Jennifer Kathryn Ranieri v The Nominal Defendant
[2000] NSWSC 134
•9 March 2000
CITATION: Jennifer Kathryn Ranieri & Ors v The Nominal Defendant & Ors [2000] NSWSC 134 revised - 7/12/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20860/1995; 20862/1995; 20863/1995; 20864/1995 HEARING DATE(S): 31 January 2000
1 - 4 February, 7 February, 9 - 11 February, 14 February 2000JUDGMENT DATE: 9 March 2000 PARTIES :
Jennifer Kathryn Ranieri (Plaintiff
20860/1995)
Phillip Mario Ranieri as Executor of the Estate of the late Denise Ranieri (Plaintiff
20862/1995)
Phillip Mario Ranieri (Plaintiff 20863/1995)
Elizabeth Maree Ranieri by her Tutor Phillip Mario Ranieri (Plaintiff 20864/1995)
v
In each matter
The Nominal Defendant (First Defendant/First Cross Claimant to First Cross Claim/Fourth Cross-Defendant to Second Cross-Claim)
Dana Australia Pty Limited T/as Truckline Parts Centre (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
Roads And Traffic Authority Of New South Wales (Third Defendant/Third Cross-Defendant to First Cross-Claim/First Cross-Defendant/Second Cross-Claim)
Shellharbour City Council (First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim)
State of New South Wales (Second Cross-Defendant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim)
JUDGMENT OF: Master Malpass
COUNSEL : Dr A Morrison SC/Mr D Hooke/Ms C Ross
(Plaintiffs)
Mr F S McAlary QC/Mr D Ronzani (First
Defendant/First Cross Claimant to First Cross
Claim/Fourth Cross-Defendant to Second
Cross-Claim)
Mr J Maconachie QC/Mr G Laughton (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
Mr J Coombs QC/Mr I Harvey (Third Defendant/Third Cross-Defendant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim)
Mr M S White (First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim)
Mr D Mallon (Second Cross-Defendant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim)SOLICITORS: Robson & Oliver (Plaintiffs)
Abbott Tout (First Defendant/First Cross Claimant to First Cross Claim/Fourth Cross-Defendant to Second Cross-Claim)
Connery & Partners (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
I V Knight - Crown Solicitor (Third Defendant/Third Cross-Defendant to First Cross-Claim/ First Cross-Defendant/Second Cross-Claim)
Phillips Fox (First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim)
I V Knight - Crown Solicitor (Second Cross-Defendant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim)
CATCHWORDS: Tetraplegia - measure of life expectancy, voluminous and novel heads of damage (including nanny assistance, home modification costs, fund management costs and GST allowance) - Compensation to Relatives Act claims (including loss of earning capacity and loss of services of wife and mother). LEGISLATION CITED: Compensation to Relatives Act 1897.
Crown Proceedings Act 1988.
Motor Accidents Act 1988, s 72, s 73, s 79.CASES CITED: Circosta v Falzon (1999) NSWCA 308.
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545.
Medlin v State Government Insurance Commission (1995) 182 CLR 1.
Nominal Defendant v Gardikiotis 186 CLR 49 at 55.
Nguyen v Nguyen (1990) 169 CLR 245.
Sullivan v Gordon (1999) Aust Torts Reports
81-524.
Weideck v Williams (1999) NSWCA 346.DECISION: See paragraphs 48 - 142
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
THURSDAY 9 MARCH 2000
20860/1995 JENNIFER KATHRYN RANIERI BY HER TUTOR PHILLIP MARIO RANIERI v NOMINAL DEFENDANT & ORS
20862/1995 PHILLIP MARIO RANIERI EXECUTOR OF THE ESTATE OF THE LATE DENISE RANIERI v NOMINAL DEFENDANT & ORS
20863/1995 PHILLIP MARIO RANIERI v NOMINAL DEFENDANT & ORS
20864/1995 ELIZABETH MAREE RANIERI BY HER TUTOR PHILLIP MARIO RANIERI v NOMINAL DEFENDANT & ORS
JUDGMENT
1 Four proceedings have been brought in this Court. They arise out of a motor vehicle accident that took place on the Pacific Highway in Kew at about 7.55 pm on 13 November 1994.
2 There was a collision involving two vehicles. One vehicle was a Toyota Landcruiser. Its occupants were members of the Ranieri family. The other vehicle was a Bush Fire Brigade tanker. It was driven by Mr Brotherson (he was a Captain of the Oak Flats Fire Brigade) and had a passenger (Colin Crawford, another member of the Fire Brigade).
3 The landcruiser was travelling in a northerly direction. The family were returning to Coffs Harbour from Sydney. The tanker was travelling in a southerly direction. The tanker was the last of a group of vehicles travelling in convey from South Grafton to Oak Flats. It had been involved in fire line duties.
4 The tanker crossed onto the incorrect side of the highway. The rear end of the vehicle (the rear wheels on the passengers’ side) collided with the passengers’ side of the front of the landcruiser.
5 At the time of the collision, the landcruiser was being driven by Mr Phillip Mario Ranieri. The other occupants of the front seat were Michelle Ranieri (a daughter of Mr Ranieri) and Denise (his wife). Michelle was sitting in the middle. Both Michelle and Denise died as a result of injuries suffered in the accident. Jennifer and Elizabeth Ranieri (both daughters of Mr Ranieri and Denise) were occupants in the back seat. Mr Ranieri and both of those daughters suffered personal injury.
6 For present purposes, the tanker is an uninsured vehicle (registration of it is not required as a matter of law). The Nominal Defendant is a party to each of the proceedings (the first defendant). Shellharbour City Council is the legal owner of the tanker. It is also a party to Cross-Claims in each of the proceedings. The tanker had been borrowed by the Oak Flats Fire Brigade from the Dunmore Fire Brigade. Dunmore is in the Shellharbour area. Prior to the accident, some work had been done in relation to the brakes by Dana Australia Pty Limited (Dana). It is also a defendant in each of the proceedings (the second defendant). The Roads and Traffic Authority of New South Wales (RTA), is also a party to each of the proceedings (the third defendant). Allegations were made against it in relation to the road surface. Pursuant to inter alia the Crown Proceedings Act 1988, the State of New South Wales is deemed to be an owner of the tanker. It has liability for the action of servants and/or agents of the Dunmore Bush Fire Brigade. It is also a party to Cross-Claims in each of the proceedings.
7 There are two proceedings in which Mr Ranieri is the plaintiff. One is brought on behalf of himself and the two surviving daughters (Jennifer and Elizabeth) pursuant to the Compensation to Relatives Act 1897. In the other proceedings he has brought a claim for personal injury suffered in the accident. Settlement had been reached between the plaintiff and the Nominal Defendant in those personal injury proceedings. Each of Jennifer and Elizabeth have brought proceedings for damages in respect of the personal injuries suffered in the accident. In the proceedings brought by Elizabeth, there had also been settlement between the plaintiff and the Nominal Defendant.
8 Jennifer (who suffered a number of injuries) has been left with C6/C7 quadriplegia (it has also been described at tetraplegia) and needs a wheelchair. In the proceedings brought by her, at the commencement of the hearing, all issues of liability and quantum were at large. The same position applied in the compensation proceedings. In the other two proceedings there were issues of both liability and quantum still at large.
9 The court proceeded to hear the four actions together (the evidence in each being treated as evidence in the others). In addition to these four proceedings, there are numerous Cross-Claims. A time estimate of four weeks had been given for the hearing of the proceedings.
