Henderson v Campbell

[2002] NSWSC 1202

CITATION:	Henderson v Campbell [2002] NSWSC 1202
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20097/00
HEARING DATE(S):	25/02/02, 26/02/02, 27/02/02, 28/02/02, 01/03/02, 04/03/02, 10/05/02, additional written submissions received 31/5/02, 05/06/02, 03/10/02,
JUDGMENT DATE:	20 December 2002
PARTIES :	Jarred Campbell Henderson by his tutor Shane Henderson (Plaintiff) Jody Reubenia Campbell (Defendant)
JUDGMENT OF:	Burchett AJ

COUNSEL :	Mr B M J Toomey QC, Mr B McManus (Plaintiff) Mr M J Neil QC, Mr G Watson (Defendant)
SOLICITORS:	Stacks - The Law Firm (Plaintiff) Lee & Lyons (formerly Connery & Partners) (Defendant)
CATCHWORDS:	Personal injuries - Assessment of damages where baby suffered very severe brain damage in car accident - Appropriate provision where plaintiff's condition required a change of his parent's residence to a specially modified house in the vicinity of assistance - The approach required in law to the question of life-expectancy and the contingency of early death - - Having assessed life expectancy, inappropriateness of any further discount for the contingency of early death from the figure assessed for future care - Correct basis for calculation of loss of superannuation benefit - Whether the cost of counselling for the plaintiff's mother could be allowed as reasonably necessary to enable her to care for him - Construction and effect of limits on Griffiths v Kerkemeyer awards imposed by s. 35C of the Motor Vehicles (Third Party Insurance) Act 1942 and s. 72 of the Motor Accidents Act 1988 - Where services are provided by several persons, is there one limit covering all or are there separate limits for each? - Cost of commercial care - Allowance for management fees
LEGISLATION CITED:	Interpretation Act 1987 Motor Accidents Act 1988 Motor Vehicles (Third Party Insurance) Act 1942
CASES CITED:	Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Baldwin v Lisicic (unreported, Kirby P, Priestley and Meagher JJA, 20 April 1993) Bresatz v Przibilla (1962) 108 CLR 541 Burford v Allan (1993) 17 MVR 119 Chulcough v Holley, per Windeyer J (1968) 41 ALJR 336 George v Pinnock [1973] 1 WLR 118 Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665 Griffiths v Kerkemeyer (1977) 139 CLR 161 Jaensch v Coffey (1984) 155 CLR 549 Malec v J.C. Hutton Proprietary Limited (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Marsland v Andjelic (1993) 31 NSWLR 162 Moriarty v McCarthy [1978] 2 All ER 213 Mundy v Government Insurance Office of New South Wales (Spender AJ, unreported, 5 June 1995) Nguyen v Nguyen (1990) 169 CLR 245 Nicholson v Nicholson (1994) 35 NSWLR 308 Roberts v Johnstone [1989] QB 878 RTA v Cremona [2001] NSWCA 338 Sharman v Evans (1977) 138 CLR 563 Van Gervan v Fenton (1992) 175 CLR 327 Weideck v Williams [1999] NSWCA 346 Wells v Wells [1999] 1 AC 345
DECISION:	Plaintiff directed to bring in short minutes of orders appropriate in the light of these reasons.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Burchett AJ

Friday 20 December 2002

20097/00 Jarred Campbell Henderson (by his tutor Shane Henderson) v Jody Reubenia Campbell

JUDGMENT

1 Nothing the Court can do, or that its verdict might make possible, can now restore to anything like normality the lives of the plaintiff, Jarred Campbell Henderson, and his parents, which were shattered in one tragic moment on 14 March 1995, when a car carrying the infant plaintiff was overturned on the Pacific Highway near Taree. But the task of the Court, liability having been admitted, is to assess the damages the law may allow as the only remedy it can provide.

2 At the time of the accident, the plaintiff, who was born on 18 October 1994, was aged just under five months. His mother was driving the car in which he was travelling in a child restraint, when her attention was distracted by an incident with the child’s dummy, so that she lost control. Added to all the other consequences is an inevitable reaction, on her own part and on that of the father, attributing to the mother some blame, unrelated to any reasonable view of moral responsibility, for consequences wholly out of proportion to the irretrievable mistake of an instant. Those consequences included a closed head injury to the child with an acute subdural haematoma involving severe injury to all of the brain, most marked in the left cerebral hemisphere. He was admitted to Manning Base Hospital and immediately transferred by helicopter to the John Hunter Hospital, Newcastle, in deep coma. Focal seizures, that is to say epilepsy, developed, as well as dysphagia requiring nasal feeding by tube and ultimately a gastrostomy, and difficulties of vision affecting the right visual fields in both eyes. Hydrocephalus also developed, requiring the insertion of shunts, which will probably need replacement at some time in the future. Indeed, further surgery in relation to a shunt or shunts has recently been undergone. The plaintiff had a right hemiparesis, which is still fairly marked, and other major neurological deficits were obvious at the time of his discharge from hospital after just over six weeks.

3 Since then, the plaintiff has required constant, unremitting care from his parents, particularly his mother. He is fed through a gastrostomy button; and he has not yet learned speech, although it is possible, not probable, he may come to use a small number of simple words. He is able to communicate some wants by a few signs. His present mental age has been estimated at about one year, and it is unlikely to improve beyond a level of between two and three years at best, in the view, which I accept, of Professor Ouvrier, a paediatric neurologist. In short, the plaintiff is left with such a severe degree of mental and physical handicap, as Doctor David Bell, a psychiatrist, has reported, that he will require full time supervision and care for life.

4 A distressing aspect of Jarred’s care is his extremely persistent habit of licking and gnawing at objects, and salivating on walls and other surfaces, so as to leave on them a layer of saliva. He has caused television speakers to rust and has stripped applied coatings. His carers have had to do an enormous amount of cleaning quite constantly. On something like seven occasions in a month, he wakes his mother during the middle of the night, for from half an hour up to three hours at a time, when she has to go to him and remain with him until he can be got back to sleep. He suffers from numerous seizures, although they are not of the grand mal type. He has remained incontinent of urine and faeces, requiring to be kept in nappies. He drools regularly.

5 Jarred’s right hemiparesis involves what Associate Professor John Yeo describes as “profound loss of controlled motor ability in both right upper and lower limbs”, and he uses a right ankle/foot orthosis to support his weak ankle. Although he can walk, he needs to use a wheelchair for much of his locomotion, particularly when away from familiar surroundings. To a significant extent, the problem is that, as he has grown, he has become more difficult to manage for his mother, who is a small woman, outside the home. This applies also, within the home, to an activity such as bathing.

6 At the time of the accident, the plaintiff’s parents had been living for some years in a de facto marriage relationship, occupying their own home at South West Rocks. After the special requirements of the plaintiff’s condition had become apparent, it was decided that a change of residence was unavoidable. A house was chosen at Thirroul, which offered the advantages of suitability to accommodate both the use of a wheelchair and also the construction of a pool for hydrotherapy as well as, very importantly, proximity to family support for the plaintiff’s mother and to a special school for handicapped children at Wollongong, known as Para Meadows. The third party insurance company, against which the plaintiff’s claim has in reality been brought, made an advance payment available to enable the house at Thirroul to be acquired at a cost of $469,990, the parents contributing from the sum of $157,500, the proceeds of the sale of the house at South West Rocks. The parents’ contribution was $157,500 less $51,536.50 required to discharge a mortgage over the South West Rocks property less legal and other costs of the sale, leaving a balance of $97,910. So it follows that the insurance company paid the difference between the purchase price of the house at Thirroul ($469,990) and $97,910, that is, $372,080, plus some further costs that were incurred. The move was made late in the year 1998, and the plaintiff was started straight away at Para Meadows School, which is distant a drive of some twenty to twenty-five minutes. He goes five days a week from 9.15am to about 2.45pm. At school, he has an individual carer an hour a day, at lunchtime. As well as the brace for his ankle, he wears a helmet to protect his head and a special covering on his arm.

