Hooker v Farquhar
[1995] QSC 35
•14 March 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1749 of 1995
Brisbane
Before the Hon. Mr Justice Shepherdson
[Hooker v. Farquhar & Anor]
BETWEEN
JOHN HOOKER
Plaintiff
AND
BRUCE WAYNE FARQUHAR
First Defendant
AND
SUNCORP INSURANCE & FINANCE
Defendant by Election
JUDGMENT - SHEPHERDSON J.
Judgment delivered 14/03/1995
CATCHWORDS: NEGLIGENCE - M.V.A. 26.7.1989 - whether contributory negligence in a passenger plaintiff
DAMAGES - plaintiff now almost 30 years - quadriplegic
APain suffering and loss of amenities $170,000.00
Interest on $35,000 thereof at 2% for 5.6 years 3,920.00
BImpairment of earning capacity
(a)Past 80,000.00
Interest thereon @ 6% for 5.6 years 26,880.00
(b)Future 330,000.00
CSpecial damages 108,000.00
Interest on $5,100 thereof @ 6% for 5.6 years 1,713.00
DCosts of care
(a)Past 85,585.00
Interest @2% for 4.75 years 8,130.00
(b)Future 366,453.00
EHouse modifications and related matters - future
(a)House modifications 44,513.00
(b)Swimming pool 26,414.00
Maintenance etc 25,500.00
(c)Air conditioning 4,016.00
Running costs including replacement 12,898.00
(d)Future Home maintenance 27,418.00
FFuture medical and pharmaceutical expenses 35,416.00
GFuture hospital expenses 108,112.00
HIVF or equipment costs 22,000.00
IMotor vehicle expenses
(a)capital costs of modifications 4,565.00
(b)replacements - future 11,589.00
KPapaverine Injections 1,000.00
LAids and equipment 112,534.00
$1,616,656.00
Counsel:Williams QC and Howard for plaintiff
Hoare for defendant by election
Solicitors:Crouch & Lyndon for plaintiff
Wonderby & Hall for defendant by election
Hearing date 6th, 7th & 8th February 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1749 of 1990
Brisbane
[Hooker v. Farquhar & Anor ]
BETWEEN
JOHN HOOKER
Plaintiff
ANDBRUCE WAYNE FARQUHAR
First Defendant
AND
SUNCORP INSURANCE & FINANCE
Defendant by Election
JUDGMENT - SHEPHERDSON J.
Judgment Delivered 14 March 1995
This plaintiff's claim is for damages suffered in a motor vehicle accident which occurred on 26 July 1989. The defendant by election has admitted that at the time of the accident the defendant was the driver of a Holden sedan registered number 810-AHV, that at all material times the plaintiff was a passenger in that vehicle and that at or about 2.30am on 26 July 1989 on the Bruce Highway near Willmington Crossing north of Bowen the Holden motor vehicle got out of control and collided with a concrete culvert at the side of the Highway, and that as a result of the collision the plaintiff suffered injuries.
LIABILITY
So far as liability is concerned Mr Hoare, counsel for the defendant by election does not contend that the plaintiff has failed to prove negligence in the defendant. The only issue on liability is found in pleas of contributory negligence against the plaintiff. These pleas have two bases:-1.That the plaintiff failed to take reasonable care for his own safety by beginning and continuing a journey in the car up to the point of collision at times when he allegedly well knew and appreciated that the bodily and mental faculties of the defendant were so impaired by the consumption of intoxicating liquor that he was unable to drive, manage or control the motor vehicle in any reasonable, proper or skilful manner or to exercise any reasonable or proper judgement and discretion in so doing;
2.That the plaintiff failed to adjust and securely fasten the seat belt for his use while he was in the car.
I add that a plea of volenti was not pressed by Mr Hoare. Before I consider the matter of contributory negligence I shall set out my findings as to the relevant events of the 25 and 26 July 1989, leading to the collision.
The plaintiff, the defendant and a man named Trevor Bourne worked in Toowoomba for a company named Pacific Seeds Pty Ltd. On 24 July 1989, Pacific Seeds was preparing materials to be taken to Bowen in North Queensland for a display on land at Bowen which Pacific Seeds had leased. To that end, a truck containing certain materials left Toowoomba for Bowen on 24 July. On the evening of 24 July, the plaintiff, the defendant and Bourne left Toowoomba to travel to Bowen. These three men travelled in a red commodore sedan driven by Bourne. This was the vehicle ultimately involved in the collision. Bourne was a superior of both plaintiff and defendant and they were obliged to obey his reasonable instructions in connection with their work for Pacific Seeds. The three men arrived in Bowen at about 3.am on 25 July. They went to a hotel where the truck driver who had preceded them was staying. They slept there for one or two hours.
The plaintiff, the defendant and others then began work erecting shade houses for the display. This physical work continued on a hot day until about 3.pm, when Bourne allowed the plaintiff and the defendant to leave and seek accommodation for themselves. The defendant drove the red commodore. After inspecting accommodation at a caravan park and rejecting it as unsuitable, the defendant, accompanied by the plaintiff drove to a tomato farm some 10 or 15km from Bowen. At that farm the defendant's stepbrother, a man named Shane Walters was staying. He was working as a tomato picker. The plaintiff and the defendant found Walters at the tomato farm - he was staying in a caravan and Walters told the two men they could stay in the caravan.
Plaintiff and defendant then returned to work at about 4.pm. They ceased work at about 5.pm. Bourne produced six stubbies of beer - not light beer. The plaintiff, the defendant, Bourne and the truck driver drank the six stubbies. The plaintiff and the defendant each drank the equivalent of one to two stubbies.
Bourne then drove the red commodore to the Pearly Shells Hotel in Bowen. He and the truck driver were to stay there. The plaintiff and the defendant were in the commodore. Bourne then told the defendant that he could drive the red commodore to the tomato farm where the plaintiff and the defendant at that stage planned to spend the night. He specifically told the defendant that the red commodore was only to be driven to the tomato farm and then next morning to be driven back to the hotel to pick up Bourne and the truck driver. Bourne told the defendant that he had taken the odometer reading and would be checking on the use of the vehicle.
The defendant then drove the red commodore in which plaintiff was a passenger towards the tomato farm. En route, the car stopped and plaintiff and defendant bought fish and chips for their meal. The time was then about 6.pm. Plaintiff and defendant also stopped at a hotel where the defendant, using the plaintiff's money bought six stubbies of beer (not light beer) to be drunk with the meal. Plaintiff and defendant then went to the tomato farm where Walters was present. At the caravan, the three men ate the fish and chips and drank the six stubbies. Each drank about two bottles. By this time plaintiff was aware that there was only one bed in the caravan and he decided that he would spend the night of 25 July by sleeping in the back seat of the red commodore. He was then very tired having had little sleep on the night of 24 July and having worked all day in what was hot weather.
After the meal was eaten, the defendant and Walters, who had not seen each other for some two years, said they intended to drive back to Bowen. Plaintiff reminded the defendant that he wasn't supposed to be using the red commodore after hours. Nevertheless the defendant did drive from the farm back into Bowen - he was accompanied by the plaintiff and Walters. At precisely what time this journey started I cannot say - only that it was about one hour after the meal had ended (as to this time see ex.24 which is a copy of a statement by plaintiff made 28 August 1989).
