Lawson v Jones

[1992] QCA 387

IN THE COURT OF APPEAL	[1992] QCA 387
SUPREME COURT OF QUEENSLAND	C.A. No. 118 of 1992

BEVERLEY CLAIR LAWSON

Respondent

v.

ALAN PATRICK JONES

Appellant

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

Judgment of the Court delivered the
day of , 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 118 of 1992

Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

BETWEEN:

BEVERLEY CLAIR LAWSON

Respondent

- and -

ALAN PATRICK JONES

Appellant

JUDGMENT - THE COURT

Delivered the day of , 1992

MINUTE OF ORDER:

CATCHWORDS: 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

Counsel:

Solicitors:  McInnes Wilson & Jenson
Solicitors for the Appellant

Hearing dates: Dempseys

Solicitors for the Respondent

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 118 of 1992

Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

BETWEEN:

BEVERLEY CLAIR LAWSON

(Plaintiff)

Respondent

- and -

ALAN PATRICK JONES

(Defendant)

Appellant

JUDGMENT - THE COURT

Delivered the day of , 1992

The respondent obtained judgment for $771,945.00 damages for personal injuries suffered

in a motor vehicle accident. This is an appeal against the quantum of those damages. In the event

the appeal was argued on the basis that the past and present economic loss and cost of care

components of the award were unsustainably high with the consequence that the award was

excessive.

The respondent was born on 16 September, 1952 and was injured on 14 October, 1988.

The trial took place in May, 1992 with judgment being entered on the 28th of that month.

The trial Judge found that after the accident the respondent felt immediate pain in her lower

back, neck and left arm, and that she has been complaining of "these problems" ever since. By the

time of the trial she was complaining of severe to very severe pain, starting in the left shoulder, working across the back of her neck, up her neck and across the back and over the head to her

forehead. The condition of her left hand was such that she did not, at the time of trial, have any

effective use of it, although the trial Judge found that there was "at least an even chance" that this

condition would be completely alleviated by treatment which was proposed.

The respondent has been examined by a wide spectrum of numerous medical practitioners

and there was a great variety of opinions in evidence as to the cause of her complaints and their

implications. It is sufficient for present purposes to say that the trial Judge resolved all such issues in

the respondent's favour.

The trial Judge accepted the respondent as "an honest witness with a personality

predisposed to make the most of her problems and to rationalise in areas in which she might appear

to be in difficulties." He concluded that the respondent "had the problems of which she complained,

that they were a consequence of her accident, were basically organic in origin and that, apart from

the problem with the left arm, they were permanent."

The trial Judge also found that as a consequence of her injuries, the respondent was

effectively permanently unemployable "in any field in which she might have been expected otherwise

to have engaged". He also found that it was highly probably that the respondent would have been

back in the work force had she not had her accident and that she would have continued in it

indefinitely in a capacity other than a managerial capacity. In this context it is to be remarked that

the trial Judge found that the respondent would in any event not be intellectually suited for anything

except the most simple clerical work.

The particular findings just dealt with require some explanation. The respondent's claim for

economic loss was postulated on her earning as a manager of a business in the transport industry.

The trial Judge was not persuaded that she would have been employed in that category for reasons

he canvassed in his decision. At the time at which she was injured the respondent had recently

recovered from Ross River Fever. Her marriage had broken down and she had taken up with Carmen Lynette O'Shea. She and O'Shea went to Bundaberg and were looking for a place to live

when the accident occurred. There was evidence they intended to obtain employment in the

Bundaberg district.

The trial Judge rejected a submission that it was unlikely that the respondent would have

returned to work in a town or city after she and O'Shea had acquired, as they apparently intended, a

small farm. Such a failure was, his Honour said, inconsistent with what the respondent said in

evidence which he accepted. The respondent's evidence seems consistent with the notion that she

intended working once they moved to Bundaberg and that she had seen some advertisement for

suitable work in a newspaper published in that locality.

Prior to her contracting Ross River Fever the plaintiff had a history of being a hard worker in

regular employment. Her experience qualified her for work in the road transport industry as, for

example, a driver.

The findings canvassed so far are to be accepted for purposes of this appeal. They were

open on the evidence and no error founding the intervention of this court has been demonstrated in

respect of them.

As has already been indicated, the appeal was directed to demonstrating that the economic

loss and cost of care component of the judgment were unsustainable. These components are:

(a)	Economic loss to trial	$70,000.00
(b)	Future economic loss	$240,000.00
(c)	Past care	$70,000.00
(d)	Future care	$250,000.00

In addition, interest was awarded on (a) and (c) and included an amount for which judgment was

given.

