Hendrie v Rusli - [2000] WASCA 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HENDRIE -v- RUSLI [2000] WASCA 249

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 29 FEBRUARY 2000

DELIVERED : 8 SEPTEMBER 2000

FILE NO/S: FUL 81 of 1999

BETWEEN: MARIE HENDRIE
Appellant (Plaintiff)
AND
ANAWATI RUSLI
Respondent (Defendant)

Catchwords:

Damages - Personal injuries - General damages for non-pecuniary loss - Proportion of "a most extreme case" - Award for gratuitous services pre-trial and for the future

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, s 3D

Result:

Appeal allowed
Award of damages increased

Representation:

Counsel:

Appellant (Plaintiff) : Mr K J Bradford
Respondent (Defendant) : Mr J R Brooksby

Solicitors:

Appellant (Plaintiff) : Bradford & Co
Respondent (Defendant) : Greenland Brooksby

Case(s) referred to in judgment(s):

Griffiths v Kerkemeyer (1977) 139 CLR 161
Newman v Nugent (1992) 12 WAR 119
Southgate v Waterford (1990) 21 NSWLR 427
Van Gervan v Fenton (1992) 175 CLR 327
Wylde v Aristondo‑Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Keys v The John James Memorial Hospital Limited, unreported; SCt of ACT; Library No BC9804980;
McWaters v Eletich, unreported; FCt SCt of WA; Library No 990184; 15 April 1999
Nutbrown v Sheffield Health Authority (1993) 4 Med LR 187
Scott v Liddicoat, unreported; FCt SCt of WA; 25 May 1982

PIDGEON J: I would allow the appeal. I do so for the reasons to be published by Murray J. I also agree with the orders proposed.
WALLWORK J: I agree with the reasons for judgment of Murray J and to the order proposed by his Honour.
MURRAY J: On 1 May 1997 the appellant was a pedestrian on a road when she was struck by the respondent driving a motor vehicle. She was an elderly lady who was born on 24 November 1918. She was then occasionally employed as a French teacher. She suffered a number of potentially serious injuries, a closed head injury, fractured ribs on the right side, a bilateral haemothorax, a compound fracture of the right leg, bruising of the spleen and kidney, a fracture of a spinal process, a tear of her right shoulder muscles, various soft tissue injuries and anxiety.
She sued for damages in negligence. Liability was admitted by the respondent. The matter was tried in the District Court as an assessment of damages. Judgment was given on 28 May 1999. The appellant was then aged 80 years. The trial Judge made an award of damages in the sum of $133,586.10. He awarded the costs of the action to the plaintiff to 25 March 1999, a date just before the trial took place, and thereafter the costs of the action were awarded to the defendant, no doubt for the usual reason.
The award included a fair measure of agreement as to special damages, past and future economic loss and future medical expenses. The award otherwise included an assessment of $42,400 for general damages of a non‑pecuniary kind, including loss of amenities and a cosmetic disability, and a sum of $3,387 for future professional services, which related to the assistance to be provided by an agency called "WelCare". The adequacy of those elements of the award of damages is now challenged, as is the conclusion of the trial Judge that no sum should be awarded for past or future gratuitous services.
The appeal now brought against the judgment is pursued on the grounds that:
"The sum of $133,586.10 awarded by the Learned Trial Judge to the Appellant (Plaintiff) was so inordinately low and disproportionate to the damage suffered by the Appellant (Plaintiff) as to fall below the bounds of a sound discretionary judgment and represent an error in law and fact.