10 It was common ground that the personal injury claims made against the Nominal Defendant were to be assessed according to the regime enacted by the Motor Accidents Act 1988 (the Act). The claims made against the other defendants for damages arising out of personal injury were to be assessed according to the common law regime.
11 The court has received a formidable body of evidence (including oral evidence and documentary material). A significant part of the documentary material is comprised by reports from experts (including reports from, accountants, architects, occupational therapists as well as medical experts). The bulk of the material has been adduced by the plaintiffs. The first defendant has adduced material produced by its experts. This material threw up some areas of conflict. Largely, areas of dispute related to the application of the expert opinion in the light of the relevant facts.
12 I have closely observed the demeanour of all witnesses during the giving of testimony. Such observation has better enabled me to assess the claims made by the plaintiffs. To the extent that the court was required to do so, questions of conflict have been dealt with having regard to both evidence and demeanour.
13 On behalf of the plaintiffs, oral evidence has been received from Mr Ranieri, Jennifer and Elizabeth. Supplementary oral evidence has been given by and cross-examination has been had of Professor Yeo. There has been no challenge to the credibility of any of these witnesses.
14 The first defendant has called Professor Jones, Diane Croker (an occupational therapist) and Judy Elliott (one of Jennifer’s carers). No evidence was adduced by any of the other parties.
15 Jennifer was fourteen years of age at the time of the accident. She was then a student. Both she and Elizabeth completed their schooling in 1999. She lost about two years of schooling because of the accident. She now intends to proceed to university.
16 She has no recollection of the accident. Her first recollection thereafter is of waking up at Prince of Wales Hospital. She was subsequently transferred to Royal North Shore Hospital. She was later taken to the Spinal Care Village. Since returning home, she has continued to have what has been described as round the clock assistance from attendant carers. There is evidence of the many problems now suffered by her since the accident. These problems are described in the material provided by the experts. As there is little issue concerning the problems, I shall merely mention some of them which have been stressed in the evidence. She remains prone to the symptoms and signs of autonomic dysreflexia. She continues to have unpredictable spasm problems in all paralyzed muscle groups. She lacks control of her bowel and bladder. She had an indwelling catheter. This has been removed and the problem is now attended on an as needed basis (intermittent catheterisation). She is unable to handle the problem herself and it is done by a carer. The problem can be unpredictable.
17 She has a limited hand function and restricted arm function. There is a loss of strength. She can now write for short periods. She has needed a scribe for examinations.
18 She suffers from neck and shoulder pain. There are headaches. She is affected by temperature changes. Air conditioning has been installed in the home. Her lack of function means that she requires assistance in dealing with a vast range of daily tasks.
19 Prior to the accident, she had engaged in a number of sporting activities (including competition tennis and netball, basketball, hockey and cricket). She has lost the capacity to play these sports and/or be the same as she was prior to the accident.
20 She has continued to suffer from problems of concentration and short-term memory loss. She has a very limited social life. She has not been able to find any sport in which she can now participate. After some difficulty, she has managed to obtain her driving licence. She drives an air conditioned modified vehicle. She would like to marry and have children. She has a life expectancy which is less than that which would normally remain.
21 She has accepted an offer of a place at the University of Sydney to do an arts course. She has yet to make a selection of subjects but expresses an interest in philosophy and history. Upon completion of her arts course, she had in mind doing something in the communications field or perhaps a master’s course.
22 Her sister has accepted a place at the University of New South Wales. The immediate intention is that they share accommodation. At some time in the future, it is intended to acquire a modified home.
23 She has had physiotherapy. There had been hydrotherapy with her physiotherapist. There was a problem with pool depths and temperature. Treatment ceased in early 1998 when the visits of her physiotherapist stopped. There is a continuing need for medication. There is a possibility of future surgery. She has had counselling. She continues to get benefit from it.
24 Mr Ranieri was born on 24 July 1955. Denise was born on 26 October 1956. They were married on 25 February 1978. Jennifer was born on 21 October 1980. Elizabeth was born on 5 April 1982. Michelle was born on 29 May 1984.
25 After completing schooling, he obtained employment. He acquired certain engineering qualifications. Denise had some part time employment (including as a Maitre D at the Black Stump Restaurant). She handled the housewife and mother duties. She played sport and had an involvement in other activities (including making children’s clothing and child minding).
26 Mr Ranieri’s father had conducted a restaurant/coffee lounge business at Coffs Harbour (Mario’s). It was arranged that Mr Ranieri and Denise would take over the business. This took place on 1 May 1992. The business was conducted in partnership until the death of Denise. She worked in the business both at the restaurant and at home. For a while thereafter, the plaintiff’s father looked after the business. Mr Ranieri then returned and ran the business until 19 January 1999 (when it was closed down). He took on extra staff to replace Denise. He took over the bookkeeping activities which had been mainly performed by Denise prior to her death. It had become difficult to run the business profitably. There were problems because of the big rental and increased competition. It did not work out despite his efforts and a reduction in rental. He observed in evidence that “It got the better of me”.
27 Initially, care was provided by both a carer and domestic assistance. The domestic assistance was regarded as unsatisfactory. At first it was cut back and thereafter it was cut out altogether and Mr Ranieri took over those duties. Both the carer and the domestic assistance was provided at the expense of the insurer for the Nominal Defendant.
28 In 1995, Mr Ranieri commenced a relationship with Donna (who had been employed as a waitress in the business). They were married in April 1997. She has continued as an employee of the business.
29 Donna was born on 1 May 1973. She has two children of a previous marriage (born respectively on 20 July 1990 and 16 February 1992). The marriage with Donna has produced two children. Phillip Jnr was born on 20 May 1997. Nicholas was born on 5 November 1998. All have been living in the family home at Coffs Harbour.
30 Since the closure of the business, Mr Ranieri has not been in the workforce. There was a period of illness. His present intention is to start a new business when the case is over and the girls are settled in Sydney.
31 On the sixth day of the trial, certain dramatic developments took place. These saw the resolution of all questions of liability. The Cross-Claims were disposed of. The second and third defendants obtained judgment against the plaintiff. The plaintiff obtained judgment against the first defendant following an admission of liability.
32 This left the question of quantum only in issue. Because of the numerous heads of damage, the court was still left with a formidable task. Upon the completion of the evidence, at the request of the parties, a short adjournment was allowed to enable the preparation of submissions. As there has been little common ground between the parties, submissions proceeded over a number of days.
33 I now turn to the question of quantum. Firstly, I shall identify the various heads of damage which are the subject of a claim.
34 In the case of a claim made by Jennifer, these are:-35 In the case of the claim brought pursuant to the Compensation to Relatives Act 1897, there is sought:-
Past Out Of Pocket Expenses,Non-Economic Loss,
Past Loss Of Earning Capacity,
Future Loss Of Earning Capacity,
Loss Of Superannuation Benefits,
Past Gratuitous Care,
Future Care,
Nanny Assistance,
Gardener/Handyman Assistance,
Future Hospital, Medical and Pharmaceutical Expenses,
Paraquad Requirements,
Computer Requirements,
Additional Transport Expenses,
Home Alterations,
Additional Holiday Expenses,
Fund Management,
Effect of GST, and
Interest.
Loss Of Earning Capacity Of Denise, and
Funeral And Out Of Pocket Expenses,
Compensation For The Loss Of Services Of A Wife And Mother.
36 The parties have produced submissions in writing. Also, there have been oral submissions.
37 In proceeding with the daunting task now confronting the court, it is convenient to first look at the personal injury claim brought by Jennifer.
38 Before proceeding further, it is necessary to deal with preliminary matters. These are questions concerning the life expectancy of Jennifer. She is now 19 years of age.
