Lawson v Jones

[1993] QCA 451

IN THE COURT OF APPEAL	[1993] QCA 451
SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1993

Brisbane

Before The President
Mr Justice Davies
Mr Justice Lee

[Lawson v. Jones]

BEVERLEY CLAIR LAWSON

(Plaintiff) Respondent

v.

ALAN PATRICK JONES

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/11/1993

On 27 May 1992, the respondent was awarded $771,945 damages for personal injuries sustained in a motor vehicle accident which occurred on 14 October 1988 as a result of the appellant's negligence. She was 36 years of age at the time of the accident, having been born on 16 September 1952. The damages award included components for the respondent's past and future need for care of $70,000 and $250,000 respectively. The respondent's need for care was being satisfied at the time of trial by services gratuitously provided by the respondent's mother and sister.

On 13 November 1992 this Court allowed the appellant's appeal against the quantum of the award, reducing the past and future care components to $20,000 and $85,000 respectively. The respondent then appealed against this Court's decision to the High Court. On 5 March 1993, the High Court allowed the appeal, deciding that, this Court's attention not having been drawn to the High Court's recent decision in Van Gervan v. Fenton (1992) 66 ALJR 828, it had incorrectly proceeded on the basis that damages for past and future care should only be awarded to the extent that the respondent's need for care is or may be productive of financial loss. The appeal now comes before us having been remitted by the High Court to be heard and determined by this Court according to law.

Argument on the present occasion was restricted to the question of whether, in light of the principles enunciated in Van Gervan, this Court's earlier conclusion that the past and future care components of the award were excessive and should be reduced in the manner indicated, could be sustained.

In Van Gervan, a majority of the High Court held that the true basis of a Griffiths v. Kerkemeyer (1977) 134 C.L.R. 327 claim is the plaintiff's need for services provided for him or her, and it is therefore not necessary to demonstrate that this need is or may be productive of financial loss:

at 333, 347. As a general rule, the appropriate level of damages will be the market cost or value of the necessary services, rather than the income forgone by the provider of the services or the actual cost of the services to the plaintiff: at 331, 349.

Before us, counsel for the appellant accepted, in keeping with the decision in Van Gervan, that commercial rates were an appropriate basis for calculating the value of any necessary services in this case. There are therefore only two questions which this Court must determine: first, whether the learned trial judge applied the appropriate commercial rate in calculating the value of the necessary services; and secondly, whether the learned trial judge erred by over-estimating the extent of the respondent's need for such services.

Examination of these questions first requires some explanation of his Honour's findings and the evidence upon which they were based.

For a period of between 12 and 18 months after the accident (witnesses' estimates of the length of time varied), the respondent lived with her girlfriend, Ms Carmen O'Shea, in Townsville. At the end of that period, the respondent went to live with her 62 year old mother, Mrs Camp, and 21 year old sister, Suzette, at her mother's house in Townsville.

She was still living there at the time of the trial. In July 1990, Ms O'Shea moved to Mount Fox, which is apparently some 170 kilometres from Townsville.

Much evidence was led at the trial concerning the nature and debilitating effect of the respondent's injuries. A number of conflicting medical opinions was given as to the causes and extent of the respondent's injuries. The respondent herself described the nature of her injuries and their effect on her ability to care for herself both in a sworn statement and in her oral evidence at the trial. Relevant evidence was also given at the trial by Mrs Camp, Ms O'Shea and Ms Helen Coles, an occupational therapist. Ms Coles had prepared a written report in which she expressed her opinion as to, amongst other things, the number of hours' care required by the respondent. This was based on observations she made during an interview with the respondent and Mrs Camp at their home on 2 November 1991. Further, in order to establish that the respondent was exaggerating the extent of her injuries, the appellant relied on the evidence of several other persons who had observed the respondent at various times since the accident.