In Bowen the car stopped at a number of places. First for about five minutes at a hotel where the plaintiff remained in the car while the other two got out. The defendant told the plaintiff that he and Walters were looking for friends. At this stage the plaintiff was in the back seat of the red commodore. Plaintiff had his bag in the back seat to use as a pillow; he had donned a jacket and was sitting in the back seat of the car at the time when defendant and Walters had decided to return to town after eating the meal.
The defendant then drove the car to a house where he and Walters again got out of the car leaving the plaintiff inside the car. Plaintiff lay down on the back seat and went to sleep; he was awoken by the return of the two men. The defendant then drove to another house in Bowen where he and Walters again alighted leaving plaintiff in the car. On this occasion the defendant and Walters told plaintiff not to come in and plaintiff again went to sleep in the back of the car. He was awoken by their return, as he believed some twenty minutes or so later. The defendant then drove the car back to the tomato farm. At this stage the plaintiff was sitting in the back seat with his seat belt fastened.
Although I cannot find the approximate time at which this return trip occurred, I am satisfied that it was probably an hour before the public bar of a hotel on the main street of Bowen had closed. I infer that the bar closed at 10pm because that was the statutory closing time for such premises. I infer that the return trip was probably between 9 and 10pm and probably nearer 9pm. I say that in the light of my finding (made later in these reasons) that the defendant or Walters or both of them later bought a carton of beer stubbies.
Not long before arriving at the farm the defendant stopped the car and he and Walters made a phone call from a telephone booth in the main street of Bowen. The journey resumed and the defendant stopped the car inside the front gate to the tomato farm property. At this point the car was about 1km from the caravan on the tomato farm. The car was on a dirt track which led ultimately to the caravan. Near the front gate was a barn or machinery shed. The defendant and Walters got out of the car. The plaintiff unfastened his seat belt and lay down to sleep on the back seat. He went to sleep and woke up for a short time when the defendant began driving the car along the dirt road from just inside the front gate. He remained asleep and was next awoken by the noise of the collision.
The collision in which the plaintiff was injured occurred as I have said at 2.30am on 26 July.
After the plaintiff had undone his seat belt and lain down to sleep on the back seat when the car was parked inside the front gate, the defendant at some later stage drove the red commodore away from the tomato farm. He did not drive the car continuously up until the point of collision. During this journey he or Walters or both of them bought a carton of 24 stubbies of VB beer (not light beer). The defendant drove the car around farm areas in Euri Ck near Bowen for about 1 hour. The defendant and Walters then decided to drive the car north from Bowen towards Ayr as far at least as Guthalungra.
During the drive around the farms and en route to Guthalungra, the defendant and Walters drank a substantial part of the carton of beer. The commodore remained at Guthalungra for about ten minutes and then the defendant drove back towards Bowen. En route the car stopped for about an hour at a bridge at which the defendant's father had been killed some time prior to that night .
The journey south resumed and a short while after leaving this bridge perhaps five minutes, the accident occurred. By the time the red commodore left the bridge, all 24 stubbies had been drunk by the defendant and Walters.
At the time of the collision the defendant was well affected by his consumption of the beer. On 4.20am on 26 July 1989, he had a blood alcohol content of .17% (see ex.27). I find that at the time of the collision his blood alcohol level was between .20% and .21% (see ex.26 and the oral evidence of Dr Lynch). I am satisfied that at 2.30am, the defendant had clumsy hand movements, unsteadiness when walking and standing, and that his general behaviour was a departure from his usual norm. I am also satisfied that a blood alcohol reading of .21 reflected the defendant having in his body at 2.30am about 140 ozs of beer of the type purchased.
The plan, (ex.28) prepared by an investigating police officer, shows long skid marks leading to the point of impact and these marks indicate clearly that the red commodore was, as the defendant by election has admitted in its pleading, out of control. I find that the commodore was out of control due to the defendant's failure to keep proper control of the car and that that failure was caused by the effects on the defendant of the beer he had drunk.
I find that after the plaintiff went to sleep in the car, shortly after he had undone his seat belt, just inside the front gate to the tomato farm, he remained in the car asleep in the back seat until awoken by the sound of the collision, save for one occasion when he awoke for a few seconds shortly after he first went to sleep at a time when he believed the car was still on the tomato farm property.
I reject the evidence of Walters that during the drive to Guthalungra the plaintiff was awake and drinking beer. The accident happened over five years ago - the evidence from the defendant and Walters disclosed that the recall of each was poor and certainly not such that I could rely on either man with any degree of confidence, especially when their evidence conflicted with that of the plaintiff. I find that each of the defendant and Walters consumed a large quantity of beer after leaving the farm on the second journey - especially the defendant.
There is in evidence a copy of a reasonably contemporaneous statement from the plaintiff - dated 28 August 1989 - and given to the police (ex.24). The defendant was charged with and pleaded guilty to dangerous driving causing grievous bodily harm to the plaintiff. He also pleaded guilty to unlawful use of the motor vehicle at Willmington Crossing.
Ex.24 accorded quite well with plaintiff's oral evidence before me. Apart from this accord, plaintiff impressed me as a truthful and intelligent witness. I should add that in ex.24 plaintiff mentions having heard a stubbie beer bottle clinking inside the car and feeling it with his foot. This was before the defendant and Walters had made the phone call from the phone booth. I do not attribute anything sinister to the plaintiff from this piece of evidence. This beer bottle may well have been and I find probably was one of the bottles produced by Bourne and drunk after work. I find that at the stage when plaintiff heard and felt the beer bottle neither the defendant nor Walters was showing any sign of being affected by the consumption of alcoholic liquor. I am satisfied that the plaintiff at no stage saw the defendant adversely affected by the consumption of beer and that on the night of 25 July he was not aware of the defendant being adversely affected by the consumption of beer.
It is apparent from the first basis on which the defendant by election pleads contributory negligence and I so find that the journey which ended in the collision must have begun after the plaintiff went to sleep inside the front gate after having undone the seat belt. At no time during that journey was he aware of the defendant's bodily and mental faculties being adversely affected by the consumption of alcoholic liquors. The plaintiff was (as I have found) very tired - I have already mentioned the reasons for this. The plea of contributory negligence, based on an allegation of knowledge in the plaintiff, of the defendant being adversely affected by the consumption of alcoholic liquors is not made out. Alternatively, if I should be wrong in my view as to when the pleaded journey commenced and if in fact that journey commenced when the defendant drove away from the farm gate after the meal, and continued after plaintiff had gone to sleep inside the front gate, the plea is still not made out. At no stage during such a journey was the plaintiff aware of the defendant's bodily and mental faculties being adversely affected by the beer he had drunk.
This leaves the question whether the defendant by election has proved contributory negligence because of the plaintiff's failure to have the seat belt properly fastened while in the moving car.
The plaintiff suffered injuries which have left him quadriplegic. I shall refer to these injuries in more detail later. His cervical spine was fractured. I accept the plaintiff's evidence that when he awoke after hearing "a big bang like an explosion" he was jammed down in behind the rear seats of the car with his head pressed against the passenger side rear door. Prior to the collision the plaintiff had I find been lying on the back seat of the red commodore with his head toward the passenger side rear door. Dr Hill opined that the C7 injury normally suggested a compression force and that generally speaking one would expect to see a contusion on the top of the skull. There is no evidence of such a contusion.
The plea of contributory negligence, if made out, will go to reduce plaintiff's damages.
The seat belt which plaintiff undid before lying down was a lap sash type. I am satisfied after hearing Dr Lynch that the plaintiff, lying unrestrained on the back seat of the car, was more likely than not to have suffered injuries in the motor vehicle accident, but not necessarily the injuries he in fact suffered.