Life expectancy and contingency of early death

7 A question which overshadows many issues in this case is the extent to which the plaintiff’s life expectancy has been reduced by his profound intellectual and physical losses; and the answer seems to be, not nearly as much as the uninstructed layman might suppose. No medical expert suggested the plaintiff’s life expectancy had been reduced really drastically – to the brevity of that of the average European in the Dark Ages, for instance. Professor Ouvrier said he would not agree that “this plaintiff…would be unlikely to live beyond 60 years of age”. Professor Yeo, whose experience of the profoundly disabled from neurological causes, while particularly related to spinal injuries, is vast, expressed the opinion:

“His life expectancy should approach 90% of the years that would normally remain.”


In cross-examination, he firmly denied the proposition that “there is a severe reduction….in Jarred’s life expectancy”. The doctor explained that in some respects the health of the plaintiff is better protected than that of a patient suffering from severe spinal injury. The plaintiff’s “loss of function both motor and sensory” is incomplete, so that he should not suffer from pressure areas as a paraplegic would. And his incontinence from brain damage leaves his kidneys “better protected” than those of a person incontinent by reason of spinal cord injury. Professor Yeo explicitly said he “was taking into account the possibility, not probability but possibility, of status epilepticus and other such complications [by reason of which] he may succumb more rapidly than even the most severely affected tetraplegic”.

Dr Jayne Antony, who is a paediatric neurologist consulted by the defendant, was not, I think, expressing a different view in making the observation:

“I believe that the life expectancy is unpredictable, but because he is mobile his general health, including his circulation and lung function, should not deteriorate as he grows older. The only unpredictable aspect is the possibility of a life-threatening seizure or aspiration, neither of which is very likely. While I do not believe that he has a totally normal life expectancy, I think it will be reduced by maybe 10% to 15%”.

8 Associate Professor Richard Jones, who is a rehabilitation specialist, expressed in his initial report to the defendant the opinion:

“I can make no authoritative statement of exact reduction in his life expectancy but it may be as a best guess reduced by 15% on the basis that there will be various attritional changes in his vital functions with the passage of years, particularly related to intracerebral structures and his lungs.”

However, in a later report, without suggesting that he was correcting his own earlier view, he seems to me to have painted a more gloomy picture. He wrote:

“It is my view that unless other complications supervene causing a sudden death, then it is unlikely that he would live beyond his 60th year. Ultimately attritional changes may occur and they will include respiratory infections, urinary tract infections, potential fitting and skin deterioration.
……
I have read the report of the spinal rehabilitation physician September 29, 2000. Life expectancy of 90% of normal is remaining is made [ sic ]. That assessment I regard as unduly optimistic.”

In oral evidence, the doctor said:

“My personal view is that it’s likely that he will die a lot earlier. But I felt that assessing a reasonable life expectancy would cover the most optimistic outlook that he could go to 60. Because I’m not God, I can’t say 100 per cent.”

Doctor John Voss, a rehabilitation specialist, who also examined the plaintiff for the defendant, expressed the view:

“I should have thought that the subject would be unlikely to survive beyond his 60th year of age, but may succumb suddenly at any time.”

Professor Dickson, another specialist in rehabilitation medicine reporting to the defendant’s solicitors, put the position more positively:

“In my opinion, he does not have a normal life expectancy for his age. This is due to the presence of swallowing difficulty, epilepsy and the presence of a VP shunt. There is a reasonable probability that he will survive to reach the end of the sixth decade.”

9 It is accepted that the life expectancy of a male child born in Australia has risen to 76.56 years. More relevant to the present case, however, is the remaining life expectancy of a male child aged seven years, which is 70.13 years. On this basis, it was suggested Professor Yeo’s evidence would support a remaining expectancy for the plaintiff of 63 years. But what Professor Yeo actually wrote in his report was that his life expectancy “should approach 90%”, not that it was fully 90%. Having regard to all the evidence, I have concluded that 60 years is the figure I should accept. Although Professor Yeo did refer without qualification, in his oral evidence, to his opinion that the plaintiff’s life expectancy was 90% of normal, I did not understand this use of language as meant to indicate a change in the considered view he had already expressed.

10 For the defendant, it was argued that I should apply a further reduction to the remaining life expectancy of 60 years in order to allow for the risk of early death. But to do this in relation to the expenditure to be incurred for the future in respect of the plaintiff would be contrary to the authorities cited by Luntz on Assessment of Damages for Personal Injury and Death, 4th ed. (2002), at para 6.4.4 and footnote 126, for the proposition that “in most instances there will be no need to apply any discount at all to the head of damages relating to the costs of future care”. Windeyer J said in Bresatz v Przibilla (1962) 108 CLR 541 at 546:

“I can see no basis at all for a….’scaling down’ of …future expenses. …The contingencies that may affect future outgoings…are events which may actually occur in the future. The plaintiff may die before the period adopted for the calculation expires: on the other hand she may outlive that period. Perhaps the expenses for medical attention may not prove to be as great as expected: on the other hand they may turn out to be greater. The costs of domestic assistance may go up. The domestic situation could alter as if perchance the husband should die or for some reason cease to be able to care for his wife. Of all the possible contingencies the most likely is perhaps that the plaintiff might die before fifteen years were up because there is in all such cases an ever present risk of some bladder infection. Nevertheless, I do not think there is any firm basis for any ‘scaling down’ of the result [ie. the calculated figure at which his Honour had arrived]”.

Similarly, in Sharman v Evans (1977) 138 CLR 563 at 587, Gibbs and Stephen JJ (in their joint judgment) stated the law as to the relevant effect of “the vicissitudes of life” in a case of reduced life expectancy:

“Once a probable life expectancy is determined these enter not at all into the assessment of future hospital expenses or the conventional amount for shortening of life expectancy but are significant in the case of loss of earning capacity.”

The reason is that the risks to life itself are taken into account in the determination of the plaintiff’s life expectancy, and the chances of his dying earlier are balanced by the chances of his living longer, whereas the risks relating to employment include vicissitudes which may impair earning capacity that are unrelated to the length of life. The balancing favourable chances which cannot reasonably be ignored include the possibility, inherent in taking the average male life expectancy at the given age as the starting point, that this particular person had, as his starting point, a genetic predisposition to live for longer than the average; and also include, where a long period of years may be involved, the possibility that medical or pharmaceutical advances in the future may extend his life.

11 The principle stated in Bresatz v Przibilla and Sharman v Evans, and its underlying rationale, are quite unaffected by Malec v J.C. Hutton Proprietary Limited (1990) 169 CLR 638, cited by the defendant, a decision that applied the authority of Mallett v McMonagle [1970] AC 166 at 176, per Lord Diplock, of which Gibbs and Stephen JJ were certainly not oblivious. I note that in Mundy v Government Insurance Office of New South Wales (Spender AJ, unreported, 5 June 1995), the proposition that Malec applied to a problem of this kind was firmly rejected on the basis that “Malec was a quite different case”.

