Layton, William v Walsh, Margaret Doris - [1978] FCA 33

frcu t L

.Sumfeae Court of the

5 Appellant

llls

Wmpondent

22 w e .

from t b Supremo Court

Capital Territory

Appellant

Respondent

m w m

t 22 May 1978

. .

! c

f~ tho Suprmne Court

Capital Tmrritory

Appallmt

?18&Rtiff

Respondent

SMITHERS. J.

N I W . J.

Canberra

u b 4 Iro .d m

*wDeker).r.

She vas an active companlon

o f brr

W&-

8th-d

feotbal l

matches

and

other

hHttm,

(D. Waa

idmreatrd) in her grandchildren.

sC bh. Feupndemt vas admitted In evldence

rJ it -8	I %nC'*w8nee that s b w a s an attractive woman
for L.r W.

g 8 mUMIbOS

r f f m r r d very 8evore

inpries when

she

TYm e t u l r e @n,l3& QI klrrld of th. respondent established the

**+

m-om

to the rrapoldont of the

d m vas beform tho accldent

and

the

Ihd mf 3-

.Pr wmm redunod.

Beyond establishing

t.r

U. wIielE mnd nursing home erponses to the

date

of *1*J d

*;L. -t

imec of tk. nursing hone in which the

t*ur living widenam vas not led speciflcally

tL. Wrbi l30 WYLI+I

c a a ~ o ~ e n c e s

to tha rampondent of her

*uo* U r & . o r l ,

kcrpitrl, pharmaceutical and

haulrpurr9* 8-u.

ar *ha probable costs of steps such as

WaiWl*. H

which it would be reasonable

for the

to d h V i 8 t O tk. restrictions

imposed

upon

I ..

.. .,

,S. i

- r . . ' r

I .

5 .

m m

-8.J.

t h t the

awarded

ia excess ive and

a'-

mt t k

308rmod

judgm

f a i l e d t o a l l o w

, v-

.m m V&&C$uib%&r

l i f e , t h t the amount

the

6 .

so W d a m

t o acca)t

the contention that the learned Judge

did &t

&v-

-to

tonaitbratlon to the viacissltudes of llfe.

Iis llarrut ezproedy stated that he had regard to them.

I d

I.ot t h t et tha &te

of trlal the respondent's

* q . & t r t A o n

l i f o y1s ton years.

Thls flyre was assessed

a m adid.-

t)ut aotuithatding t h i r serious nature the

mICIIJInt*m Wjmriee -14

mot alter the rospondent's llfe

o x y e t m y . a k t recarding t o the national life tables the

e e o k P l ] r of 8 -rum

of bmr ago waa twelve years.

raS

10rmrd

to&

111 a x p c t m c y o f aovanteen per centum

&.os m -.

Tlrn i

m no certaxnty that she will not

Iiva Iwr.	Xt ia to km abaarvsd also that the life tables
referrrd t m SB	w & r k n e o bofarr tho learned judge were those of

AL*.CFII%Y

MO.. The cornmpond1n6 tablaa in respect of women

.Irw a

Ilk

n-t'a

l i f e expactancy according to the

irrlr 8tatistica ~ 8 .

throe years longer than was stated

ir &&ace.

m f t w l o tables w e r e actmtmlttad In evldence at

t k

lUw*tiw ob thm r ~ o a l

subject CO considoratlon of the

v d 3 d i t y er TaieTm?ce being u d e thereto.

Mr.

Norrls for the

O m l k M t ebJmaiod te much roforence on the ground that he would

h drpiM ef U. Tf*t

of cross exaelnation of the medlcal

UitPrsors in roapact t h r o o f .

Mr. Flnlay for the respondent

to u5a W n t a b h a to a h w that the learned Judge should

hmwr gmidrd fQr a langer parlod of payment of nurslng home fees

.rl m s s l i y *er (L 1-r

life p n o d .

' ,-

. ,

' . , ,

, : , I , .

._,

- .

1 .

It lil .l0 View ulit *L. objection of Mr. Norris should be upheld

tr tL, aOwt

t3rt **. t m b - l r m mkumtd not be u8ed I n a way whlch

riCt X W

t o *.P*otSea

y f r r t tbo appel lan t of

the f ind lng

Ilb Vi-

letmud jvz-

wan

j u s t i f l ed

i n

adop t lng

t he

m h t d mrr-

le.8 t b

a l l w a n c e that he made.

It 1s a

hlc(rP.lblm r

tbt t b cburces af the respondent suffer lng

b a t h by uco&&omt OA tho road. ham been duninished

by the

n r t r i o t o l U f o .L.

m e t now

l ead .

m aaatsm8i.a

t h t t h r o W a 8 ovorl8p

i s d e a l t w i t h

as p a r t of

mBC#emb¶a Of t h gwkeral contention

that

the

amount awarded

is PhinLy o-mmsi~e.

The r e a l

i a a u e

i n

t h i s

a p p e a l

a r l s e s

I n

= S p U *

O f b b r

mrrl

W a g 0 8

awarded.

That

amount was

$137,u2.

u e e s s o d by

tho

leamod

judge

i t w a s made up of

w ? r k 6 a

U &bO

C 0 p ; t h . l

NI rm(uired

t o sus t a in the nu r s ing

home

f0.e

far 10 y l 8 r O ct promont r a t e s and the balance

namely

&aO.oaO '?sr an-,

pain and muffering'.

'm U-

uil et U murrd of d u r - a

In a trial which

m e	irrrpalar o r unfair, and where there IS nelther

tr tLs iidi-8

of f8Ct made by the trlal Judge

-=trrtrtl

nhemnception of the evldence should,

SW -m, h I

llart unusual event, to occur only In

*re	tk. dispMportlon between lnJury and

AB ao w e a t a8 to make the

award

qulte

,	4PtmbgeCU8, in the circumstances,

-8

h 0 p a t er t o o mall:

and therefore of

. -

1 0 .