PARTICULARS
1.The assessment by the Learned Trial Judge that the injuries suffered by the Appellant (Plaintiff) amounted to only 20 per cent of a 'most severe case' as assessed pursuant to Section 3C of the Motor Vehicle (Third Party Insurance) Act and resulting in an award for non economic loss of $42,200 represented a grossly inadequate assessment of the gravity of the injuries suffered by the Appellant (Plaintiff) and did not represent a sound discretionary judgment.
2.(i) The finding by the Learned Trial Judge that the Appellant (Plaintiff) in the pre‑trial period had not required gratuitous services in excess of the threshold period of 7 hours per week required by Section 3D of the said Act was wrong in fact and represented a miscomprehension of the evidence, it being the case that the unchallenged evidence of the Appellant (Plaintiff) and of Dr Peter Richardson (Exhibit '5') established a need for at least 14 hours of domestic assistance per week in addition to the services which had been provided by 'Welcare' and 'Silver Chain'.
(ii)The Appellant Plaintiff) should have been awarded damages for past gratuitous services for at least 14 hours per week at $14.30 per hour in addition to the services which were paid for by the Respondent (Defendant).
3.The finding by the Learned Trial Judge that damages should not be awarded for future gratuitous services was likewise contrary to the evidence which established a need in the future for assistance of 14 hours per week in excess of the 3 hours per week provided by Welcare with such need prevailing for the balance of the Appellant's (Plaintiff's) life.
4.The finding by the Learned Trial Judge that the award for future professional services should be discounted by 50 per cent to reflect the chance that the Appellant (Plaintiff) would have required professional services in any event by reason of her age was not open and justified on the evidence with the discount of 50 per cent being grossly excessive.
5.(i) The finding by the Learned Trial Judge that there was no evidence that the cost of visiting a hairdresser was $15 was contrary to the evidence, it being the case that the Appellant's (Plaintiff's) evidence established such cost.
(ii)The finding by the Learned Trial Judge that the Appellant (Plaintiff) could do her own hairdressing without difficulty was contrary to the evidence, it being the evidence of the Appellant (Plaintiff) and her medical witness Dr Peter Richardson (Exhibit '5') that the Appellant (Plaintiff) could not attend to her own hairdressing needs with the result that the Appellant (Plaintiff) was required to visit a hairdresser twice per week.
(iii)The finding by the Learned Trial Judge that no damages should be awarded for future hairdressing costs was wrong in law and was based on erroneous findings of fact."