12 Not only is the defendant’s argument contrary to the tenor of the legal principle involved; it is also contrary to the basis of the opinions expressed by medical witnesses in this case. Professor Yeo, as I have said, explicitly stated he had taken the risks to the plaintiff’s life into account in making his assessment of the life expectancy that remained, and the approach of Dr Antony seems to me to be the same. Of an assessment of life expectancy so made, the House of Lords in Wells v Wells [1999] 1 AC 345 at 378 said there was no answer to the proposition “that there could be no rational basis for applying a further discount for ‘contingencies’, since the doctors had already taken account of all the contingencies that might affect the plaintiff, such as the increased risk of accident, chest infection, and so on.”

Housing Cost

13 The parties are agreed that the verdict should include the sums of $235,000 (cost of modifications to the house at Thirroul to provide for the plaintiff’s special needs) and $29,152 (costs associated with the move from South West Rocks to Thirroul, including removalist’s charges, conveyancing costs and stamp duty). But the plaintiff also seeks to have included, as the cost to him of housing required by his injury, the sum of $402,000, an amount advanced by the insurance company to enable the house at Thirroul to be acquired, which it claims to deduct from the payment of the verdict. Although this was the sum relied on by the plaintiff for this purpose, the actual amount paid in advance, on various accounts, for which the defendant seeks credit, is $734,772. However, in any case, I cannot see how the defendant’s right to credit for a payment made in advance can create a head of damages. To look at the matter in that way is to risk making double allowance for some items included in the advance and also in some particular head of damages. The true position is that the plaintiff is entitled, in this respect, to be compensated for a loss shown to have been incurred as a result of the injury. In Australia, the measure of the relevant loss has been the subject of a comprehensive analysis in Weideck v Williams [1999] NSWCA 346.

14 In Weideck v Williams, the trial Judge held that the plaintiff, who had previously lived in a caravan, would as a result of his injuries require to live in a house he would never otherwise have acquired. In that special situation, the Judge included in the damages the full cost of a house less an allowance for the “future notional rent” of the caravan accommodation he would have occupied but for his injuries. On appeal, reference was made to the decision of the English Court of Appeal in George v Pinnock [1973] 1 WLR 118 at 124 – 125 where Orr LJ (with whom Buckley and Sachs LJJ agreed) rejected a submission that an injured plaintiff should be awarded all or part of the capital cost of a bungalow “acquired to meet the particular needs arising from the accident”. His Lordship thought there was “no foundation” for this, adding:

“The plaintiff still has the capital in question in the form of the bungalow”.

Similarly, in Moriarty v McCarthy [1978] 2 All ER 213 at 219, O’Connor J said:

“The cases show that the capital cost of a new house cannot be awarded by way of damages.”

Having mentioned these decisions, Davies AJA, delivering the judgment of the Court of Appeal in Weideck v Williams , referred also to Marsland v Andjelic (1993) 31 NSWLR 162 at 177; Nicholson v Nicholson (1994) 35 NSWLR 308 at 328 and Burford v Allan (1993) 17 MVR 119 at 131 – 132, and said (at para 7):

“The approach taken in those cases is well established and is the normal approach to be adopted unless the facts of the case justify something different. The fact that the acquisition of a house and land would provide, not only accommodation for the injured plaintiff during his or her lifetime but also the capital value thereof, is a factor which must be taken into account, and ordinarily, it is taken into account in a rough and ready way by not including in the award the capital cost of the land and of the home but allowing in full for modification costs. It would be an error not to have regard to that factor. I agree with Mr Bartlett that, in the present case, the trial Judge did not make allowance for that factor and that his assessment erred to that extent.”

15 At the same time, his Honour rejected (at para 10) the proposition that “there is a principle that the cost of a notional basic home is necessarily to be excluded from an award of damages”. In the case before the Court of Appeal, it was to be borne in mind, he said (at para 11), first, that an award including the cost of a house would confer on the plaintiff a capital asset he would not otherwise have acquired; and secondly, that as the plaintiff “would not have devoted any part of his income to the acquisition of such a capital asset, and, as he would now necessarily have to devote funds out of the damages to that use rather than to income earning purposes, it was proper to make allowance for the reduction in his income earning ability which would result from the diversion of money to that use”. Davies AJA pointed out (at para 13) that the effect of the diversion of funds from an income earning purpose has been recognised as the basis of an allowance to be included in damages: Roberts v Johnstone [1989] QB 878; and see now Wells v Wells at 380 – 381. He did not overlook that the English Court of Appeal, in calculating the allowance to be made, used a rate of two per cent, but he said that “in this country, a three per cent rate is more appropriate”. I note that in Wells v Wells (ubi supra) the House of Lords adopted a “current rate” of three per cent.

16 Further comments made by Davies AJA (in paras 15 – 18 inclusive) affirm the need for a judge to “take a pragmatic approach”. It seems plain that, as in a number of other areas concerned with the assessment of damages, the Court is compelled to use a fairly broad brush, to evaluate the circumstances and the possibilities which the future holds, and to make the best estimation it can in order to produce a fair and just allowance.

17 In the present case, the plaintiff’s counsel contended that a special reason to provide accommodation for the plaintiff existed, because his parents, having contributed from the sale of their house at South West Rocks, have a separate interest of their own in the house at Thirroul. The plaintiff’s father, it has been proved, is likely to leave the mother in the near future, and may want to be paid out his share. However, he has obligations unrelated to the plaintiff’s injuries, which he has always recognised, as a de facto spouse and parent, towards both the mother and the child. I do not accept that the defendant as a tortfeasor has incurred a duty which properly belongs to parenthood.

18 Nor do I accept the proposition, which was also urged, that the house at Thirroul, apart from the alterations and additions to it including the swimming pool, for which allowance has been made, is a more expensive house than the plaintiff, if uninjured, could be expected to have bought. Country children frequently leave the country as they grow up; this child’s greater family on one side lived near Thirroul, and on the other side at the Gold Coast. It is impossible to predict where he might have chosen to live in adulthood, but Thirroul is as likely as anywhere else, and there is nothing to show it is either more or less expensive than the middle of the range of localities to which he might have been attracted.

19 However, it can fairly be said that, although some men marry early or set up a de facto relationship at a young age, and buy a house at that time to live in, quite commonly the first home is in rented premises. Of course, once a young man leaves his parental home, to live in his own rented accommodation, rental becomes a significant expense for him, and any allowance for the devotion of a part of the plaintiff’s capital to early home ownership must take account of that fact.

20 Balancing these factors plainly cannot produce a precise result. In my opinion, the award should allow, in the way indicated by Davies AJA in Weideck v Williams and by the House of Lords in Wells v Wells, for the loss of income on part of the plaintiff’s capital incurred as a result of the necessity to move to Thirroul at a time when, as a very young child, the plaintiff would normally have had his home provided for him by his parents entirely at their expense. Some allowance should also be considered for some period of his early manhood during which it might reasonably be expected he would not have incurred so great a cost in respect of housing, but that period is necessarily extremely difficult to estimate and there has to be some deduction in respect of the notional rent that would have been borne by the plaintiff during the same period after leaving the home of his childhood. Taking the pragmatic approach proposed in Weideck v Williams, I think justice would be done by a calculation assessing 3 per cent per annum on the sum of $402,000 paid in respect of the move to Thirroul, but for a period limited to 14 years, and subject to the prior deduction from this sum of $402,000 of any part of it which has been included in the sums of $235,000 and $29,152 mentioned at the beginning of this section of this judgment or otherwise allowed directly to the plaintiff.