In my view the matter of contributory negligence requires me to first answer the following question - given that the plaintiff had an obligation to take reasonable care for his own safety was there a reasonably foreseeable risk that the defendant would again drive the red commodore away from the tomato farm after the plaintiff had lain down on the back seat to sleep? I pose that preliminary question because I find that this plaintiff was aware of the need when travelling in a moving car to have his seat belt fastened.
I here refer to "forseeability" in the context of the general duty of the plaintiff to take reasonable care for his own safety by guarding against foreseeable risk of injury to himself. The risk of the defendant driving the car away on a journey a second time, if it were foreseeable by plaintiff meant that if he were a passenger in the car during that journey he would have had to have his seat belt fastened. This plaintiff was aware of that need and while awake had met it by having his seat belt fastened during the first journey which began after the meal.
In the circumstances of the present case, plaintiff, at the time he lay down, after unfastening the seat belt, could not in my view have reasonably foreseen a risk that the defendant would again drive the red commodore away from the tomato farm in breach of Bourne's direction. Such a risk was in my view fanciful and far fetched. So far as the defendant's further driving the red commodore that night was concerned, I find it reasonable for plaintiff to have foreseen only that the defendant would drive the car the approximate 1km to the caravan.
Had the risk of the defendant again driving the car away from the tomato farm been foreseeable, then obviously the plaintiff, who had earlier travelled with his seat belt fastened, should have foreseen that if he were to remain in the car he would have had to fasten the seat belt if he were to take reasonable care for his own safety. Travelling in the car with the fastened seat belt guarded against the risk of injury of the type plaintiff suffered. (see Chapman v. Hearse (1961) 106 CLR 112 at 120)
As I have already found, the plaintiff went to sleep lying on the back seat after the car had returned inside the farm boundaries. Thereafter, the defendant in fact drove the car away from the farm, yet again in breach of Bourne's directions. This proved to be a criminal act - in light of the defendant's plea to unlawful use of the motor vehicle - but I ignore that. Plaintiff, because he was asleep, at all times remained unaware of what was occurring save for the one occasion when he awoke for a very short time. I have already mentioned this. I find it perfectly understandable the plaintiff should have slept as he did - I have already made findings about his tiredness including lack of sleep from the previous night, and the work on a hot day on 25 July.
I find that the defendant by election has not made out its claim of contributory negligence based on failure by the plaintiff to wear a seat belt. I mention one technical aspect and that is when plaintiff went to sleep the car was not on a public road and therefore he was not obliged by statute law to wear a seat belt. I do not accept that if there is no obligation under statute law to wear a seat belt, there is no obligation under common law to do so. Seat belts have been in common use for very many years now and in my view, in an appropriate case, failure to wear a seat belt, irrespective of any statutory obligation imposed by law, may show a failure by a plaintiff to guard against a reasonably foreseeable risk of injury and amount to contributory negligence.
DAMAGES
Plaintiff was born in New Zealand on 31 July 1965. He received primary and secondary education at Taupo in the North Island of New Zealand. He sat for and passed a university entrance examination. When he left school, his parents had hoped that plaintiff would attend university in Auckland but plaintiff himself wanted to become a pilot. Plaintiff's wishes prevailed. His father and an uncle held and used pilot's licences. He began work for his uncle who owned a farm at Te Aroha where plaintiff contract loaded hay and sprayed noxious weeds. He worked there for about six months. He then worked for the New Zealand Government in the Parks and Reserves section of the Department of Land and Survey. He described himself as an honorary ranger attached to the Rangers Department and was concerned with looking after native parks and reserves around the Taupo area.
Apart from working for that Department, plaintiff also earned income by working on farms, scrub cutting and cutting fire wood and fruit picking. In 1984, he first started training for his pilot's licence. The cost of training was largely paid for by plaintiff's own efforts although he did receive some financial assistance from his parents in the form of birthday and Christmas presents. In 1986 plaintiff gained a private pilot's licence in New Zealand. This was as he said a basic licence with a radio operators licence attached. It was endorsed for three types of aeroplanes - a Piper Cherokee, a Cessna 150 and a Grumman AAI trainer. After this, plaintiff worked for about a year with his father building his parents' retirement home in Henderson Bay in the far north of the North Island of New Zealand. In August 1987, plaintiff travelled to Calgary in Canada. While working at Henderson Bay he had met a young woman named Kathleen Warden. She came from Calgary and was holidaying, backpacking around New Zealand.
Plaintiff stayed in Canada and the United States from August 1987 until March 1988. He spent most of his time with Ms Warden. In March 1988 he returned to New Zealand travelling to Tepuke where he worked as a seasonal fruit picker.
In June 1988 plaintiff travelled to Australia, arriving in Sydney where he worked for a short period as a car detailer. I am satisfied he came to Australia because seasonal work had finished in New Zealand and he was hoping to train here to become a commercial pilot. I am also satisfied that up until June 1988, apart from his holiday overseas and the period when plaintiff had worked on his father's holiday home, he had maintained himself in employment save for one short period (the exact length was not identified) when he received unemployment benefits.
In Australia, plaintiff left Sydney and went to Cairns in North Queensland. I am satisfied that he had travelled there because he had heard that money could be earned fairly fast working on prawn trawlers. I am satisfied that at this stage, plaintiff was hoping to raise enough money to pay for his flight training. In fact he worked in two saw mills in and near Cairns for about three months. In November 1988, he obtained work as a field assistant with Pacific Seeds Pty Ltd in Toowoomba. As a field assistant he was required to travel throughout Western, Central and Southern Queensland. His work included assisting plant breeders who bred different varieties of hybrid plants with all the field work they needed, including the raising of crops, harvesting, seed sorting and maintenance of trial crops.
While working for Pacific Seeds plaintiff was based in Toowoomba. He joined the aero club there, and began doing flight training. He sat and passed a medical check required for persons hoping to obtain commercial pilots licences and he received an Australian Student Pilot's licence.
I should at this stage mention that Kathleen Warden returned to Australia in September 1988. She and the plaintiff resided in Cairns and when he moved to Toowoomba she accompanied him. Ms Warden was in Australia on a visitor's visa and was obliged to leave by June 1989. She did so. After she left plaintiff approached the Commonwealth Bank in Toowoomba for a loan to enable him to attend flight training school. His application was rejected.
Not long afterwards he suffered injuries in the above accident.APAIN SUFFERING AND LOSS OF AMENITIES
After the accident plaintiff was taken to the Bowen Hospital where xrays confirmed his seventh cervical vertebrae had been fractured. Neurologically he was there noted to have a complete tetraplegia below this level. Plaintiff was resuscitated at the Bowen Hospital and then transferred to the Townsville Hospital where he was placed in skull traction. On the same day he was flown to the Princess Alexandra Hospital and he there entered the Spinal Injuries Unit. Apart from ex.2 which is a report dated 8 February 1990 from the Princess Alexandra Hospital I had the benefit of oral evidence, as well as his reports, from Dr Vernon Hill the Director of the Spinal Injuries Unit at the Princess Alexandra Hospital.
In the Spinal Injuries Unit plaintiff initially was in skull traction. This lasted for about 8-10 weeks. During this time plaintiff suffered pain mainly down his left side and his neck and back and also due to the skull traction. The skull traction which I am satisfied was painful, restricting and uncomfortable, was designed to stretch the spine; weights had been screwed into his skull (as he described it); the weights totalled 7 pounds. Plaintiff remained an inpatient in the Spinal Injuries Unit until his discharge from hospital on 27 April 1990.