There is no issue of credibility of witnesses. A medical witness gave evidence de bene esse, but otherwise the evidence was in documentary form, including that of the appellant, whose evidence was in the form of a statement she had made, a document which the trial Judge said he did not find to be helpful because of what it omitted relative to the assessment. His Honour therefore relied substantially upon medical reports which he said he accepted in full. Although his Honour reviewed the medical evidence, he did not make findings of fact in any detail. However, because his Honour accepted the evidence put before him in documentary form, what he said that evidence established may, I think, be taken to be the facts as his Honour found them.
Having been admitted to hospital, the appellant underwent operative procedures and was then managed in the Intensive Care Unit of the hospital. Rehabilitation was slow. She was not discharged until 8 July 1997. By 21 August 1997 it was reported that the appellant had made a good recovery, although it was recognised that she would have some long term and permanent disability, particularly concerned with the fractures to her leg which involved the right ankle, and stiffness in the right shoulder.
Initially she had help at home for two hours in the morning and two hours in the evening to cook meals and clean the house. She walked with a limp and used a stick for support. She had difficulty then with everyday activities and housework, was unable to walk long distances and to stand for any time in comfort. Despite an operation to her right shoulder, although the pain settled, the appellant still had weakness and restricted movement in that joint. By about the end of September 1997 the appellant was found to be "almost fully mobile within her own home." She had back pain and a fear of crossing the road which seemed not to be amenable to psychological treatment.
By February 1998 the spinal fracture was found to have healed with some angulation of the spine, her chest injury had healed although there was some residual deformity, the injury to her right ankle continued to be disabling to a degree and there was still significant restriction of movement in the right shoulder. There was some scarring to her legs.
Coming closer to the time of the trial in April 1999, the trial Judge placed reliance principally upon the reports of an orthopaedic surgeon, Mr Hardisty. He reviewed the initial consequences of the accident and the fact that the appellant had been in hospital for some nine weeks, including three weeks in Intensive Care. The appellant's principal problem was described as limping and pain in the right ankle. There was scarring of the ankle, a decreased range of movement in the joint and she was still finding walking a problem. Mr Hardisty investigated the joint, found evidence of difficulty in effectively re‑uniting the joint where it had fractured, conducted an operation to remedy the difficulties in that area, which healed well, and ordered physiotherapy.
He suggested that if the pain continued, an arthrodesis of the ankle might be necessary, but at that time the appellant resisted the idea of further surgery. She remained afflicted by significant residual disabilities in the right shoulder and right ankle. By the time of trial, the appellant was making arrangements to undergo surgery to her ankle, which on the evidence should achieve significant improvement, although it seems that the Judge accepted that there would continue to be residual disability.
The most up to date information as at the time of trial was a report provided to the appellant's solicitors by her general practitioner, Dr Richardson. He expressed the view that in terms of disability the right shoulder injury was by far the most significant, overshadowing her complaints of right ankle pain and back pain. There was discomfort in the shoulder, but the main problem was substantial limitation of movement and power, having an impact upon all sorts of daily activities ‑ inability to comfortably wash her hair, the risk of a fall in the shower, difficulty in drying herself, in making her bed, in dealing with the washing (she was reported to be unable to hang the washing out or bring it in and could not iron), difficulty in cooking, lifting anything of any weight, in dressing herself and in house cleaning. She was reported to be unable to do the major tasks involved in home care and cleaning. She could not do the craft work and knitting that she previously enjoyed and she was unable to do any work in the garden. She had become distressed because hitherto she was proud of her independence, particularly at her age, and took great pride in maintaining her home and garden "spick and span".
The trial Judge did not refer to this witness's report and I have noted that he generally discounted the statement of the appellant, which he found unhelpful, although it is substantially concerned with an account of her disabilities and domestic and personal incapacity. Put shortly, it is an account of a previously healthy, independent, elderly lady who took much enjoyment in her life, but who since the accident and for the remainder of her life, is very much restricted in what she can do for herself and for others, and very much reliant upon the continual help of family and friends.
As at the date of trial she had a life expectancy, the trial Judge found, of just over 8‑1/2 years. No doubt, given her age, she could expect gradual and increasing restriction in her activities, but the accident certainly resulted in considerable acceleration of the many limitations and restrictions to her life style and activities which she has encountered.
Non-pecuniary loss
The trial Judge assessed this loss as 20 per cent of "a most extreme case". Because the maximum available at that time was $212,000, his Honour awarded $42,400.
That mode of assessment refers to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C(2). The section as a whole provides restrictions on the damages which may be awarded for what is described as non‑pecuniary loss, a term defined in s 3C(1) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. The section provides for a maximum amount of damages that may be awarded and for its recalculation according to changes in the value of the currency, but it is provided by s 3C(3) that "the maximum amount may be awarded only in a most extreme case." Otherwise, s 3C(2) makes it clear that the amount of damages to be awarded is to be a proportion "determined according to the severity of the non‑pecuniary loss" of the maximum amount.
