Heath v Dean Allan Baldwin by his next friend Vivienne Baldwin
[2006] WASCA 12
•25 JANUARY 2006
HEATH -v- DEAN ALLAN BALDWIN by his next friend VIVIENNE BALDWIN [2006] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 12 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:54/2004 | 5 SEPTEMBER & 24 NOVEMBER 2005 | |
| Coram: | WHEELER JA MCLURE JA PULLIN JA | 25/01/06 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | KEVIN JOHN HEATH DEAN ALLAN BALDWIN by his next friend VIVIENNE BALDWIN |
Catchwords: | Damages Personal injuries No point of principle Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 60(3) |
Case References: | Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 Sharman v Evans (1977) 138 CLR 563 Chulcough v Holley (1968) 41 ALJR 336 Diamond v Simpson (No 1) (2003) Aust torts Rep 81695 Farr v Schultz (1988) 1 WAR 94 Fox v Percy (2003) 214 CLR 118 Gibson v Smith, unreported; FCt SCt of WA; Library No 970317; 19 June 1997 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kars v Kars (1996) 187 CLR 354 Lloyd v Faraone [1989] WAR 154 Morris v Zanki by his next friend Zanki (1997) 18 WAR 260 State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 Todorovic v Waller (1981) 150 CLR 402 Van Gervan v Fenton (1992) 175 CLR 327 Warren v Coombes (1979) 142 CLR 531 Wilson v McLeay (1961) 106 CLR 523 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEATH -v- DEAN ALLAN BALDWIN by his next friend VIVIENNE BALDWIN [2006] WASCA 12 CORAM : WHEELER JA
- MCLURE JA
PULLIN JA
- Appellant
AND
DEAN ALLAN BALDWIN by his next friend VIVIENNE BALDWIN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
Citation : BALDWIN by his next friend VIVIENNE BALDWIN -v- HEATH [2004] WADC 68
File No : CIV 1332 of 2001
(Page 2)
Catchwords:
Damages - Personal injuries - No point of principle - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 60(3)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : Mr J G Staude
Respondent : Mr D R Clyne
Solicitors:
Appellant : Brian C Sierakowski
Respondent : Edwards Lawyers
Case(s) referred to in judgment(s):
Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638
Sharman v Evans (1977) 138 CLR 563
Case(s) also cited:
Chulcough v Holley (1968) 41 ALJR 336
Diamond v Simpson (No 1) (2003) Aust torts Rep 81695
Farr v Schultz (1988) 1 WAR 94
Fox v Percy (2003) 214 CLR 118
Gibson v Smith, unreported; FCt SCt of WA; Library No 970317; 19 June 1997
Griffiths v Kerkemeyer (1977) 139 CLR 161
(Page 3)
Kars v Kars (1996) 187 CLR 354
Lloyd v Faraone [1989] WAR 154
Morris v Zanki by his next friend Zanki (1997) 18 WAR 260
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Todorovic v Waller (1981) 150 CLR 402
Van Gervan v Fenton (1992) 175 CLR 327
Warren v Coombes (1979) 142 CLR 531
Wilson v McLeay (1961) 106 CLR 523
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of both McLure and Pullin JJA.
2 I accept that, as McLure JA points out, there are speculative aspects of the respondent's costings which were not tested at trial. However, when this matter was recalled in order to explore that issue, the appellant maintained that the only significant question related to the additional allowance for physiotherapy. On that basis, I would agree with the reasons of Pullin JA. It was open to his Honour to consider that such an award should be made.
3 Further, if the allowance for additional physiotherapy were to be disallowed, it would appear to be necessary to adjust other aspects of the award. For example, his Honour at [134] declined to make any allowance for maintenance services, on the basis that the carers would be able to perform those tasks. They could only do so if the presence of an additional person performing physiotherapy gave them time to attend to such tasks; otherwise, each carer would have to remain within sight of the appellant, for the reasons explained by Pullin JA, and would be unable to attend to maintenance.
4 I would join in the orders proposed by Pullin JA.
5 MCLURE JA: I have read in draft form the reasons to be published by Pullin JA with whom Wheeler JA agrees. I differ from the majority on the appellant's challenge to the awards for future care and future carer training costs.
6 The background is contained in the reasons of Pullin JA. It is unnecessary to repeat that material here.
7 The appellant challenges the awards for future care, the training of new carers and future gratuitous services. The learned trial Judge provided short reasons for his awards under these heads. He states:
"73 I have already noted that the plaintiff seeks an award to cover the cost of future care in an amount of $4,461,415.09 excluding the cost of training carers and gratuitous services provided by his parents.
74 In my opinion this sum compares favourably with both the cost of in-home care which might be provided by the Cerebral Palsy Association (based on the figures provided by Mr Brown) and the cost of the defendant's own models
(Page 5)
- based upon the actual fees charged by TIS, the organization presently providing carers for the plaintiff.
- …
81 In my opinion the plaintiff should have the sum of $4,461,415.09 in respect of his future care.
82 There should be added to that amount the cost of training new carers totalling $72,826.08.
83 In addition it is necessary to make an allowance for the cost of gratuitous services which will be provided by the plaintiff's parents. The plaintiff submits that at least 40 hours per week will be provided by Mr and Mrs Baldwin in caring for the plaintiff and looking after his affairs over the next 20 years. I regard this as reasonable and I accept that the sum of $417,974.66 is an appropriate award in that regard."
Future care
8 The appellant's primary contentions were that the award of $4,461,415 ($5,373 per week) is based on a mistake of fact; was reached without adequate findings as to its basis and without adequate reasons for its selection; is not reasonably open on the evidence; and is outside the sound discretionary range.