So far as economic loss is concerned the trial Judge, having made the findings referred to earlier, concluded that had the respondent not been injured, her earning capacity was an average of $400 a week - a figure the suggestion of which he attributed to the appellant. To arrive at future

economic loss, he applied a multiplier of 20 years, i.e. to age 60.

The trial Judge apparently resolved all the contingencies in the respondent's favour. It could

have been otherwise but in the event the components for economic loss past and present are as

generous as is sustainable on the evidence. That said, however, no basis has been shown for

disturbing them.

The respondent's claim for damages on account of past and future care is essentially a claim

in respect of services gratuitously provided though, so far as the future is concerned, some

allowance seems justified for the prospect that the respondent's mother may become unable to

continue to provide the care she had provided up to the date of trial.

This is not a case where the evidence establishes loss to the actual supplier of the services.

It is a case where the cost of outside help may "afford a touchstone" in evaluating damage under the

heads being considered although the artificiality of the approach may have been good ground for

discounting it; see Veselinovic -v- Thorley (1988) Qd.R. 191 per Thomas J at 200 and Carrick -v-

Commonwealth of Australia (1983) 2 Qd.R. 365 particularly per Kelly J at 367 and following.

The basis of a successful claim by a plaintiff for damages for the provision of gratuitous

services as conveniently lying in principles derived from the decision of the High Court in Griffiths -v-

Kerkemeyer (1977-78) 139 C.L.R. 161. That and the cases which have followed it establish that a

plaintiff is entitled to such damages to the extent to which a defendant's negligence creates a need

and when the satisfaction of that need is or may be productive of financial loss; see Gibbs CJ at 166,

168 and Stephen J at 173-4 in Griffithss. The compensation is for the loss of capacity which the

services may help to evidence; Hodges -v- Frost (1984) 53 ALR 373 at 380. The damages must

be proportionate to the injury and the cases make reference to the "reasonable costs" of satisfying

the need as distinct from the actual or maximum possible costs; see Carrick (ante) at 3678 and the

cases there considered and Veselinovic (ante). It is also to be borne in mind that as Thomas J points out, (p. 200 of Veselinovic) each case must be assessed in terms of its own circumstances;

see also Hodges (supra) at 200.

The trial Judge allowed the full amount claimed for the cost of past care. He accepted the

evidence of an occupational therapist "in general as to what is the care the plaintiff requires, although

I feel the estimates are generous." He then accepted calculations based on the direct application of

commercial rates for various levels of care to the times derived by the occupational therapist. This is

an unfortunate, if not impermissible, approach. The opinion of the occupational therapist was

necessarily based on assumption and on the uncritical acceptance of the accounts of the respondent

and others. It is no substitute for an evaluation of the evidence to determine the amount and level of

care necessary to satisfy the respondent's needs and the appropriate damages for that in the light of

the principles previously mentioned.

The total claim for past care seems to have been for some 32 hours assistance per week on

the basis of 4 to 4½ hours a day for what is described as personal care (This apparently including an

hour for "companionship"). No basis has been shown for allowing that component in this case, cf

Hodges (ante) at 200. There was also 4 hours a week for "home help care." There was then

evidence of the commercial rates in terms of categories of home help, an enrolled nurse or assistant

nurse and a registered nurse. The former the cheapest rate, with the rates progressively increasing,

the latter being the more expensive. The latter two rates was applied to the home help care and

personal care components of the respondent's claim respectively - including at the commercial

weekend rates to arrival at her damages.

Neither the hours claimed nor the rates applied to them appear sustainable as evidencing the

respondent's needs as a consequence of the appellant's negligence or the extent to which they are

productive of financial loss. The respondent continued to live with Carmen Lynette O'Shea for 12-

18 months (on O'Shea's estimate) or 12 months (perhaps for a shorter time on the respondent's

mother's estimate) after the accident. Speaking of this period, O'Shea was asked to compare the
respondent physically with as she was before the accident. She answered:-

"...Well, I can't say 'sick' because it was just like a change in personality in that 12 to

18 months and she became irritable, cranky, argumentative and easily upset..."

Having said that this ultimately led to their ceasing to live together O'Shea was asked

whether she could see how the respondent was physically and whether she to have problems in this

context. She answered:

"Oh, only minor problems at that stage...preparing food or something like that. It

seemed to take her a lot longer to sort of cut things up or something like that."