The learned trial judge found it impossible to reconcile many of the medical opinions and preferred to base his conclusions on the whole of the evidence, medical and non- medical. His Honour made several findings as to credibility which were not challenged on appeal. He thought that the respondent was an honest witness, but that "her personality is such that she would be prone to make the most of her problems and to rationalise in areas in which she might appear to be in difficulties". The learned trial judge also regarded both Ms O'Shea and Mrs Camp as reliable witnesses who had had ample opportunity to observe the respondent, including at any times when "her guard was down". By contrast, his Honour thought that the evidence upon which the appellant relied to demonstrate that the respondent's problems were less serious than she claimed was itself exaggerated and rejected it on this basis.

His Honour concluded that the respondent did in fact have the problems of which she complained, and that those problems were basically organic in origin. Her main complaints, from the time of the accident, were of pain which the respondent experienced in her lower back, neck and left arm after the accident, and which had become worse by the time of the trial. At the time of the trial, the respondent was complaining of severe pain in her left shoulder, neck and head. The learned trial judge also accepted that the respondent was then suffering from problems in her lower back, and that the condition of her left arm was such that, although she could move it by swinging it around, she could not lift it, and had no effective use of her left hand.

His Honour found that all the respondent's problems would be permanent with the exception of the condition of her left arm. With respect to her arm, his Honour accepted medical evidence to the effect that there was "at least an even chance that its condition will be completely alleviated".

Further, the learned trial judge accepted Ms Coles' evidence as to the level of care required by the respondent, and in particular her estimates of the hours which would be involved, although he thought these estimates to be generous.

His Honour calculated the awards for past and future care by applying commercial care rates to Ms Coles' estimate of the number of hours' care required. Ms Coles estimated that the respondent required approximately four hours of assistance per day "for maintenance of her personal well being". This comprised an average of two to three hours per day "for activities including dressing, bathing, washing and brushing her hair, cutting her meals, cutting her nails, attending appointments" (what we shall call "personal care"), and a further one or more hours per day for "support by way of companionship". Ms Coles considered this companionship support was necessary to minimize the respondent's depression and to maintain her reasonable quality of life. In addition, Ms Coles considered that the respondent required a further four hours of "domestic assistance" per week for activities such as shopping, house- cleaning, laundering and ironing.

Evidence was led of the commercial rates charged for care during the relevant periods by a local nursing agency. Three rates were available: registered nurse (highest rate), enrolled nurse or assistant-in-nursing (intermediate rate) and home help (lowest rate). The learned trial judge adopted the respondent's suggestion that the enrolled nurse rate be applied in calculating the value of the four hours per day personal care, and that the home help rate be applied in calculating the value of the four hours per week domestic assistance.

In calculating the value of past care at $70,000, the learned trial judge assumed that the respondent's need for care had been constant from the date of the accident to the trial.

In calculating the future care component, his Honour noted that if the level of required care remained constant until the respondent attained her life-expectancy of 74 years of age, the award for future care would be greater than $400,000. Although he acknowledged that any discounting of this figure would necessarily be somewhat arbitrary, his Honour nevertheless felt a substantial discount was warranted for contingencies, in particular the better than even chance of improvement in the respondent's left arm.

His Honour therefore concluded that a figure of $250,000 was appropriate.

In its decision of 13 November 1992, this Court said:

"Neither the hours claimed nor the rates applied to them appear sustainable as evidencing the respondent's needs in consequence of the appellant's negligence, or the extent to which they are productive of financial loss."

The precise meaning of this statement was debated before both the High Court and this Court on the present occasion.

However, it is clear that one reason for the Court's reduction of the care components was that it considered the home help rate, and not the enrolled nurse rate, was the appropriate commercial rate to be applied in calculating the value of the respondent's personal care requirements. At pp. 9-10 of its judgment, the Court said:

"the evidence does not justify a conclusion that the respondent's needs are such that they have to be satisfied by the provision of services provided by the more skilled categories of assistance envisaged by the agency rates."

This conclusion does not contradict the law as stated in Van Gervan, and in our opinion was plainly correct. We have already referred to the kind of tasks Ms Coles included under the heading of personal care. None of these tasks required nursing training for its effective performance, and indeed there was no evidence that either Mrs Camp or the respondent's sister had formal nursing skills. We therefore accept the appellant's argument that the learned trial judge erred in applying the enrolled nurse rate in calculating the value of the respondent's personal care requirements.