9 I am satisfied that the trial Judge erred in his award for future care. In particular, he was mistaken as to the source of and basis for the claim for $4.461 million.
10 The respondent's pleaded claim was based on 24 hour one to one home care, the costs for which claim were supplied by the respondent's existing service provider Transition and Integration Services Pty Ltd (TIS). TIS costs were determined by reference to hourly rates incorporating all relevant costs and its profit component. The evidence was that the TIS charge for a 24 hour service, excluding carer training and future gratuitous services, was $3,740,188 ($4,504.08 per week). However, in closing, the respondent claimed the sum of $4,461,415. At the hearing of the appeal on 5 September 2005 the respondent's counsel Mr D Clyne (who was also his counsel at trial) said that this figure was calculated on Cerebral Palsy Association (CPA) figures supplied by Mr Brown who was called by the appellant. That is not what the trial
(Page 6)
- Judge was told. Further, it was not what this Court was told at a reconvened hearing on 24 November 2005. On that date the Court was told the figure was based on a CPA "model" with the source figures being a combination of CPA and TIS figures ("the hybrid model").
11 It is apparent from pars 73 and 74 of the trial Judge's reasons that he did not understand he was awarding costs based on either the CPA figures or the hybrid model. That conclusion is supported by the award for the training of new carers. In addition to the cost of future care, the respondent claimed and was awarded an amount for training TIS carers with regard to transfers and the respondent's exercise programme. This aspect of the claim was based on evidence from Mr Andison of TIS that its charge covered exercise programmes conducted by the carers supplied by TIS who needed to be trained by a physiotherapist. This is to be contrasted with the CPA services. Its carers did not provide exercise programme services and thus did not need to be trained.
12 The probable source of the trial Judge's misunderstanding is the closing submissions made by counsel for the respondent to the effect that the claim of $4,461,415 for future care was based on TIS actual costs. In order to understand Mr Clyne's closing submissions, it is necessary to refer to the evidence of Mr Brown as to CPA's cost of 24 hour home care and the respondent's final Scott Schedule handed up to the trial Judge at the commencement of Mr Clyne's closing address.
13 Mr Brown's report in evidence dealt with CPA's 24 hour home costs as follows:
"The fees that would be involved in the provision of staff could be based on the following:
Residential Care Worker: $14.0026 per hour
Shift Penalties M-F shift commencing after 12.00pm – 15%
Saturday all day 50%
Sunday all day – 75%
Sleep Shift at Night: $8.39 per hour
Superannuation: 9%
Workers Compensation: 7.82% (this is likely to increase on 1/7/03)
Leave relief based on 6.4 weeks per year.
Sick leave based on 10 days per annum.
(Page 7)
- Long Service Leave: 13 weeks for each person after 10 years
CPAWA Residential Accommodation Administration cost: 1%
CPAWA Corporate Office cost: 15%."
14 These costs did not cover exercise programmes for the respondent. Mr Brown said they would be provided by a trained therapy assistant for an additional charge of $26 per hour.
15 The first two pages of the respondent's Scott Schedule contain a claim for future care in the sum of $4,461,415 and the reader is referred to the last page of the Scott Schedule. The last page is headed "Cerebral Palsy Costings for Care in Own Home" and on its face purports to calculate the carer and add on physiotherapy costs for 24 hour home care based on the CPA figures in Mr Brown's report. The calculation page of the Scott Schedule is annexed to these reasons. The reference to physiotherapy is intended to cover non specialist exercise programmes. The total for carer and physiotherapy (exercise) services is shown as $4,584,646.45. The figure of $4,461,415 is not referred to in the document but as a matter of arithmetic is obtained by adding the total weekly cost for care ($4,445.11) and the weekly physiotherapy cost ($927.50) and applying the multiplier of 830.4.
16 Prima facie, there are errors in the respondent's calculations set out in the Scott Schedule. Firstly, there appears to be an arithmetical error in the respondent's favour for the cost per shift on Monday to Friday. The total of the listed amounts is $307.92 not $407.92. Secondly, although not expressly apparent on the face of the document, the respondent has added 15% to the Saturday and Sunday shift penalties of 50% and 75% respectively for the middle eight hour shift on Saturday and Sunday. Prima facie, that is inconsistent with Mr Brown's report. He was not asked whether the 15% shift penalty for Monday to Friday after 12pm also applied on Saturday and Sunday. Adjusting for the mathematical error and the additional 15% to the Saturday and Sunday penalties, the total CPA figure for carer and physiotherapy costs is reduced to approximately $3,858,976.
17 The lawyers' calculations in the Scott Schedule were not put to Mr Brown or other witnesses. Further, the document was not the subject of objection or submissions from the appellant, I assume because of the very late stage at which it was produced to the Court and the appellant.
(Page 8)
18 As previously noted, the respondent's calculation document does not refer to or explain the basis of the figure of $4,461,415. Mr Clyne addressed the question purported to in his oral closing submissions. On the subject of future care, he said (at T577 - T578):
"Then in terms of costings, we have used the actual TIS costings – Transition and Integration Services – as actuals.
We say their assessment is reasonable [and] can be seen from the extrapolation which we have done of the cerebral palsy costings. …"
19 Mr Clyne then referred to the CPA cost calculations in the Scott Schedule and continued (at T579):
"You will see that the actual costings for the 45-year multiply (sic) comes to $4.584 million, which is higher than we've claimed for that, is $4.461. That, we say, provides corroboration of the fact that the costings claimed, by us on behalf of the plaintiff, are reasonable."