At one stage he underwent surgery on 14 November 1989 to decompress the cervical cord. A bone graft was inserted, secured by an "H" plate plus four pins. Plaintiff was then maintained in cervical traction and the skull tongs which I infer were applied at the operation were removed on 17 November 1989.
This was but one of a number of operations he underwent during the first nine months after the accident.
I should at this stage say that although the Bowen Hospital noted complete tetraplegia, Princess Alexandra Hospital did not make the same diagnosis. In their opinion (which I accept) plaintiff had an incomplete tetraplegia below the 6th cervical segment "which was complete below the first thoracic segment due to a burst fracture of C7/T1".
Several weeks after initial admission to Princess Alexandra Hospital, plaintiff developed severe spasm in his lower limbs. He also became severely depressed. The Spinal Injuries Unit requested a psychiatric consultation and plaintiff was given medication.
Spasms continued to be a problem. He still suffers frequent spasms and I shall mention them later.
Between 8 and 10 weeks after injury, steps were taken to mobilise plaintiff in a wheelchair. On 19 October 1989 it was noted that plaintiff was then getting some neurological recovery in his lower limbs with flickers of movements in all major muscle groups in the right leg and also around the left hip and knee extensors. Toe flexors and extensors were present in both feet.
On 1 November 1989, MRI of the cervical and upper thoracic spine was performed and this showed some compression of the cord by retropulsed fragments from the seventh cervical vertebra as well as considerable cord damage above that level opposite the sixth cervical vertebra. A CT scan of the lower cervical spine performed on the previous day suggested some bony cord compression. The decision was then made to perform the surgery which as I have said occurred on 14 November 1989. On 21 November 1989, plaintiff was mobilised in a cervical brace. Initially his bladder was managed by an in dwelling catheter. Plaintiff developed repeated urinary tract infections but could not be intermittently catheterised because of severe urethral muscle spasm. On 25 January 1990, cystoscopy was performed and this showed a normal urethra with no evidence of prostatic obstruction. There was evidence of mild cystitis and debris within the bladder. Bladder washout was commenced and in indwelling catheter reinserted. By 8 February 1990, plaintiff was mobilising well in a wheelchair. Dr Hill, who wrote the hospital report (ex.2), noted that at that stage useful function was returning in the right hand, that his left hand still remained without movement in the fingers, that motor power in his lower limbs was still insufficient to enable him to stand but was helping, when he went to transfer himself from bed to chair. No accurate prognosis could then be made.
In his first dated report, (10 October 1991) - ex.3 - Dr Hill expanded on events which had occurred between 8 February 1990 (the date of ex.2) and the date when plaintiff was discharged as an inpatient (27 April 1990). On 12 February 1990, the left great toe was operated on as it was starting to cause him increasing spasm due to a nail infection. Ex.3 notes that spasm continued to be a major problem and restricted plaintiff's level of independence.
On 28 March 1990, a repeat urodynamic was performed because plaintiff was having some trouble with the insertion of catheters and the study confirmed that he had a high bladder outlet sphincter pressure. A possible tendon transplant to one hand was considered but this was postponed for at least another 12 months. When discharged as an inpatient on 27 April 1990, plaintiff was fully independent in his wheelchair both on outdoor and indoor surfaces, he could cope with gradients of 1:12 and he was independent in all transfers including wheelchair to floor. He was independent in feeding himself although he had some difficulty with cutting meat; he could use glasses and mugs satisfactorily; he was independent but slow in dressing due to severe spasm and could shower himself and manage his bowels and bladder. He was able to write using a triangular plastic grip, but this was noted to be a slow process. He had begun a computer training course and his keyboard skills using typing splints were gradually improving at the time of discharge.
Dr Hill's various reports describe the picture up to 28 November 1994 when he last reviewed plaintiff. In all, plaintiff has been back to the Princess Alexandra Hospital as an outpatient on five occasions since his discharge. On 30 April 1990 a nerve block was performed on the posterior tibial nerve on the left side and repeated with phenol on 1 May 1990. Plaintiff's gait improved significantly on crutches as a result of that procedure.
On 20 July 1990, a vibrator trial was performed to assess his ability to ejaculate and the quality of semen. A successful response was achieved but the level of sperm motility was low. On 29 September 1990, plaintiff's intravenous pyelogram was reviewed and showed no abnormality in the kidneys or bladder. By 7 August 1992, Dr Hill was able to opine that plaintiff's bowel, bladder and sexual functions will never be normal but he thought it possible that plaintiff would eventually ejaculate and that his quality of semen would improve to the point where he will be able to have a family. By 1 December 1994, the plaintiff had, as I so find, virtually given up walking after a serious fall which he had while on crutches and he used his wheelchair most of the time. I find his giving up walking was reasonable. By then his grip in his right hand had become significantly stronger but there had been no further change in the function of his left hand. At that stage he was not interested in the suggestion that a tendon transfer might improve function in the left hand. However, having heard all the evidence, I am satisfied that it is more likely than not that he will come to have this surgery and there will be some improvement in the function in the left hand especially in enabling some contact between thumb and index finger.
The spasm, especially in the lower limbs, still is a major problem. I am satisfied that spasming occurs frequently and a number of times - occasionally 20 times - each day. Spasms occur usually when the effects of medication are starting to wear off and on occasions are so severe that they have thrown him forward and out of his wheelchair. I shall mention spasm later.
I accept Dr Hill's opinion that the spasm in the lower limbs is such that plaintiff will continue to use a wheelchair for the rest of his life and will not attempt to walk again.
At this stage I should mention the three theoretical areas of life threatening problems for quadriplegics and more particularly how each bears on this plaintiff's future.(i)Pressure Sores
These can develop in desensitised areas of his body and severe infections can occur. Septicaemia from sores can lead to death. I accept the opinion of Dr Hill that this plaintiff is not at any great risk from this problem although it is a matter which I take into account when assessing the component for pain, suffering and loss of amenities and plaintiff's life expectancy.
(ii)Respiratory Problems
I find that due to the weakness of the plaintiff's intercostal muscles and his poor cough, due to weak abdominal musculature, plaintiff is more likely to have difficulty with the clearing of secretion should he develop a chest infection. I find that plaintiff does not smoke and that to date he has had no problems of this kind. Dr Hill does not believe that plaintiff's life is likely to be shortened by respiratory disease. I accept this opinion but the risk of such disease shortening plaintiff's life is a matter which I take into account.
(iii)Urinary Tract Infections
The third area in which plaintiff is at risk is in his urinary tract. He is being monitored on a regular basis and intravenous pyelograms to date have shown no evidence of any change in his kidneys, ureters, bladder or urethra. I accept Dr Hill's opinion that so long as plaintiff continues to have regular medical review, plaintiff's life is not likely to be threatened from this area, and that in consequence of that plaintiff's life expectancy is normal. Again, the risk is one which I take into account in the assessment of damages although in the light of Dr Hill's opinion I regard the risk as low.
On the subject of urinary tract infections, I note that in May and June 1990 plaintiff attended his local G. P., Dr Jackson several times because of urinary tract infections. These attendances do not in my view adversely affect the opinion of Dr Hill as to the future and in fact confirm the plaintiff as a person seriously caring for himself.