Superannuation

21 The amount to be awarded to the plaintiff must include an allowance, not only for the loss of his earning capacity, as measured by the net wages he would have been able to earn over a working life, but also an allowance for the loss of the superannuation benefit he would have accumulated at the same time. The parties put forward widely differing figures as representing the loss of the latter kind.

22 For the plaintiff, calculations made by Mr Mark Ronan, a partner in Deloitte Touche Tohmatsu, supported a claim of $146,640 after the deduction of 15% for vicissitudes. For the defendant, Mr Ronan’s report was analysed by Mr Darryl Dorfan, a similarly qualified partner in Green Penklis & Lawson, chartered accountants, who concluded that the true figure is $67,247 before any deduction for vicissitudes. He pointed out, in his report, that the sum of $146,640, if invested at the return, in gross figures, assumed by Mr Ronan as the net return of superannuation funds (9.6% per annum), would accumulate, after tax at 31.5%, to a total of $6,282,869 at the end of 59 years. This would, for most items in a sum of damages, be an irrelevant calculation in principle (although in Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 at 661 Barwick CJ, and at 668 Taylor J (with whom Kitto and Owen JJ agreed), relied on a similar demonstration to illustrate the unreasonableness of the assessment of a head of damages), because a plaintiff may do what he likes with his damages, whatever the basis on which they have been awarded; but here the object of the item is to compensate the plaintiff for the loss of a sum he would only have expected to receive at the end of his working life.

23 As there was no cross-examination of the respective experts, I am left to consider the question on the basis of the reports, assisted by the submissions of counsel. Mr Toomey QC asserted, in his oral submissions, that “the defendant has not allowed for reinvestment of income”, and again “the defendant’s expert does not allow for the reinvestment of the earnings”. But an examination of Mr Dorfan’s report and calculations shows that this criticism is simply not correct; both earnings and 15% tax on those earnings have been taken into account.

24 Mr Toomey’s other criticism of Mr Dorfan’s methodology was the broad statement that it did not accord with principles laid down by the Court of Appeal in RTA v Cremona [2001] NSWCA 338. But it was not made clear in what respect this was so. In RTA v Cremona, Sheller JA (with whom Priestley and Stein JJA agreed) accepted (at para 112) that the loss for which compensation was required was the loss of “the benefits” which would have been received “from the superannuation fund when it matured”. Both experts, in the present case, have sought to measure that loss.

25 One difference between the experts, to which Mr Dorfan draws attention, is Mr Ronan’s assumption that the plaintiff would have earned at the rate of average male earnings from the age of 18. To assume instant success so young seems unrealistic and appears to have been thought so by another expert qualified by the plaintiff. Mr Dorfan, in his calculations, phased in the achievement of average earnings over a period approaching five years. This point did not arise in RTA v Cremona which did not involve the prospects of a child.

26 Another issue of significance is Mr Ronan’s assumption that earnings would be achieved on the investments of the superannuation fund in the future at the average rate, net of tax, fees and expenses, of 9.6% per annum achieved by Australian funds during the ten years ended 31 January 2002. Considering the historically high performance of the Australian economy in that decade (I note that almost the same performance figures were the subject of comment by McHugh J, who drew attention to the fact that they did not reflect general market history, in the special leave application in Roads and Traffic Authority v Cremona S 6/2002, which was dismissed on the basis that “the matter [was] not a suitable vehicle for the grant of special leave”), it seems to me there is much to be said for Mr Dorfan’s more conservative assumption of 9.6% earnings before tax, or alternatively for an increase in the allowance for vicissitudes, which must also cover a longer period than in most such calculations, as well as the additional risk of childhood injury or illness, because of the plaintiff’s youth.

27 Having mentioned the deduction for vicissitudes, I should note that I do not accept the submission of Mr MJ Neil QC, for the defendant, that a larger deduction is required because of the plaintiff’s disastrous injuries; the head of damages now under consideration is governed by the vicissitudes that would have been relevant had he never suffered those injuries.

28 I did not understand any submission to be pressed as to the rates of taxation referred to in the reports of the experts. Nor was it suggested that the method of discounting to achieve a present value adopted by either of them was not available as a matter of legal principle.

29 Having taken account of the considerations I have mentioned, and considered each of the reports, I prefer the reasoning of Mr Dorfan. There will be included in the verdict the sum of $57,159, being the sum of $67,247 calculated by him, less an allowance for vicissitudes of 15%. Had I adopted Mr Ronan’s calculation, I would have made a greater deduction for contingencies which might affect his more generous assumptions.

Counselling for the plaintiff’s mother

30 The plaintiff’s claim includes a sum of $13,511 for psychiatric counselling to assist his mother (who, it will be remembered, was the driver of the car in which the plaintiff was injured, and is the defendant) to cope with the great and unremitting pressures of his care. Mr Neil does not dispute the reasonableness of the calculation of this sum, but says it is not allowable as part of the damages. Basing himself on the remarks of Brennan J in Jaensch v Coffey (1984) 155 CLR 549 at 565, he says that injury to the mother’s health is not capable of forming the basis of a claim. But Brennan J was not speaking of the inclusion in a child’s damages of an expense necessitated by the need to enable a mother to endure the stresses of caring for the child, so that the care may continue. Rather, his Honour was speaking of an independent claim by a mother against a tortfeasor who, by injuring her child, had imposed on her a strain productive of mental illness. Whether or not the other members of the Court, which ruled in a way that widened the scope of liability for psychiatric injury, would have agreed with Brennan J’s view, what he said was certainly limited to an action brought by “a parent made distraught by the wayward conduct of a brain-damaged child…who suffers psychiatric illness as a result” but, his Honour considered, “has no claim against the tortfeasor liable to the child”.

31 On the evidence of Professor Yeo and Professor Ouvrier, I am quite satisfied both that the need for counselling of the mother arises out of the child’s condition, and that the meeting of this need is essential to enable the child to receive the care and attention his condition requires. It arises out of his injuries, and accordingly the claim for $13,511 should be allowed.

Griffiths v Kerkemeyer

32 As is well-known, in Griffiths v Kerkemeyer (1977) 139 CLR 161, which was followed and extended to a claim under Lord Campbell’s Act in Nguyen v Nguyen (1990) 169 CLR 245 and confirmed in Van Gervan v Fenton (1992) 175 CLR 327, a plaintiff injured by negligence was held to be entitled to recover by way of damages the sum representing the value of nursing and other services gratuitously provided for him in the past and to be provided in the future by his fiancée and members of his family. Gibbs J, in Griffiths v Kerkemeyer at 168 – 169, said:

“The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrong- doer? If not, the damages are recoverable.”

33 Since Griffiths v Kerkemeyer, many awards of damages have included substantial sums assessed upon the principle laid down in that decision. But, so far as concerns an award of damages of the kind referred to in section 35 A of the Motor Vehicles (Third Party Insurance) Act 1942, that is, except in an employment case described in Section 14 (6) of the Act, so far as concerns an award of damages payable out of the Transport Accidents Compensation Fund which “relates to the death of or bodily injury to a person caused by or arising out of the use of a motor vehicle”, section 35C of the Act carefully circumscribes the amount that can be awarded on this basis. Section 35C provides:

“35C Maximum amount of damages for provision of certain services
(1) Where an award of damages to which this Part applies is to include compensation for the value for services of [ sic ] a domestic nature or services relating to nursing and attendance:
(a) which have been or are to be provided by another person to the person in whose favour the award is made, and
(b) for which the person in whose favour the award is made has not paid and is not liable to pay,
the amount of the compensation shall not exceed:
(c) where the services provided or to be provided are not less than 40 hours per week:
(i) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:
(A) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award – that quarter, or
(B) in respect of the whole or any part of any other quarter – the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or
(ii) where the Australian Statistician fails or ceases to estimate the amount referred to in subparagraph (i), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed, or
(d) where the services provided or to be provided are less than 40 hours per week – the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with paragraph (c) (i) or (ii), as the case may be.
(2) Except as provided by this section, nothing in this section affects any other law relating to the value of services of the kind referred to in subsection (1).”