…
O'SULLIVAN DCJ: Let me just get my brain around what you're saying in relation to the cerebral palsy one.
CLYNE, MR: Certainly.
O'SULLIVAN DCJ: Because you are hitting me with a lot of arithmetic rather quickly.
CLYNE, MR: Certainly, your Honour.
O'SULLIVAN DCJ: And I don't think there is anything to be gained by you and I discussing the arithmetic in detail now, but you are saying, are you, that if I take Mr Brown's
CLYNE, MR: $14 an hour.
O'SULLIVAN DCJ: $14 an hour and do the exercise that you have done, I will come to the conclusion that, indeed, the cerebral palsy costings are higher than you propose?
CLYNE, MR: Yes. Because they have care only. There is an additional cost for someone to go down to Rockingham, and we
(Page 9)
- have included travel to and from Rockingham. There is some mention of that in the evidence.
O'SULLIVAN DCJ: Yes.
20 Again referring to the cost calculation purportedly based on Mr Brown's report, Mr Clyne said (at T580):
"But doing that as accurately as we believe we have, we say the [CPA] costings come out slightly in excess of the present costings of TIS based on Mr Andison's evidence, but we claim the lower.
…
CLYNE, MR: So if the cerebral palsy were to provide the same level of care for Dean in his private home it is at least as expensive, if not more.
O'SULLIVAN DCJ: Yes.
CLYNE, MR: And that, we say, demonstrates the reasonableness of the claim made based on the TIS costings.
O'SULLIVAN DCJ: Yes. All right. Thank you for that."
21 The trial judge would not know from these submissions that the figure of $4.461 million was obtained by applying the multiplier to the total of the cost of care purportedly based on CPA costings ($4,445.11 per week) and the weekly cost allowed for physiotherapy of $927.50. To the contrary, the message is that it is based on TIS costings.
22 The Court directed that the appeal be relisted in order to hear from the parties on what appeared to be the errors in the respondent's calculations and the submissions made to the trial Judge concerning the claim of $4.461 million.
23 At the reconvened hearing the respondent claimed there was no arithmetical error of $100 in the calculation of the weekly Monday to Friday costs. The basis for that (surprising) submission is contained in written submissions filed on behalf of the respondent for the reconvened hearing and is as follows. Notwithstanding that the calculation document is headed "Cerebral Palsy Costings for Care in Own Home", it is said to be the respondent's calculations using the CPA model of separating individual costs. To the CPA carer costs individually listed in the
(Page 10)
- document, the respondent's lawyers (without explanation on the face of the document or otherwise) claim to have added the sum of $100 to the daily Monday to Friday costs (a 32% increase) to reflect, inter alia, the amount paid by TIS to its carers at the time of trial, a sleepover shift of 6 hours and other adjustments for time-related cost increases. Mr Brown's report and the TIS quotation were provided a year before trial. However, TIS hourly charge out rates at trial were less than that quoted and Mr Brown was not asked any questions about the respondent's calculations or any cost increases since his report. Further, the appellant did not provide any calculations to support an additional daily amount of $100. It is significantly higher than justified by a CPI change in the relevant 12 months. Finally, the logic of using TIS carer costs is not demonstrated particularly when TIS carers provide exercise services whereas CPA carers do not, yet the hybrid model makes an additional and separate claim of $927.50/week for the same physiotherapy exercise services.
24 The respondent conceded that he erred in adding a further 15% penalty to the Saturday and Sunday penalties of 50% and 75% respectively. However, he relied on a new recalculation of the Saturday and Sunday costs by incorporating TIS payments to carers based on a 6 hour sleepover shift (said to have been part of the original calculation of Monday to Friday costs) which resulted in an overall increase in weekend costs of $204.29.
25 I am not satisfied that the hybrid model is a reliable basis for awarding the costs of future care. It is the respondent's own calculations from an amalgam of sources. It was not tested at trial in evidence or by way of submission. I see no justification for using a hybrid of TIS and CPA costs and I am not satisfied that the TIS-based add-ons to the CPA costs are reliably calculated. That leaves the original CPA cost calculations shown on the Scott Schedule adjusted for the errors to which I have referred (resulting in an amended figure of $3.858 million).
26 I infer from the trial Judge's reasons and his award for the training of carers, when examined in the context of Mr Clyne's closing submissions, that the trial Judge understood the figure of $4.461 million to be based on TIS costings for 24 hour one on one care. In fact, the figure is well in excess of TIS costings of $3,740,188 (or $4,504.08 per week). There can be no suggestion the trial Judge knew the figure of $4.61 million was based on the respondent's hybrid model explained above. The document on its face purports to calculate the CPA costs based on Mr Brown's report. He was not told of the fact of, or basis for, the hybrid model. In
(Page 11)
- my view, the trial Judge erred in awarding the sum of $4.61 million for future care. That leaves the question of what the award should have been.
27 TIS had been the respondent's service provider since 1998. The TIS services and charges for 24 hour one on one home care to the respondent were the foundation for the respondent's pleaded future care and consequential claims. Whether or not TIS had contracted with the respondent or his agents to provide future care services is irrelevant. What is relevant is the cost to the respondent for the provision of services of the nature and extent claimed by him. There is no evidence of, or foundation for, an inference that TIS's charges were outside the appropriate commercial range for such services. Further, there is no evidence of, or foundation for, any inference that the exercise programme conducted by TIS carers had in the past or would in the future be provided gratuitously. Those services are included in the TIS charge rather than as an add-on or extra as with CPA whose carers do not provide such services. It should also be noted that the possible need for future specialist physiotherapy services is separately provided for in the award. Finally, although there was evidence that other service providers would charge a higher fee than TIS or CPA because they provided additional services, the respondent did not claim the higher costs at trial.