-r.

W 6* r t

iM?rk thrt

changes

the general nature

t8.L cmf *lu

c-t,

namely t o determine whuther

the

appellant

.H W m . 4 C-t

the lectrred JU*S

acted on a wrong

priraiph of A-.

or has mim~pprehended the facts,

or has f o r

ot*.r -

*.+r

u b l l y m r r a n o w s es t imate o f

the

damage

W-.

-ea

ef s t a t e d remaona for the

dec is ion ,of

*Lr

frir* it wwld . i ~ a

t h t to be

success fu l

t he

a t t ack

011

-trria

the h a t of tlmse

p o s s l b l a

e r r o r s

ral#*rrw tk -

cu~rc).d to the i tems of

damage wl th ln I t s

11.

#. r r e m n t in respect of injury, paln and

d o -

-%.&ad

U M ftmn of d m a p apart altogether from

it*..

mtkr t*m nurming home costs

whlch

would

1hW

lul:

ar in o t b ~

words

that

proceeded

#I L.rJm W C.. o

rf (i67,461 w l d caver all Items of

l;)ubihUU

wlia*y oWt of t)u respondent's inJuries and that the

.II

0#'

t t lw - t a w

corpaneat

and

only

i* .aW8rrhncr

and mffering

of the

respondent.

12.

i w V i k U e

thbt

.U maek-orpnn8e8 would be incurred

6 O d . d

8 t d .

Honour

His

Had

k H 9 t o

jury am tha evidence we conslder it

W8 @ty h i n f o m it that it might have regard

.ub 0-r

m y

fnforcnce8 from the evidence whlch they

t o be drawn and that so far as the

U m O h e

I Y W Ylf.

coQb8i&rod they might

use

their

own

* M * W l ) *

bw+urw d t b

rb80reO of ovidonca to gulde them,

WI Q-

te onmare that t h i r assessments were fair

l+*-.

tr tk. daicnduat a8 well as to the plalntlff.

8Tm c#

kflL1 wbich intmde upan her consciousness practlcally

evm-

W&-

l o r v t +f every day.

And also by reason of her

m*	y C l l s i C k s tlr rerpm&.at is unlikely to glve up and

I+ t8 M ul riZl Sa

r d r e d h e daily effort

to be moblle

Ur+ ilW-

rrl *e 8 x C r r r t aa mach a8 poasxble from life.

Alter urt3%- Il.lr hcr

th. initial effects of her lnjurles,

Qu d UI. T w t ' . troubles h a

been that she has a left

aY.1 8& M

Ju8t

from ha?! shoulder

and

are

completely

Y H E . . ~ .

m M

ia ~ ~ ~ l l e n .

The a r m and hand must

comtizmausly hrId in .L sling which, unaided, the respondent

w k L e to fi*,

What bprpen8 in bed was not described but

orCfirrrVy rYr$ m mrt br

D O C U W I ~

in positlon in some way

6Cmt-2308

foe e w posmible by the right hand. Each morning

UXWE tlu arpllrrt *ea

the flrst t h m g which 1s apparent is

.U&ely to b. tlrt inert a m .

In the bath, at the toilet, at

t*. a n . *&&la, netting into a car or golng up or down steps

*be h-t

fD E ON--

WO-,

and indeed in

some respects

uww.

S W i r mt

abla uitb tha left arm to wash and dry her

m ml fr t h

rbrrnco of an attandant the left

arm has to

r r rL .#

-.d

by the other and tha reapendent would have

h *uwI. r3

h r

h o l e body uith

the right arm.

-FIE o.

-*ion

to understand hendifflculties in the

U MLIwmt witbut t k rsaiatance of an attendant.

lu h WB r o v e * l e a t h r privacy.

She l a never

d M

Lk Y l l m m r left 8-0.

which apart from everythlng

am m --

.d r m h s t l e a a reminder of her deplorable

1-m

O t

mtiu. Mo &ubi injurier

may

become

tolerable

kow

U.(sU-t

ef rwch canseqwnce must remain a

d d

b a p dirtress

while

ahe lives.

ir -*S111

*e Ir.r d&ffiwftier caused by the left arm and

mnm e-2

c-timamur

troubles. She suffered a

fru-

.J am le#t -le.

It wsa put in a plaster cast.

i t a '-U-'

a&ttian

it twistr over If it is not held by

kr brace.

B h bra to wear r caliper to be

m i l e .

- 8 s d th. &la

and the muscle spasticlty of the

le?* 1-

JI rrpk rlwly, laaning heavily on her quadrapod,

rrpIyI tr I d * 3

vith a st i f f knee and tends

to veer

tr *L. -+

*d of aaurm she c m only uae one support and

Iw U m W fw I

o r tha like or to give steadiness

dc m

-ea.

The m e r of her suffering

falls

h er

Bur

.rrt of lov

chair or to negotiate

5 m-8

u a f a t m e .

She 16 developlng restricted

@&B

-*m

vAtk p i n if forced beyond her

ad&-ithn, the reapondent

troubled

now

*a* m. #b

L.;.

r lwo a u f f a m d a

left-sided

facial

n w m a u 10.

o t Etlaoticn.

The result

thls

r*rt cL*ay

W D N ~

h a difficulty ~n putting food

i t mea tmnrda the

left

side

and

tl*m

4-0

fmd 8piLt um the aide of her mouth.

Her food

,*W

&;,W

M. 7hir in vary eahnrrassing.

Her

I , I , 3 1 8 '

;

, j

,<'.p.

, .'>

: , A

IY.U : ; , L - , .

- ,

. -

".._

. .

f m . Y I I O L m t

tlr

~ u i 9 e ~ o d

brain damage which has

&#'@a- Mr e p a s m .

ob, ham lomt peripheral vlslon

in the

UY -1

vi-l

lomm om the left slde.

h a Laft her in a condition

that watching

tea-

..wI

re-,

b a l m g m sn headaches so that she only

Y.tew@

Y littla h th &y

tiu.