O'Shea was also asked if the respondent appeared to be in pain in the period when they

were living together, and answered "Yes she did, occasionally, mainly during the night or something

when she was sleeping. She would sort of be restless...she started using the other arm a lot more."

O'Shea went on to deal with occasions when the respondent stayed with her after they had

ceased to live together. She said that the condition of the respondent's arm had deteriorated a lot

and restrictions in her neck movement had become more noticeable. During this later period

O'Shea spoke of the respondent occasionally being "down for the count for a day or two, she is in

bed and is physically ill...she just can't do anything then for at least a day or two." In context this

effect seems to have followed the respondent's undertaking physical activity. O'Shea was asked

whether she had to look after the respondent on such occasion and answered "at the time yes."

According to the respondent's mother, in approximately September 1989 the respondent

moved back to live with her. The mother was 62 at the date of trial, and she and the respondent's

sister Suzette, who was born on 13 February, 1970, provided various services for the respondent.

The mother's evidence reflected what had been made available to the occupational therapist to make

what were described by the latter as "estimates" of the "reasonable level of care and attention

required," "support by way of companionship" and "in the event of no change in her status,

assistance...for maintenance of her personal well-being." The medical evidence, it should be remarked, does not seem to establish the need for support to the level claimed even when one

allows for the variations in assessment.

The evidence does not go very far along the way of satisfying the requirement of the

fulfilment of a need potentially productive of financial loss at a reasonable cost in the time the

respondent continued to reside with O'Shea. Nor does it justify a conclusion that everything that the

mother and sister chose or choose to do for the respondent satisfies the requirements laid down in

Griffiths (ante) and the cases which followed it.

The evidence shows that there were a number of activities, the brushing of the respondent's

hair is an obvious enough example, carried out because the mother chose to do it rather than have

the respondent do it with perhaps some apparent difficulty. Even where services can be said to be

supplied in the satisfaction of a need, there is an overlapping with services which would in any event

have been provided to the respondent as an occupant of the domestic establishment rather than as

related to the respondent's needs on account of injury. One such example is the provision of

common meals; this was an example used by Derrington J at p. 204 of Veselinovic (ante). It is for

this reason, rather than on account of the degree of relationship (as the trial Judge seemed to think)

that the provision of services in a domestic environment operates to discount commercial rates; see

Veselinovic, Carrick (ante) at 367 and Hodges (ante).

Moreover, all else being equal, 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 dealt with by the agency rates.

The appellant provided figures in the course of the appeal showing that applying the lowest

of the agency rates but otherwise accepting the calculations advanced on the respondent's behalf led

to a figure of almost $46,000 compared to the $70,000 allowed by the trial Judges. For reasons

which have already been indicated, that figure has to be further reduced. $20,000 seems to

appropriately reflect the past care component of the respondent's damages.

So far as the cost of future care is concerned, the trial Judge took the hours and rates used

with respect to the calculation of the cost of care up to trial and applied to it the number of years

purchase which would have taken the respondent to aged 74 - the evidence indicated that that was

her life expectancy. The figure arrived at was "upwards of $400,000." His Honour then "fixed" on

$250,000 having referred to "the matter which I have mentioned" and "other contingencies" as

necessitating a "substantial discount" the calculation of which he concluded, it may be accepted

correctly, could not be based on the evidence. The "matter" seems to be the better than even

chance prospect of the condition of the plaintiff's left arm being rectified so as to give her a far

greater capacity to completely care for herself. The other contingencies referred to are not readily

identifiable from the judgment. One can, however, be fairly confident that they do not include the

considerations previously canvassed as rendering the pre-trial cost of care component of the award

to be unsustainably high. As has previously been mentioned, there is an additional component post

accident in that the mother may be unable to continue to provide the support she was providing at

the time of the trial.

It is true that the trial Judge applied a considerable discount to the calculated cost of future

care he arrived at. Since that figure was in any event too high on account of its neglect of the

considerations to which reference has already been made, that in the circumstances, provides little

comfort for the respondent. The considerations being those outlined, a figure of $85,000 seems

appropriate for the cost of future care.

As has previously been mentioned, the respondent is entitled to an amount by way of

interest in respect of the cost of care prior to trial. In that respect $3,600 seems an appropriate

figure.

It remains to remark that the grounds of appeal complained about some other components

of the damages but those matters were not pursued before this court.

The judgment below in the amount of $771,945.00 should be set aside and judgment
entered for $545,845. The order for costs made below should not be disturbed. The appellant
should have the costs of this appeal to be taxed.