28 Having regard to all these circumstances, in particular the respondent's pleaded claim, the trial Judge should have found that the TIS charges were the appropriate basis for the award for future care. I would set aside the award of $4.461 million and replace it with an award of $3,740,188.
Future carer training costs
29 I agree with Pullin JA that if the CPA based award of $4.61 million stands, the trial Judge erred in awarding the costs of training the carers to conduct exercise programmes. However, if, as I have concluded, the trial Judge ought to have made the award based on TIS costings, the provision for training carers must remain. On the other hand, there is no proper evidential foundation for the respondent's claim that a new carer would be trained each month. I agree with Pullin JA that, based on Mr Mitchell's evidence, the amount should be calculated by reference to training four new carers each year, both in transfers and for the exercise programme. As I am in the minority, it is unnecessary for me to do the calculation.
(Page 12)
Gratuitous services
30 The respondent claimed that he would require ongoing gratuitous services from his parents for at least 40 hours per week for the ensuing 20 years. The trial Judge accepted the claim.
31 The appellant challenges the award on the basis there was no evidence that the services were needed and the trial Judge made no findings of need. I do not accept the appellant's submissions. There was evidence of need. The carers are required to be with and observe the respondent which limits the time available to them to undertake domestic tasks such as washing, ironing and cleaning. This would not necessarily be the case on the CPA model where the carer does not provide or conduct the exercise programme. The respondent's mother attended to at least some of the domestic tasks. Moreover, it is apparent from the trial Judge's reasons in disallowing claims for such domestic tasks that he had made allowances for them in the award for gratuitous services.
32 In addition to domestic services, the unchallenged evidence was that the respondent's mother assisted TIS in providing what is described as case management services, notwithstanding TIS charged a management fee. There was no suggestion that would change under a future TIS style retainer. I am satisfied the award for gratuitous services was reasonably open on the evidence.
Administration costs
33 The respondent accepts that there should be no double discounting for inflation as appears to have been done by the trial Judge in this case. The parties have indicated that they will assess the impact of this in the context of the decision in the appeal.
Conclusion
34 I differ from the majority on the appellant's challenge to the awards for future care and future carer training costs. In the circumstances, it is unnecessary to formulate the orders I would propose.
35 PULLIN JA: The respondent was seriously injured in a motor vehicle accident in 1997. He was 19 years old at the time. The respondent sued the appellant. The appellant admitted liability. This appeal concerns issues of quantum.
36 As a consequence of the accident, the respondent suffers permanent disabilities consisting of severe spastic tetraplegia with the constant risk
(Page 13)
- of the development of joint contractures and postural deterioration and has severe limitation of cognitive abilities and communication by speech and writing. He is totally and permanently disabled for work or training for work. He will not be able to drive a motor vehicle or independently use public transport. He is markedly dependent on others for all activities of daily living including personal self-care, domestic tasks and activities, community mobility, recreational activity and social interaction. He does not have the mental capacity to manage the sum awarded by compensation and he needs 24 hour around-the-clock care.
37 The respondent was awarded damages of $7,019,084.60. Included in the award of damages were three items as follows:
(a) estimated cost of future care $4,461,415.09
(b) training of new carers $72,826.08
(c) future gratuitous services $417,974.66
38 These three components of the award remain the subject of the appeal to this Court. There were other issues between the parties on the appeal and there was a cross-appeal by the respondent which sought to increase the award of damages. The parties achieved a conditional settlement which was announced at the hearing of the appeal. It was in the following terms:
"1. In consideration of the respondent discontinuing the cross appeal, the appellant will abandon grounds 1 (past gratuitous services), 5 (home maintenance), 10 (future architectural expenses) and 11 (additional holiday expenses), neither party making any concession on the merits.
2. In consideration of the respondent's agreement to a reduction in the award of $20,000.00 the appellant will abandon grounds 6 (future treatment expenses), 7 (past miscellaneous expenses), 8 (future miscellaneous expenses) and 9 (future costs of appliances and aids), neither party making any concession on the merits.
3. The appeal will proceed in respect of grounds 2 (future care), 3 (future carer training costs), 4 (future gratuitous services) and 12 (administration costs)."
39 The settlement was conditional on a court order because the respondent is under a disability and approval of the Court was required
(Page 14)
- under O 60 of the Court of Appeal Rules. An oral application was made by the respondent for approval of the conditional settlement. This was supported by an affidavit of the respondent's solicitor sworn 28 October 2005, exhibiting a written opinion dated 26 October 2005 from Mr D R Clyne, counsel for the respondent and supplemented by a further affidavit of the solicitor sworn 15 December 2005 exhibiting a further opinion from Mr Clyne. As a result of reading that material, I am satisfied that the settlement should be approved by the Court.
40 The respondent's statement of claim was particularised as set out below in relation to those components. In relation to future care they read:
"1. As a consequence of his disabilities, the Plaintiff will require ongoing domestic and carer services for the balance of his life. He will require assistance and supervision for all activities of daily living including household duties, showering, dressing, grooming, toileting, meal preparation, daily exercise and transport.