She daes not read for the

bc. -.

X+ v a m rtw a r e s u l t of brain damage suffered In

#. U d w t tr r U e b ck. w8m injumd that she developed a

t * w

t R rpdl+%a

fit..

She suffered two very severe fits.

.L *U b a r n troafed vxth Dilantin whlch

she must

tal. m e

t-a

each day.

Dllontin 1s a drug whlch accumulates

AB t b

m *-

N l t b. rawllted as overdose will

*nt,sA.i..tl m. If a b

niases the medlcatlon for a day she 1 s

l i k d y t o d f r r 8avoro sbulos.

Even with approprlate Dllantln

&ea-	8be Wfrrs uht are described as mlnor flts marked by

hit -	rlsmking of th. loft a r m two or three tunes each
*.a.

-8-t

suffers #reat dletress of mind.

%t -Sea

t o e o r t ~ l o f e

the anwish of this woman

.r) j.t

S 8 SI A

fa th. comparison between her present

.II #.

warn ard vould have been but for her

1-m.

Ult3r m e r

t k t , despite

w h a t vas described as

.I*lrukr, o b suffers drpresslon

a d

repeatedly

16.

Lwl	t o W d e , .S we b c r e stated it, It 16 necessary

r a 8 e r a r i l y ara.8

from the evidence

W f(L

-0

ISluly to ha incurrad by the respondent

. .

17.

& kmiy n b i l e and for many other

personal

*W& **.lc

n t

fipd lwrralf in a subordxmate position,

M a u l b T

t o t k miLobility ob others who

may be more

or U i l l i p ( .

T h a t thlm will

Involve

stralns

WWI *Ir -p.

WHO

of mind a d

morale IS not only

oertain.

She im almost

certaln to be unable

Ur C

eI L r

fFierda m d the Loss of most of them

b v

88-

mhbility.

In her case instltutlonal llfe

%D Z l L r j p k

1e.m

Sf dignity,

loss of independence,

L% -4Lority.

th. distress of vaitlng for essential

*tb..tf---IJ#IIl.ilL..

-re

vi11 be a substltution of the

Morldjr

W si&

imtem far the friends she would have

lub me I I) -8 t r .

It i s reamonable therefore that In her

08- yu* a&%w&i-L &if'.

im 11 gonmral unavoidable there

b -U

frcrqurnt relief from it.

Nothlng was

W*#

-0

in crldwbco hrt CO our minds It follows

fru *t

Yw PTmvad.

If holidays are not allowed

L k r d

-0

ZOT dimtremm for the mere fact of

'*.W -irrrJI +rrti+wt+malised acquire. another dimension.

J i m M- &.a **rc k calaulatm bolidrym i n money terms it is

a%-

al-• I*.*

br made for tho accocnaodatlon and

i*3Ectimm attme&nt of appropriate

Y fer trrrrl accordxng to speclally comfortable

3t w d

ha amrant to tha learned Judge that one

O t rr*

uridvrmtfm8 in this case

was

the

setting

m J

#e-t

fraa hmr grandchildren.

present,

-dopIy

rk. i m M oddity with a harsh voice.

m W$

in t h

vorld,

she will probably never have

. . 3

18.

h r

c*w rmwwct d

uffectim and share in the llfe

of those

-doWl&vr.

Thfm is M item which in our oplnlon the Judge

dgbt -11

m -*$&.rod

ef groat signlficance in general

d o r p .

-ro

Le nov only ane active step in this connection

t b t tlw re-t

t&o

of hor own lnitiative and that 1s

to m

.Ili

ba meom te rpand money on those grandchildren

'h I YI JI m t 'm'

tbm rospect and affection so far as

pnfib.la d

t b Jrrr in t h f r lifo which mho is otherwise

h i e & .

8L m$ll r o d (pod alotkea and avory assistance to

d f u + 8

m.rCtirm t o her crippled state and her

dfff%mLltir. S? . r t S thorn.

WO doubt as time goes these will

L P C ~ ~ W , .

k-1

r r s g o n d e a of a most embarrassing kind

w a t MEVIC

ti-

to ti.u requiring the attendance of some

p e r m umia*#t.

Tho coat of L permonal assistant for

rtt-	m* W #rrndchildren'a school functions and the like

will k

d m t U t i m 1 .

On any other basis this respondent is

Likely ta b. ..Aid particlprtlon in the development of her

&rmaQJlildrwn.

If it is said that the respondent's daughter-

in-law d l L fill tho role OM

has to be realistlc and pay regard

to tha r ~ r i . ~ * e o e

of l i f e , which are that with all affection,

tb. -tclcLblmw

will be a busy vornan wlth a life

of her own

te live

rat+ntioaa to thm hsavy demands of the respondent

rill k c o v t++ q o a t a burchn.

It i B

t o Ccmaidar the klnd of coats which

must be thought

ta b.

im U. mint-ce

of the respondent's health

and

fn t

-8.

masonable steps to relieve the continuing

auffrrly tu **be

nha im candenmed.

It 1s to be obsenred that

* t k * r $0 IW mpu?ffic rmmedial treatment to assist her.

PQ, il -ly to devolo, ineramming pain and stlffenlng

L L.? f*a o&mmMer a&

possibly other joints of the

&#‘I	8-	rLS& WklL rmq.4.r. drugs and physiotherapy
-
m tk, to time.

She will require anti-

f w thr r e a t of her llfe. She

w ~ l l

n*cpfisr

in *b. msming hoaa for the rest of her

P5Cu.

-8

rfll b

tho maJor cost involved‘.

e* bl-s

tor t h respondent would include

the cost

O f

m W---bctian

ud that of an attendant plus the

at-$’.