Virtually identical provision, together with some additional restrictions, is made by section 72 of the Motor Accidents Act 1988, subsection (1) of which is relevant as a legislative statement of objects that include paragraph (a), an object also applicable to section 35C:

“(1) The objects of this section are:
(a) to limit to average weekly earnings the level of payment for services for [ sic ] additional domestic assistance, and
(b) to restrict access to those payments to claims where the need is long term, and
(c) to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident.”

34 In the present case, it was accepted that Section 35C applies. However, the claims made by the plaintiff include claims adding up to very large sums that relate to domestic and nursing services provided by both the mother and also the father of the plaintiff. For long periods, these claims equal the maximum allowed by section 35C or section 72 in respect of each of those persons. The question thus raised is whether section 35C (or indeed, section 72) should be construed as creating a maximum level of award for gratuitous services, not only in a case where the services are provided by one person, but also in a case where the services are provided by more than one person, or whether in the latter situation the sections create a maximum level of award in respect of the services provided by each person who provides services.

35 The only authority counsel were able to find on this point was the decision of Spender AJ in Mundy v Government Insurance Office of New South Wales to which I have already referred on a different issue. His Honour cited the provision in Section 8 of the Interpretation Act 1987 by which, in an Act, “a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form”. He then commented, referring to the words “another person” in Section 35C (1) (a):

“The words ‘another person’ [are] clearly an ‘expression in the singular form’. The purpose of the legislation is to limit amounts recoverable for unpaid services. To adopt the contrary interpretation would mean that in cases where there was only one person willing to provide the services, then no matter how many hours were worked the limit would apply, but in cases where two or three people supply the services and divide the work among themselves, the limit would not apply. This does not seem sensible, nor the intention of the legislation. In my view the limit under the legislation is forty hours per week regardless of who has provided the services to [the plaintiff] between injury and the award.”

36 Unless I were able to reach a clear conclusion that the decision in Mundy v Government Insurance Office of New South Wales is wrong, I would follow it as a considered judgment of another Judge of this Court. But, not only am I unable to reach such a clear conclusion; on the contrary, I respectfully think the decision was right. Nothing in the legislation suggests that it was inappropriate for Spender AJ to apply to Section 35C (1) (a) the provision in Section 8 of the Interpretation Act so as to make the expression “another person” include “other persons”. The limit imposed by section 35C is not tied to the reasonable rate of remuneration, in respect of the particular service, for one person who provides it. The rate appropriate for the service may be much lower than the earnings limit provided by the section (although, so far as section 72 is concerned, there is an evidentiary provision favouring the maximum made by sub-section (5)). Therefore there is no reason to read the language by which – in the words that precede paragraph (c) of subsection (1) - the limit is imposed as applying only to the remuneration of one person; it is quite apt to cover more than one. And that language is quite impersonal, referring, not to the remuneration of a person providing the service, but to “the amount of compensation”. That it should do so is in keeping with the plain legislative intention to place a cap on the particular species of compensation involved.

37 The foregoing view of the legislative intent revealed by section 35C is consistent with the Explanatory Note by which the Motor Vehicles (Third Party Insurance) Amendment Bill 1984, that introduced this section into the Act, was accompanied. In the Note, it was explained that the “objects of this Bill are…(l) to provide, in relation to the payment of claims out of the Third-party Fund…(ii) for the basis of quantifying compensation for the value of services of a domestic nature or services relating to nursing and attendance which are rendered voluntarily”. It is compensation to the plaintiff, rather than the remuneration of an individual providing a service, to which such a statement looks. Similarly, the Explanatory Note to the Motor Accidents (Amendment) Bill 1993, by which section 72 was substituted for a previous section, states that the provision “which is modelled on section 35C of the Motor Vehicles (Third Party Insurance) Act 1942…limits compensation for home care services, whether those services are provided by a member of the same household or family as the injured person or by any other person”, and “specifies the maximum amount of damages that may be awarded for the provision of certain home care services”.

38 I therefore turn to the claims made pursuant to the principle of Griffiths v Kerkemeyer on the footing that, whatever might otherwise be awarded as the reasonable remuneration for the gratuitous services in total of both the father and the mother, the award in respect of those services must be limited to an amount falling within the limits imposed by section 35C, or if the parties had not accepted that that section applied, by section 72. An incidental consequence of this view of the law, in the circumstances of the case, is a considerable simplification of some aspects of the assessment of damages. That is because, in several respects, the amount of compensation which it would be appropriate to award upon the principle of Griffiths v Kerkemeyer, apart from the application of section 35C or section 72, must, taking into account the services provided by both parents, at least equal the statutory limit.

39 The submissions presented for the plaintiff dealt separately with the gratuitous care provided by the mother and that provided by the father of the plaintiff, and with three discrete periods – the period from 28 April 1995, when the plaintiff first came home from hospital, until 28 August 1995, during which the plaintiff was fed by a naso-gastric tube; the period from 28 August 1995 to 30 September 1998, after the insertion of the gastrostomy button but before the move to Thirroul; and the period from 1 October 1998 to the commencement of the hearing on 25 February 2002, during which the plaintiff was enrolled at the Para Meadows School. During the first of these periods, feeding by naso-gastric tube obviously involved much more time and difficulty than ordinary feeding of an infant; and an exercise programme, management of medications, observation required by the plaintiff’s condition, additional cleaning and a great deal of time arranging and attending at medical appointments, paramedical appointments and upon the performance of operative or medical procedures, involving travelling to and from Newcastle, kept both parents very much occupied in the care of their child over and above, and quite apart from, the care and attention of normal parents in respect of a normal child. The evidence was that nasal feeding, for example, was an extremely time consuming activity fraught with difficulties such as the necessity to clear blockages in the naso-gastric tube by syringe and the regular changing of the tube. This method of feeding alone occupied some four hours a day. In addition to travel to Newcastle, the treatment of the plaintiff’s condition involved travel to both Kempsey and Port Macquarie, each visit involving an additional hour’s travelling time. It was not only the mother who was required to devote time to the additional activities required by the child’s condition; the evidence is that the father also devoted a number of hours each day to domestic activities directly related to the child’s injured state.

40 It is the plaintiff’s case that, during this period, each of the parents devoted at least forty hours per week to activities involved in the care of their child over and above what would have been required had he been uninjured. On the evidence of the parents, and having regard to the medical evidence which fully confirms the difficulties of the situation, I have no hesitation in accepting that the work done by the mother, at least if the additional work done by the father is taken into account, exceeded the maximum allowed by section 35C and section 72.

41 I do not think it is necessary to support my conclusion by reference to the decision of the Court of Appeal in Baldwin v Lisicic (unreported, Kirby P, Priestley and Meagher JJA, 20 April 1993). However, if the evidence otherwise fell short, that decision would entitle me to have regard, and I would have regard, to the continuous availability of the plaintiff’s mother to attend to his nursing on call. In his judgment in Baldwin v Lisicic, Kirby P referred to the appellant’s complaint that the decision of the Master below “failed to give proper consideration to the fact that her husband [the person who provided the services there in question] had to be ‘on call’”. The President added, concerning this submission:

“In other words, it was a mistake simply to calculate the amount claimed on the actual hours of work dutifully performed. It was relevant to keep in mind the availability of the appellant’s husband virtually over a twenty-four hour day. Such an availability had its own distinct economic value. Allowance had to be made for that value in addition to the actual hours of service, whatever they might have been. Especially during the early period immediately after the accident, the appellant’s call on her husband’s services was unpredictable. It could occur at any time of the day or night.”