2. The commercial costs for these services required by the plaintiff for 24 hours per day, 7 days per week is as follows: direct care at stand-up date of $27.85 per hour for 18 hours per day, direct care at sleepover rate of $17.37 per hour for 6 hours per day, co-ordination and case management at $50.00 per hour for 1 hour per day.
Weekly cost = $4,588.64
Total cost = 854.7 x $4,588.64 per
3. Each new carer will require specific training in particular with regard to transfers and exercise program to ensure safe and effective physical care of the Plaintiff. Each new carer will require 2-3 hours of training by a physiotherapist at a cost of $120.00 per hour. Each new carer will cost $360.00 to train. The carer turnover is estimated to be 1 new carer per month (based on the turnover since March 2001 when TIS commenced management of the Plaintiff's care).
Weekly cost = $83.08
(Page 15)
- Total cost = 854.7 x $83.08 $71,008.48
- 4. Carers will also require ongoing training by a physiotherapist to maintain their skills and training in new techniques as the Plaintiff's status changes at a cost of $240.00 per annum.
Weekly cost = $4.62
Total cost = 854.7 x $4.62 $3,948.71"
"The Plaintiff will also require ongoing gratuitous services from his parents, Vivienne Baldwin and Donald Baldwin for at least 40 hours per week. In accordance with s 3D(5) of the Motor Vehicle (Third Party Insurance) Act 1943 the amount is calculated on a weekly basis at the rate of the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter.
The current rate is $678.20 per week
854.7 x $678.20 per week $579.657.54"
42 It is now agreed between the parties that the multiplier should be 830.4, which resulted in an adjustment to all of the above figures.
Future care
43 At trial, a major issue between the parties was whether the plaintiff's needs were for 24 hour a day home care or whether some form of institutionalised care (at less cost) was appropriate. His Honour decided that damages should be assessed on the basis of 24 hour a day home care and this is no longer an issue between the parties. The issue now concerns the quantum of the award on the basis that 24 hour a day home care is the appropriate level of care required.
44 When the matter went to trial, care was being provided by a company called "Transition and Integration Services Pty Ltd" ("TIS") but it was not a full 24 hour service. Mr Andison, the Managing Director of TIS gave evidence. He had prepared a quotation in 2002 to provide 24 hour care. The details in par 2 of the particulars were taken from this quote. The TIS quoted "stand-up rate" was $27.85 per hour and a lesser
(Page 16)
- amount for "sleepover rate". In fact, for the services then being provided, TIS charged slightly less than the hourly rate of $27.85. Applying those charges to the TIS quote would make the TIS weekly charge for 24 hour care $4504.08. If the multiplier of 830.4 is applied to that figure, it produces a total of $3,740,188, which the appellant contends should be the award for future care.
45 The TIS carers carried out an exercise programme (physical therapy) on the respondent to help maintain his physical health. The carers had to be trained in this regard by a physiotherapist who charged for this training. The carers also had to be trained to make transfers (eg from bed to chair). However, the TIS quotation, which had been provided by Mr Andison, did not state that physical therapy was part of the service that TIS was to be contractually bound to provide.
46 The respondent also called a Mr Mitchell, a physiotherapist, who gave evidence that he had been looking after the respondent since December 1998 when he came home from hospital. Mr Mitchell had continued to treat him up until the time of the trial. Mr Mitchell explained that the respondent was an "extremely complex case of movement dysfunction" (t/s 372). He explained that because of the respondent's brain injuries:
"Effectively his whole body will contract and all his muscles will contract to perform small movements. So this level of tone effectively is a resistance to movement that he has minimal ability to control which inhibits effectively most of his functions."
47 In Mr Mitchell's written report of 26 June 2002 he said (AB 366):
"Each new carer will require specific training to ensure safe and effective physical care of Mr Baldwin. Transfers and his maintenance exercise program are both complex tasks and require specific skills training. Each new carer requires … training to ensure they have adequate skills to ensure both their own and Mr Baldwin's physical safety. This training is at a cost of $120.00 per hour ..."
48 Mr Mitchell gave oral evidence of what had to be done for the respondent. He said (at t/s 373):
"The basic level of his care is maintenance of his current physical situation. The maintenance primarily involves a
(Page 17)
- degree of daily exercises, particularly stretching and positioning exercises, to maintain his current position and flexibility of his joints. For example, because of his increased muscle tone, his body tends to be involuntarily held in a variety of positions and they're not always functional positions. For example, his left arm will remain quite tight by his side and obviously if he's needed to be dressed or put his arm in and out of sleeves and so on, then that needs to be lifted up and moved and able to do that. Because of his resting muscle tone, or the high level of that tone, if he's left in that position without regular stretching, those muscles will then tighten up and become contracted and held lose that ability to stretch his arm out. Similarly in terms of being able to be positioned in a wheelchair and transferred and showering and toileting and that sort of thing, he needs a degree of flexibility so he can be put in a variety of postures. Along with that is also management of his chest care. obviously for normal activity and function of the lungs you need a degree of lung capacity and muscle capacity to perform that. Regular positioning in upright positions to allow him for normal lung ventilation is an important aspect of preventing or overcoming any chest conditions or chest infections. At the moment his ability to, say, maintain a sitting posture or drive his electric wheelchair, he needs a degree of muscle endurance and control with that, so he needs exercises to maintain that. Because of the cognitive side of his injury, Mr Baldwin doesn't have much capacity to initiate any of these activities himself even if he was capable of them, so he wouldn't practice them regularly by himself so it needs to be a structured program to at least maintain him at the level he's at at the moment.
We have heard some evidence I think that these exercises are done on a daily basis?---That's correct.