39 The plaintiff has tendered the Life Tables 1996-1998 (Exhibit J2) prepared by the Australian Bureau of Statistics (ABS) and other material “Population Projections 1997 to 2051” (Exhibit J1) also prepared by the ABS.
40 In this case, the life tables indicate a life expectancy uninjured of 63 years. The other material throws up a life expectancy uninjured of 67 years. The case for the plaintiff is put in the alternative. The first defendant vigorously opposes reliance on the other material.
41 In the past, the life tables have been used by the court (usually by way of consensus) to determine future life expectancy. The court has been told that the parties are unaware of any decided case which either enshrines the long standing use of them or even discusses the application of these tables.
42 Exhibit J2 contains the following:-43 Exhibit J1 purports to present population projections which are based on a combination of assumptions on future levels in births, deaths and migration to arrive at the size, structure and distribution of Australia’s population into the next century. One assumption is:-
“A life table is a statistical model used to show the levels of mortality of a population at different ages. In its simplest from, a life table is generated from age-specific mortality rates and the resulting values are used to measure mortality, survivorship and life expectancy. However, it is a powerful tool with many applications beyond the measurement of mortality.
The life tables in this publication are current or period life tables, based on mortality rates for a short period of time during which mortality has remained much the same. Mortality rates for both the Australian and State life tables are based on 1996-98 data,……” (P67).
“1994-96 mortality rates decline to the year 2005-06 according to short-term rates of decline and then long-term rates of decline to 2050-51. By 2051, life expectancy of males will be 82.0 years and of females 86.1 years.” (P20).
44 The exhibit contains comment as to the accuracy of the projections. It is said that they “do not take into account all possible levels in the components of population growth (fertility, mortality, overseas migration and internal migration). In other words, the future levels of these components may differ from those assumed by the Australian Bureau of Statistics.”
45 The plaintiff says in the written outline of argument submitted:-
“…the use of historic tables must underestimate prospective life expectancy and the ABS projections are the only fair (if conservative) means of estimating the future. The fact that the courts have tended to use historic tables in the past (thereby under compensating Plaintiffs) is not to the point.” (Para 1.2).
46 In admitting Exhibit J1 into evidence I did so on the basis of the potential that it had, of possibly providing assistance in assessing life expectancy in this case. With the benefit of further reflection I find that I am not satisfied that it should be preferred to the life tables as the measure of life expectancy in this case. In reaching this view I have had regard to a number of matters (including the matter that the projections are based on assumptions, what has been said about their accuracy, the purpose for which they were made and the fact that the life tables are based on more recent data).
47 There is no dispute that the injury has led to a reduced life expectancy for Jennifer. There is common ground amongst the experts that there has been a reduction, however, the extent of that reduction is a matter of some contention. The material from the experts throws up a range of views. Generally speaking, the range falls between less than 5% and more than 20% of that which would normally remain. Certain of the experts see it in the order of 20%.
48 The plaintiff contends a loss of 15% of normal life expectancy should be the finding made by the court. The first defendant says that it should adopt the view taken by Professor Yeo (said to be 77%). This gives her a present life expectancy of 48years. His views have undergone change over the years (85%, 80%, 77%). In oral evidence he said “at least 77 per cent” and “it is not possible to say how much greater but something greater than 77 per cent”. In the light of the material, the finding inevitably has an arbitrary element. Doing the best that I can in the circumstances, I find a loss of 20%.
49 Before proceeding further, I should mention that the findings made as to life expectancy will have impact on calculations made by the parties in respect of certain of the heads of damage (calculations have been made on a different basis). There may be claims that will require recalculation as to quantum in the light of the findings.
50 Past out of pocket expenses have been agreed in the sum of $1,370,000. This is one of the few matters upon which there has been consensus. Payment has been made in the sum of $1,350,303.90. The plaintiff admits that the first defendant is entitled to a credit in that sum.
51 Non-economic loss is another of the few matters upon which there has been consensus. The first defendant concedes that this is a most extreme case within the meaning of s 79 of the Act. Accordingly, the plaintiff is entitled to a sum of $273,000 for non-economic loss.
52 A sum of $16,760 is claimed for past loss of earning capacity. It is said that but for the accident the plaintiff would have completed school at the end of 1998 and that she would have proceeded to her tertiary studies. It is further said that she would have been likely to engage in part-time work to supplement her pocket money. The sum of $10,000 is claimed for the period between aged 14 and 18 (at the rate of $2,500 per year) and the sum of $6,760 is claimed for the period from November 1998 until February 2000 (at the rate of $100 per week).
53 Largely, this claim is founded on little more than conjecture. It may be thought that she would have been less likely to work during her school days. It is not really in dispute that but for the injury she may have engaged in some gainful employment prior to the completion of her tertiary education. There is no opposition to the allowing of a modest sum. The quantification of that modest sum is a matter of judgment and is best done by allowing a global sum. Doing the best that can be done in the circumstances, the sum of $8,000 is allowed.
54 A claim in the sum of $551,777 is made for future loss of earning capacity. It is assumed that she would have been likely to enter the workforce following the completion of a 3 year tertiary course in about November 2001 (when she would have been 21 years of age). Further it is assumed that she would have ordinary working life to age 65 and accordingly an earning capacity for a period of 44 years. There is material to suggest that she may have had a pre-injury above average earning capacity. It is accepted that she retains a post-injury residual earning capacity, (largely, the experts are in agreement on this question) however, it is said by the plaintiff that there will be limited opportunity to exercise that capacity by reason of her disabilities. There is material which gives support to that view. It is common ground that she would not be able to work beyond the age of 45. Up to then, the evidence suggests that she would be able to work for about 2 days per normal working week.
55 The plaintiff puts a claim calculated on the basis of average weekly full time adult earnings (as opposed to female average weekly earnings). No deduction is made for residual earning capacity or vicissitudes. It is said that in the circumstances, allowance has been made for both the ordinary vicissitudes of life and any residual capacity.
56 Not surprisingly, the first defendant takes a different approach. It says that the appropriate measure of her pre-accident working capacity is to be found in female average weekly earnings. It says that there should be a deferral until the age of 23 (which allows a period of four years for tertiary study). It says that there should be a reduction of 15% for vicissitudes. This produces a figure of $351,437.10 (a figure which the plaintiff says is calculated having regard to the wrong tax rates). It says that then an allowance must be made for her residual earning capacity. It is said that this should also have a reduction of 15% for vicissitudes. Its calculations produce a sum of $94,772.29. The amount that should be allowed for total future loss of earning capacity is said to be $256,664.81.
57 It does not seem to me to be a case where future earning capacity can be assessed with mathematical precision. There are many relevant considerations and I do not propose to recite all of them. There are many imponderables and a great deal of estimation is involved ( Circosta v Falzon (1999) NSWCA 308). In my view, in the circumstances of this case, the task is better effected by general assessment.
58 I take the view that the female average weekly earnings are a better starting point in effecting the task. However, in making the assessment, I take into account her above average potential. I do not accept the contention that no deduction should be made for residual earning capacity and/or vicissitudes. Her injury has already delayed her progress, her tertiary education may be protracted by reason of it and she will be at a disadvantage in the market place. Doing the best that can be done in the circumstances, I asses future loss of earning capacity in the global sum of $375,000.
59 A sum of $65,011 is claimed for loss of superannuation benefits. This calculation is made having regard to average weekly earnings on the basis of an entitlement to an employer contribution of 9% on gross future earnings. Whilst there is a dispute as to quantum, there is no dispute that an allowance should be made for superannuation. I have not adopted average weekly earnings as the measure in assessing loss of future earning capacity (a task which has been done by way of general assessment). There are also contingencies (inter alia periods of unemployment and self employment). It seems to me that this task is also best done by way of general assessment. I allow a global sum of $45,000 for loss of superannuation.
