiatrist
12(h) Monthly change of catheter
105 A visiting nurse is required to change the plaintiff’s catheter each month. A nurse has to be engaged for a minimum of 2 hours at a rate of between $25 to $30 per hour plus GST plus agency service fees. It is to be clarified by the parties whether this amount has been allowed in the 21.5 hours of weekly care.
106 The total weekly costs of 12(a) to (h) future medical treatment and expenses = $321.54 x 1358 = $436,651.32.107 The plaintiff seeks $18,000 for future rehabilitation including $2,000 for 20 driving lessons. The defendants allow nil for this item. Dr Middleton gave evidence that the plaintiff really requires further rehabilitation in terms of reducing her dependence in transfer and also for driving lessons. (t 292). Dr Middleton stated that in order for this to happen the plaintiff would need to return to Moorong for a period of three to four weeks rehabilitation in order to achieve her functional goals. It costs $550 per day plus driving assessments and other assessments as well. This amounts to $15,400 plus assessments. It would certainly be of benefit to the plaintiff to undergo this further rehabilitation and I allow the amount of $18,000.
13. Future rehabilitation and driving
14. Counselling treatment
108 The plaintiff claims $150 per month for two to five years for psychological treatment. The plaintiff has calculated this range to allow for the plaintiff to re-socialise and return to university and further adaptation. The defendant has not allowed any sum under this heading. Mr Geoff Dugan, a psychologist, has been seeing the plaintiff for the past 18 months at her residence as well as maintaining telephone contact. In his report dated 11 June 1999 he stated that the plaintiff was suffering depression along with its associated manifestations, including sleeping disorders, digestive problems, lack of motivation, a general sense of despair and despondency. He stated that post traumatic stress seemed to be evident and was evidenced by alternating bouts of severe anxiety and dissociative phenomena, making it very difficult for the plaintiff to effectively deal with her considerable everyday demands, let alone building workable strategies for a viable future.
109 Mr Dugan also stated that while the plaintiff was responding to intervention, fundamentally, he foresaw the need for ongoing and extensive psychological support in order for her to come to terms with what is a cataclysmic change in her life as well as adjusting to and adequately handling the unfamiliar and depressing nature of her future. It is his opinion that the plaintiff will require continuing therapy, on a fortnightly basis, indefinitely. At this stage it is impossible for him to give a more precise indication of time other than to say continuing therapy would be needed at the very least for a further twelve months at a cost of $150 per visit.
110 The plaintiff suffered from severe post traumatic stress and depression after the accident. She has not had any psychiatric treatment. It is my view that she will need counselling from time to time when she changes her lifestyle in the future, such as when she starts work and has to come to terms coping with her disabilities in the workplace. I allow the sum of $7,590.
15. Future equipment expenses
111 In the report of ParaQuad dated 22 April 1999 (tab 47) the annual cost of equipment is $8,698.86. This excludes the costs for a van or car which are covered under a separate heading. Mr Kalifeh of Outreach Mobility in his report dated 31 March 1999 costed equipment at $12,111.14 (excluding car) per annum. The plaintiff submitted that as there was no challenge to the appropriateness of the equipment put forward by Mr Kalifeh except in relation to his approach to the vehicle, Outreach’s quote should be accepted. The plaintiff claims $334,693. The defendant submits that a reasonable sum is $194,165 and relies on the Paraplegic and Quadriplegic Association’s report. Associate Professor Yeo stated that the plaintiff would require replaceable equipment provided through the Paraplegic and Quadrapeglic Association of New South Wales to maintain adequate care of bowel, bladder and skin. He would also recommend the provision of a mobile phone for her safety and a computer to assist with communication.
112 No doubt Mr Kalifeh was doing his best for the plaintiff but it is my view that his list is more in the nature of a “wish list”. I did not find him an impressive witness particularly when he stated that he has different expertise above that of Associate Professor Yeo and Dr Middleton and he would not accede to their views. I prefer the ParaQuad report. However, I do take into account that a rough terrain wheelchair should be allowed so that the plaintiff can undertake some field trips. It was costed at $9,000 every five years or $1,800 per year. She may not need this type of wheelchair in her latter years so I allow an extra $1,500 per annum for this item. I allow $10,198.86 per annum ie., $196.13 per week = $266,344.54.113 According to the defendants, the plaintiff’s regime of medication is about $20 per week excluding Chinese herbs costing $70 per month for which there appears to be no medical indication. Dr Middleton projected the approximate costs of treatment at $16,000 - lifetime, the cost of medication is likely to be about $23,214. I allow this sum. The plaintiff identified the costs of creams, medications and dressings (t 146.3-148.5). The plaintiff sees a general practitioner who is a herbalist and he recommends the use of Chinese herbs. She gave evidence that the Chinese herbs alleviated the bloating and discomfort. I allow for the provision of some of the Chinese herbs but take into account that she may have periods where she does not use them at all. I allow $40,000 for future pharmaceutical expenses and dressings as a global sum.