I had the opportunity of observing the plaintiff giving evidence from his wheelchair. On external appearances he has been grossly disabled by the calamitous injury which he suffered in July 1989 but not as severely disabled as some other paraplegics. In short he appears not to be in the worst class of paraplegics. He is able to sit unaided. He has a good range of neck movement and good movement with his shoulders and upper arms. Because of the loss of use in his lower limbs, plaintiff uses his arms much more than he would (had he not been injured) and I find it more likely than not that probably in his early forties he will commence to suffer arthritic problems in his shoulder, elbows and wrists. I find that once these conditions begin, they progress but not at a fast rate.
Although this plaintiff on appearances is not in the worst class of quadriplegics, there are as I find certain aspects of his injuries which make the component for pain, suffering and loss of amenities significant. I am satisfied that since July 1989, this plaintiff has suffered back pain and below C7/T1. More particularly I am satisfied that he has suffered pain in areas where he has feeling namely, down to his mid lower back and down to his tail bone in parts. I am satisfied also that he has what he calls phantom pain which he describes as hypersensitivity and being "exactly like pins and needles after a limb has gone to sleep". I find that this condition is pretty well constant and is aggravated by certain things like wind blowing across his leg or wearing certain types of clothes which touch his skin. The pain which I have mentioned is constant and I find it gets worse the longer the plaintiff sits. Plaintiff rates this pain at its base at 6 or 7 on a scale of 10. I accept that it is quite severe. I am satisfied that it reaches a stage each day where he has to leave his wheelchair and lie down bent over a mattress or a pillow that is pushed underneath him in order to stretch his spine and obtain relief. He takes pain killing medication for this condition.
I have already mentioned the spasms. I am satisfied that he takes medication for them - baclofen twice a day - and that there are occasions when on waking in the morning, his body is completely rigid due to spasm. I find that it takes him at least half an hour before he is able to use his legs, usually with the assistance of another person, and lift them up to get out of bed.
So far as plaintiff's sexual function is concerned, he has undergone treatment and I find that he will have papaverine injections to enable him to obtain an erection. Each of these injections causes some pain.
In summary, the component for pain, suffering and loss of amenities in this case must be substantial. I award $170,000 on this head. I allow for $3,920 for interest on $35,000 thereof at 2% for 5.6 years.BIMPAIRMENT OF EARNING CAPACITY
(a)Past
Plaintiff impressed me as a man who at the time of his accident had demonstrated a willingness to work and, if necessary, to travel to obtain work.
I find that he travelled to Australia intending to obtain here a commercial pilot's license. I find also that he hoped that, having obtained his commercial pilot's license he would get fully paid commercial flying work, most probably with a charter company. I am satisfied that at the time he left New Zealand he believed there was more work for pilots in Australia than in New Zealand. He was also dissatisfied with the type of training he had received as a student pilot in New Zealand. I was impressed by the fact that when he came to Australia, he did not use his New Zealand licence and was prepared to and did obtain an Australian licence starting virtually from scratch. I find he believed that in Australia it was easier to obtain work as a pilot if he had an Australian pilot's license.
Gary John Young a Director of the Air Training Centre at Archerfield and management and education co-ordinator of that venture gave oral evidence. I am satisfied that the present course offered by his Centre for a person seeking to gain a basic qualification of a commercial pilot's licence for single engine planes visual rate would cost $21,940 and if such a person wished to have an endorsement for night flying that would cost an extra $1,200 to $1,300.
Mr Young gave a number of salary ranges. If a pilot is prepared to move to and work in a large charter company at a place such as Mt Isa he can probably commence earning at about $24,000 to $25,000 per annum. A graduate working for a large charter company with a larger fleet and more work would earn in the range of $25,000 to $27,000.
At the time of his injury plaintiff was earning about $190 net per week. This was comparatively low pay for his work. He was living in rental accommodation. He was paid a casual rate for a 30 - 35 hour week.
By 26 July 1989, plaintiff had saved about $1,000 and had spent spare money on flying with the Toowoomba Aero Club. It cost him $100 per hour to fly the plane. At that time he needed about 90 hours flying to gain a commercial pilot's licence.
I am satisfied that at 26 July 1989, plaintiff was trying to get better paid jobs - more particularly that he had applied for several jobs including contract work on farms and ti-tree cutting. He believed that in the latter work he could earn $700 or $800 per week. I find he had been unsuccessful in such applications.
Kathleen Warden plays and will play an important part in plaintiff's life and I shall mention her again. It is my view that once she had returned to Canada in June 1989, plaintiff would have become freer to search for and obtain a better paid job or jobs and would have actively flown with a view to obtaining his pilot's licence.
Plaintiff impressed me as an intelligent man who was intent on obtaining a commercial pilots licence and who was prepared to travel to seek work with a view to obtaining sufficient income to enable him to obtain his licence. I accept his evidence that he applied for a bank loan and was refused. I accept this despite lack of any corroborative documents.
I find that had plaintiff not been injured on 26 July 1989, he would have obtained a commercial pilot's licence by mid 1994.
I find also that with such a licence plaintiff would probably have earned about $26,000 gross per annum from employment with a charter company flying in Queensland. From this amount ($500 per week) tax must be deducted. Mr Williams QC has argued for a loss of $350 per week net from 26 July 1989 to date. The base figure of $350 per week is not supported by accurate evidence as to tax rates. I accept an income tax rate of 34% - based on Income Tax Rates Act 1986 - Schedule 7 which I mention later when dealing with future impairment of earning capacity. On a 34% tax rate the net pay would be $330 not $350. At 26 July 1989, plaintiff was earning $190 per week net. I have found that he was trying to obtain other more remunerative work and that once Kathleen Warden had returned to Canada that task was made easier. The claim made by Mr Williams for the whole period from 26 July 1989 to date assumes that plaintiff would have worked gainfully during all that time. In my view, in the case of this particular plaintiff that assumption is justified and I say that despite the economic downturn and general knowledge of quite high rates of unemployment in Queensland. However, the rate claimed, be it $350 or $330 is too high for the whole of the period of approximately 5.6 years.
A loss of $190 a week for 5 years is $49,400. I have chosen 5 years because at about the end of this period plaintiff would have obtained his pilot's licence. A loss of $350 per week from 26 July 1994 to date (33 weeks) is $11,550. The total of these sums is $60,950. In my view, this figure is too low for loss of impairment of earning capacity to date. I bear in mind that "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss" (Graham v. Baker (1961) 106 CLR 340 at 347). For a very recent example of the importance of this principle see Medlin v. State Government Insurance Commission judgment of the High Court delivered 16 February 1995.
I find that it is more likely than not that in the 5 years from 26 July 1989, plaintiff would have obtained more remunerative work than he did with Pacific Seeds. The difficulty is arriving at the amount of weekly take home pay and the time in which he would have obtained better paid work. There was as I said evidence that he might have earned $700 or $800 per week clearing timber but for how long such a job would last (assuming he obtained it) is speculative. I do not propose to take that figure into account. Plaintiff had shown a willingness to take what I call more regular type jobs in Australia eg. with Pacific Seeds and the saw mills in and near Cairns and to travel to do so. I find that the probabilities are that he would have earned at least and probably more an average of about $250 per week (net after tax) for four years following 26 July 1990. The total of $250 per week for 4 years is $52,000. When this sum is added to the $9,880 which I find he would have earned in the first year from 26 July 1989 (at $190 per week) the total becomes $61,880 to 25 July 1994.