It is clear that this submission was accepted. The President’s judgment states that, in this respect as well as in another, “the Master’s decision must be regarded as affected by error”. In making the assessment of the Court of Appeal itself, which this view required, the President referred to an aspect of the case that might have been thought to reduce the amount of compensation for gratuitous services, and then said:

“On the other hand, the very approach by reference exclusively to hours worked (especially in the early months) may have under-estimated the real need of the appellant to have her husband’s gratuitous care constantly at hand.”

Priestley JA expressly agreed with Kirby P “in his identification of significant errors made in the court below”, and added:

“I also agree with the way the President has approached the various heads of the appellant’s damage”.

Meagher JA, while expressing “reluctance” to agree with a different aspect of the President’s judgment, irrelevant to the present point, otherwise agreed with it.

42 During the next period, that from 28 August 1995 to 30 September 1998, the gastrostomy button relieved some of the difficulties involved in the feeding of the plaintiff, but his meals continued to require special preparation, so as to be suitable for insertion into the gastrostomy button, and additional time was required in attempts to train the plaintiff to take some nourishment by mouth. His continued incontinence, and the need for special supervision as some mobility became possible, but only with awkwardness and at the risk of hurting himself, required the parents to undertake tasks necessitated by the plaintiff’s injuries during a period each day that was scarcely shorter than before. In my opinion, the same conclusion is warranted for this period.

43 During the final period, after the move to Thirroul, a big change, to the partial relief of the parents, was involved in the enrolment of the plaintiff at the Para Meadows School. However, the evidence reveals countervailing factors. At a time when the plaintiff’s age would have meant, had he been uninjured, that he would have been out of nappies, for instance, he remained incontinent, and also dribbled and smeared walls and furniture in the way I have earlier described. His growing size and mobility also involved special problems. Exercise and monitored play are a necessary part of his treatment. Once again, in my opinion it is clear that the work done by the plaintiff’s mother, at least if supplemented by that done by his father, falling within the principle of Griffiths v Kerkemeyer, exceeds the statutory maximum.

44 On these findings, the calculations submitted for the plaintiff, which I did not understand to be disputed, in terms of arithmetic or in terms of the statutory maximum rates, produce a total sum for the period from 28 April 1995 to 25 February 2002 of $219, 826.42. I allow that sum.

Out of pocket expenses

45 The parties were agreed, at the conclusion of the hearing, that out of pocket expenses already incurred totalled the sum of $111,662.82, subject to claims by the plaintiff for a further $10,042.82 in relation to car expenses and $10,625.89 in relation to the additional cost of rates and electricity at Thirroul as compared with South West Rocks. As to these items, the defendant claimed that they were unsupported by the evidence and misconceived. Counsel for the plaintiff sought to rely on the inclusion of these figures in the calculation of certain advances made by the insurance company long before the hearing. But counsel for the defendant pointed to the lack of evidence, or any issue raised by the pleadings, to sustain any such basis for a claim, and the lack of evidence to support a claim on any other basis. In my opinion, these complaints are justified. So far as the car expenses are concerned, a question was raised as to whether there is presently, or will be in the future, any need for a specially adapted car, and I shall deal with this as a separate issue. So far as concerns the matter of particular expenses involved in living at Thirroul, in point of principle this problem has been referred to in the cases which I discussed when dealing with the plaintiff’s claim in respect of the cost of the house. There has been an acceptance in some of those cases that a broad view has to be taken, and, plainly, there may be economic advantages, as well as disadvantages, in such a change of place of residence. It would be quite wrong to make an allowance for a negative factor, for example higher rates, without setting off the positive factors, and the plaintiff’s case has not attempted such a comprehensive analysis as would be required for that purpose. In my opinion, the disputed items have not been established.

Future medical expenses

46 The parties also reached agreement on the vast majority of the items making up the plaintiff’s claim for future medical expenses, although many of the final calculations involved have had to await my ruling on the question of life expectancy. However, two items were not agreed, and it will be necessary for me to deal with those. Before I do so, I should mention that an agreed matter was that there should be an allowance in the verdict for a weekly cost, over the plaintiff’s life expectancy, of $19.23 to allow for necessary replacements of his shunt. However, a further submission in writing made by the plaintiff’s counsel, with the consent of the defendant’s counsel, appears to be based on some occurrence after the conclusion of the hearing which required the replacement of a shunt. It may be that the best way to deal with this would be to allow the cost involved as an addition to the out of pocket expenses, and then to provide for the deferral of the agreed weekly cost in respect of shunt replacement for ten years, as being the anticipated life of the shunt. However, in the absence of detailed submissions, I shall delay deciding that matter, and delay the entry of final judgment, until counsel have had an opportunity to consider the appropriate course.

47 The next question in relation to future medical expenses is the cost of physiotherapy treatment. Counsel for the plaintiff originally contended for the allowance of a weekly sum of $100 on the basis of a suggestion made by Professor Ouvrier in a report dated 16 June 2000. It was later conceded that Professor Ouvrier had not gone so far as to support physiotherapy at this rate for the plaintiff’s life, but rather for a limited period. In any case, I prefer the up to date advice of Professor Yeo who considered that actual treatment by a physiotherapist was not so much necessary in this case as review of assistance in the nature of physiotherapy which could be given by unskilled carers. In Professor Yeo’s opinion, a session with a physiotherapist once every four months would be quite adequate. On this basis, an allowance should be made for a cost of $5.76 per week.

48 The remaining question, on this aspect of the case, relates to what has been called occupational therapy. On behalf of the plaintiff, a claim was originally made for one hour per week at a cost of $90, although that claim was later significantly reduced. Both the original claim and the reduced claim were said to be justified by Professor Ouvrier’s report of 16 June 2000. In fact, Professor Ouvrier did not commit himself to supporting this measure of treatment beyond a period of five years from 16 June 2000, which accounts for the reduction. In any case, I prefer the opinion of Professor Yeo, who advised review of the situation by an occupational therapist once a year. On this basis, an allowance should be made for a cost of $1.92 per week.

Future care

49 As counsel for the defendant submitted, it is necessary to give some attention to the basis on which the court makes allowance for any proposed regime of future care. The law for Australia has been authoritatively laid down, in Sharman v Evans at 573, by Gibbs and Stephen JJ (with whose analysis, in their joint judgment, of “the approach which a court should take to the assessment of damages” in a case such as that was, and this is, Jacobs J expressed at 590 his full concurrence). Gibbs and Stephen JJ declined to allow the plaintiff’s preference to govern their choice of the form of treatment for which allowance should be made in the award. Their Honours said:

“The plaintiff would much prefer [a particular mode of care] but the question is whether the defendant should be required to make compensation upon this much more expensive basis.…In our view the medical evidence in this case does not justify the conclusion that the defendant should be required to compensate for future nursing and medical expenses on any basis other than that the plaintiff’s future will be one substantially spent in hospital.
The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick CJ put it in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661 “The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent”, and see Chulcough v Holley , per Windeyer J (1968) 41 ALJR 336 at 338. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest.”