60 A sum of $84,120 is claimed for past gratuitous care. This comprises a sum of $21,007 (in respect of the period between 14 November 1994 and 3 August 1995) and a sum of $63,113 (in respect of the period between 3 August 1995 and the end of February 2000). During the first of those two periods, the plaintiff was either in hospital or at Spine Care Village. During the second of those two periods she was living at their Coffs Harbour home. The claim is for services provided by Mr Ranieri. It relates to a range of services (including services said to involve his duties as her tutor in these proceedings). Since she has returned to live at her home, the services are in addition to those provided by the carers.
61 There is no dispute as to the allowance of the sum of $21,007 for the first of the two periods. The first defendant takes the view that nothing should be allowed for the second of the two periods.
62 It is said that the services provided during the second period fall within the category of services which a parent would in the normal course provide for a child. It is further said that domestic services (including those of cooking) were voluntarily taken over because of dissatisfaction with services provided by those who were paid to provide care and domestic assistance.
63 One area of the claim relates to what was described in the evidence as extensive duties as Jennifer’s tutor in her proceedings. It was the subject of very little argument. For a variety of reasons, I am not satisfied that a claim for these services is recoverable in this case. It is unnecessary to pursue all of those reasons, as this part of the claim was beset with evidentiary deficiencies. Perhaps, I should mention one other matter. It may be said that the need for a tutor arose because she was a minor and not because of her disabilities. However, because of the lack of argument, I do not propose to pursue this consideration.
64 In relation to other services which are the subject of the claim, there are also evidentiary deficiencies. There is considerable thrust in what is said as to the nature of these services. Certain of them would have been provided even if Jennifer has not been injured. It would not be a productive exercise to attempt a detailed analysis of the various alleged services and assess the claim with mathematical precision. The unravelling and calculation process would undoubtedly be laborious and certainly border on the impossible. It seems to me that an allowance should be made for services provided during this period. I consider that this assessment is also best done on a global basis and necessarily must be somewhat arbitrary. Doing the best that can be done in the circumstances, the global sum of $40,000 is allowed.
65 The claim for future care involves a requirement for 24 hour per day care (together with domestic assistance). Largely, the bulk of the evidence points to a need for such a requirement and domestic assistance. Some conflict does emerge from evidence given by Professor Jones. After a detailed consideration of the relevant evidence, it seems to me that I should prefer the other expert evidence (which includes the reports and oral evidence from Professor Yeo). This material receives support from unchallenged lay evidence (including evidence from Jennifer and Mr Ranieri). Her problems of autonomic dysreflexia, spasms and bowel and bladder management do not permit of an alternative approach. The evidence is that her complications are more frequent and profound than the average tetraplegic (Professor Yeo). Her problems have life threatening potential. The 24 hour regime has been in existence since the plaintiff left the Spine Care Village and returned to live at her home in Coffs Harbour. Since that time, the regime has been paid for by the first defendant on the basis that it was reasonable and necessary.
66 The regime was originally provided by Dial An Angel Pty Limited (Dial-An Angel). A dispute (the nature of which seems to be contentious) led to the services being taken over by Banana Coast Home Nursing (Banana Coast). This organisation continues to provide the services. The services have been satisfactory but have been provided by a provider based in the Coffs Harbour area. If the plaintiff comes to Sydney to live, another service provider must be found.
67 The first defendant proposes a different regime for future care. The regime contemplates two periods. It is proposed that the first period be of either one to four or one to five years duration. There will be full time twenty four hour care but no domestic assistance. This is a period which is anticipated will cover her tertiary studies and provide some additional time to arrange for future accommodation. The proposed second period is to prevail for the remainder of her life. The care is partly provided by carers and partly by domestic assistance. There will be periods during which Jennifer will be left alone (not exceeding two hours duration). It is proposed that she would have a personal security device which has been recommended by Priority Care. This is to enable her to have access to prompt assistance should she require it. It is proposed that for the second period costings should be done on the Priority Care rates for carers and on the Dial-An-Angel rates for domestic assistance.
68 I am not satisfied that the regime propounded by the first defendant will meet her need for care. In my view, there is a need for both 24 hour per day care and domestic assistance. She cannot be left alone other than for short periods (no longer than 1 hour) and her complications have life threatening potential. She has a need for assistance during the night. There is a dearth of evidence concerning the proposed security device. Whilst there may be some common areas, largely the roles of carer and the provider of domestic assistance are distinct.
69 There does not seem to be any real dispute as to the extent of the need for domestic assistance. There is material from experts which places it in the order of 15 hours per week.
70 There is evidence of costings from Priority Care, Banana Coast and Dial An Angel. Calculations have been made in respect of those costings.
71 In the written submissions it was said that the Banana Coast costings represented a midpoint when regard is had to the evidence given as to the Sydney care market. The first defendant has pointed to what it says are many errors in the plaintiff’s calculations. It is conceded that there was some error which is now said to have been rectified. There has been amendment to the calculations for care provided by Sydney operators. Further recalculation will be necessary.
72 The plaintiff advances the Banana Coast costings as the appropriate measure. In the past, its charges have been accepted by the first defendant. However, I am concerned as to their appropriateness for the future. As she is to live in Sydney, if equivalent care at a lower costing is available from a provider of services in Sydney, it would be reasonable to accept that costing as the appropriate measure.
73 It may be best if I give the parties the opportunity to make further calculations and/or submissions. Hopefully, the parties should be able to resolve the outstanding matters between themselves. However, history would suggest that this may not come to pass. In any event, as things presently stand, I do need further assistance.
74 The claim for nanny assistance is made in the sum of $395,463. It is founded on evidence of the plaintiff that she would like to marry and have children. In certain respects, it receives support from expert evidence (including evidence from Professor Yeo and Dr Middleton). There is evidence of costing provided by a report from Dial An Angel Pty Limited.
75 Subject to certain matters that I shall mention, the claim (like others) can be seen as being of an ambit nature. It is pointed out that the calculation does not take into account matters such as superannuation contributions, annual leave loading, public holidays, relief carers during annual leave and sick leave or agency placement fees.
76 The primary submission of the first defendant is that there should be no allowance for nanny assistance. It is said that the claim is founded on a number of factual assumptions (some of which have not been satisfied). One is that she is capable of conceiving a child. Another is that she will form a relationship and conceive a child. There is material which throws real doubt on the latter assumption being satisfied (her lack of male friends in the past and lack of sexual sensation). The general proposition is put that any expense by way of nanny assistance is not an available head of compensation by way of damages in the action as it is not a loss caused by the accident. It is put that any need for nanny services is not an absolute creative need but is the product of the free, voluntary and informed choice of Jennifer to have children. Further, it is put that any need for services created by the birth of children is the joint responsibility of Jennifer and the father. The guiding principle is said to be that the free, deliberate, informed and voluntary choice of a human being terminates an antecedent causal chain and negatives causal connection (what is said by way of authorities in the last sentence of paragraph nine of Mr McAlary’s submission). Other alternatives are put. One is that any decision to have children would be not to act reasonably. Another is that the true claim is for loss of ability to use her body in ways needed to succour and rear a child and that this is not a head of loss. A further alternative is that the prospect of her bearing children is extremely low and that recovery should be limited to the percentage likelihood of occurrence. A reference was made to inter alia Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 and Medlin v State Government Insurance Commission (1995) 182 CLR 1. These submissions have been further elaborated by counsel in a written document made available to the court.
