Kate Bradley (by her Tutor Michael Bradley) v Lily Heimhilcher

[2003] NSWSC 684

CITATION:	Kate Bradley (by her Tutor Michael Bradley) v Lily Heimhilcher [2003] NSWSC 684
HEARING DATE(S):	14 & 15 July 2003
JUDGMENT DATE:	30 July 2003
JUDGMENT OF:	Cripps AJ
DECISION:	Short minutes of order to be brought in.
CATCHWORDS:	Assessment of damages - claim for care for possible future children.
CASES CITED:	Burnicle v Cutelli (1982) 2 NSWLR 26; Griffiths v Kerkemeyer (1977) 137 CLR 161; PD v Dr Nicholas Harvey & Anor [2003] NSWSC 487; Sullivan v Gordon 47 NSWCA 338.
PARTIES :
FILE NUMBER(S):	SC 13109/90
COUNSEL:	R S McIllwaine SC & J Davidson - Plaintiff G J Graham - Defendant
SOLICITORS:	Noel Brown & Associates, Fairfield - Plaintiffs Bartier Perry - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

Wednesday, 30 July 2003

13109/90 BRADLEY (By her Tutor Michael Bradley v HEIMHILCHER

JUDGMENT

1 HIS HONOUR: On 13 December 1987 the plaintiff, then aged 4, was seriously injured when a motor vehicle driven by her father and in which she was a rear seat passenger was struck by a motor vehicle driven by the defendant who failed to stop at a stop sign. The matter before the Court is for assessment of damages only.

2 As a result of the impact the plaintiff was seriously injured. She was taken to Liverpool Hospital and later transferred by helicopter to Westmead Hospital. She suffered a severe closed head injury and remained unconscious for ten days and in a post-traumatic amnesia state for 61 days.

3 Her severe head injury has left her with significant cognitive intellectual impairment and significant physical disabilities which include hemiparesis and bilateral ataxia. She walks with a distinct limp and has weakened right arm and leg.

4 By reason of her injury she developed outward signs of precocious puberty for which she was treated with Lucrin a consequence of which was that she did not reach adult stature. As well her injury has resulted in her being seriously overweight and by reason of her physical condition she is prone to fall and injure herself. On one occasion at least her fall required hospital attention.

5 In this judgment I have not outlined all the disabilities suffered by the plaintiff. That is because, generally speaking, there is no issue between the parties as to the consequences of the accident to her otherwise than the extent of her loss of earning capacity and the need for domestic assistance generated by her mental and physical condition.

6 The plaintiff was fortunate in that she had supportive parents and grandparents. In 1998 her parents moved to Nelson Bay. She has two siblings, both younger. Her sister, Tara, is 17 and in year 12 and her brother, Scott, is 15 in year 9. Both are doing well at school and Scott is presently the dux of the class. At the present time Tara works part time in a chemist shop and has been offered a traineeship which she has not yet taken but hopes will be available after she finishes her HSC this year. I mention these circumstances because both parties consider them relevant and they furnish, in my opinion, some indication as to what the plaintiff has lost by reason of this accident.

7 The plaintiff continued at school until the Higher School Certificate which was awarded to her but she but she did not get a University Admission Index, a direct result, as I find, of her accident-caused disabilities. That she has progressed as well as she has is due in no small measure to the strong support she has had from her family. However, although that support has resulted in her being less disabled than otherwise might have been the case, she still suffers significant disabilities and these will remain with her until the end of her life.

8 The detailed reports tendered by both sides refer to the progression of the plaintiff’s condition from when she was injured up until the present time. She spent weeks in a wheelchair, had to return to hospital three times a week over a long period of time. She was required to wear (or was at least told she ought to wear) a leg brace on her right leg which she did. However she stopped wearing it when she went to high school because it embarrassed her and she was teased. But her abandonment of it meant that she fell more frequently than otherwise would have been the case. Her school years were difficult for her and her level of achievement was far below that of her brother and sister.

9 She has attended an IT course paid for by the insurer. However, she has not been able to obtain employment although she has made a number of job applications. In the past her father caused a job to be created for her over a short period of time (which was, in fact, paid for by him) to encourage her to be more outgoing and to continue to mix in the community. It is not surprising she has not obtained employment. By reason of her intellectual and physical impairment the type of work available to her is limited. Any jobs which may become available and which would not be beyond her mental and physical disabilities are usually taken by the better educated and more physically able people. The plaintiff cannot drive a car. She attempted to get a licence but failed. Her only employment to date has been with Port Stephen Eggs which employs her for three or four hours a day at irregular intervals – usually about once a week. She has this intermittent employment because the manager is a friend of her father. As I have said her parents have contributed enormously to the plaintiff’s adjustment, as best they can, to her unfortunate circumstances.