.ilJ&Fy. Y.Zidmys rt tkm rate of say 28 days each

J.w 11*3(1 W 8 d O r r b. cemtly.

Of courae it may be that

clresy U,

- & . M a y

p r 4 m d m *kr respondent could obtaln some

IwUef

-2y

p y m m n t m to the nursing home.

Clearly

it i8 e hr d

- # E m

t k t C k rampamlent

v111

incur

expenses

.rlk.ll.aee expansee that go wlth It.

.	clCO% *In W. rer)anknt akould be entltled to engage

-.elf

fnbpendently of her family

-m

at ths vary lenst to obtain personal Items

U k B &

0 a

k -0

hs halr done, to vislt a frlend, to

p k

IR. to Ln&l@a

hrrsolf by extending some hospltallty

M m m

uith an inmate

of the nurslng

home.

20.

Wflf b. Castly and heving regard to the respondent'

Ui w & t f s t y i t -ad

not bo usrleasonable

that she should

W+ d	ireUT th. ineVit8ble costs of maintaining

i t halal&h# tb

c o o t of enguing a driver

on the

08-

rb ilt. W+ h

-8

corwotiom, if the words

mLI m raktituhd far the word

'hospital' the

-l

m tL.

j d a t J-nt

of Bibbs and Stephen

iD tL.

of O o u r 8 a t h e the payrrents to the nursing home

OQVWT f@

We-tiOn.

It im to be remembered however

U tL. -at

nat been injured she had earning

eOmoi*,

lf il W 0tb.r sphore, In that of housekeeper. In thls

8 + r u d b n Sa to bm

rbrmrwod that but for her lnprles she would

hvm Ld ilk oh8iom of working in full or receiving a widow's

d ma8h

pm8xon with linitmd worklng rights.

W%-

M . t mhe vruld b.-

bamn equipped with food,

U-$-

a* Y

but rodomt standard

living

for

*Iw m*

O f b

f s h .

In bwr p r r m e m t condition she has no

-Sty

rrrrl ml with b r likely incme from her award she

U c*.

-$.or

rrtil m h m rm8ches the age of 70.

m*+ b

~ e u ,

& v-

of tk. age m d with the qualities

*-	0'5 tr mrpcm&S Could riasonably have

. .

a '

21.

-mat+*

h lwlty.

b - u r i q a wouicl in all probability

'Lm -

.L. d8rfr.d it.

The financial security

0-	-$h WrrlrY. cw2d well havo been quite substantial.

3% *L* a m

Of ray w c i f i c figures whlch would have enabled

W -

jvrcr to M i r e a t a precise amount to cover

Ibv+,

rri.rfyr wbick we are satisfied w ~ l l

dlrectly

e h mrpa&ut'8 im~uriom

the ~udgo,

making moderate

6st-8, e&

wll h v e k d im mind a sum averaging at least

$1-

*p **r* Sff tlr rest sf her lxfe.

To ensure that sum

8ter *.a pur.

8t f i WQUld require a capltal sum of $37,900.

U8t U

h0 tk. special damages and to the capltal sum

-M

*r m iw

Itr ten p a r s in tho nursing home the result

ht roll e f

rapeamem under consideration mlght have been

351

-si.

Alm it is a reasonable vlew that with

-**.Q* k if- Iw

yo8r8 of her llfc the provlslon of

b*uB

h thr nurling hors is a di8tinCt

beneflt

*.m d'*Y.L tlu mppollut ought to be entitled to credlt If

r*t

-t

rt that 8 t y e the respondent

not

loauy.

Por canriderations of thls

$W m d

tlrt the capital sun in contemplation should

(y -able

by 8ay 25s to about $28,000. Looking

22.

a$ k M* tLt Illuro ir a substantial capital sum required

reXerred to then in our

opinlon

whatever

m Imr

ea-

f h . 870,000 is not

seen

to be

*I-imb

to $h

miiurtfon.

And in the present

01- d w

i t v aIp.u high it doe.

not, in our vlew,

-.L

i m prapmrly within

the area of

M*%.lr*1

m a i d

In ao far am It has been

Dmlyvr i m -a

E a r n to cbov inferances a s to posslble

llJLHL

t B luhr

r m m m m s r r + l t

them,

thorn

is authority

f o r

-f*hm

tLct w h r o the evldence does not descend upon

-am

of future nocessary expenses It

I* tlr u#cL b w e

ifm own amsesanoent.

See Luntz on

r \ *

23.

1:adrrJ i t mo**r

chrr frou tLu rmparta of caaes whlch have gone

yl(rJ

3 r y -

f m c a s t a inmritably a l l involved

Jmrlteta3 varrr dos# t l w r e linmm.

Of course In most cases

Y W C I J T..l+.t&ra

i m h i d , but at tha same time it has been

6.t.e.

tc h i l d upam that initial foundatlon

m In+wr 08 tS, m L * Y nmtrrr sa that which we found necessary

I*	M -0 W. I b Qubt if a case is presented to a
c.swFt	moll a vw that all that h a a been proved IS the extent

r C W.r U *LCal

am3 no evidence is

given as to

t*. c.rt

t b b v i t s b l m expmnaea which these inJurles

wlll

wrua-w,

UW r8s-t

may well not recelve adequate

r y . o i eolpmnration. But where the court

is able

iafmrmwma amd by exercise of

Its

own

k owledge

.Id .Jw crf *rlrmtion f a able to m&e

the necessary assessment

OH d w u lo thw

reepmdmnt should not be deprived of the beneflt

d a h k j*losirl meere w b l 8 s a it appears that the court has

#IM

U. rJ%y

o f t& infmreucss and has made

the

8-$

.II C +Ip.y h i # .

T h u s if a11 that was before the

Q O d !#sa Ui.t

tlr rrmpauhat had l o s t b t h his l egs it could

k r*u a$

w t

.DouU mwrrdl nothing for the cost of

flr

m t . r l S l r ~

asd all t h t it involves.