Is that necessary for him?---It's essential for him. What he's doing at the moment is a minimum requirement for him to be maintained in his physical status at present.
Is there any benefit in increasing that level?---Over the years that I've seen him, his level of intervention has been adjusted according to his signs of physical progress. At times the physical progress, or if there's been some specific intervention he's had some procedures including some tendon lengthening surgery to his ankles and a couple of other procedures that
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- involved extra input at those times. But at the moment, given his physical status, he's stable so he's not showing significant improvement or decline. What he's at at the moment is appropriate for his requirements.
All right. I think you've said - and I take you to page 50 of the book, your report of 26 June last year - you've said in paragraph numbered 1, 'He's currently in a situation of stable physical progress.' You go on to say 'He requires one physiotherapy review every 3 months to monitor his physical status.' Why is that so?---When I reviewed him a few weeks ago he had a slight increase in the degree of his muscle tone so there are still some variances and simple things like changes in his level of general health can influence this degree of muscle tone and can influence his cognitive capacity to a degree, so he basically needs to be monitored to check that he isn't going backwards in the degree of his flexibility or positioning or his physical capacity so he can be maintained at his level at the moment, and as he is at the moment a review 3 monthly is an appropriate level for that.
Over the page you say:
'From time to time Mr Baldwin will require intensive therapy either to maximise his physical function if he shows signs of further improvement or to prevent physical deterioration.'
And you said:
'It's reasonable to average this 4 weeks of intensive physiotherapy per year involving 3 hours per week of physiotherapy.'
Can you just expand on why that is so?---Well, basically his program at the moment is a maintenance program that's appropriate for his status at the moment. Was his general health to change or other facets of his care to change and he showed a degree of physical deterioration then he would need a burst of extra input to at least bring him back up to the level that he's at, at the moment or from time to time there is - and it's basically impossible to gauge if and when this can happen, but if someone shows a burst of progress, for example if he showed greater capacity with movement of his leg function for example
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- then held require more specialist input at those times to maximise that function.
You then deal with training new carers. Why is it necessary to train carers?---Basically going back to the point about Mr Baldwin being a complex case, in terms of a standard level of carer training that's provided through a carer agency the level of skills isn't appropriate for managing someone of Mr Baldwin's level. He's a fairly complex transfer in how he's transferred from bed to chair and chair to commode chair and so on, so there are specific skills that are specific to him as an individual and how he moves so that requires specific training to ensure safety for him and the carer.
Right?---And you then go on to talk about physiotherapy equipment and provide some costings. That includes the standing frame and tilt table and so on. Put simply that's to maintain what he's presently doing?---That's correct. Yes.
All right. Can I take you to the letter in the small book. You dealt at page 2 with the question of hydrotherapy. What role does hydrotherapy play in terms of Mr Baldwin?---Well, with someone with a low level physical capacity and a high degree of muscle tone in a general rule in people with acquired brain injury the elimination of gravity, if you like, in the water environment allows people to move more freely and gives them more function perhaps than they would have on land, so in early stages or signs of physical improvement the hydrotherapy is often an important adjunct or used as a tool to progress someone with certain skills or physical capacities that they aren't able to achieve on land but then can be carried on land after a period of hydrotherapy. There's also, I guess, a social and outing aspect with the hydrotherapy in a break up of the routine and some degree of incentive for people, particularly if they're lacking in motivation or have a fairly mundane pattern that's the sort of positive more social type benefit of hydrotherapy is appropriate as well."
49 The appellant called a Mr Brown. He was formerly the Manager of Adult Services at the Cerebral Palsy Association, a position he had occupied in excess of 13 years. He gave evidence about the lower cost of institutional care but he also prepared a report about the costs that would be charged by the CPA if the respondent resided in his home and the CPA
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- was to provide him with 24 hour a day service. Mr Brown said that the fees that would be involved in the provision of staff would be as follows:
"Residential Care Worker: $14.0026 per hour
Shift Penalties M-F shift commencing after 12.00 pm-15%
Saturday all day - 50%
Sunday all day - 75%
Sleep Shift at Night: $8.39 per hour
Superannuation: 9%
Workers Compensation: 7.82% (this is likely to increase on 1/7/03)
Leave relief based on 6.4 weeks per year.
Sick leave based on 10 days per annum.
Long Service Leave: 13 weeks for each person after 10 years
CPAWA Residential Accommodation Administration cost: 1%
CPAWA Corporate Office cost: 15%"
51 Mr Brown was cross-examined about the CPA rates and asked whether the services for these rates included the performance of physical therapy. The following questions and answers are self-explanatory (see t/s 507 - 508):
"And if the person needed specific physical therapy on a daily basis how would they acquire that skill?---They wouldn't. Staff member do not provide physical therapy services. The person would need to have a physiotherapist come and provide them with that therapy service or they would be brought into the centre for that physiotherapy service.
So if, for example, Dean Baldwin needed physiotherapy exercises every morning, the carer wouldn't do that. You would have to either have a physio do it ?---If I could interrupt there, if it's just plain exercises every morning we do have therapy assistants who are trained through TAFE here in Western Australia, and they can go out and do the exercises for the individual, and they are under the supervision of the physiotherapist.
But that would be additional to the carer?---That's right.
So an additional cost?---Additional, yes."