When the lost earnings thereafter up to date ($11,550) are added the total becomes $73,430. This figure is but a base figure for the component representing plaintiff's loss of impairment of earning capacity to date.
The above figures have the disarming appearance of mathematical accuracy but are really judicial guesses (see Lord Diplock in Paul v. Rendell (1981) 55 ALJR 371 at p.376). The above figure of $73,430 is not my final assessment of damages due to loss of earning capacity to date. I have set out a number of matters and calculations which I have so far taken into account, bearing in mind the above Graham v. Baker principle.
I should say I have taken account of what I find was more likely than not namely an intention by both the plaintiff and Kathleen Warden, present at mid 1989, to marry at some stage in their future lives. This intention has had a bearing on my view that the plaintiff would have worked during the whole of the period from 26 July 1989 to date and would have obtained his commercial pilot's licence. Ms Warden returned to Canada in June 1989 and there she began a two year course of study in agriculture. She is now an agronomist. In choosing this field I find that she may well have been influenced by plaintiff's work with Pacific Seeds.
I find that the plaintiff's and Ms Warden's mutual intention to marry was an important factor in his achieving his desire to obtain his licence. I find also that as a result of his injury in July 1989, plaintiff lost his entire earning capacity.
Because of the plaintiff's willingness to work and travel to obtain work, I find that during the period from 26 July 1990 to 26 July 1994 he would have earned at a greater rate than $250 per week and probably slightly less than $300 net per week. Prior to 26 July 1990, I consider it more likely than not that he would have earned at approximately $190 per week. I propose to allow $80,000 for loss of earning capacity to date. I have calculated that $300 per week for 4 years is $62,400; I have added to that figure the $9,880 for losses to 26 July 1990 and the $11,550 for losses since 25 July 1994. The resulting total I have discounted slightly to allow for my belief that in the 4 years to 25 July 1994, plaintiff would have earned at slightly less than $300 net per week. I allow interest on this sum at 6% for 5.6 years - $26,880.(b)Future
I am satisfied that had he not been injured the plaintiff would probably now be earning at least $500 per week gross. I do not find that in the future he would have become a pilot with QANTAS. I consider that he would now be and would continue to be a pilot with charter companies. I accept that his life expectancy remains the same as it would have, had he not been injured in 1989 save that I take into account the specific risks referred to by Dr Hill and which I have earlier mentioned. Plaintiff is almost 30 years old. Mr Williams has claimed a net loss of $500 per week for 30 years inclusive of occupational superannuation. This submission means in effect that I am asked to find that the plaintiff would have continued in work as a pilot until aged about 60 years and earned during this period at $500 net per week.
In his typed submissions Mr Willliams shows a present value of a $500 loss per week for 30 years to be $411,000. I do not accept a net loss of $500 per week. Income tax on the $500 per week is payable at the rate of 34% (see Income Tax Rates Act 1986 - Schedule 7 ). 34% is $170 which reduces the take home pay to $330. I propose to treat plaintiff as if he were now earning $350 net per week. This will allow for superannuation contributions paid by the employer. The present value of the net loss of $350 per week for 30 years (on the 5% tables) is $287,700.
This calculation makes no allowance for what I shall call the vicissitudes of life. The 60 year cut off point in my view takes into account a real possibility that for various reasons including adverse health preventing him from renewing his commercial pilot's license, plaintiff may well not have been able to be gainfully employed as a pilot beyond the age of 60. I accept that pilots with commercial licences have to regularly pass quite stringent health tests.
The above figure of $287,700 also assumes continuous employment during the next 30 years. I consider that assumption is warranted in the case of this plaintiff.
Mr Williams has asked me to find that had he not been injured there is a high probability that this plaintiff would now be working as a commercial pilot earning more than $350 per week. I am not prepared to make such a finding. However, given my assessment of this particular plaintiff and given too that he comes from a family background where his father and uncle have held and used pilot licences there is a strong probability that at some stage in the future, had he not been injured he would be earning more than $350 per week as a commercial pilot. What that amount would be and when he would commence to earn I cannot say with any certainty. If I assume that he would have earned $350 per week for the next 5 years the present loss of that amount (on the 5% tables) is $81,200. If I assume that in 5 years time he will have commenced to lose net earnings of $400 per week and that loss would continue for the next 25 years the value of that loss beginning in 5 years time would on the 5% tables be $301,600. That amount has to be discounted back to the present value of such a loss. Using "Parry's Valuation & Conversion Tables" (10th ed.) at p.62 and a multiplier of .7835262 the present value of $301,600 (on the 5% tables) is $236,311. The total of $236,311 and $81,200 is $317,511. If the loss for 25 years beginning in 5 years time were $450 net per week the present value of that loss plus the $81,200 would be $347,050. These figures of $400 and $450 net per week are not unreasonable considering what appears in ex.23 (Average Weekly Earnings in Queensland in August 1994). All told, it seems to me that the maximum amount which I should allow and do allow for the present value of the plaintiff's future loss due to complete loss of his earning capacity is $330,000. I find that plaintiff's complete loss of his earning capacity which occurred on 26 July 1989 has continued and will continue for the rest of his life. He is not and in my view never will be commercially employable although he may well attend a tertiary institution for study.
I bear in mind that the assessment of damages in a case such as the present involves the concept "of fairness with its concomitant moderation" (Arthur Robinson (Grafton) Pty Ltd v. Carter (1968) 122 CLR 649 at p.657) and that the plaintiff and his injuries have been prominent at the trial (see p.657). As I have said I have treated the plaintiff as having, for the rest of his life, completely lost his earning capacity as a result of his accident injuries. I have considered and rejected an argument that plaintiff may in the future earn income by investing damages awarded in some business (see Thomas v. O'Shea (1989) Aust Torts Rep. 80-251). He is to be compensated for loss of his earning capacity.CSPECIAL DAMAGES
The parties have agreed special damages in the sum of $108,000.
They have also agreed that interest is to be paid on $5,100 thereof. Mr Williams seeks interest at the rate of 6% per annum. Mr Hoare does not concede that this is the correct rate. I see no reason not to award the 6% (see Serisier Investments Pty Ltd v. English (1989) 1Qd R 678) where the Full Court accepted 12% as the median figure representing a perception of commercial rates and that interest should be awarded at that rate. The 6% contended for by Mr Williams halves the 12% and appears to take account of the fact that the $5,100 loss was progressively sustained. I award interest for 5.6 years.DCOSTS OF CARE
(a)Past
The principle to be applied in assessing this component is that stated by the High Court of Australia in Van Gervan v. Fenton (1992) 175 CLR 327. The headnote reads:-
"The true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, and the plaintiff does not have to show that the need is or may be productive of financial loss. Accordingly, the plaintiff's damages are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided or by reference to the income forgone by the provider of the services but generally by reference to the market cost of providing the services."