, .

24.

h \

B.P

p - l i e t d

urn8 o~pwcted

t o llve for 20 or 30 years.

Her

ouaia(l8

J, mm* km

imjurod vere expected to have been

$70 p r y ndc

a# a mocrat~ry.

As to thls contentlon there are

rrriao+

O m w U w r r t i o P 3 m t o br

taken into account. Flrstly, the

v d u e of ~ n o y

8.tericwnted between November 1973, the date of

th. triul in -em

$ l r r r r w r l m case, and May 1977, the date of

ezidl

08b.

'Ihe

C . P . I .

figure

had

risen

from

l40 to

2S8 W

t h t #m

~ p o r t l o n r t o

comparison In round flgures is

hiurn-

w,ooS und )l3a,100 and between $42,000 and $68,400.

Socond3y, it uem poirttod out by Gibbs

and Stephen JJ. in

v	ei p.77 *kat the sum of $80,000 In question

reprmee~~kod

companaation for the aspect of paln, sufferlng and

ahpdvrtioa ai lire eftor all other heads

of damage had been

W o v i d d bar at iDe

uximum reasonably assessible I n respect

*bored.

"be figure van mcrutinized and reduced not so much as

am incorrret armrunt for the aspect of pain and sufferlng, if

th8t h d

by imrlf, but upon a consideratlon of it In its

Emit-

mard.

Ia i b i D Cam.

if tk. itrrm of nodlcrl and other expenses dlscussed

&bore WO

pr0)p.r badd. o f probable expenses then

the $70,000

.*mad8

8a part of

toOJ

M where allowance for these expenses

ko no* 0-n

beon &m.

?kkmy, +L. UpprOUtb by umy of comparison is not calculated to

bo jUatiC0 ia WFtiC\rlm caaoe.

Different injurles of different

POT-

&To

r i u t o difforsnt klnds and degrees of suffering

md di8WHliiy.

The considerations leading to assessment of

~ f n

uod .IpfIe*

components in respect

of a young paraplegic

-m'=*. -

are different from those whlch apply

$1. ,.

' I

. I I*

cn I"- ~-

- -

..h

25.

P w b r i m that the inJuriss

and

dlsabilities

k m yrlw lyrr m 0 l P u l ) S e n oh whet wam adrquate to this

by .a ammesmwnt by the

a8 0 rkpw d IJI @ .wifering amsociated with

of )YF injmrima, her

subsequent

t h

dincovery

and

m-	*Ir#uEIyIIII m #. Iamt tuelm years of her life

UM Y*

lrrr H

a m h t f n g l y injured and

her

crlw+cJ

lh&y

ea inasorably ehrttered and the

*snrct

#@W kp k E.t mat of life

that

which

remains.

Or Wr -1

mmm mwmwbd the situation is one

3% thr

CS Bmrwlek C.J. (mutatis

mutandis)

m m

1,95 at p. 197 we oumot say that we are

e -	o r the verdict of the learned trial

-I vl*h the full

extent of the

J m 1 1 fsuy inrslvm showm such a

1Lu	e f hi8 verdict im beyond the limits

II$ 1s.

I d w t f a a in awaddlng damages.

? 7'

---'--I--

13-

:S .

IN THE pBDERAL COURT OF AUSTRALIA )

L TERRITORY	' NO. 8 of 1977
1

GBMML DIVISION

IN THE MATTER of

AN APPEAL from the Supreme

Court of the Australian

Capital Territory

BETWEEN

WILLIAM LAYTON

Appellant

AND

MARGARET DORIS WALSH

Respondent

REASONS FOR JUDGMENT

CONNOR J.

22 MAY 1978

Canberra

This is an appeal from a judgment

of the Supreme Court

of the Australian Capital Territory

(Joske J.) awarding the

resporrcbat $156,564 damages for personal injuries. The appellant,

who W 8 3 the defendant below, submitted to interlocutory judgment in

default of def

ce that the respondent recover against him damages

to be assessed.

The respondent suffered injury when she was

passonger in a motor car which collided with

a motor car driven

by the appellant on 18 November 1974.

The respondent was then

64 years old. Her husband was killed in the same accident and t

the tire of the hearing in the Supreme Court in May 1977 she was

aged 66 years and 9 months and was still a widow.

2 .

Before the accident the uncontradicted evidence was that

the respondent was an attractive energetic woman, very much

interested in her house and garden, actively interested

in church

work, a person who went

on frequent outings with her husband and

who was keenly interested in her grandchildren. The photograph,

exhibit G, which is reproduced on p.80 of the Appeal Book resembles

her 8ppearance before the accident.

As a direct result

of the accident the respondent suffered

8 nurber of serious, disabling and distressing injuries. She

suffered diffuse damage to the brain and for a long

time after the

accident she had no speech function at all. Because of raised

pressure i n the inter-cranial cavity there was damage

to the optic

nerve.

She consequently suffers from permanent loss

part of her visual field. Because of this and because

of the onset

of headaches when she does

so, she cannot read very much or look

at television for very

long.

Whilst i n hospital following her injury the plaintiff

had a number of convulsive seizures. At the end of 1975 she had

severe major seizure. In this connection she takes Dilantin.

At one stage of her management she suffered from Dilantin

intoxication resulting in drowsiness and increased immobility.

This has resolved but she still suffers minor motor seizures two

or three times per week in the form

of twitching and shaking

her left arm.

These are likely to continue but

it is unlikely

that she will

S ffer severe epilepsy. Her brain damage caused

left sided heri-paresis. Her left arm is useless and the paresis

affects her left leg.

In addition there was a fracture

of the

left shoulder which has	resolved but without enabling any use to
be Bade of the left arm	because of the paresis. The fracture,

bowever, may be

a cause

of pain and stiffness hereafter and may

teqaire physiotherapy.