16. Future pharmaceutical and dressings
17. Cost of vacation travel, accommodation and entertainment
114 The plaintiff claims the sum of $380,675 for this item and relies upon the report of Travelaw. The sum of $380,675 converts to a weekly equivalent of $280.32. The defendant submitted that the plaintiff’s claim takes no account of package holidays, costs which would be incurred for meals in any event, seasonal rates for air travel in any event, the fact that a car may well be hired or expense incurred in land transportation irrespective of the accident, no discount for one carer accompanying the plaintiff on occasions and the fact that the plaintiff might not holiday away either in Australia or overseas with the frequency allowed for. The defendants submitted that a reasonable amount was $100,000.
115 The plaintiff claims $11.07 per week which amounts to $15,033 for future entertainment. This is calculated on the basis that the plaintiff attended the cinema with her carer on average once per fortnight and attended a concert or theatre with her carer once every three months. The costs of a carer’s ticket is $12.50 and an estimated amount of $50 respectively. The defendant submitted that this amount should be reduced by 20%. The sum of $11.07 does not reflect the full costs of a movie ticket for the carer. I allow the full amount of $15,033 as the basis upon which the plaintiff has claimed this amount is reasonable.
116 The plaintiff submitted that she would have travelled to Canada to visit her sister and she would have undertaken a European motor coach tour. The plaintiff submitted that she would have travelled overseas once every four years which amounts to a weekly cost of $280.32 and claims $380,675.
117 From perusing the Travelaw report accommodation in Australia suitable for the plaintiff’s wheelchair and carer can vary between $9 extra to $100 per night. The carer would have provided her own meals in any event so no allowance should be made for the carer’s meals. A two week holiday to New Zealand for 14 days with wheelchair, suitable accommodation plus cost of a carer is $5,500. The plaintiff on some trips would not have chosen a coach holiday but rather hired a car. This would lead to a deduction of a further $2,000. The same can be said for overseas trips. The plaintiff may not have had four-yearly overseas trips particularly when she had young children. However, I have taken into account that two carers will be required on holidays and the Travelaw report only allows for one carer. A better guide is the amount claimed by the plaintiff for additional costs for a vacation actually incurred for her six week Canadian trip namely $27,336.62. I allow 2/3 of this amount which equates to $18,224 for a four week overseas holiday approximately every four years although this will vary. Some allowance must be made for an annual holiday in Australia. It is not possible to be precise but doing the best I can I assess the plaintiff's additional travel accommodation and vacation costs at $230,000 as a global sum.
118 Total future vacation, travel, accommodation and entertainment costs is assessed at $245,033.
18. Future transport costs
119 It should be noted that I have not made any allowance for a driver for the plaintiff as it my view that the housekeeper could perform these duties. However, it is necessary for the plaintiff to have a customised vehicle for her wheelchair. It is borderline whether the plaintiff will be able to obtain her licence in the future.
120 The plaintiff submitted that with a fund of $1,000,000 she purchased a modest second hand Subaru station wagon (t 60.05). The background of the plaintiff does not suggest that she would have been spending on lavish motor vehicles nor was any such suggestion put to her. The approach of Mr Wood from the NRMA is reasonable and appropriate and ought to be accepted for 15,000 kilometre usage which is a conservative estimate.
121 The defendants submitted that but for the accident the plaintiff would have probably purchased a vehicle of the equivalent value of a VW transporter, driven about 15,000 kilometres each year and changed the vehicle each 6 years. They submitted that only the costs of the modification should be additionally factored into the costs of transportation. Over 6 years the average standing costs are $7,560.50 and the average running costs are $2,545 and the standing costs are 75% of the total costs. Of the capital costs, the sum of $37,431 includes steering modification valued at $1,100 (t 264.5), Trakka conversion $13,640 and transferable modifications of $10,665. The defendant allowed $56,250. I accept that the plaintiff would not have purchased a top of the range vehicle if she had not had the accident. I accept the report of Mr Wood. He gave evidence and was very knowledgeable. His knowledge and expertise could not be faulted despite the second defendant’s attempts in cross examination to do so. I allow the sum of $155,355 for this item.