When the home help rate is applied in calculating the value of personal care as well as domestic assistance, the past care component reduces to approximately $46,000, and the future care component, before discounting for contingencies, reduces to approximately $250,000. Discounting this figure by the same factor as was used by the learned trial judge produces a future care award of approximately $156,000.

In its earlier decision, this Court considered that there were additional reasons for further reducing the awards for past and future care. Before this Court on the present occasion, the respondent argued that a further reduction was not warranted, and that the Court had further reduced the awards when the appeal was first heard only because it believed that the awards should represent the degree of financial loss actually or potentially generated by the respondent's need for care, an approach discredited in Van Gervan. Certainly, there are statements in the Court's judgment which reveal that such a belief influenced its decision. The words in the above passage, "or the extent to which they are productive of financial loss", provide one such indication, and there are several other observations to similar effect.

By contrast, the appellant before us argued for a reduction even greater than that allowed by the Court on the previous occasion. According to the appellant, such a reduction is warranted because:

(1) there was no basis for the learned trial judge's finding that the respondent's need for care was constant, whether at the level estimated by Ms Coles or at some other level, from the time of the accident through to the date of trial; and

(2) the learned trial judge erred in adopting Ms Coles' estimate that the respondent required, on average, one or more hours of companionship support and two to three hours of personal care per day, because these figures were not supported by the evidence of Mrs Camp, Ms O'Shea or the respondent herself.

The appellant contended that this Court's earlier reduction of the awards for past and future care had been motivated as much by these considerations as by the application of the legal principles since discredited in Van Gervan. However, it is not necessary for us to determine exactly the reasons for this Court's earlier decision. We have independently reached the view that, applying the principles enunciated in Van Gervan, the awards should be further reduced for the reasons which the appellant suggested, although the reduction should not be as great as that made by this Court on the earlier occasion.

We accept the appellant's argument that the evidence did not support the learned trial judge's assumption that the respondent's need for care had, at all times since the accident, been as great as it was when Ms Coles interviewed the respondent on 2 November 1991. Several passages in Ms O'Shea's evidence revealed that, during the 12 to 18 months immediately after the accident when the respondent lived with Ms O'Shea, the respondent's physical condition had not yet fully deteriorated and her personal care requirements were minimal.

In cross-examination, Ms O'Shea compared the respondent's physical condition after the accident with her condition prior to the accident in the following terms:

"... she was sick, she - well, I can't say sick because it was just like a change of personality in that 12 months or 18 months and she became irritable and cranky and argumentative and easily upset."

She said that physically, the respondent had "only minor problems at that stage", and that these were manifested in tasks such as food preparation, where "it seemed to take her a lot longer to sort of cut things up". Ms O'Shea said that the respondent complained to her of pain, that she occasionally appeared to be in pain, mainly during the night when she would be restless in her sleep, and that she "started using the other arm a lot more". However, Ms O'Shea considered that the condition of the respondent's arm "deteriorated a lot" and her neck movement became more restricted in the period after Ms O'Shea moved to Mount Fox in July 1990.

Ms O'Shea did not say that she personally assisted the respondent in any way while they lived together, nor did she indicate that the respondent needed any such assistance.

Rather, her evidence suggests that the respondent continued to perform tasks for herself as she normally would have done, but that she occasionally experienced greater difficulty in doing so. Further, nothing in either the respondent's or Ms O'Shea's evidence suggests that during this time the respondent was confined to their home and, for this reason or any other, in special need of companionship.

In our opinion, the evidence was insufficient to establish that the respondent required personal care, companionship support or assistance with house-hold tasks during this period. Assuming that the respondent commenced living with Mrs Camp in September 1989 (the earliest suggested date of her doing so), we therefore consider that the award for past care should be further reduced to $36,000.

As regards the period since the respondent commenced living with her mother and sister, we did not understand the appellant to challenge the finding that the respondent required four hours of domestic assistance per week.