77 Under the common law theory of commonsense causation, a free, informed and voluntary act which builds on a situation resulting from a tort and causes damage, negatives any causal connection between that tort and the damage ( Nominal Defendant v Gardikiotis 186 CLR 49 at 55).
78 In the circumstances of this case, I do not accept that the first defendant’s submissions on recoverability of this head of damage have application. I bear in mind what has been said in Sullivan v Gordon (1999) Aust Torts Reports 81-524, and other cases. In Sullivan Mason P observed that:-79 There is a claim for gardener/handyman assistance. There is no dispute that she would require some assistance should she choose to live in a house. Professor Yeo is of the opinion that she requires four hours per week if occupying a house rather than a unit. The claim has to be assessed on the evidence adduced as to what is likely to happen in the future. It is sparse and throws up some uncertainty. There are many imponderables. I have earlier mentioned some of the plaintiff’s evidence on this matter. If she acquires a house this may not come to pass for a number of years. She has given evidence to the effect that in the longer term she had in contemplation the finding of or the building, of accommodation appropriately adapted to her needs. During cross-examination, she gave this evidence:-
“Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor’s door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law.”
The first defendant’s tort has left her with disabilities that may give rise to a need for assistance in the future. It is a trite observation to say that the future is largely imponderable. In this case, what may happen in the future borders on the area of conjecture. The evidence has its deficiencies. There may be medical reasons for not having children (such as impact on her autonomic disreflexia). Despite this, there remains the possibility that she may have children and need to employ assistance. She may have assistance from others who may have and bear some financial responsibility for that assistance. It seems to me in the circumstances of this case, that it would be reasonable to make an allowance. In my view, the task is best approached by an evaluation of a chance. The chance is of a low order and the calculations are speculative. The exercise has to be an arbitrary one. Doing the best that can be done in the circumstances, the chance is valued in the sum of $20,000.
“Q. Am I to understand you are also determined to come to Sydney notwithstanding the evils of this city?
A. Yes.
Q. You are going to get a house down here?
A. I am not sure, it depends on what we can get that I can move into, with as little modification as possible.
Q. You want a house, don’t you?
A. Yes.
Q. And flat surfaces with boards not carpet?
A. Not carpet.”80 The plaintiff’s claim is put in a sum in the order of $80,000. The first defendant totally rejects this claim. It is said that there will not be a need for such assistance. It is said that realistically she will accommodate herself in an apartment or the like.
81 There are considerations mentioned in dealing with the previous head of damage which also have application to this claim. Apart from what may be gleaned from her evidence, there is the unpredictability of the future ( inter alia there is a possibility that any home acquired may be an apartment or town house). The nature of the accommodation that she may acquire will dictate the assistance (if any) that will be required in the future. In my view, the amount claimed has to be discounted to take contingencies into account.
82 Doing the best that can be done in the circumstances, I allow the sum of $56,000 for gardener/handyman services in the future.
83 The claim for future hospital, medical and pharmaceutical expenses takes in the cost of reviews from a spinal specialist, physiotherapy, future surgery, consultation with an occupational therapist, extra hospitalisation for the birth of each child, consultations with her general practitioner, urine tests, ultrasound studies of the kidneys, hospitalisation for treatment of complications, counselling, medication, case manager and caesarean delivery of children.
84 The claim for cost of reviews from a spinal specialist is accepted by the first defendant and is allowed in the sum of $1,863.46.
85 The claim for physiotherapy costs is associated with the claim for hydrotherapy (a heated pool). The approach of the plaintiff is put in the alternative. There is expert evidence from Professor Yeo and Drs Middleton and Lorentz. Different views have been expressed. Professor Yeo saw hydrotherapy as the most appropriate means of physiotherapy and saw a role for the physiotherapist as a consultant. Dr Middleton saw a need for physiotherapy twice per year. Dr Lorentz saw a weekly need. The first defendant rejects the approach advanced by Dr Lorentz. I prefer the approach taken by Professor Yeo. The views expressed by Dr Lorentz seem to me to be grossly excessive. The plaintiff accepts that there is a modest level of need if hydrotherapy is allowed. The first defendant is prepared to allow $1,863.46 in line with the recommendation made by both Professor Yeo and Dr Middleton. I shall defer further dealing with this claim and dispose of it finally when considering the claim for home modification costs.
86 There is a claim in the order of $80,000 for surgery for a sacral nerve implant. The cost of the surgery is approximately $40,000. It is said that there is a possibility that it may need replacement on possibly two more occasions. It is common ground that this claim ventures into the area of possibilities. The best that can be done is to put a value on the chance of the plaintiff undergoing such surgery. It seems to me that the chance is of a relatively low order. The first defendant is prepared to allow a modest sum for that chance. The value of the chance is assessed in the sum of $10,000.
87 The claim for occupational therapy costs is in the order of $4,500. The costs are said to be for inter alia annual consultation for the purposes of informing the client about recent advances in equipment for the disabled and to assist with training. Further detail is provided by the plaintiff’s outline of argument. The first defendant is prepared to allow the sum of $2,236. Largely, the disparity between the parties arises in relation to whether or not the cost of travelling time is taken into account. In my view, it would be reasonable to allow this head of damage in the sum claimed.
88 The claim for costs of surgery for scoliosis is in the order of $7,500. It is not certain whether or not the plaintiff will undergo such surgery. There is no evidence from her concerning it. The claim has been reduced to take into account the uncertainty (from $15,000). It is yet another claim which involves the valuation of a chance. If surgery does take place it may not happen for many years (perhaps twenty or twenty five years). The first defendant is prepared to allow $2,625. In my view, it would be reasonable to value the chance in the sum of $3,750.
89 The cost of extra hospitalisation for the birth of each child is put in the sum of $26,696, and the cost of caesarean delivery of children is put in the sum of $2,000. Both are related to the claim for the cost of nanny assistance. In accordance with the approach taken in respect of that claim, I allow $1,400.
90 The claim for consultations with a general practitioner is in the order of $9,500. The first defendant is prepared to allow the sum of $5,590. In my view, it would be reasonable to allow the claim in full. The claim for the cost of urine tests (every two months) is in the order of $5,700. The first defendant is prepared to allow $5,590. I allow the claim in full. The claim for the costs of an ultrasound study of the kidneys (every three years) is in the order of $1,270. The first defendant is prepared to allow $1,242. I allow the claim in full. The claim for costs of one week’s hospitalisation every year for treatment of complications associated with her tetraplegia is in the order of $90,000. This is calculated on the daily rate for the spinal unit at Royal North Shore Hospital ($670 per day). The evidence from Professor Yeo was that she may require on average, one week’s hospitalisation every year. There is dispute as to whether the complications will necessitate her admission to the spinal unit. The first defendant says that a lesser daily rate ($500 per day) is more appropriate and indeed conservative. The evidence does not support the first defendant’s contentions. It is prepared to allow $65,221. I allow the claim in full.
91 The claim for counselling is in the sum of $32,852 (3 years x $155 per hour at 1 hours per week). It is claimed on the basis that there will be a need for one to two hours of counselling per week for at least the next two years and continued counselling thereafter. The first defendant says that the plaintiff has at best a modest requirement for counselling. It is prepared to allow the sum of $5,208. The approach of the plaintiff herself is that she expresses a wish for it to continue at least for the immediate future. Doing the best that can be done on the evidence I allow the sum of $15,000. There is a claim for the cost of future medication in the order of $13,800. It looks to a report from Dr Curran for support. The first defendant contends that the evidence from the plaintiff does not support this claim in full. It is said that her evidence does not reveal that she is taking any significant quantity of medication and certainly not at the levels suggested by Dr Curran. It is prepared to allow the sum of $2,000. In my view, this claim is supported by the evidence. I allow the claim in full. The claim for the costs of a case manager (for one hour per week for five years) is in the sum of $17,363. This claim is accepted by the first defendant. I allow it in full.
