Lebon and Lebon v Lake Placid Resort Pty Ltd

[2000] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:	Lebon & Lebon v Lake Placid Resort Pty Ltd & Ors [2000] QSC 049
PARTIES:	JENNIFER DOREEN LEBON (first plaintiff) and JEAN-NOEL LEBON (second plaintiff) v LAKE PLACID RESORT PTY LTD (first defendant) R G BRADSHAW AND J L BRADSHAW trading as LAKE PLACID RESORT (second defendant) RICHARD GEORGE BRADSHAW (third defendant) JOHN LEONARD BRADSHAW (fourth defendant)
FILE NO/S:	2034 of 1993
DIVISION:	Trial Division
PROCEEDING:	Assessment of Damages
ORIGINATING COURT:	Supreme Court of Brisbane
DELIVERED ON:	13 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2000
JUDGE:	Williams J
ORDER:	First plaintiff entitled to judgment against first defendant in the sum of $2,219,752.91 with costs to be assessed and second plaintiff entitled to judgment against first defendant in the sum of $4,000.00 with costs to be assessed.
CATCHWORDS:	DAMAGES- ASSESSMENT OF DAMAGES- QUANTUM- woman aged 25 when injured- tetraplegia with some use of upper limbs- assessment of general damages for pain and suffering and loss of amenities, for past and future care, past and future economic loss, future needs etc.
DAMAGES- ASSESSMENT OF DAMAGES- QUANTUM- LOSS OF CONSORTIUM-significance of second plaintiff’s remarriage- decreasing relevance of this head of damage given current social mores.
Hornberg v Horrobin (No 8196 of 1996 and No 836 of 1997, judgment 24 October 1997) Toohey v Hollier (1955) 92 CLR 618 Scarf v State of Queensland (No 1272 of 1993, judgment 30 October 1998) Wilson v McLeay (1961) 106 CLR 523
COUNSEL:	Mr D A Reid (sol.) for the plaintiffs No other appearances
SOLICITORS:	Murphy Schmidt for the plaintiffs No other appearances.

1. Williams J: On 29 December 1990, the first plaintiff, Jennifer Doreen Lebon, then a married woman aged 25, received major personal injuries when she collided with another person while descending a waterslide at the Lake Placid Tourist Resort near Cairns. As a result of those injuries she was rendered substantially tetraplegic.

2. On 24 December 1993 she issued a writ claiming damages for negligence against a number of persons and entities asserted to be associated with the Resort. Her husband at the time, the second plaintiff Jean-Noel Lebon, claimed damages for loss of consortium. The fifth and sixth defendants as named in that writ were never served and the proceedings have been formally discontinued against those parties. The writ was duly served on four defendants; Lake Placid Resort Pty Ltd, R G Bradshaw and J L Bradshaw trading as Lake Placid Tourist Resort, Richard George Bradshaw, and John Leonard Bradshaw. Judgment in default of appearance was entered by the Registrar against each of those four defendants on 2 June 1999. Prior to service of the writ Lake Placid Resort Pty Ltd had been dissolved pursuant to the provisions of the Corporations Law, but by order of this court it has been re- instated for purposes of these proceedings. That order provided for service on that company by service at its registered office with a firm of accountants.

3. The plaintiffs now seek assessment of damages pursuant to the default judgment, but only seek that assessment against Lake Placid Resort Pty Ltd. All relevant rules have now been complied with to enable the court to make the assessment of damages against Lake Placid Resort Pty Ltd. There was no appearance on behalf of that company when called.

4. The first plaintiff gave oral evidence, and the balance of the material relevant to the assessment was placed before the court in affidavit form. It is clear that the first plaintiff is entitled to a very substantial sum by way of damages, but it should be observed that the court has not had the assistance of legal representatives for the defendant in arriving at the appropriate figures.