19. Regular exercise
122 I have already allowed for eight visits, by a physiotherapist. The house modifications include a pool so that the plaintiff can exercise by means of hydrotherapy. Associate Professor Yeo is a great advocate of the benefits of hydrotherapy and it was his view that this means of exercise is all that the plaintiff would require. Dr Middleton gave evidence that when he saw the plaintiff on 4 November 1996 she had functionally deteriorated. This was at a time when she did not have a physical exercise regime in place. Dr Middleton holds the opinion that the plaintiff needs an experienced person to provide stretching and body maintenance separate to hydrotherapy (t 293) and considers that the plaintiff needs one to two hours per week of stretching.
123 Dr Middleton is the plaintiff’s treating specialist and has observed the plaintiff’s physical condition deteriorate without exercise. I accept his opinion. It is my view that massage and either Stuart Mashman’s exercises or Outreach’s regime should be allowed but not both. I allow for the plaintiff to have a weekly massage. I note that Dr Oakeshott recommended massaging. This makes provision for two hours physical exercise per week. The carers should be able to provide some exercise for the plaintiff as they are to be supervised by a physiotherapist eight times per year. I allow $84 per week for exercise. $84 per week on 3% tables = $114,072.
20. Future cost of childcare
124 The plaintiff claimed that it is appropriate to allow a period of 10 years for a full time nanny and costs this at $688.75 per week. The $688.75 is calculated by the weekly costs of a nanny of 3 years at $475 per week plus keep of $140, 5% replacement fee and GST. The plaintiff costs the amount for 10 years at $327,707 less 20% = $262,165, the 20% deduction to reflect the possibility that the plaintiff may not have had children as these things are not certain.
125 The plaintiff is not currently in a relationship but she hopes that this will occur in the future. The first two years after the accident (and this is an ongoing process) were primarily spent adjusting to the reality of her life after the accident. The defendant submitted that should the plaintiff have a family, it is probably unlikely that she will start for at least another four years. She has had no relationship since the accident. The rates back in 1997, according to Dial-an-Angel are a little under $400 per week for a nanny and allowing $500 per week for five years deferred for four years and a further equal period deferred for nine years yields an additional $107,714 for the first child and $92,915 for the second child making a total of $200,629. This amount should be reduced to $100,000 to offset the chance that she may not have children.
126 It was the view of both Associate Professor Yeo and Dr Middleton that if the plaintiff was to have children then he would anticipate the need for an additional full-time nanny for a period until the children went to school. Associate Professor Yeo gave evidence that some before and after school care would be required until the children had reached the age of eight or nine which is about the age when children could be termed responsible. The plaintiff would need a full-time nanny for seven years deferred for three years and then a part-time nanny between the hours of 7.00 am to 9.30 am and 2.30 pm to 9.00 pm for a further 4 years while the children are at school until the youngest reaches eight years of age.
127 In relation to the plaintiff’s figure, if 10 years is allowed, the youngest child would be 8 years of age when the services of a nanny were no longer required. It also costs a nanny on a full-time basis when for four of those years a nanny is required on a part-time basis during the week. A nanny may be required for some time on the weekends depending upon how much contribution the plaintiff’s partner makes to child rearing. The plaintiff costs a nanny on Dial-an-Angel rates of $475 per 5 days plus keep of $140 plus 5% placement fee of $23.75 plus GST of $50. This totals $688.75 per week. I would allow $20 per day keep = $100. I calculate the costs of a full time 5 day nanny at $495 per week + $100 + $23.75 = $668.75 per week.
128 I allow $668.75 per week being the cost of a nanny on a full time basis for seven years deferred for 4 years. I allow for a part time nanny for 4 years. If the hours are calculated at $14 (per Dial-an-Angel) then this amounts to $630 per week. This amount is not meant to be an exact amount. I have off-set GST on the assumption that the plaintiff may obtain a permanent part time nanny at lower rates. This amount is to be deferred for 11 years. I would deduct 25% to reflect the possibility that the plaintiff does not have children or she has one child only. The parties are to calculate this amount.