10 The plaintiff is able to dress and undress, and shower and carry out simple household tasks. She is able to cook provided she does not have to carry heavy weights to and from the stove and preparations do not require a great deal of mental effort. She finds it difficult to iron, sweep, vacuum, carry out washing etc. I accept the evidence of her father that she would “struggle” to run a house on her own. She can do some shopping but cannot carry heavy parcels.

11 The plaintiff did not give evidence but I saw her walk and it is apparent that she has a distinct and noticeable limp. At the present time her only medical treatment is a form of massage. She attends the gym to try and control her excessive weight but to date she has been unsuccessful.

12 On the material before me I think it is more probable than not that she will remain with her parents as long as that is possible during which time she will still need assistance.

13 Although the plaintiff’s counsel in the presentation of her case, has broken her future into three categories I have selected a period of 15 years from today’s date and a period of 48 years thereafter for the purpose of assessing her future needs. I have done this because it appears to be accepted by both parties that the plaintiff will remain with her parents for about 15 years and that after that time she will require additional assistance because she will be on her own.

14 One of the significant issues in the case is the identification of the need of the plaintiff for assistance while she remains with her parents and later when she will have to establish her own household. I make it clear that in assessing her need for the next 15 years I have done so on the basis that it is a need generated in the context of a five member household and not on an assumption that she is living alone. For example, her parents believe, and on reasonable grounds, that it is not safe for her to shower when nobody is in the house. They are concerned, and in my opinion reasonably so, that she may fall. However, at the present time that does not require any special person to be in the house because she showers when other members of the family are present.

15 The plaintiff has a pleasant personality and maintains friendships. She is able to shop in the local vicinity and travel by bus to visit her grandmother.

16 The plaintiff makes a claim in accordance with the decision of the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161 for inclusion in the verdict a specific amount for the prospect that if she has a child or children in the future she will need to be assisted in providing care them. At the present time the plaintiff has no children and, I think, it is unlikely she will have children in the future. But, however that may be, I am of the opinion that the decision of the Court of Appeal in Sullivan v Gordon 47 NSWCA 338 is authority against the proposition advanced by the plaintiff. Sullivan v Gordon overruled Burnicle v Cutelli (1982) 2 NSWLR 26 and recognised that the need for personal assistance on a daily basis for the care of the plaintiff’s child should be recognised on the basis of Griffiths v Kerkemeyer and not merely an aspect of general damages. In Sullivan v Gordon the claim was allowed because, as the Court found, there was a direct connection between the child born to the plaintiff after the accident and the accident itself. The stated reason why the claim was allowed was because the plaintiff’s brain damage reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children and that her conduct in having children (even if it could be objectively viewed as unreasonable) was relevantly caused by the negligence of the defendant and to use the words of Beazley JA “consequently there was no break in the chain of causation”.

17 Mr McIllwaine, counsel for the plaintiff, has submitted that the conclusions of Beazley JA with whom Spigelman CJ, Powell and Stein JJA concurred are in effect obiter. In PD v Dr Nicholas Harvey & Anor [2003] NSWSC 487 I expressed the opinion that, uninstructed, I would have adopted the view of Mason P that the need should be recognised even if what described as the unusual links in Sullivan were absent. However, I do not think the observations of Beazley JA were obiter and unless the plaintiff can establish some connection between the injury and the birth of a child subsequent to the injury (as happened in Sullivan v Gordon) the claim is not sustainable otherwise than as an aspect of general damages. That is, at all events, how I have treated the matter. In the present case it probably makes little difference which approach is taken because I think the prospect of the plaintiff having children is low. But I make it clear that I have included in the award of non-economic loss an amount to reflect the possibility that the plaintiff may have a child or children in the future and that she would need assistance in looking after them.

18 So far as non-economic loss is concerned I find the plaintiff to be 80 per cent of a most extreme case. It is agreed that the maximum amount able to be awarded for a most extreme case is $309,000. There is virtually no dispute between the parties concerning those aspects of the consequence of the accident as are compensable as non economic loss. The defendant has submitted that the appropriate percentage is 66.6 per cent – the plaintiff 85 per cent. I have had regard to the medical material submitted by the plaintiff and the defendant concerning the effects of the accident on her to date and what those effects will be in the future. I have included under this heading an amount to compensate the plaintiff for the possibility that she may need assistance in the future should she have a child or children – although I regard that prospect as low. Doing the best I can I award the plaintiff the sum of $247,200 being 80 per cent of a most extreme case.