In this Court in Wylde v Aristondo‑Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, Franklyn J, with whom Malcolm CJ and Kennedy J agreed, reviewed the law in relation to the application of s 3C and related provisions, which appear to have been inherited by this State from similar provisions in NSW. As a result his Honour relied heavily upon the decision of the Court of Appeal of NSW in Southgate v Waterford (1990) 21 NSWLR 427. It was accepted that the task was to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case, it was appreciated that a number of different types of cases of horrific injury involving extreme pain, loss of enjoyment of life, physical disability and the like might fall into that class. Paraplegia would certainly do so, particularly in a young person who might have an unaffected expectation of life and many years of disability and suffering ahead. As to how the right proportion is to be struck, appellate courts have simply reminded trial Judges that damages will continue to be awarded by reference to common law principles of assessment, and that there is, particularly in respect of non‑economic loss, a wide measure of discretion.
It has to be said of the appellant that his Honour appreciated that she had difficulty being as mobile and getting about in public in the way that she was used to. That was principally the result of the ankle injury, but as I read the medical reports, the fusion operation proposed, which I understand the appellant accepted should be done, would improve that situation. She actually made a very good recovery from very serious initial injuries. The principal ongoing disability will undoubtedly be that related to the right shoulder and the significance of that in many ways during the appellant's daily life should not be lost sight of. She does, however, remain independent and in close contact with family and friends from whom she has had to accept assistance. There appears to be much in her life which affords her enjoyment, albeit that it is largely as a result of her determination and strong character that she has been able to maintain as much of her former life style as she has.
The appellant argues that her injuries and disabilities should have been assessed as being severe, in excess of 50 per cent of the maximum, but in my opinion it was right for counsel for the respondent to remind this Court that the significant factor is the appellant's age and what the trial Judge described as the fact that she would in any event, as the years went by, be forced to accept a slowing down of her activities. Bearing in mind the discretionary judgment involved, I am unable for myself to conclude that an award of $42, 400 under this head was so inadequate as to require the intervention of this Court. Although I accept that the assessment of 20 per cent is certainly modest, it seems to me that it remains within an acceptable range of judgment.
Past and future gratuitous services
The Act, s 3D imposes restrictions upon damages which may be awarded for what is described as the provision of home care services. Section 3D(1) refers to "the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance" that have been or are to be provided to the plaintiff by a member of that person's household or family. By subs (2) no damages are to be awarded for the value of services which would have been provided in that way to the plaintiff in any event, even had the plaintiff not suffered bodily injury.
Where an award is to be made, formulae are provided for the calculation based upon average weekly earnings of all employees in Western Australia, if necessary converted to an hourly rate calculated at one fortieth of that weekly rate. Various such amounts were applicable during the period from the date when the appellant was discharged from hospital until the date of trial. By that time the relevant average weekly earnings were $572.50 per week or a rate of $14.30 per hour, as the rate at which compensation was to be assessed.
By s 3D(6) and (7), if the amount which may be awarded for gratuitous services is $5,000 or less, no damages are to be awarded for the value of the services provided or to be provided. The trial Judge appears to have considered that this was an annual threshhold for the making of an award, converting it to an allowance for almost seven hours per week. His Honour thought that in the future the appellant would never require the provision of services of the kind under consideration to the extent of seven hours per week, and he therefore declined to make any award at all for future services of that kind. In that approach his Honour was clearly in error. The effect of the section is simply that if the award to be made, calculated in terms of the section, would be $5,000 or less, then no award is to be made.
Whether an award is made continues to be governed by the common law. The leading cases are, of course, Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327, and in this State, Newman v Nugent (1992) 12 WAR 119. Compensation is awarded for the loss constituted by a diminution in the plaintiff's capacity to look after herself. It is most usual to make the assessment in terms of household or domestic services and nursing services needed by the plaintiff. It is not to compensate the plaintiff for domestic services which that person would formerly have rendered to other members of the household or family members, because it is the plaintiff's loss for which the award is made to the extent that the need for the services has been created by the accident and would not have been incurred in any event. Nor is there to be compensation for a capacity of this kind which would be lost in any event at some time in the future. It is not a question of compensation for financial loss, but of valuing the extent of the incapacity for self‑care, although of course, in this case the assessment process was governed by the Act.
That being the case, interest should be awarded on any such compensation from the time the loss was incurred. In this case, if an award was to be made for past gratuitous services, it was agreed that an annual interest rate of 4 per cent was appropriate. Of course, no such component would apply to any award for future loss. Finally, if the defendant was otherwise to pay or provide for the services lost, then no award would be made. In this case a proportion of the past gratuitous services was funded by the respondent in the provision of services by the organisation known as WelCare and, for a time, by the nursing services provided by the Silver Chain Association.