(see pp.338 & 343)
In the present case Dr Hill considers this plaintiff presently requires approximately 2 hours per day or 12-14 hours per week help to attend to his personal needs and services. He considers this will be the situation for about the next 15 years. These hours per week do not include cost of having persons to do such work as gardening and home handyman jobs. (see Dr Hill at p.77 of transcript)
Mrs Coles the occupational therapist considered that plaintiff needs at the very minimum 8-10 hours per week by way of domestic assistance. Ms Warden, who described in some detail the assistance she gave plaintiff said that on average she spends 3 hours per day attending to plaintiff's personal needs and providing him services. She emphasised this was an average and that on his good days, she would help him for 2 hours and on his bad days for 4 hours. I thought Ms Warden an honest, reliable witness. She is the person actually providing the assistance. Her figure of 3 hours per day, while higher than that expected by Dr Hill takes account of frequent spasming by plaintiff. For cost of care to date I propose to asses at the rate of 3 hours per day for 4.75 years. The market cost is $16.50 per hours. I adopt that market cost. 4.75 years is I find a reasonable time and is the figure contended for by Mr Williams. I stress that in arriving at the 3 hours per day, I have ignored time which plaintiff had he not been injured, would need to spend in doing gardening and other home handyman types of work. These matters I have dealt with later in these reasons and I have avoided any double counting on this aspect of cost of care.
I shall set out the areas in which plaintiff needs care and also recount his residential history since discharge from hospital in April 1990. Initially he went to live in a purpose built unit with another quadriplegic. Due to a personality clash he left; he later moved into a house at Mansfield which he shared with another quadriplegic who is more severely incapacitated than he is and who had a carer. This was the situation in October 1991. He and the other person had a cleaning lady who came in twice a week and a carer who came in for about two and a half hours each morning and night. She helped plaintiff make his bed, clean the windows and other tasks which the plaintiff was unable to manage for himself.
The house at Mansfield is at Eastwood Drive. Plaintiff still lives there. Since the accident plaintiff has made five visits to New Zealand - to see his family who reside there - and two visits to Canada. In Canada he stayed with Kathleen Warden and her parents and on one of those trips he went to the United States. The trips to Canada were paid for by some person other than the plaintiff.
Ms Warden resided with the plaintiff at the time of the trial. I am well satisfied that she and he intend to marry in the quite near future. Within two or three weeks after 26 July 1989, Ms Warden flew to Brisbane accompanied by her mother. She saw the plaintiff in hospital. In 1992, she came back to Australia. By coincidence her father was a paraplegic and I am satisfied she came back to Brisbane because she still loved the plaintiff. In 1992, she and the plaintiff resided in a rented house at Emu Park for about one month. During the 1992-3 northern winter, plaintiff visited Canada and stayed with Ms Warden and her family throughout their winter. In November 1993, he again visited Canada and spent the northern winter and spring with Ms Warden and her family. In September 1994, Ms Warden came to Australia and she resided with plaintiff at Eastwood Dr, Mansfield. At trial she was soon to return to Canada. She is a qualified agronomist and understands that those qualifications are recognised in Queensland.
I have already mentioned some areas of plaintiff's existence in which he needs assistance, e.g. when spasm occurs. Ms Warden may spend around half an hour massaging plaintiff's leg to break the spasm or spasms. He showers and attends to his toilet every second day. He inserts suppositories himself, he is able to transfer into a shower chair himself and is capable of wheeling himself into the bathroom until the toileting and showering are finished. There are occasions when he has accidents en route to the toilet and needs assistance to properly clean and shower himself. Ms Warden frequently assists in drying him after a shower. He is unable to tie shoe laces or very easily put on socks; he has difficulty in doing up buttons and difficulty with zips but apart from that can dress himself. He can shave himself using a manual shaver with a hand grip on it. Ms Warden prepares meals and washes up, he does a little housework but I am satisfied what he does is of little use to Ms Warden. He is able to cook if he has what he calls wheelchair accessible equipment. At present he has no such equipment and he has difficulty in lifting any significant weight. He can do some vacuuming with difficulty from the wheelchair. If he had a "wheelchair accessible bedroom" and a "wheelchair accessible bed" he could make his bed in a fashion but is unable to lift the mattress to tuck things under. He is able to only "push things under". He has trouble in reaching and opening certain doors.
He always goes out with an able bodied person unless he knows the place he is attending is perfectly accessible in which event he can go by himself in a taxi and wheel himself around. Occasionally he finds difficulty of access and has to obtain the assistance of a passerby. Ms Warden massages plaintiff's legs, ankles and feet each night because he gets badly swollen legs and ankles and feet. This is a daily occurrence. He practises self catheterising, close to four times a day. The bowel accidents occur approximately five or six times a year and bladder accidents more frequently.
I find that plaintiff and his wife will probably have two children and not three as he hopes for. I propose to assess this component on the basis of two children, the first being born probably within the next two years and the second within the next four years.
I propose to assess on the basis that plaintiff and his wife have no private hospital insurance. Dr Molloy spoke of a technique called GIFT as well as the IVF program. The latter relates to test tube babies. I find that the strong probability will be that plaintiff and his wife will achieve pregnancy using IVF and not GIFT. I find also that the strong probabilities are that plaintiff and his wife will need four cycles of IVF treatment to achieve each pregnancy. No evidence was placed before me as to whether plaintiff and his wife would be disqualified from any Medicare benefit. I heard evidence from Dr Molloy that an overseas patient or someone totally disqualified from any assistance with Medicare would incur a total cost of about $3,500 per cycle for IVF. Ex.8 which is a report from Dr Molloy shows that the Medicare rebate for each insemination cycle is $460.60. Dr Molloy says and I accept that Medicare imposes a limit of six cycles for one female's lifetime.
I assume that plaintiff and his wife are not disqualified from Medicare and that four cycles will be used in the first pregnancy, I find that a rebate of $1,840.40 will be allowed. Thus, the actual costs of the first pregnancy will be as follows:-Four cycles at $3,500 per cycle $14,000.00
Less 1,840.40
BALANCE 12,159.60
For the second pregnancy only two rebates will be allowed and these will total $921.20. Thus the actual cost of the IVF for the second pregnancy will be $13,078.80.
This second expense will be incurred in four years time and the amount must be discounted down to present values. Using Parry's above tables and a factor of .8227025 (see p.62 in 5% column). I assess the present value of future IVF cost at $10,759. I award $22,000 on this head.
MOTOR VEHICLE EXPENSES
Plaintiff will be able to drive a motor car provided certain adjustments are made e.g. fitting of hand controls. I am satisfied it is reasonably necessary for him to have a motor car to drive. The cost of the hand controls and that includes manufacturing and fitting is $520. Plaintiff's counsel also seeks the cost of a wheelchair hoist. The article in question is a "Wymo" car top wheelchair hoist which is operated electrically from an attached cable switch and may transfer from vehicle to vehicle. The cost is $1,600. An installation cost may or may not be necessary depending upon whether or not the vehicle which the plaintiff will drive has a storm water gutter roof. New cars now do not have such a roof and in my view it is much more likely than not that a special factory roof rack will need to be fitted and this will cost $250 (see ex.17).
A steering knob and special grip will be necessary. These will cost a total of $245. On this item I do propose to allow airconditioning in the motor vehicle. Quadriplegics have difficulty in that what Dr Hill says is "proper control over their loss and gain mechanisms". Dr Hill has advised 2 way airconditioning for paraplegics, for this reason. Airconditioning will cost $1,950. I act on Dr Hill's evidence and I allow $4,565 for immediate capital costs.
There will be the cost of replacing the above capital items. I consider there will be five replacements in all within the next 35 years .
The average annual cost (on present day values) will be $652 (one seventh of $4,565). Add to this the cost of plaintiff being a member of the RACQ which I consider reasonable, namely $36 per annum and the total annual cost is $688. I have reduced this to $13.23 per week. The present value of this weekly cost for 35 years (based on the 5% tables) is $11,589. I allow this sum.