92 The claim for paraquad requirements is founded on material contained in the paraquad reports. The annual cost of the requirements $15,063.37. Evidence has been adduced on behalf of the plaintiff in support of her claim for computer requirements. This evidence has not been challenged. The claim is made in the sum of $287,015 (in respect of the life expectancy of 53.5 years). This claim was accepted by the first defendant and accordingly is allowed in full.
93 The claim for computer requirements has two components. The first component comprises set up and initial training expenses ($17,822), environmental control and telephone systems ($18,935), furniture ($2,280), additional software being Microsoft Office and Quicken ($990) and recurring expenses ($12,619 per annum). The second component comprises capitalised recurring costs (in the order of $232,000).
94 The first defendant has made a written submission. It contains the following:-
“The plaintiff makes a claim for computer hardware and software. The defendant accepts that the plaintiff has a need for computer assistance but submits that would have been required by the plaintiff in any event, particularly in her tertiary education and possibly her employment. The defendant accepts that the plaintiff has an increased need arising from her injuries.
The plaintiff relies upon the reports of Mr Graeme Smith of Ability Computer Assessment & Research Centre and dated 18 May 1995, 25 October 1995 and 14 March 1996 (Exhibit H).
…………….
Mr Smith’s recommendations are based on his assessment of the following areas of benefit (report 18 May 1995, pages 6, 7 and 8) about which the defendant makes the following submissions:
1. Writing and communication. The defendant accepts the plaintiff would benefit from the use of a speech recognition program even though the one provided initially was not successful (T40, T68 and T106). Mr Smith then refers to software providing ‘facilities such as spell-checking, grammar checking, macros and glossaries, and flexible layout options’ which the defendant submits are all facilities which the plaintiff would have used as part of her tertiary education in any event.
2. Study. Whilst the defendant submits that it is common for tertiary students to use computers for word processing, it accepts that the plaintiff has an increased need to use CD-ROM reference material in lieu of easy library access. Similarly an appropriate modem and scanner.
3. Reading. The defendant accepts that CD-ROM is a suitable source for reference material.
4. Creative activity. Whilst it is the defendant’s submission that it is likely the plaintiff would have used some computer hardware and software in any event and also within her ultimate employment area it accepts that she now has a greater need.
5. Environmental control. This is said to enable the plaintiff to control various electronic devices including light switches. Whilst there is no evidence the plaintiff has not been able to utilise various electronic equipment, the defendant accepts that the subsequent, less powerful unit recommended (report, 14 March, 1996, pages 2, 3, 4 and 5) may be of benefit even though there is no specific recommendation by either Dr Yeo or A/Prof. Jones.
6. Personal control. Whilst the defendant submits that a personal organiser program is the equivalent of diaries, address books and similar planners, which the plaintiff would have had in any event, it accepts she now has a greater need.
7. Employment. The defendant accepts that computer assistance will make this more accessible for the plaintiff.
8. Recreation. There is no evidence that the plaintiff is not able to enjoy various recreational activities. It is the defendant’s submission that the plaintiff is only entitled to claim in respect of rehabilitation or employment needs arising out of her injury. The defendant notes that the evidence of Judith Elliott that whilst the plaintiff has access to the Internet ‘she is really not keen on it’ (T193). There is no evidence that the plaintiff uses computer for games or other leisure pastimes in lieu of other leisure activities.
…………………
There is ample evidence that the plaintiff has both laptop and desktop computers (T40, T106 and T193). The plaintiff’s claim is based on purchasing an entirely new system not all of which needs to be obtained now. The defendant submits that the appropriate approach is to allow the revised computer hardware recommended in Mr Smith’s report of 14 March 1996 but discounted by 20% for some deferral, for reducing prices and to take into account the likelihood the plaintiff would have had a computer in any event.
In respect of the claim for furniture the defendant submits that the plaintiff would have required a desk, disc boxes, etc., and filing cabinet etc., in any event and that these items should be reduced by 50%. In respect of the wheelchair mount the defendant refers to Mr Smith’s comments in his report of 25 October 1995 (page 3) that Robyn Clark of the Northcott Society (who had also assessed the plaintiff’s computer requirements) was unable to find a wheelchair mount which the plaintiff could operate independently. Whilst Mr Smith still recommended its use the defendant submits the cost should be reduced by 50% to take into account the possibility the plaintiff may never use it.
In respect of the software claimed, the defendant submits that the Microsoft and MS-DOS programs are ones which the plaintiff would have required in any event and ought not be allowed.”
95 In addition, the first defendant stresses that the costings relied upon by the plaintiff were provided in 1995 and 1996 and make no allowance for subsequent reductions in the cost of equipment. The submissions also contend that various errors are made in the plaintiff’s submissions. In the last of his three reports, Mr Smith made changes in his recommendations (inter alia in relation to the Environmental Control System).
96 The first defendant is prepared to allow $14,446 for set up and initial training expenses. It is prepared to allow $2,935 for environmental control and telephone systems. It is prepared to allow $1,140 for furniture. The part of the claim which relates to additional software is not in dispute. A schedule of recurring expenses forms part of the written submissions. It is based on the revised costings of Mr Smith and the first defendant’s submissions. It is prepared to allow $5,293 for recurring expenses and the capitalised recurring cost is calculated in the sum of $98,633.
97 In my view, the material requires that the plaintiff’s calculation be reduced in certain respects. Unavoidably, the assessment once again must have arbitrary aspects. The set up and initial training expenses are allowed in the sum of $16,000. The material supports a finding that $2,935 should be allowed for the Environmental Control System together with additional costs (which are unquantified). Doing the best that can be done in the circumstances, I allow $3,000 for the Environmental Control System. There is force in the submissions made by the first defendant in respect of the claim for furniture. I allow this part of the claim in the sum of $1,140. In the light of the material and the submissions, it seems to me that I should accept the approach taken by the first defendant in respect of recurring expenses and capitalised recurring costs.
98 The claim for additional transport expenses has a number of components. One component is made in respect of an alleged need for a modified air conditioned motor vehicle. There is a component made in respect of an alleged need for more frequent use of aircraft and associated taxi expenses. Another is made in respect of an alleged need for a mobile telephone. The total claim is in the order of $350,000 less an allowance for residual values (a reduction of perhaps $10,000 is suggested).
99 The first defendant has made these written submissions;-
“2. In respect of these claims, the Nominal Defendant submits that:
(i) under the principles enunciated by the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, a possibility of a future event is not determined on the balance of probabilities but solely as a possibility. The damages allowed are the cost of the item reduced by the contingency of its non-occurrence;
(ii) the claimed costs are excessive;
(iii) the claimed motor vehicle costs are in part based upon only a mere possibility of a van being used rather than a motor vehicle, such as the one used now, yet a 24 hour carer is still claimed in full;
(iv) little detail is contained in the submissions for the plaintiff in respect of the claimed cost of ‘additional’ motor vehicle capital expense at $54,275.00 and in respect of the claimed weekly motor vehicle running cost at $126.36 per week;
(v) there is no evidence for any trips to Coffs Harbour at the rate of 4 trips each year let alone for the rest of the plaintiff’s life;
(vi) the plaintiff probably would have used a mobile telephone in any event;
(vii) the evidence adduced does not allow for these claims as quantified for the plaintiff;
(viii) the Court should approach these claims by allowing them over the 48.5 years of life expectancy remaining (multiplier being 969.15 ) at the correct rates.