Turning first to the provision of past gratuitous services, the evidence undoubtedly established a need in relation to activities formerly performed by the appellant for herself, but in respect for which she now required the assistance of family and friends. The claim made divided the period to trial into nine periods, substantially coinciding with changes in the rate of average earnings. Except for the first two periods totalling 18 weeks when the claim was made for compensation at the weekly rate in accordance with the section on the basis that the need for such services was at least 40 hours per week, the claim was substantially based upon an asserted need for such services at the rate of 20 hours per week. His Honour thought that on the evidence those claims were grossly inflated, and in my opinion, having reviewed the evidence, that view was open to the trial Judge.
His Honour said he would initially allow for gratuitous services at the rate of 4 hours per day, 7 days a week. His calculation at the applicable rate would have resulted in an award for this period of $4,648. His Honour wrongly allowed nothing because his calculation produced a sum less than $5,000. The period in question ran from the appellant's release from hospital when, at the expense of the respondent, WelCare commenced to provide its services, which it did to 16 January 1998 for up to 4 hours a day. Thereafter, for practically the whole of 1998 and through to the date of trial, WelCare was providing 2 or 3 hours per week assistance on a continuing basis. In view of the appellant's progress, the trial Judge thought that was adequate assistance.
In my view it was appropriate to have regard to the provision of services by WelCare, as to which the appellant's evidence was that such services continued to be required because they gave her family respite, but in my opinion, upon the evidence, his Honour placed too much reliance upon the provision of such services by WelCare and the evidence does not support his view that ongoing assistance of 2 or 3 hours per week was all that was required. On the other hand, there was clear warrant for the view that the appellant's claim in this regard was excessive couched at the rate of 20 hours per week.
I have had regard to the evidence upon this issue and I do not propose to set out the material in any detail here. That would unnecessarily lengthen these reasons. As I have mentioned, the appellant's case was based on an assessment at a rate of 20 hours per week. The report of Dr Richardson dated 23 April 1999, to which I have referred, suggests the provision of 14 hours per week or 2 hours a day, which it is said would "go some way to running her home and allowing her to remain relatively independent for her remaining years." In addition she would continue to have to rely upon the assistance of her adult children.
Again, a review of the evidence does not, in my opinion, support that sort of estimate. Some of the services provided are of a kind which it is difficult to relate to disabilities which are accident caused and which would not have been provided in any event, but doing the best I can with the evidence, because I cannot accept as adequate the approach taken by the trial Judge, it would seem to me that a fair average over the relevant period from 1998 to the date of trial, in addition to the WelCare services, would have been 5 hours per week, but in my view that would be an average commitment and I accept that it may be somewhat generous towards the latter part of that period.
The period may be taken as one of 60 weeks during which period it would be fair to simplify the calculation by using the rate of average weekly earnings as at the date of trial, of $572.50 per week, or in other words, rounding the figure off, an hourly rate of $14.30. That produces an award for this period of $4,290 to which must be added the amount of $4,648 calculated by his Honour, which he would have allowed for the early period to which I have referred, giving a total award of $8,938 in respect of a total period of approximately 72 weeks up to the date of trial. Interest at the agreed rate of 4 per cent per annum would be allowed at $495.
As to the future, it seems that the trial Judge accepted the need for WelCare services to continue indefinitely at the rate of 3 hours per week. The agreed hourly rate for remuneration for those services was $19.05. The award was to be made on the basis of the appellant's life expectancy of a further 8.69 years. It is accepted that the multiplier on the appropriate 6 per cent weekly discount table is 355.6. His Honour then went on to make a calculation based on only 1 hour per week, upon which basis he derived a figure of $6,774.
On the basis of the appellant's age, his Honour thought it was reasonable to suggest that she would require services in any event in the future and he discounted the figure by 50 per cent. I think that it is not unreasonable to suppose that the appellant would require services of the type provided by WelCare in the latter part of her remaining years. In effect, what his Honour has done is to assume that from the date of trial and assessment, she would have required such services after about another 4 years in any event. Again, the reasonableness of that assumption is a matter of judgment and this appellant had been a fit and active woman before the accident, despite her advanced age. In addition she gave evidence of the longevity of her lineal ancestors and family members generally. That should have been allowed some impact in my view, given the age which she had already attained.
I am inclined to the view that a 50 per cent discount for that contingency is unduly pessimistic. In my view 30 per cent would have been a more appropriate discount to apply. Therefore, redoing the calculation to make this adjustment, but otherwise upon the basis that the trial Judge accepted, would give 3 x 19.05 x 355.6 = $20,322.54 less 30 per cent or $6,096.76 resulting in an award of $14,225 rounded off to the nearest $5.
As to the question of future gratuitous services over and above those professional services provided by WelCare, the trial Judge, as we have seen, made no award. His Honour said that it was apparent that the appellant would require assistance in her later years of a kind which would ordinarily be performed by her family. He therefore considered that no award should be made, but that consideration seems to me to be more appropriately reflected in a discounting process similar to that applied to the award for the future professional services by way of domestic assistance, unless his Honour was of the view that gratuitous services above and beyond that would, in any event, have been required to be provided to the appellant by her family as at and from the date of trial, irrespective of the occurrence of the accident. That was not his Honour's finding with respect to the provision of the services of WelCare into the future and I would see no reason in relation to future gratuitous services to discount the award on a basis other than that applied to the award for future professional services. In other words, for future gratuitous services I would again apply a discount of 30 per cent.
Further, his Honour said that in any event such an award would not exceed $5,000 per annum and so, as I have mentioned, for that reason also his Honour, wrongly in my respectful opinion, declined to make an award.
As I have said, I think the claim for the future based on Dr Richardson's reference to the period of 14 hours per week, was not supportable by a reasonable assessment of what the evidence established. Given that WelCare were to continue to provide their services at the rate of 3 hours per week, I think further gratuitous services of about 5 hours a week could, on the evidence, be justified. The calculation should be based upon the average weekly earnings rate of $572.50 translating to an hourly rate of $14.30. It may be expressed as follows: 5 x $14.30 x 355.6 = $25,425.40 less 30 per cent or $7,627.62, resulting in an award of $17,800 rounded off to the nearest $5.
Finally, it will be seen that there is a complaint in ground 5 that his Honour failed to allow the claim for future hairdressing costs. The claim was based on two visits to the hairdresser per week at a cost of $15 each, a cost which the trial Judge said was unsupported by the evidence. His Honour noted that the appellant's evidence suggested that she could no longer wash and dry her hair daily as she was used to doing, but his Honour concluded that she could indeed do her own hairdressing, although with difficulty. In my opinion, there was evidence to support that conclusion.
In the result I think that assistance with hairdressing is the sort of personal domestic service which would be included in the award for gratuitous services which I have already proposed. I too would not make any additional award in relation to hairdressing costs.
Conclusion
In the result therefore, for past gratuitous services, interest on those services, the amendment of the award in relation to future professional services and for future gratuitous services, I would award sums of $8,938, $495, $14,225 and $17,800 and from the total of $41,458, I would, of course, deduct the $3,387 allowed erroneously in respect of future professional services, making a total increase in the judgment amount of $38,071 over the original award of $133,586.10.