50 Their Honours’ reference to the rejection of costly benefits that are “speculative” reflects a passage in the judgment of Windeyer J, to which they had referred, in Chulcough v Holley at 338:

“What is to be provided for is expenditure which has been or will be incurred, not for expenditure which may possibly be incurred.”

51 Of course, a possibility of increased expenditure, which is not balanced by a corresponding possibility of decreased expenditure, may be allowed for, not as something that will be incurred, but according to the measure of the chance that it may occur. But some of the matters the plaintiff would seek to have taken into account in the present case relate to the possible, but not certain, adverse condition of the plaintiff, or adverse family situation, and it must be borne in mind, as Professor Yeo and Professor Ouvrier made clear, that the plaintiff’s condition may undergo some, if comparatively slight, improvement, and it is certainly possible that his family situation will turn out to be better than the gloomy forecast made in the evidence of a complete breakdown in the relationship between his mother and father, and a possible collapse of his mother’s ability to continue to take a significant part in his care.

52 In submissions in reply, counsel for the plaintiff summed up the differences between the parties in relation to future care as concerning, first, the appropriate rate to allow for the cost of a full-time carer, whether the one person or two or three persons working in shifts, and secondly, the question whether it will be necessary to supplement by some additional care the full-time care envisaged.

53 Costings on somewhat different bases have been provided, for the plaintiff, by the evidence of Ellice Mayhew, a registered nurse, and Helen Mendels, a care consultancy manager, and for the defendant, by the evidence of Shirley Wruck, a registered nurse. It is not suggested that the proposals of either party would not provide effective care, but the plaintiff’s counsel would prefer theirs, which are more expensive. I am not satisfied it would be reasonable to require the defendant to compensate the plaintiff on the more expensive basis, when the less expensive alternative is available and would, I find, be delivered in an entirely professional manner and be reasonably suitable. Counsel for the defendant accepted there would have to be some modification of the calculation of cost put forward to allow for a greater expenditure on public holidays (adding $88.11 per week to a calculated weekly cost of $2,917.14), and that a modest additional amount should be provided to cover increased remuneration which might become payable “if it continually happened” (as Sister Wruck put it) that the plaintiff had a seriously disturbed night, requiring a sleep-over carer to be up more than twice in a night. This provision is suggested in relation to some evidence that the plaintiff’s mother has had to get up from seven to ten times in a month for periods of from half an hour to three hours. I do not think it is predictable how much this may occur in the future, particularly with a regime of professional carers subject to some form of experienced review, as is proposed, and I consider the defendant’s suggestion of a lump sum allowance of $20,000 is entirely reasonable.

54 The more difficult issue is the plaintiff’s claim for further provision for daily care, on top of a full-time carer provided through a shift-work arrangement, as Sister Wruck proposes.

55 Professor Yeo gave evidence to the effect that provision should be made for “attendant care which might (emphasis added) be greater than one person can manage”. In justifying that, he referred to his own optimism but also, with some self-deprecation, to the need to consider the views of experts with more extensive experience “in this area of head injury and personality changes”. He had in mind the possibility that the plaintiff, as he grew up, might become “difficult to handle” or “even violent”. But he also made it clear, and I accept, that the present prognosis “might be less optimistic than it should be”. One of the plaintiff’s experts certainly fulfilling the criterion of relevant experience is Dr David Bell, whose great array of qualifications to assess the position includes his appointment as Honorary Psychiatrist to St Vincent’s Hospital, Sydney. In response to a suggestion of the plaintiff’s solicitor that problems might develop “at the onset of puberty”, Dr Bell commented:

“You have indicated to the defendant that at the onset of puberty your client will need a male carer 24 hours of the day. You may be correct. I do not know how to predict what will happen. You refer to the matter of growing strength. Your client will always have a right hemiplegia and poor balance. Sadly, he will not gain the strength of a normal person nor the ability to overpower the normal person. There is no certainty how he will behave. At present his mother regards him as more easily managed than her husband. When she cried he responded in a sympathetic fashion. Even with normal strength he could be more tractable than the so-called normal person such as his father. Nor is it necessarily so that he will have ‘completely disinhibited sexuality’ to which you refer. More commonly, the person with severe brain damage has impaired sexuality. He may do no worse than to attempt to touch in a simple fashion, easily managed by a carer. The type of scenario which you envisage occurs very rarely.
I suspect that the assessment by the mother is more realistic. Should your client develop in the way you fear, he will certainly require care for 24 hours of the day. Were his mother not there, he would have to have a carer 24 hours of the day. While his mother is there, she will need assistance with him at the time she specified, mainly in the mornings and at night. In these circumstances, a team of carers working two shifts a day will make life more manageable for her. As he gets bigger, the need for assistance will increase.”

56 Dr Brent Waters, a psychiatrist who, for seven years, was a professor of Child Psychiatry at the University of New South Wales gave evidence, which I found convincing, and which was consistent with the opinion of Dr Bell. Dr Waters said that it is from children who, when very young, “show a nasty malicious edge” that “the more dangerous adolescents are largely recruited”. He did not think the plaintiff was one of those. The doctor said:

“He, I would have to say, comes from a low risk group because of the way he was at [the age] of five. He’s already showing a pattern of more placid temperament, responding to appropriate limits, that sort of thing…So that you could say that his risk of showing persistent inappropriate sexual behaviour, for instance, would certainly be less than one in ten and may well be less than one in twenty. In terms of his displaying inappropriate and persistent, indeed intractable aggressive behaviour,…perhaps somewhere around fifteen per cent might be a reasonable expectation.”

57 Opposed to these views was the opinion of a psychiatrist who examined the plaintiff’s parents, but not the plaintiff, Dr Burke. He put the risk much higher, but I prefer the assessment made by Dr Waters, which is supported by Dr Bell. Accordingly, I find there is only a slight risk of significantly troublesome aggressive or inappropriate sexual behaviour in itself requiring additional assistance to be provided for the plaintiff’s carer.

58 In the submissions prepared by counsel for the plaintiff, it is proposed that, in addition to full-time care, “a second attendant carer is required to assist with showering and dressing the plaintiff for two hours in the morning and one hour in the afternoon to assist with helping him to bed, undressing etc.” A further requirement for a second carer, it was claimed, would arise when the plaintiff attained the age of twelve years. For these submissions, reliance was particularly placed on the evidence of Ellice Mayhew, whose expertise was endorsed by Professor Yeo. However, on the whole of the evidence, the extent of any difficulty with which the second carer might be concerned would be likely to depend very much on the degree to which the plaintiff himself, as he grows older, is able to provide some level of co-operation with his carer. The evidence of Dr Waters, which I have accepted, suggests he will be co-operative. The proposition put by counsel for the plaintiff, in cross-examination, that the plaintiff might be difficult to handle in the future because he might grow to the size of his father has to be considered with a degree of caution; he might also be small like his mother and, on the medical evidence, there is really no prospect of his developing into a strong man. As Shirley Wruck pointed out, the problem of size, from the point of view of nursing, relates to weight rather than height.

59 I found the evidence of Shirley Wruck quite persuasive. She was cross-examined at some length without anything emerging to cast doubt, in my mind, on her conclusion that a regime involving the constant presence of one carer would be appropriate. There is a very small chance that the onset of puberty might require some further provision for a period the evidence did not define, but then the plaintiff’s mother made it clear she wished to continue to be involved in the plaintiff’s care, although unable to maintain the exhausting but “absolutely wonderful job looking after this very disabled little boy” which, as Shirley Wruck described it, she has been doing up to the present, and if, in the upshot, her involvement is somewhat greater than is presently contemplated, there is the countervailing possibility of a reduction of expense. The evidence made it clear that, up to the present, the plaintiff’s parents have set their faces somewhat against reliance on outside help which they did not find absolutely necessary.