JCOUNSELLING
The plaintiff claims for the cost of counselling which is advised by Dr Mulholland a psychiatrist.
Dr Mulholland saw plaintiff in July 1992 and again on 16 January 1995.
At para 10.5 of his later report he said:-"Psychiatric reasons are not blocking his impairment and it is the only too obvious physical reasons which are. However, there is a psychiatric imput as his chronic low grade depressive attitude is acting as some sort of barrier to his fully exploiting his potential. This is best dealt with not by specific psychiatric treatment but more by a rehabilitation type counselling approach."
I must say that while the plaintiff was giving evidence I saw no hint of a depressive attitude - indeed I formed the view that he was bright, alert, positive and optimistic.
When Dr Mulholland gave evidence, it appeared that his opinion about the plaintiff suffering chronic low grade depression was based on what the plaintiff had told Dr Mulholland. In his most recent report, Dr Mulholland described the plaintiff as "living in a housing commission unit at Mansfield with his former fiancee". This piece of information was incorrect. With respect, I do not believe that Dr Mulholland is an accurate historian. I am not prepared to allow counselling charges as I am not satisfied that the plaintiff has proved the need for them. I note that in the report of Dr Jackson, a local doctor from Graceville, depression was present in 1990.KPAPAVERINE INJECTIONS
After hearing evidence from Dr Hill I am satisfied that these are reasonably necessary. This plaintiff is rather unusual for a quadriplegic in that he does have sensations below the level of the fracture at C7/T1. He has attempted sexual intercourse. These injections are designed to allow him to achieve his desire. The cost is $60 per annum and a loss for 35 years is claimed. Reduced to a monthly charge the present value of $5 per month for 35 years on the 5% tables is approximately $1,007. I allow $1,000 for this item.
LAIDS AND EQUIPMENT
Mrs Coles an occupational therapist has prepared a schedule showing costs, expected replacement period and annual maintenance costs in respect of a number of items. Each party has addressed me on these items. I shall set out in a schedule the items which I consider to be reasonable and for which an award will be made as the plaintiff's needs have been caused by the defendant's tort. Some of the items in Mrs Coles' list I have excluded and they do not appear in the schedule, more particularly the washing machine and the dryer. In my view these are two normal items of household or domestic equipment and it is my view that irrespective of whether or not this plaintiff had been injured he would have had each of these articles in his house.
Another item disputed by Mr Hoare was the provision of an electric wheelchair. In my view, it is reasonably necessary for this plaintiff to have an electric wheelchair. A manual wheelchair causes him problems. He does not have grip in his left hand at present and even after the projected surgery the most he will have will be a light thumb and fore finger grip and my assessment is that for mobility (other than in a car) he should not be solely dependent upon a manually driven wheelchair. I now set out the schedule. The following unit costs are, in most cases, the median of the costs noted in Ms Coles' report (ex.12).
SCHEDULE
| Item | Unit cost | Anticipated average replacement period | Annual maintenance | No of replacements in lifetime | weekly unit costs over 42 years |
| Manual Wheelchair | $2,500 | 4 - 5 years | $150 | 8 | $8.94 |
| Electric Wheelchair | $10,000 | 5 - 6 years | $225 | 7 | 31.30 |
| Jay "Active" Cushion | $650 | 2 - 3 years | 16 | 4.65 | |
| Spare Wheelchair | $1,350 | 5 years | $100 | 8 | 4.83 |
| Combination shower/commode Chair | $1,050 | 5 years | $100 | 8 | 3.75 |
| Hand held Shower | $150 | 2 -3 years | 16 | 1.07 | |
| Portable Shower Chair | $250 | 5 years | 8 | .89 | |
| Suppository Inserter | $150 | 3 - 5 years | 10 | .67 | |
| Spill Proof Urinal | $35 | 5 years | 8 | .12 | |
| Thermostatic Mixer | $525 | 10 years | 4 | .94 | |
| Sheepskin Seat Cover for car | $100 | 1½ - 2 years | 28 | 1.25 | |
| Wheelchair accessible desk | $1,000 | 10 years | 4 | 1.79 | |
| Computer & assoc. equipment | $3,500 | 5 years | 8 | 12.52 | |
| Printer | $1,350 | 5 years | 8 | 3.02 | |
| Electric Typewriter | $800 | 5 years | 8 | 2.86 | |
| Mobile Overbed Table | $250 | 8 years | 5 | .56 | |
| Bedside table | $200 | 8 years | 5 | .45 | |
| Continental Quilt | $100 | 5 years | 8 | .35 | |
| Microwave | $500 | 10 years | 4 | .89 | |
| Touch light | $110 | 5 years | 8 | .39 | |
| Portable telephone | $450 | 5 years | 8 | 1.61 | |
| TOTAL | $25,020 | $575 | $82.85 |
I have decided to allow for a computer, a printer and an electric typewriter for a number of reasons. First, the intelligence of this man and his willingness to use computers. In the past he has shown an ability to use them. He can write with a special pen but his writing is legible only if he writes slowly. I find he will be more proficient with a computer, printer and an electric typewriter. These 3 items will improve the quality and speed of his written communications. It is fair to say that the items which I have allowed were not seriously challenged by Mr Hoare save for the electric wheelchair. I recognise that on the evidence it is possible for this plaintiff to live alone in a suitably designed dwelling provided he has some assistance. Mrs Coles in evidence said that he could indeed spend his whole day just attending to domestic needs and his personal needs and that would leave him no quality of life. It is my view that this unfortunate plaintiff, having been so grievously disabled by the defendant's tort is entitled to such aids as may be reasonably necessary to improve the quality of his life. He can never be restored to his former complete self. In the column "weekly unit cost" I have assumed that plaintiff will live another 42 years. I have endeavoured to exercise moderation in the choice of the above items in the schedule. The annual maintenance of $575 I have reduced to $11.05 per week. I added this sum to the $82.85. The total weekly costs for the next 42 years will be $93.90. The present value of such a weekly outlay for 42 years is, on the 5% tables $87,514. The total unit costs are $25,020. I award $112,534 for this item.
MSUMMARY
In summary then I assess the plaintiffs damages at $1,616,656.00 made up as follows:-
APain suffering and loss of amenities $170,000.00
Interest on $35,000 thereof at 2% for 5.6 years 3,920.00
BImpairment of earning capacity
(a)Past 80,000.00
Interest thereon @ 6% for 5.6 years 26,880.00
(b)Future 330,000.00
CSpecial damages 108,000.00
Interest on $5,100 thereof @ 6% for 5.6 years 1,713.00
DCosts of care
(a)Past 85,585.00
Interest @2% for 4.75 years 8,130.00
(b)Future 366,453.00
EHouse modifications and related matters - future
(a)House modifications 44,513.00
(b)Swimming pool 26,414.00
Maintenance etc 25,500.00
(c)Air conditioning 4,016.00
Running costs including replacement 12,898.00
(d)Future Home maintenance 27,418.00
FFuture medical and pharmaceutical expenses 35,416.00
GFuture hospital expenses 108,112.00
HIVF or equipment costs 22,000.00
Motor vehicle expenses
(a)capital costs of modifications 4,565.00
(b)replacements - future 11,589.00
KPapaverine Injections 1,000.00
LAids and equipment 112,534.00
$1,616,656.00
I give judgment for the plaintiff against defendant by election for $1,616,656.00. I shall hear from parties on costs.
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5
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