The plaintiff suffered a Potts fracture

I ,

, .

L '.rl

3 .

of the left ankle and a valgus deformity. She wears a callper

on her left leg and by using a quadripod she can get about slowly.

She can manage steps but with difficulty.

She originally spent about eleven weeks

in the Canberra

Hospital but now has no recollection of being there. This was followed by about fifteen weeks in a rehabilltation unit in the

Woden Valley Hospital. She then lived with her son and

daughter-in

law until the end

of 1975 when she had the severe convulsion.

Following this she was in hospital for a short period and then went

into 8 nursing home in Queanbeyan where she still

was at the date

of the trial and where it is thought she will have to remain for

the

rest of her life.

She needs assistance with dressing and bathing

and

to cut up her food. She can feed herself after the food

1s cut

but	she spills food when eating due to her partial facial paralysis.
She	manages her own toileting, teeth cleaning and other simple

tasks.

She can go on outings but not alone. She is unable to

drive a car. The respondent said that she feels helpless because

of her left arm and at times she gets very depressed. She misses

her previous involvement with her grandchildren. She goes on

fuily outings at weekends and once a week she goes out with other

patients at the nursing home to play housie.

No evidence was

placed before the court

as to her desire or ability

o take holidays.

Following the accident she suffered fractured ribs which punctured

her lung.

Her liver and spleen were ruptured

but none of these

things, it is tkought, will affect her expectation

f life. Before

the accident she had a pleasant speaking voice but her voice	is
now quite harsh, apparently not an uncommon feature of such

injuries.

She is now easily upset and is embarrassed by the

reaction of other people, particularly children, to her appearance

and disabilities. She is in good physical health and eats well.

She is in good rental health and is quick and alert

in conversatlon

. ,

4 .

and her demeanour was described as normal.

Joske J. found that the respondent's

expectation of life

was 10 years.

It is common ground that the nursing home expenses

were $178 per week and His Honour adopted calculations placed

before him by senior counsel then appearing for the respondent

that the present value on 72 tables of $178 per week for 10 years is $67,162 - see Appeal Book pp.51, 52, 82 - and allowed that sum

for the cost of nursing home expenses

in the future.

The evidence

suggests that these expenses include the cost of food and sustenance

generally. It does not appear from the reasons of Joske J. that

the appelfant contended in the Supreme Court that any allowance

should have been nede for this; nor does

it appear whether Joske J.

made any such allowance.

It would not have been practicable for

His Honour to have made any allowance in respect of board

In the

absence of evidence as to what proportion of the nursing home fees

w8s referable to board. Even though the respondent made no claim

for ecosaric loss I think that, in a case where evidence is directed

to the issue, a moderate but more than nominal deduction should

u d e from the dasapes awarded for the costs

of the nursing home if

the home provides rustenance in addition to nursing care; cf.

Sh8erYn v. Follqnd [l9501 2 K.B. 43 and Proctor v. Shum [l9621

S.R. (N.S.W.) 511. In an action for damages for personal injuries,

as distinct from a Lord Campbell's Act action, I think it would be

quite OXCcptiOMl for

plaintiff to become responsible for

meeting the cos

S of his ordinary sustenance

as a result of the

defendant's nagligence. Special damages were agreed

at $23,061 and

it was further agreed that the appellant had paid $3,939 of

these,

leaving 8 balance of 519,102.

This amount and the amount of

$67,462 for nursing hone expenses come to

$86,564.

Having dealt with the special damages and the damages

for fatote c l to an the nutsin8 home, Joske J. said:-

"She must be also allowed general damages for injury,

pain and suffering. In my opinion the proper amount

to award for general and special damages

is $160,523,

but from that sum must be deducted $3,959 already pald

by the defendant. There will therefore be judgment for

the plaintiff for $156,564 with costs."

_ 1

This figure is $70,000 over and above the total

of the amount

awarded for special damages and damages for future care

in the

.h'

nursing home.

The passage from the reasons

of Joske J., whlch I

have just quoted, suggests

t o me that His Honour intended to

81lOCate $70,000 8s "general damages for injury, pain and sufferlng".

Not only does the lenguage indicate this, but

it is not easy to

see how more

t h l n a quite small fraction of that

sum could have

been awarded under any other head. Although four doctors were called and nineteen medical reports were tendered on behalf of the

respondent, there was virtually

no evidence on which the learned

trial judge could have made any reliable estimate

of the cost of

the respondent's future medical expenses. Dr. Gillespie, her

general practitioner, said that he had visited her periodically

in hospital; see p.25

of the Appeal Book.

Even if the question

he was asked

was intended to refer to the nursing

home, there is

no evidence as to whether or

how often or at what cost to

the

respondent he will have to visit her

in the future. The only other

evidence as to the respondent's future treatment was from Dr.

Cbrry who said:-

"There is no specific remedial treatment to assist her.

She is likely to develop increasing pain and stiffening

in hef left shoulder and possibly other joints of the

left side which will require drugs and physiotherapy

treatment fron time to time.

She will require anti-

epileptic drugs for the rest

of her life. She will

require care in the nursing home for

the rest of her

life.

This will be the major cost

involved."

(See Appeal Book pp.30 and 7 4 . )

* .

Again there is

no indication of the cost to the respondent

.'I

I$'

drugs or treatment. Apart from the evidence

of the two doctors to

:#! .p

.f"; ,	which I have just referred	I have not been able	to find any other
,7%:&

6 .

evidence given at the trial which relates to

the cost of future

medical care apart from the nursing attention given

n the home.

It is possible that the learned trial judge took the view that the

unproved cost of such medical care was offset

by the unproved

sustenance content contained

in the amount awarded for the cost

of future attention in the nursing home. Whether this

be so or

not, I think that all but a small fraction

f the 570,000 must be

dealt with on the footing that

it was awarded by the learned trial

judge for pain and suffering and loss

of amenities caused by the

serious injuries which the respondent suffered.