19 The following components of the award of damages has been agreed upon -

1. Medical and other special damages already paid -

1.1 Paid by GIO $64,533.17

1.2 Paid by the Tutor $3,571.90

1.3 Paid by HIC $3,276.35.

2. Future medical expenses -

2.1 General practitioner $2,695.00

2.2 Brain Injury Unit $709.00

2.3 Ankle surgery $4,500.00

2.4 Psychiatric $6,500.00

2.5 Leg waxing $3,398.00

2.6 Gym/physiotherapy/massage $40,000.00

sub- total $57,802.00

3. Future equipment $16,500.00

4. Future computer $15,000.00

5. Past care $85,160.00

6. Home modification – $52,819.00

7. Holidays $46,000.00

Past loss of wages and future economic loss for diminution of earning capacity

20 When the case was opened it was submitted on behalf of the plaintiff that she would follow in the footsteps of her younger sister and probably spend three or four years at a tertiary level of education before entering employment. As it turns out that has not been the history of her sister and, as I would understand it, the plaintiff does not pitch her case for past loss of wages or her future economic loss of earning capacity beyond that of what is anticipated will be that of her sister Tara. That being so she would have commenced working in the year 2002 and her claim for economic loss to date is $50,915 (about which I do not understand there to be any dispute). There is, however, a dispute concerning the sum to which she is entitled to compensate her for loss of earning capacity. As I have previously mentioned there appears to be little dispute concerning the plaintiff’s earning capacity. I note that Dr Roberts, who examined her on behalf of the defendant, in her report dated 3 July 2000 was of the opinion that by reason of her cognitive deficit her prospects of employment depended largely upon whether she was able to find a sympathetic employer.

21 The defendant does not dispute the plaintiff’s earning capacity has been seriously impaired. Mr Graham, on behalf of the defendant, submits, however, that I should assess the plaintiff’s loss of earning capacity to be 66.6 per cent of what it would have been had she not been injured. The plaintiff submits that she has, in effect, lost 90 per cent of her earning capacity. The defendant submits that I should assume a future working life for the plaintiff as at 10 hours per week – the plaintiff submits the assessment should be based upon a capacity of no more than 2-3 hours per week. I do not understand the assumed rate of remuneration to be in dispute. In my opinion the estimation made on behalf of the plaintiff accords more with what I would find to be the capacity of the plaintiff to exploit her remaining earning capacity. That is to say she should not be regarded as totally unemployable but would have great difficulty in obtaining and maintaining employment. In effect her earning capacity has almost been destroyed. It is to be remembered that such remuneration as she has obtained for work in the past has been either because her father has in fact subsidised her employer or because of her father’s friendship with the manager of a company prepared to give her light work on occasions.

22 According, I include in the verdict $496,760 for future economic loss arrived at as follows -

$650.25 per week for 45 years
and applying a multiplier of 950.4 = $617,998

Less 15 per cent (vicissitudes) $92,699

Sub-total $522,298

Less $30 per week (to accommodate
her almost insignificant earning capacity) $28,512

Total $496,786

Future care

23 I have already recorded that there has been an agreement between the parties that the plaintiff is entitled to the sum of $85,160 for past care. This was agreed on the basis that the period of time needed to provide the plaintiff with the care necessary (and at agreed rates) reduced over the years from 16 hours per week to 5 hours per week.

24 So far as the future is concerned Mr Graham, on behalf of the defendant, has submitted that the future care should be approached first as to the need of the plaintiff for the next 15 years (the period during which it is assumed the plaintiff will remain with her parents) and then for the period when the plaintiff will be living on her own for the rest of her life. The plaintiff has broken the periods into three, the first for the next ten years, the second for the following 15 years, and the third for the remainder of the plaintiff’s life. Again the rates and the multipliers are not in dispute although on behalf of the defendant it is submitted that it has adopted a somewhat generous approach to rates.

25 I accept the defendant’s submission to the effect that I should not approach the next 15 years upon an assumption that the plaintiff is living alone and that there are aspects of the plaintiff’s needs which are not present now but will be present when she is living on her own.

26 The plaintiff has been encouraged to be as independent as possible but, as I have said, she remains seriously impaired and disabled.

27 Doing the best I can I would assess the plaintiff’s need for attendant care at 2 hours per week and domestic assistance at 5 hours per week at the rates (not in dispute of $28.00 and $16.50 respectively). Thereafter and on the assumption, as I have made, that the plaintiff will be living on her own I assess attendant care - 2 hours; domestic care - 5 hours; and outdoor handyman care 2 hours at rates of $28.00, $27.00 and $28.00 respectively. When making an allowance for the second period I have, by use of the appropriate multiplier, recognised that the value of the need is to be deferred for 15 years.

The first 15 years - $136.00 per week
applying the appropriate multiplier $76,618.75

For 48 years being $250 per week
For 9 hours care = $243,582.00

Deferred for 15 years $243,583.00 x .481

$117,164.00

28 The parties have agreed to bring in short minutes as to the loss of superannuation entitlement depending upon my findings concerning past wage loss and future loss of economic earning capacity. They have also agreed to bring in a form of order I should make bearing in mind the plaintiff is under a disability.

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Last Modified: 07/31/2003