3. In lieu of the claimed ‘additional’ recurrent weekly costs of $293.53 (Item 14.12) the correct amount to consider is $100.00 per week over the plaintiff’s life expectancy of 48.5 years, that is:
$80.00 x 969.15 = $77,532.00
together with some allowance for ‘additional’ capital costs in respect of motor vehicles bringing in a total amount for Item 14 of $90,000.00 which has already taken into account the benefits to the plaintiff acknowledged in item 14.15.” (Item 14 is the written submission made on behalf of the plaintiff in respect of this head of damage).
100 The plaintiff presently has a Holden station wagon. She is accompanied by her carer. She performs some of the driving duties. She needs the assistance of her carer. She uses taxis. She is unable to use public transport. Longer distance travel, is effected by use of air transport and taxi.
101 Presently, she drives short distances. In the future, her capacity may improve. There is the possibility of additional air travel, however, largely, the whole exercise is little more than speculation or conjecture.
102 She is being provided with 24 hour care. For this and other reasons, it seems to me to be unreasonable to impose the burden of a van on the first defendant. This is more or less accepted by the plaintiff. There is evidence that she requires a mobile phone for her safety. However, it seems to me that some allowance should be made for the possibility that she may have acquired a mobile phone in any event.
103 It is another ambit claim. The best that the court can do is make another general assessment. Like others, it has arbitrary features. I allow the global sum of $200,000.
104 The claim for home alterations usually throws up issues of complexity. Home modification costs have been the subject of consideration in a number of cases. The cases have seen an expression of diversity of opinion. At least generally speaking, the cases have taken the approach that each claim must be viewed in the light of its own particular circumstances (a recent instance is Weideck v Williams (1999) NSWCA 346). It has been said that the court takes into account the circumstances of the plaintiff prior to injury, what has happened since that time and what is likely to happen in the future.
105 The plaintiff’s claim is in the order of $355,000 for alteration and in the order of $370,000 for maintenance costs. Apart from what has been said by inter alia medical experts, there is material from occupational therapists and architects.
106 The first defendant has made submissions in writing. There are submissions of a general nature. These include the following:-
“Whilst it is common ground that the plaintiff needs accommodation and the defendant is responsible for the modifications necessitated by her needs, the calculations provided by the plaintiff are purely hypothetical and no particular accommodation is envisaged. Precisely what modifications the plaintiff will need is not known, but we accept the plaintiff’s evidence that she will seek accommodation requiring as little modification as possible.
Hypothetical calculations are just that, hypothetical. They designate no precise sum. The most that this examination can disclose is the order of the cost involved without any real degree of precision.
………………
The defendant agrees that the plaintiff will need accommodation ‘in an area convenient to accessible shops and community facilities, with easy access to the street and neighbourhood areas’ .
It would also need to have ‘level access both internally and externally’ and ‘be capable of modification’ . (HCAW/1, page 2).
The defendant does not accept that the plaintiff is entitled to any additional costs necessitated by her choosing accommodation which is not suitable to be modified. The plaintiff has said it is her intention to obtain an appropriate accommodation needing as little modification as possible (T56) and the defendant accepts responsibility for the cost of such modifications.
Whilst the plaintiff’s claim is for the cost of modification of a three to four bedroom house with extensive garden area, the defendant submits that the most appropriate accommodation for the plaintiff would be in an apartment/townhouse, with motor vehicle access to an internal garage, which in turn has lift access into the building. The defendant says that such accommodation is easily available in Sydney and in areas convenient to shops and community facilities, for example, Edgecliff (close to Bondi Junction and Edgecliff shopping areas, as well as Centennial Park for sporting activities).”
107 Particular submissions have been made in relation to the claims made in respect of a garage, bedroom accommodation, bathroom, living area, kitchen/laundry, therapeutic items, installations with special functions, household equipment, accommodation for household support, special stormwater drain, maintenance and ongoing costs and swimming. The submissions provide a table which deals with matters raised in the report. There are also calculations which present the figures which the first defendant says should be allowed.
108 In dealing with the gardener/handyman claim and elsewhere, I have referred to some of the evidence given by the plaintiff herself relating to this question. In addition to that material, she has given evidence that her accommodation would include air conditioning, heating and a hydrotherapy pool. She does not have any specific area in mind, but somewhere in Sydney accessible to whatever she is doing in this area. In the circumstances of this case, what has happened in the past does not provide guidance as to what may happen in the future.
109 Elsewhere in this judgment, I have made observations as to the unpredictability of the future and the possibilities. The need for modifications will be dictated by what may be acquired by her. What that may be is an imponderable. It should have reasonable suitability for necessary modification. She may acquire a home which meets at least some of her needs (inter alia many homes have air conditioning and heating). There are certain primary needs. These include level access which accommodates her wheelchair. I shall make express mention of some others. She requires air conditioning. A modified bathroom and certain special installations. There has to be carer accommodation. She will need a suitable garage. There will be related maintenance requirements. This enumeration is not intended to be exhaustive.
110 I am not satisfied that she has a need for all of the items stipulated by the occupational therapist and the architects. In my view, the claim is significantly excessive. There are items which are not necessary. There are items which she may have had in any event. I do not propose to undertake the laborious exercise of making a determination in respect of each and every one of the numerous items.
111 The first defendant accepts that the plaintiff would benefit from a hydrotherapy pool with heating and hoist. A small heated unit with hoist would suffice according to Professor Yeo. A cost of $14,025 appears to be accepted, subject to a discount for the possibility that despite its benefit it may not be acquired. There is material which supports the view that there is the possibility that she may not acquire a pool (inter alia, it is difficult to see how a pool could be accommodated if her preference was for apartment style accommodation).
112 As I have now dealt with the claim for a hydrotherapy pool, it is now convenient to temporarily digress and return to the claim for physiotherapy. It seems to me that it would be reasonable to make modest provision for physiotherapist consultation (see reports from Professor Yeo dated 30 September 1998 and 13 January 2000). It would be reasonable to allow some discount for the possibility that she may not fully utilise those services.
113 The claim for home alterations is yet another instance of an ambit claim. In my view, it cannot be allowed in full. It has to be discounted to take contingencies into account. The task is to determine what is reasonable in the context of the many imponderables. It seems to me that it is best done by general assessment. In the light of the approach taken in relation to this claim, the parties may choose to make further calculations. I propose to give the parties the opportunity to put further submissions as to the global sum to be allowed.
114 The plaintiff claims for what are said to be additional costs of taking holidays. The additional costs are said to arise from the need to be accompanied by the carers, the need to accommodate her wheelchair and other additional costs.
115 The plaintiff has expressed an interest in working in the communications area. This has a potential for travel. She has expressed an interest in travelling both in relation to her work and for her pleasure. In the past, holidays have been taken with the accompaniment of two carers. She has experienced difficulty in using ordinary economy class seats. It is suggested that it is appropriate for her and her carers to travel business class (because her carers need to be accessible to her).
116 Again this claim is of an ambit nature and its calculation is somewhat arbitrary. It is in the order of $240,000 (based on at least $12,500 p.a.). There are Traveland reports in evidence.
117 In the past, the first defendant has accepted the need for the two carers. I am not satisfied it is either necessary or reasonable for the first defendant to bear the cost of both or either of the carers travelling business class.