52 At the end of the trial the respondent produced a Scott schedule which this Court was told employed the CPA methodology but employed
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- other information about current hourly rates from other witnesses. The Scott schedule was produced only on the morning of the last day of trial. As presented to the Court below, it contained errors. It is not necessary to take any time up in discussing these errors because the parties are agreed that the weekly rate in the Scott schedule (excluding physiotherapy services) and the TIS figures are about the same. The figure in the Scott schedule showed total weekly charge for carers providing 24 hour home care at $4445.11. This weekly figure is therefore less than the TIS figure of $4504.08.
53 In accordance with Mr Brown's evidence, an additional amount for physical therapy (physiotherapy) was shown in the Scott schedule as follows:
"Physiotherapy 3 hours plus 2 hours travel
at $26.5 ph Daily $927.50"
54 His Honour then awarded damages for future care by adopting the weekly rate of $4445.11 which appears in the Scott schedule and adding to that rate the charges for physiotherapy.
55 Thus the total amount awarded by his Honour for future care was as follows:
"Weekly cost at CPA rates $4445.11
Physiotherapy services $927.50
$5372.61"
56 The agreed multiplier of 830.4 was then applied to arrive at the amount awarded by the trial Judge ($4,461,415.00).
57 The appellant submits that this is an excessive award. The appellant submits that because TIS includes the physical therapy via the carer services it provides, then the future care award should be $4504.08 x 830.4 = $3,740,188. The appellant's written submissions state that:
"Under the TIS care regime the plaintiff's physiotherapy was provided by his carers at no extra cost." (See 3.12 of the submissions)
58 If the TIS physical therapy services were provided voluntarily, as that submission suggests, then TIS could decide not to provide such
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- services at any stage. The appellant, however, withdrew reliance on that written submission and contended instead that the Court should infer that the contract between TIS and the respondent was one which would oblige TIS to carry out the physical therapy work. The appellant said this inference should be drawn because TIS was presently providing the service, must consider itself contractually bound to provide the physical therapy services and would consider itself bound to provide them if they provide the 24 hour service.
59 The respondent, in its written submissions, says that while TIS was the carer at the date of trial:
"There was no guarantee that in the future they would continue to be the carer and no guarantee that the plaintiff would not encounter a huge additional expense for physiotherapy care in the future. It was appropriate that an allowance was made for the potential cost of this care, particularly given the very nominal rate at which it was claimed, ie $26 per hour, rather than $68 per hour or $100 per hour as allowed for in the other quotations."
60 When considering an issue of this kind, the court is dealing with hypothetical facts. Although the future may be predicted, it is not susceptible of scientific demonstration or proof. In this area the court is making an assessment of the chance of the event occurring or not occurring. See Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638.
61 His Honour therefore had to consider what the future would bring . It was possible that TIS would continue to provide its services, but it was also possible that it would not continue to do so, or alternatively continue to do so but only at rates which the CPA considered were reasonable. TIS was not obliged by contract to continue providing its services at its current rates for any specified period of time. If TIS did not continue as the service provider, then it would be necessary to find somebody else and, according to evidence led by the appellant, the respondent was likely to be charged the rates used by his Honour to assess damages for this component.
62 The appellant is complaining about the fact that the learned trial Judge decided to accept and act upon the evidence from the expert the appellant called as a witness.
63 Finally, if more intensive therapy is required (and Mr Mitchell adverted to that possibility) then the services of a qualified and registered
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- physiotherapist would be necessary. See s 11 of the Physiotherapists Act 1950.
64 Taking all of those factors into account, it was open to his Honour to make an assessment of damages by accepting the evidence proffered by the appellant. In my opinion, his Honour made no error in accepting the evidence of Mr Brown and then assessing damages on the basis of his methodology supplemented by other evidence, rather than proceeding on the basis of the evidence of the TIS figures. It was reasonable, in my opinion, to separate out the carer services from the physiotherapy services and to allow the extra cost of physiotherapy.
65 The appellant also complains that no reasons were given by the trial Judge, and it is contended that this amounts to appellable error. I would observe that it is perhaps hardly surprising that no reasons were given, because his Honour acted on the evidence led by the appellant. However, putting that observation to one side, my opinion is that there was no error by the trial Judge. He resolved with the major issue between the parties concerning future care and gave reasons for his decision on that issue. Having held that 24 hour home care was appropriate, he then employed the figures based on evidence of the appellant's witness Mr Brown and the other evidence before him. Both parties well understand how his Honour's award was made. In Sharman v Evans (1977) 138 CLR 563 at 572, Gibbs and Stephen JJ said:
"… it is only by the setting out in a judgment of the main components of an award of damages, or at least of the approach taken to each component, that the parties may obtain a proper insight into the process of assessment and an adequate opportunity of seeking the correction of error on appeal."
66 The appellant had no difficulty in articulating his complaint about the award. I will repeat in summary what I have said above about why I would support the award for the physiotherapy services. Mr Brown gave uncontradicted evidence that physiotherapy would come at an extra cost if the CPA was to provide the services in lieu of TIS. So the issue is plain. Should the award of damages allow for physiotherapy costs extra to the weekly rates which the parties are in broad agreement about, or should it be regarded as included within the weekly rate?
67 As I have said, TIS is at the moment providing the physiotherapy services and not charging extra, while the respondent points to the fact that the CPA, which would charge about the same weekly rate, would
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- charge extra for physiotherapy services. The trial Judge allowed the extra amount. He did not spell out why this was so but I would also allow the extra amount. This is an appeal by way of rehearing. Mr Brown's evidence was that CPA would charge extra for physiotherapy and there is no evidence that TIS is contractually bound to provide such services. This Court is in as good a position as the trial Judge to decide the point. If the extra amount were not allowed, then TIS would be free to decide tomorrow that it would cease providing the physiotherapy services for free. In the absence of any contractual obligation, it would be entitled to demand extra payment for the services it is at the moment providing for free. In the circumstances, I consider that there is no appellable error.