Certainly, such a figure appears to us to be comparatively modest, and we do not think any reason has been shown for interfering with it. However, the appellant does challenge the finding that during this period the respondent needed personal assistance and companionship support of approximately fours hours per day.

The quantification of the respondent's average daily need for care is made more difficult by the fact that her condition varies markedly between her "good" and "bad" days.

On good days, by all accounts the respondent is able to manage her personal situation tolerably well. On bad days, however, she suffers severe pain and is generally confined to bed, often for several days at a time.

Nevertheless, in our opinion the appellant was correct in asserting that the totality of the evidence accepted by the learned trial judge, in particular the evidence of the respondent, Mrs Camp and Ms O'Shea, did not support the finding that the respondent's need for personal care and companionship was as great as that estimated by Ms Coles.

In this respect, we believe that the learned trial judge erred in simply adopting Ms Coles' estimates, based as they were on only one afternoon's observations.

We are of opinion that there was no foundation for the finding that the respondent required one or more hours of companionship support per day. The evidence suggests that on her bad days, the respondent's pain and outlook is such that she derives little comfort from the presence of others, while on her good days, she is frequently mobile enough to visit friends and family members.

The respondent said in evidence that in the period between the accident and Ms O'Shea's move to Mount Fox, Ms O'Shea had driven her to Mount Fox to visit an acquaintance, Mr Thompson, on a couple of occasions. Further, according to both the respondent and Ms O'Shea, during the 18 month period after Ms O'Shea moved to Mount Fox, the respondent had visited Ms O'Shea on between six and nine occasions. On these occasions, the respondent made the journey alone, driving for approximately three and a half hours over roads which were in places unsealed and rough. She typically stayed at Ms O'Shea's for three to ten days at a time. It is true that the respondent inevitably suffered after her journeys, having to spend up to a day in bed after her arrival. However, she continued to make the visits until she and Ms O'Shea had a falling out at the beginning of 1992. When she was staying at Ms O'Shea's house, the respondent often visited Mr Thompson, sometimes with Ms O'Shea, and sometimes on her own, driving the several kilometres herself. She also became quite friendly with some of Ms O'Shea's other neighbours during this period.

Further evidence confirmed the view that the respondent is far from housebound. Mrs Camp said that she and the respondent sometimes visit other family members, and that the respondent occasionally, although not often, goes to the shops or visits the doctor's. This accords with the respondent's evidence that she goes shopping, sometimes alone and sometimes with her mother, about once a month.

The respondent said that she is generally able to drive her car, but that on some days this is impossible because of pain in her lower back. The respondent also said that, when possible, she takes a daily walk, sometimes walking up to two kilometres, but sometimes being forced home after a much shorter distance.

In our opinion, the above evidence reveals that, while the respondent undoubtedly derives great comfort from the support and companionship provided by her sister and mother, her actual need for such companionship has not, on average, increased significantly since the accident. In particular, the available evidence suggests that the respondent is generally capable of visiting friends and family, occasionally by travelling considerable distances.

As regards the respondent's need for personal care, it is true that, on bad days, her need for such care increases in some respects. In particular, on these days she needs assistance in showering and dressing, and is unable to run errands or keep appointments. However, in her oral evidence, Mrs Camp said that on these days, because the respondent is confined to bed, she actually provides less assistance to the respondent than she does on good days.

Mrs Camp gave evidence that she assisted the respondent with washing her hair, brushing her hair every morning and night, getting in and out of the shower, and dressing. Mrs Camp also said that she prepared and cleaned up after all the meals, and that any assistance the respondent provided in these respects was really of a token nature, although she was able to perform more straightforward tasks such as preparing simple vegetables, stirring food and making toast and coffee.

This contrasts quite sharply with Ms O'Shea's evidence. In cross-examination, Ms O'Shea said that, when the respondent visited her at her home at Mount Fox, the respondent helped her pick the vegetables, prepared meals occasionally (they took turns in cooking) and occasionally did some housework and washing. Both the respondent and Ms O'Shea also said that the respondent assisted Ms O'Shea, albeit in relatively limited ways, with various odd jobs around her property.