60 Other matters, for which the plaintiff’s submissions claimed, were the attendance of a registered nurse for one hour per week, but only after five years, during which the plaintiff’s mother would be assumed to supervise the plaintiff’s care, and an allowance for six hours per month, at a cost $243.03 per week, for the employment of an advocate/case manager. The evidence of Shirley Wruck is to the effect that these would be unnecessary luxuries, certainly at the level suggested, since agencies that provide care for persons such as the plaintiff “provide an oversight of the quotation [sic - scil rotation] of the carers, the provision of the carers and the activities of the carers” and “that oversight activity [is] incorporated in the rates” assessed by her. She also thought that the plaintiff’s mother, as an individual, “would be more than adequate”, to keep an eye “on whether the carers are doing a good job and whether they are being rotated properly and whether they are attending to their duties”. It is also to be borne in mind that, as the defendant submits, the Protective Commissioner will obviously have a role in relation to this plaintiff.

61 The plaintiff claims for handyman services on the basis of four hours per week at $25.00 per hour. But at his age, he would obviously not be personally doing any handyman work. In a normal family, any one of a number of persons may do work of this kind during a child’s infancy. Indeed, as has been indicated earlier in this judgment when provision for the capital cost of the home was examined, most young men up to an age in their twenties would be unlikely to be involved in much work of this sort. The defendant’s suggestion of an allowance at the rate sought by the plaintiff, but deferred till he attains the age of eighteen years, seems to me a reasonable way of allowing for the unascertainable possibilities that would be involved. Subject to adjustment to allow for life expectancy on what I have found to be the correct basis, I accept the defendant’s submission.

62 The plaintiff’s submissions also seek an allowance of an additional $207.20 per week for an attendant driver. It does not seem to me that this provision is reasonable. There is no basis for thinking that the plaintiff’s carer, or for a number of years, in all probability, his mother, would not be able to drive him. The question is really tied up with the question of whether any special vehicle is needed, to which I shall return. If the plaintiff is driven by his carer, the driver’s wages are already provided for through the carer’s wages. There was no suggestion in the evidence that a carer would demand some additional amount for driving the car on an outing which would, doubtless, relieve the monotony for the carer as much as for the plaintiff. Especially over the years during which the plaintiff is growing up, it is likely that, as is the case with many children, he will be driven by his mother, in particular to school. In the circumstances of this case, although much driving of that kind would be part of the normal course of family life, it is reasonable to make some allowance for driving over and above the normal duties of a mother which will or may be involved. I take this into account in fixing the appropriate amount to be allowed under the principle of Griffiths v Kerkemeyer. I think it is probable, although I will build into my assessment allowance for other possibilities, as I shall indicate, that, over the next thirty years, the plaintiff’s mother will provide gratuitous services, including necessary additional housekeeping work and some assistance to the paid carers, over and above what she would otherwise do for the plaintiff, which should be assessed as equivalent to twenty-five hours per week. I have been conscious, in assessing that figure, of the risk of double compensation by the allowance of the cost of some care, as likely to be provided by commercial carers, and the allowance of the same aspect of care as likely to be provided by the mother gratuitously. I have also been conscious that the mother’s care may continue for longer than thirty years, or may come to an end much sooner. I have not overlooked that I have already held the plaintiff’s care can be provided by a regime involving the work of a single carer at a time. Nevertheless, while that is the general position as I have found it to be, there may be times, whether because of illness or some other emergency, when more may be required. Doing the best the court can to take account of the incalculable, I think an allowance assessed in the manner I have stated should reasonably be made, to take account of these various possibilities, in addition to the amount I have already held should be provided for future care. Being assessed in respect of so many possibilities, it does not involve an assumption that the care to which it looks will in fact be furnished in one particular way or combination of ways over the period of the rest of the plaintiff’s life. Rather, a calculation based on twenty-five hours per week for the next thirty years is more than I would otherwise allow under Griffiths v Kerkemeyer, so as to cover the possibilities which I have mentioned.

Cost of transportation (excluding driver)

63 The plaintiff also claimed for the capital cost, over and above the cost of an “ordinary” car, of a car such as a Voyager Wagon specially adapted to allow him to remain in a wheelchair while travelling in it; for the cost of a car telephone; for the additional running costs of a Voyager Wagon or similar vehicle; and for the mobile telephone access fees. These claims were said to be based on the evidence of Professor Yeo. But in fact he gave evidence that the plaintiff “does not need to be secured within the car within a wheelchair”; that any problem with a seatbelt would depend on a speculative question whether the plaintiff would fail to comply with the use of an ordinary belt “or would continue to be non-compliant”; and that what he requires is a vehicle modified “so that there is more reliable retention of [him] in the car”, but not “the specially modified vans that we often prescribe for the complete tetraplegia casualty.” In my opinion, this evidence does not support the making of an allowance for a special car except to the extent that an un-costed modification of a relatively minor kind might be required. In the defendant’s submissions, some figures were suggested as an upper limit of what “could” be allowed. In my opinion, it would be appropriate, looking at the matter broadly, to allow a round sum of $10,000.

64 As to the claim for a mobile telephone, I cannot see any basis for considering that this could come within the principle laid down in Sharman v Evans, or, indeed, since any provision would look ahead half a century, for thinking that a mobile telephone would be a special piece of equipment required by the plaintiff’s condition, rather than an almost universal feature of 21st century life.

Financial management

65 The plaintiff claims management fees calculated upon the principles laid down in Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665. The defendant challenges the correctness of this decision in the present climate, pointing to the change in investment return which has occurred in the years since 1992. However, I am, as I have just pointed out, assessing damages to cover a period into the future which may prove to be very long. Over such a period, rates may well fluctuate and it is difficult to say that the rate appropriate in 1992, even if it does not seem appropriate in 2002, may not be vindicated by events in another ten years. If the rate is to be changed, I think it must be by the Court of Appeal or the High Court. Accordingly, I am prepared to allow for financial management on the basis set out in Rosniak, but I note that the calculation will have to await the ascertainment of other items in the judgment to be entered. If the parties are unable to agree on the resulting calculations, it will be necessary for the figure to be determined by the court.

Agreed elements of the assessment of damages

66 It is convenient to note at the end of these reasons the significant items upon which the parties were able to reach agreement during the hearing, as follows:

· General damages for pain and suffering and the loss of the amenities of life $296,000.00

· The major part of the out of pocket expenses $111,662.82

· Impairment of earning capacity $350,000.00

· The provision of special equipment $ 90,000.00

· Modifications to the house at Thirroul $235,000.00

· Costs of the move to Thirroul $ 29,152.21

· Hydrotherapy pool $200,000.00

· Provision for holidays $125,000.00

· Provision for computer/communication equipment $ 60,000.00

$1,496,815.03

67 To this total must be added the various amounts for which I have now provided. The only order I make at this time is that the plaintiff bring in, on a date to be fixed, short minutes of the orders which it is appropriate to make in the light of my reasons. When that is done, consideration could also be given to the nature of the allowance that is appropriate in respect of the costs associated with the surgery for the replacement of a shunt or shunts which occurred after judgment was reserved.

I certify that paragraphs 1 – 67
are a true copy of the reasons
for judgment herein of the
Hon. Acting Justice Burchett
given on 20 December 2002

___________________
Susan Piggott
Associate

20 December 2002

Last Modified: 01/06/2003