68 I would dismiss ground 2.
Ground 3 - Future carer training costs
69 His Honour awarded $72,826.08 on the basis that a new carer would have to be trained each month. This evidence was based on the physiotherapist, Mr Mitchell's, evidence that he would spend time training every carer. In my opinion, his Honour did err in allowing these costs in full. To allow this item in full was in effect to contradict his Honour's conclusion that the CPA methodology was appropriate to use. Those figures assume that the carers would not do the physical therapy work and would not therefore have to be trained to do it. The award of damages should therefore be reduced by the amount which was charged by Mr Mitchell to train the carers to carry out physical therapy.
70 However, Mr Mitchell explained that the respondent's extremely complex condition made it necessary for a physiotherapist to train carers in making transfers, say from bed to chair or from chair to commode. This would take one hour of training for each new carer in relation to "transfers" (t/s 376). This should therefore be provided for in the damages. There was then the remaining issue about how often new carers had to be trained. This component of damages was calculated on the basis of employment of a new carer every month. The appellant pointed to evidence of two carers, one of whom had worked for 18 months and another who had worked for two and a half years. That is anecdotal evidence. In my opinion, Mr Mitchell's evidence (t/s 376) is more reliable. He says that he had trained more than 20 carers since he started in 1998. That means that at least four new carers have to be trained per year. This produces a small figure - 4 hours training at $120 per hour equals $480 per year, which equals $9.23 per week, which applying the multiplier, produces a figure of $7664. I would round that up to $10,000
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- to take account of the fact that there were, on Mr Mitchell's evidence, more than 20 carers, his memory permitting him only to say there were at least 20 carers in the time he had been involved who had to be trained.
71 I would therefore allow this ground in part by reducing the future carer training costs by $62,826.08.
Ground 4 - Future gratuitous services
72 The trial Judge allowed $417,974.66 for gratuitous services. This was calculated on the basis that the respondent's parents would spend at least 40 hours per week (for 20 years) in caring for the plaintiff and looking after his affairs.
73 The appellant contends that this involves double compensation. It is said that the 24 hours a day care means that the respondent's needs are completely catered for in the amount awarded for future care. The appellant in effect contends that the respondent's parents will not have to provide any services at all.
74 I would dismiss this ground of appeal.
75 I am satisfied that the care, whether it be provided by TIS or by CPA, or some other carer, will require full-time attention to the respondent's personal needs. He has to be under observation at all times. The carers cannot leave him to do washing, to cook meals and to carry out administration work. The evidence was that Mrs Baldwin has ongoing administration work associated with the care of her son. She organises the roster of carers and rings them to confirm their availability. She instructs carers and assists in record keeping. It take no imagination at all to realise that there must be other administrative work that his parents will have to do. For example, administering and negotiating the financial arrangements with the carers and dealing with the Public Trustee.
76 It may be observed that his Honour's reasons were brief in relation to this topic, but given the evidence about the amount of supervision that the respondent requires from his carers and the evidence about the other tasks which still need to be done to care for him, that is not surprising. During the course of argument, appellant's counsel was unable to explain to this Court how it was that the sorts of tasks being done by Mrs Baldwin were catered for anywhere else in the awards which his Honour made.
77 I also make two other observations concerning this topic. First, it is relevant that the gratuitous services component of the award was assessed
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- by his Honour by reference to a 20 year period. Although not explained, it appears that this reflected a rough and ready assessment of the life expectancy of the respondent's parents. This assessment however, does not take into account the fact that, if the respondent's parents are able to help the respondent for only 20 years, some other family member will have to take over the role or, alternatively, someone will have to be paid to do so. This is a point relevant to take into account when considering whether overall the award was excessive.
78 The other observation to make is that the total figure allowed for future care and future gratuitous services appears to be within the range of figures provided by other witnesses with expertise. I have already referred to the TIS and CPA figures. The other evidence was of quotes from SNS and Ms Jan Bishop, and his Honour was therefore able to consider the reasonableness of the claim for future care and gratuitous services by checking the totals of the amounts claimed for those heads of damages against the other quotes received. Ms Bishop's quote is significant because her report is the one which strongly recommends that the respondent's parents should not be depended upon to provide any support "other than normal parental and emotional support and family socialising opportunities". When one looks at the level of care which she considered would be required in order to enable the respondent's parents to give up any role, she arrived at a figure of $4704 per week for care, $800 for case management and $800 for occupational therapy programme training and assessment, giving a total (by applying a multiplier of 830) of $5,232,320. She also recommended a variety of other desirable, but in his Honour's view not strictly necessary, services which would have resulted in a higher award again. The total figure allowed for future care and gratuitous services taken together, then, was well within the range of figures provided by those with expertise in the field which provides support for the award made by his Honour.
79 In my opinion there is no error demonstrated in an award for future gratuitous services to be provided by the respondent's parents 40 hours per week for 20 years is reasonable.
80 Ground 4 should be dismissed.
Ground 12 - Administration costs
81 There is a ground of appeal concerning administration costs, but the parties informed the Court that they would be able to work out the proper adjustment to be made once a decision was made about the three other
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- grounds of appeal. After reasons are published, the parties can meet to make the necessary adjustment.
Conclusion
82 The parties should now confer and bring in a minute reflecting the decision of the Court and the adjustments to be made by the parties.
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