21. Costs of funds management
129 The plaintiff claimed the costs of obtaining expert advice in the management of her award of damages because she suffered post traumatic stress and suffers from varying degrees of depression. She is restricted in her mobility and requires carers for many aspects of her life involving the expenditure of money. The plaintiff intends that her financial affairs will be managed by the executive manager of Westpac Private Bank (WPB). The plaintiff says that her physical state is a result of the tort and it is appropriate to make some allowance for the emotional and physical disabilities to be made in utilising a third party in managing her affairs and suggests 50% of the fees as set out by Westpac Private Bank. The defendant submitted that no allowance should be made under this heading as she does not fall within the criteria of Gardikiotis.
130 I have already allowed some moneys to be paid to WPB for the setting up of accounts and completion of tax returns as completing this documentation is physically difficult, if not impossible for the plaintiff. The carer can complete cheques and the like. The plaintiff impressed me as intelligent and capable and her emotional problems will not affect her ability to manage the moneys she receives. However, some allowance should be made for the preparation of tax returns, and having assistance in completing financial documentation each year. With internet banking, the plaintiff will be able to carry out some financial transactions unassisted. I allow $520 per year for this expense, ie., $10 per week = $13,580.131 For the reasons given earlier, I assess the plaintiff’s non economic loss pursuant to s 79A of the Act at 90% of a most severe case. This equates to 90% of $273,000 = $245,700. No interest is payable on this amount.
1. Non economic loss
ASSESSMENT OF DAMAGES MAA - FIRST DEFENDANT
132 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants - $54,012.
3. Past economic loss
133 Future economic loss is to be assessed on the same basis as stated in the reasons relating to the second and third defendants under this heading. To be calculated by the parties under the MAA.
4. Future economic loss
134 To be calculated by the parties under the MAA.
5. Loss of superannuation benefits
135 To be calculated by the parties under the MAA.
6. Long Service leave entitlements
136 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants $482,149.59.
7. Past out-of-pocket expenses
137 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants $251,886.00.
8. Past gratuitous services - G v K
138 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants on 5% tables (975) at $2,868,937.50.
9. Future cost of care (including future handyman and housekeeper
139 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $253,912.06.
10. Additional future costs of care
140 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants $315,802.00.
11. Home construction expenditure
141 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $246,178.00.
12. Additional home expenditure
142 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $18,000.00.
13. Future rehabilitation and driving lessons
143 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $313,501.50.
14. Future medical treatment expenses
144 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA the same as those of the second and third defendants at $7,590.00.
15. Counselling treatment
145 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $196,852.50.
16. Future equipment expenses
146 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $45,338.00.
17. Future pharmaceutical and dressings
147 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $81,900.00.
18. Regular exercise
148 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $245,033.00.
19. Costs of vacation travel and accommodation and entertainment
149 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $11,540.00.
20. Future transport costs
150 The future costs of child care are to be assessed on the same basis as stated in my reasons relating to the second and third defendants under this heading. The amount is to be calculated by the parties under the MAA.
21. Future cost of childcare
151 For reasons given under this heading for the second and third defendants, I assess the first defendant’s damages under the MAA at $9,750.00.
22. Costs of funds management
Costs
152 Costs are discretionary. Costs should follow the event. The defendants are to pay the plaintiff’s costs.
153 I propose to enter judgment once these calculations are finalised and adjustments have to be made to reflect the apportionments and indemnity orders made by Newman J. In addition the advance of $20,000 made by the second defendants and the advance of $1,000,000 made by the first defendant have to be taken into account.
7
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
MONDAY, 24 JULY 2000
20228/97 - MELISSA ANN HARVEY v
JUDGMENT (Reasons for method used to calculate
LISA RENEE RESTALL & 2 ORS (No 2)
superannuation; Supplementary calculations)
1 MASTER: I delivered a lengthy judgment in this matter on 12 July 2000.2 I refer to paragraph 35 of the judgment. The plaintiff claims the amount for future loss of wages. The second defendant submitted that the amount that should be allowed is $562,656.00. It is my view that the plaintiff’s loss of wages should be allowed at $562,656.00 in relation to the second and third defendants. I refer to paragraph 133 and I assess future loss of wages at $388,385.00 for the first defendant.