It is necessary of course to consider the amount

$156,564 as a whole and not merely to consider

in isolation the

amount which has been allocated to one particular head of damage.

It will often happen that

n appellate court may think that too

much has been given under one head but too little under another

and th8t consequently the amount awarded for damages

as a whole is

not appellable. It does not seem to me that there

is much, if any,

room for such an exercise here, having regard to the course the c8se took at the trial. The special damages were agreed and the learned trial judge assessed the amount for nursing home costs in

the future virtually in accordance with the submission

of senior

counsel then appearing for the respondent. In practical

terms,

therefore, this appeal will be determined

by the view taken of the

amount of $70,000 as damages for pain, suffering and loss

amenities.

My own view is that even though the appellant was

at the date of the accident and her expectation

f life is 10 years

from the date

of the trial, never-the-less she should be awarded

substantial damages under this head having regard to her grievous

injuries and the period of about 12 t o 13 years over which she will

have b8d to baar them.

By current community standards, however,

1 7 .

F-

A??-

I think the scales

come down firmly on the side of the proposition

'-Lx

that the amount of $70.000 is so high as to justify intervention

kJ I

-r I .

by this court.

I would uphold the appeal and reduce the figure

,I-.

S$? 3

p ,

$70,000 to $45,000.

Consequently, for the amount of $156,564

'h$.."

'..L '

*'l.	awarded by the learned trial judge, I would substitute the amount

.Li i

~ 3

.LT ?$

of $131,564.

.I.'.	m@--
~- . f L A

! < g I.	F,!.
.?&

.'?A - , ~ ,

-t ;

r'?

' , X

-. .~*	W
2'
!
I,
1 .
4*f 5

)r .$ f,

.*.

:-L;!

IN m PBDeRAL CWRT OF AUSTRALIA )

L TERRITORY	!
1

GBW3il.U DIVISION

IN THE MATTER of

AN APPEAL from the Supreme

tourt of the Australian

Capital Territory

BETWEEN

WILLIAM LAYTON

Appellant

AND

MARGARET DORIS WALSH

Respondent

FOR JUDMENT

CONNOR J.

22 MAY 197a

Canberra

This is an appeal from a judgment

of the Supreme Court

of the Aurtt814an Capital Territory (Joske J.) awarding the

respondent $156,564 damages for personal injuries. The appellant,

who w w the defendant below, submitted to interlocutory judgment

hfrttft of def

cc that the respondent recover against him damages

to be assessed.

The respondent suffered injury when she was a

'passenger in a motor car which collided with

a motor car driven

.,l * .

:.h.

. I

~~ :,

by the appellMt on 18 November 1974.

The respondent was then

A.>

$&!*	64 years old. Her husband was killed in the same accident and at
I::'..	th. tiBe of the hearing in the Supreme Court in May 1977 she was

~ . . I

66 y e w s and 9 months and was still

widow.

2 .

Before the accident the uncontradicted evidence was that

the respondent was an attractive energetic woman, very

much

interested in her house and

garden, actively interested in church

uork, a person who went on frequent outings with her husband and

who was keenly interested in her grandchildren. The photograph,

exbibit G, which is reproduced on p.80 of the Appeal Book resembles

her appearance before the accident.

As a direct result of the accident the respondent suffered

8 number of serious, disabling and distressing injuries. She

suffered diffuse damage to the brain and for

a long time after the

accident she had no speech function at all. Because

of raised

pressure in the inter-cranial cavity there was damage to the optic

nerve.

She consequently suffers from permanent loss of

prrt of her visual field. Because of this and because o f the onsct of headaches when she does o, she cannot read very much or look at television for very long.

Whilst in hospital following her in~ury

the plaint

iff

had a n&r

of convulsive sektures. At the end of 1975 she

had

a severe ujor seizure.

In this connection she takes Dilant

In.

At one rtaBe of her management she suffered from Dilantin

intoxication resulting in drowsiness and increased immobility.

This has resolved but shs still suffers minor motor seizures two

or three t i n s per week in the form

of twitching and shaking

her left arm.

These are likely to continue but

it is unlikely

that she will sGffer SGVOTG epilepsy. Her brain damage caused

left sided heni-paresis. Her left arm

is useless and the paresis

affects ber left leg. In addition there was a fracture of the

left s t l d e r which has resolved but without enabling any

use

be B

of the left arm because

of the paresis. The fracture,

however, may be

a cause of pain and stiffness hereafter and may

3 .

of the left ankle and a valgus deformity. She wears a caliper

on her left leg and by using a quadripod she	can get about slowly.
She can manage steps but with difficulty.

She originally spent about eleven weeks

in the Canberra

Hospital but now has no recollection of being there. This was followed by about fifteen weeks in a rehabilitation unit in the

Woden Valley Hospital. She then lived with her son and

aughter-ln-

law until the end

of 1975 when she had the severe convulslon.

Following this she was

in hospital for a short period and then went

into a nursing home in Queanbeyan where she still was at the date

of the trial and where

it is thought she will have to remain for

the rest of her life. She needs assistance with dressing and

hathln!

and to cut up her food. She can feed herself after the food

1s cut

but she spills food when eating due to her partial faclal paralysls.

She manages her own toileting, teeth cleaning and other simple

tasks.

She can go on outings but not alone. She is unable to

drive a car. The respondent said that she feels helpless because of her left arm and at times she gets very depressed.

She misses

her previous involvement with her grandchildren. She goes on

family outings at weekends

and once a week she goes out with other

patients at the nursing home to play housie. No evidence was

placed before the court as to her desire

or ability to take holidays.

Following the accident she suffered fractured ribs which punctured

her lung.

Her liver and spleen were ruptured but none

of these

things, it is t

6 ought, will affect her expectation

of life. Before

, I

the accident she had a pleasant speaking voice but her voice

now quite harsh, apparently not

an uncommon feature of such

injuries. She is now easily upset and is embarrassed by the

reaction of other people, particularly children,

to her appearance

and disabilities.