These included gardening, constructing an orchid house, sanding down and painting Ms O'Shea's utility and collecting fertiliser.

Further, the respondent's own evidence suggests that she is capable of performing for herself many of the tasks with which her mother assists her. In particular, she said that she was only occasionally unable to dress herself, having learnt to wear clothes that she could dress herself in. The respondent also said that she occasionally performs more difficult tasks such as making her bed, hanging out the washing and mowing the lawn, although this latter activity inevitably results in subsequent suffering. We have already mentioned her evidence that she is normally able to drive her car, at least for short periods; that she was occasionally able to make much longer trips to visit Ms O'Shea; and that she goes shopping approximately once a month, sometimes alone.

In our opinion, the evidence accepted by the learned trial judge indicates that, in the period after the respondent commenced living with her mother and sister, her daily need for personal assistance and companionship was significantly less than four hours per day. We therefore think that the award for past care should be further reduced to $30,000 and the award for future care to $125,000. Interest on the past care component to the date of the judgment below is $5,100.

We should note that there appears to us no reason to interfere with the factor by which the learned trial judge discounted the future care award: given his Honour's unchallenged finding that there was at least an even chance that the respondent's arm would completely recover, a substantial discount was warranted.

We would therefore allow the appeal and vary the judgment below by reducing the damages awarded from $771,945 to $597,345. We would further order that the respondent is entitled to interest at the rate of 10% per annum on that sum from the date of the judgment below, that is, 27 May 1992. The respondent should pay the appellant's costs of the appeal to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1993

Brisbane

[Lawson v. Jones]

BEVERLEY CLAIR LAWSON

(Plaintiff) Respondent

v.

ALAN PATRICK JONES

(Defendant) Appellant

THE PRESIDENT
MR JUSTICE DAVIES

MR JUSTICE LEE

Judgment delivered 09/11/1993

REASONS FOR JUDGMENT - THE COURT

APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW VARIED BY
REDUCING THE DAMAGES AWARDED FROM $771,945 TO $597,345.
ORDER THAT THE RESPONDENT IS ENTITLED TO INTEREST AT 10% PER

ANNUM ON THAT SUM FROM 27 MAY 1992.

CATCHWORDS:	DAMAGES - MEASURE OF - APPEAL - Appeal from award of damages to respondent injured in motor vehicle accident - Whether award for past and future care largely provided by respondent's mother justified - Matter remitted by High Court to be determined in light of Van Gervan v. Fenton
Griffiths v. Kerkemeyer (1976-7) 139 C.L.R. 161 Van Gervan v. Fenton (1992) 66 A.L.J.R. 828
Counsel:	R.R. Douglas QC and P.C. Lafferty for appellant P.J. Lyons QC and S.E.J. Jensen for respondent
Solicitors:	McInnes Wilson & Jensen for appellant Dempseys for respondent
Date of Hearing:	5 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 118 of 1993

Brisbane

[Lawson v. Jones]

BEVERLEY CLAIR LAWSON

(Plaintiff) Respondent

v.

ALAN PATRICK JONES

(Defendant) Appellant

THE PRESIDENT
MR JUSTICE DAVIES

MR JUSTICE LEE

Order made 22/11/1993
ORDER - THE COURT

SET ASIDE THE ORDER OF THIS COURT MADE ON 9 NOVEMBER 1993 IN SO FAR AS IT RELATED TO THE COSTS OF THE APPEAL. IN LIEU THEREOF, ORDER THAT:

1.   THE RESPONDENT PAY THE APPELLANT'S COSTS OF THE APPEAL ARGUED ON 5 AUGUST 1993; AND

2.   THE APPELLANT PAY THE RESPONDENT'S COSTS OF THE APPEAL ARGUED ON 24 SEPTEMBER 1992.

Counsel:	R.R. Douglas QC and P.C. Lafferty for appellant P.J. Lyons QC and S.E.J. Jensen for respondent
Solicitors:	McInnes Wilson & Jensen for appellant Dempseys for respondent
Date of Hearing:	5 August 1993