Future economic loss
3 These are some short reasons as to why I prefer the second defendant’s methodology in calculating superannuation loss. The plaintiff’s approach as per report of Furzer Crestani dated 21 July 2000 (Ex F) includes a calculation of interest that the employer’s contribution would have earned. The second defendant’s report of Crispin and Jeffrey dated 19 July 2000 (Ex 2D/1) does not include these notional interest payments. Both reports include the amount that the plaintiff would be liable for tax. I do not allow this interest calculation because the fund in which the plaintiff’s employer invests the contribution may not earn interest or may earn a lesser amount. The employer would have been obliged to pay the superannuation levy until the plaintiff retired. This obligation is not one to pay interest upon that amount. Once the total sum of the employer’s contribution is converted back to the present day value, the plaintiff is at liberty to invest the sum to earn interest. It is for these reasons that I prefer the defendant’s method of calculations. In the second defendant’s amended calculations (Ex 2D/2) it does not appear that the employer’s contributions have been calculated on a cumulative basis. This has the result that the amount is understated. The second defendant claims that the appropriate amount is $59,276.00.00 In the plaintiff’s amended schedule (Ex G) the amount is calculated at $123,729.00. The plaintiff's calculation still includes an amount for interest. These interest calculations have to be deducted so the plaintiff’s calculation overstate her entitlements. Doing the best I can I assess loss of superannuation benefits at $80,000.00.
Loss of superannuation benefits
4 I refer to paragraph 46 of the judgment. I note that the plaintiff and second defendant have agreed to split the difference on their calculations for long service leave entitlements. I assess long service leave entitlements payable by the second and third defendants at $7,518.00. I refer to paragraph 135 and assess the first defendant’s damages for long service leave entitled under the MAA at $3,900.00. It is noted that the first defendant agrees to this calculation.
Long Service leave entitlements
5 I refer to paragraph 128 of the judgment. I assess the amount of future childcare at $214,050.00 in relation to the second and third defendants. The parties agree on this calculation. I refer to paragraph 150 and assess the first defendant’s damages for future childcare under the MAA at $179,897.00.
Future cost of childcare
6 In relation to paragraph 135 of the judgment it is agreed between the plaintiff and first defendant that the correct amount should be $143,910.00 for past gratuitous services. I make this amendment.
Past gratuitous services payable by the first defendant
Judgment
7 I enter verdict and judgment that the first defendant pay to the plaintiff the sum of $6,464,286.15.
8 I enter verdict and judgment that the second and third defendants pay to the plaintiff the sum of $8,660,881.70.
9 It is noted that the first defendant has prior to judgment paid an advance to the plaintiff in the sum of $20,000.00. It is also noted that the second defendant has paid an advance to the plaintiff prior to judgment in the sum of $1,200,000.00.
Cross claims
10 In relation to the first defendant’s cross claim against the second defendant I enter judgment in favour of the first defendant. The second defendant is to pay to the first defendant the sum of $6,464,286.15. I dismiss the second defendant’s cross claim against the first defendant.
11 In relation to the first defendant’s cross claim against the third defendant I enter judgment in favour of the first defendant. The third defendant is to pay to the first defendant the sum of $1,200,000.00. In relation to the third defendant’s cross claim against the first defendant I enter judgment in favour of the third defendant. The first defendant is to pay to the third defendant the sum of $866,088.17.
12 In relation to the second defendant’s cross claim against the third defendant I enter judgment in favour of the second defendant. The third defendant is to pay to the second defendant the sum $1,732,176.30. In relation to the third defendant’s cross claim against the second defendant I enter judgment in favour of the third defendant. The second defendant is to pay to the third defendant the sum of $6,062,617.00.
Costs
13 The defendants are to pay the plaintiff's costs as agreed or assessed. The second defendant is to indemnify the first defendant and pay the first defendant’s costs that are payable to the plaintiff.
14 The first defendant has sought that the second defendant pay its costs of the proceedings before me on an indemnity basis. The second defendant opposes this order. On 22 December 1998 the first defendant’s solicitor wrote to the second defendant’s solicitor (Ex 1D/1) stating that unless it received from their client confirmation that it would not file an appeal against the decision on liability of Newman J and confirmation that it is in a position to satisfy the whole of the judgment that would ultimately be entered on quantum, it would be necessary for the first defendant to maintain legal representation throughout these proceedings to protect its position. The second defendant did not reply. Without the knowledge of whether the second defendant could satisfy the judgment and the amount of any limitation of the amount of indemnity it was necessary for the first defendant to have legal representation throughout the hearing to protect its position in the event it was required to meet part of the judgment. In these circumstances I order that the second defendant pay the first defendant’s costs of the proceedings for the assessment of damages. It is not appropriate that the first defendant’s costs be payable on an indemnity basis and I decline to so order.
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