118 What has been said before also has application to this head of damage. In my view, it would be reasonable to allow the global sum of $140,000.
119 The claim made in respect of fund management is for the costs thereof at Westpac rates. There are two principal questions. Firstly, there is the question of whether or not costs of fund management is a recoverable head of damage in this case. Secondly, if that is the case, there is the question of the quantum of that head of damage.
120 The question of entitlement can be dealt with at this stage. If there is held to be an entitlement, the question of quantum can only be dealt with after the size of the fund has been ascertained.
121 The relevant criteria for entitlement is as enunciated in Gardikiotis (1996). This was common ground.
122 This is not a case where it is said that she suffers from intellectual impairment as such entitling her to assistance in managing the fund. Relief is not restricted to cases of mental incapacity. It extends also to cases of physical incapacity or impairment. Where there is physical incapacity to manage day to day tasks, expense reasonably incurred in bringing the situation back to the pre-accident level is compensable in damages. It is not available merely because of the size of the award and the fact that any plaintiff would need assistance. It is common ground that the court must be satisfied that there has been a significant reduction in capacity to manage financial affairs.
123 On behalf of the plaintiff, it is said that she has a reduced capacity of a significant nature to manage a large sum of money which entitles her to the costs of fund management. I shall mention some matters. She needs a wheelchair and has writing difficulties. She does use a computer. Her damages make provision for a computer allowance and 24 hour care. Her mental capacity is in the above average range and she proposes to undertake tertiary education. Generally speaking, emphasis is placed on the complications of fatigue, spasm, autonomic dysreflexia, headache, memory and concentration problems and the like (the reference to these matters is not intended to be exhaustive). Each case can be expected to turn on its own particular circumstances. I have had regard to the matters put forward on behalf of the plaintiff. In this case, I am not satisfied that she has demonstrated an entitlement to the costs of fund management. There is evidence from an expert (Professor Jones) which reinforces this view. In my view, the claim for this head of damage should fail.
124 There is the claim for additional costs incurred as a consequence of the implementation of the goods and services tax. A claim is made in respect of the additional costs applicable to certain of the other heads of damage (future care, provision of nanny assistance, gardener/handyman services, transport, home alterations, holidays, and fund management). The parties have asked the court to defer dealing with that task until other findings have been made.
125 The claim for interest is founded on s 73 of the Act. It cannot be dealt with at this stage. Accordingly, it is deferred until that task can be undertaken.
126 I now turn to the claim under the Compensation to Relatives Act . It is agreed that a claim for funeral and other out of pocket expenses should be allowed in the sum of $72,726.50. This sum has been paid and it is conceded by the plaintiff that the first defendant should have credit for that amount.
127 The remaining aspects of this claim for loss of material benefit claims are largely hotly contested. I shall first deal with the aspect of the claim which was put as relating to the loss of her earning capacity or financial contribution to the household. Accountants’ reports have been tendered. The calculations advanced by the plaintiff may be found in an agreed document which has been produced by the accountants (Exhibit S). It calculates past loss at $86,491 and future loss at $200,923. These calculations are based on certain assumptions (which are set out on the first two pages of the report). The first defendant challenges the validity of inter alia assumption (b) expressed therein (it contains an assumption that the net income being derived from the business but for the deceased’s death would be equal to the income for the year ended 1994).
128 The first defendant disputes the claim for past loss in part (in the sum of $14,000). The disputed part of the claim relates to the period following the closure of the business. As to the future, it says that a global sum (the quantum of which should be a matter of judgment) could be allowed.
129 Prior to their takeover of the business, Denise had worked in a part-time capacity. She worked in the business until her death on 13 November 1994. The business came to an end on 19 January 1999.
130 The business was not sold. It may be that an attempt at sale was not considered to be a worthwhile exercise. By 19 January 1999, Mr Ranieri had reached a stage where he was no longer prepared to keep the business going. By then, the business had been struggling for some time. This was due to a number of factors. The plaintiffs do not concede that the death of Denise was not a factor relevant to the closure of the business. This is not a matter that the court can or need determine. However, it suffices to say that there is considerable force in the contention that it probably would have closed in any event.
131 What may have happened but for her death involves many imponderables. She may have reduced her involvement in the running of the business. She may have engaged in other employment (probably on a part time basis). She may have reduced her involvement in the work force. She may have left it altogether to devote more time to her family. There is also the possibility that they may have gone into another business.
132 Mr Ranieri has remarried (in April 1997). A relationship had been on foot since about late 1995. Donna had fallen pregnant in late 1996. Her continued role in the business was largely as a waitress.
133 The allowance that should be made for the disputed areas of quantum is not an easy question. The evidence provides limited guidance. Ultimately, the court is really left to exercise its judgment after taking into account a range of considerations. The claim made on behalf of Mr Ranieri may be viewed as being of ambit in nature. The approach taken by the first defendant does not afford any assistance to the court. Doing the best that can be done in the circumstances, I allow a further sum of $7,000 in respect of past loss and the sum of $70,000 for the future.
134 I now turn to that aspect of the claim which is made for the value of the services of wife and mother lost due to the first defendant’s tort. The claim made is in the order of $500,000. It is calculated having regard to material found in documentation provided by Priority Care (which had been tendered by the first defendant). The first defendant says that nothing should be awarded in respect of Mr Ranieri. It was accepted that some allowance should be made in respect of the children. The personal view of senior counsel was that it should be in the order of $10,000 for Elizabeth and in the order of $40,000-50,000 for Jennifer.
135 Both parties drew attention to what had been said in Nguyen v Nguyen (1990) 169 CLR 245. This is binding authority for the principle that compensation may be awarded for the loss of domestic services which are not replaced at pecuniary cost. The assessment process involves a comparison between the entire family situation before the death with the entire family situation after the death.
136 The adduced evidence does not greatly assist the assessment task. Whilst there has been loss of domestic services, in many respects the extent of the loss is unclear. Mr Ranieri took over some of the services provided by Denise prior to her death. Both he and Elizabeth are able bodied persons capable of looking after the household ( Nguyen at pp 256 - 257).
137 In the case of Mr Ranieri, he suffered loss during the period prior to the remarriage. At least since remarriage, there has been a replacement of services provided by Donna. The replacement may have commenced prior to the date of remarriage. On the material before me, I am not able to reach a view that the replacement services fall short of what was provided as a wife by Denise.
138 In the case of the children, there has been the loss of services of a mother and that loss is continuing. The evidence reveals that Donna has not taken over the role as mother. There may be some change in the future. Some domestic services have been provided and paid for by the first defendant. The extent of those services is somewhat unclear.
139 It has been said that evaluating the loss, the loss of services should not be confused with the actual cost of providing substitute services. The actual cost may afford a guide. But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of substitute services. In this case, I am not satisfied that it would be appropriate to simply adopt the Priority Care commercial rates.
140 Before proceeding to complete the assessment task, for completeness, I should advert to one matter which received some agitation during the course of argument. It concerns the application of s 72 of the Act. It is a provision which limits what may be recovered for the value of certain gratuitous services which have been provided or may be provided in the future. In my view, it has no application in this case.
141 Returning to the assessment task, I am of the view that this is another area for the exercise of judgment. Doing the best that can be done in the circumstances, I allow the sum of $120,000 (and apportion the sum of $80,000 in respect of Jennifer and the sum of $30,000 in respect of Elizabeth).
142 Whilst it is hoped that the matters which remain outstanding can be resolved without further hearing, what has happened in the past provides little basis for optimism. If it is necessary for the court to return to this enormous and exhausting task, the parties may have liberty to apply.
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