She is in good physical health and eats well.

She is in good mental health and is quick and alert

in conversation

I . .	,	t	6	'b.>	8 .	.	.
4 .

and her demeanour was described as normal.

Joske J. found that the respondent's expectation of life

W8S 10 years. It is common ground that the nursing home expenses were $178 per week and His Honour adopted calculations placed before him by senior counsel then appearing for the respondent

that the present value on 7t tables of $178 per week f o r 10 years is $67,462 - see Appeal Book pp.51, 52, 82 - and allowed that sum for the cost of nursing home expenses in the future. The evidence

suggests that these expenses include the cost

of food and sustenance

generally.

It does not appear from the reasons of Joske J. that

the appellant contended in the Supreme Court that any allowance

should have been made for this; nor does

it appear whether Joske J.

made any such allowance.

It would not have been practicable for

His Honour to have made

any allowance in respect of board in the

absence of evidence as to what proportion of the nursing home fees

W85 referable to board. Even though the respondent made no claim

for economic loss I think that, in a case where evidence is directed

to the issue, a moderate but more than nominal deduction should

made from the damages awarded for the costs

of the nursing home If

the home provides sustenance in addition to nursing care;

cf.

Shearman v. Folland [l9501 2

K.B. 43 and Proctor v. -

Shum [l9621

S.R. (N.S.W.) 511. In an action for damages for personal injuries, as distinct from a Lord Campbell's Act action, I think it would be

quite exceptional for a plaintiff

to become responsible for

meeting the costs of his ordinary sustenance as a result of the

defendant's negligence. Special damages were agreed

at $23,061 and

it was further agreed that the appellant had paid $3,939 of these,

leaving a balance of $19,102.

This amount and the amount of

$67,462 for nursing hone expenses come to $86,564.

Having dealt with the special damages and the damages

for future care in the nursing home, Joske J. said:-

? '1;

. I,

d..

. ,

., ,,

. . .

5 .

"She must be also allowed general damages for

in~ury,

pain and suffering. In my opinion the proper amount

to award for general and special damages is $160,523,

but from that

sum must be deducted $3,959 already paid

by the defundant. There will therefore be judgment for

the plaintiff for $156,564 with

costs."

This figure is $70,000 over and above the

total of the amount

awarded for special damages and damages for future care

in the

nursing home.

The passage from the reasons

of Joske J., which I

have just quoted, suggests to me that His Honour intended to

allocate $70,000 as "general damages for injury, pain and suffering".

Not only does the language indicate

his, but it is not easy t o

see how more than a quite small fraction

of that sum could have

been awarded under any other head. Although four doctors were

called and nineteen medical reports were tendered

on behalf of the

respondent, there

was virtually no evidence on which the learned

1	:	c	trial judge could have made any reliable estimate of the cost of
:*

, .

the respondent's future medical expenses.

Dr. Gillespie, her

,I > r	.I
. .	:. I .

...	I * .	general practitioner, said that	he had visited her periodically
I*

in hospital; see p.25 of the Appeal Book.

Even if the question

he was asked was intended to refer to the nursing

home, there is

no evidence as to whether or how often or at what cost

to the

.	I '	respondent he will have to visit her in the future. The only other
.I

I'	evidence as to the respondent's future treatment was from Dr.
~,
.+	Corry who said:-

"There is no specific remedial treatment to assist her. She is likely to develop increasing pain and stiffening in hey left shoulder and possibly other joints of the left side which will require drugs and physiotherapy

treatment from time to time. She will require anti-

epileptic drugs for the rest of her life. She will

require care in the nursing home

for the rest

of her

life.

This will be the major cost involved."

(See Appeal Book pp.38 and 7 4 . )

I	Again there is	no indication of the cost to the respondent	of
., I
. c ,
.. G&. ,

p. -c

drugs or treatment. Apart from the evidence of the two doctors to

g*:

which I have just referred I have not been able

to find any other

&h&

6 .

evidence given at the trial which relates

to the cost of future

medical care apart from the nursing attention given in

the home.

It is possible that the learned trial judge took the view that the

m p r W 8 d cost of such medical care was offset

by the unproved

SUSte~anCe

content contained in the amount awarded for the cost

of future attention in the nursing home. Whether this be

so or

not, I think that all but a small fraction

f the

$ 7 0 , 0 0 0

must

dealt with on the footing that

it was awarded by the learned trlal

)Id80 for pain and suffering and loss

of amenities caused by the

serious Injuries which the respondent suffered.

It is necessary of course to consider the amount

$156,564 as a whole and not merely to consider in isolation the

mount which has been allocated to one particular head

of damage.

It will

often happen that an appellate court

may think that too

much has been given under one head but too little under another

and that consequently the amount awarded for damages

s a whole is

B0t appellable. It does not seem to me that there

is much, if any,

room for such an exercise here, having regard to the course the case took at the trial. The special damages were agreed and

the

learned trial judge assessed the amount for nursing home costs In

the future virtually in accordance with the submission

of senior

counsel then appearing for the respondent. In practical

terms,

therefore, this appeal will be determined by the view taken

o f the

mount of

$70,000 as damages for pain, suffering and

loss of

amenities.

o m view is that even though the appellant was

6 4

at the date of the accident and her expectation

f life is 10 years

from thr date of the trial, never-the-less she should be awarded

5ubstanti81 damages under this head having regard to her grievous

injuries and the period

of about 12

t o 13 years over which she wlll

h.Ve h d to bwr theu.

By current community standards,

however,

7 .

come down firmly on the side of the proposition

5"':

' .

~< ':

that the munt of

$70,000 is so high as to justify interventlon

F' -

~<+.+&,&

by th i s court.

I would uphold the appeal and reduce the figure of

= .q'