5. The first plaintiff was born on 14 February 1965 making her approximately 35 as at the date of hearing. She was married in March 1989, but separated from her husband in October 1997 and was divorced in July 1999. She has a daughter who is now aged 12; she was 3 at the time of the incident. That child has resided with the first plaintiff since the separation but is now the subject of a residency dispute between the parents which is pending in the Family Court. It should also be recorded that since the separation the first plaintiff has continued to reside in the jointly owned former matrimonial home. That is also the subject of property settlement proceedings in the Family Court.

6. The first plaintiff sustained a compression fracture of the sixth cervical vertebra with consequential damage to the spinal cord. The diagnosis was of tetraplegia causing paralysis of sensory and motor function of the hands, trunk and lower limbs. There has been no significant recovery of function over the ensuing years and her present condition will remain static. She does have some use of her upper limbs and arms. She is now able to drive a motor vehicle with hand controls, and can perform a number of routine daily activities. She can feed herself in the sense that she can pick up food and put it into her mouth, but she has difficulty with cutting and the like; preparation of a simple meal is within her capabilities. She can give herself a drink if the cup or glass is readily accessible. She can carry out self- catheterisation when required. She can, with appropriate apparatus, get herself from bed into her wheelchair and vice versa. She can also get herself from the wheelchair into the driver’s seat of her car and vice versa; she cannot get into the passenger side of a vehicle without assistance.

[7] It follows that the first plaintiff is not a complete tetraplegic and in some ways is
significantly better off than a person who would be so described.

1. The first plaintiff was hospitalised from 30 December 1990 to 30 November 1991, a period of 11 months. That included 9 weeks of total immobility in cervical traction.

2. Over the intervening years she has suffered from, and still suffers, significant nerve pain in her right shoulder, hands, buttocks, perineum and feet. She also experiences painful muscle spasms. All of that pain is difficult to control and is resistant to presently available medications.

3. In 1992 she was admitted to hospital with an anal sinus and was there for a few weeks. She was subsequently bedridden for about two months. She is prone to chest infections and suffered a severe chest infection in 1995 requiring frequent home visits by her doctor and a physiotherapist. She suffers excessive fatigue and breathlessness due to reduced lung capacity. She also experiences urinary tract infection about three times a year. Her bladder is paralysed and its function is regulated by self-catheterisation about six times a day. She has abnormal bowel function and requires medication to assist in bowel action. Every few months she has an accident with her bowels and that increases the risk of urinary tract infection. That is understandably a source of considerable embarrassment to her.

4. The medical evidence suggests that on average she would spend about 10 days per year in hospital in order for the doctors to deal with problems associated with her overall condition.

5. The first plaintiff has in the past needed and still needs some assistance with most aspects of daily living. That assistance has in the past been provided by her mother, her sister, her daughter, and her former husband. Recently she has had the services of a carer provided by the Department of Family Services.

6. Though, as noted, she can effect a self transfer in and out of her wheel-chair in some situations she needs assistance particularly when tired, and on a few occasions each year she experiences a fall from the wheelchair. Currently she uses a self- propelled wheel-chair but will require an electric chair in the future.

7. She can prepare and eat simple meals without assistance, but does require some help in that regard. She is unable to do any washing, cleaning or other domestic chores. She has difficulty getting dressed without help. Understandably the first plaintiff has suffered a significant degree of social and psychological injury as a result of the injuries and their aftermath. Prior to the accident she was a very active person who could accurately be described as a health and fitness devotee. She enjoyed, amongst other things, sailing, cycling and swimming as recreational pursuits. The injuries have seriously depleted her lifestyle and sense of wellbeing.

8. Her sexual function has been impaired though it is still possible for her to engage in intercourse. After the accident there was no sexual contact between the plaintiffs; prior to that they had led a normal active sexual life. The absence of any sexual relationship was a major contributing factor to the breakdown in the matrimonial relationship.

9. Whilst as at the date of the accident the plaintiffs had no immediate plans to have more children that was something they had always regarded as a possibility. Though in theory the first plaintiff could still conceive and be delivered of a child, in practical terms that is highly unlikely and that is something which has caused her additional distress.

10. Despite all those adversities the first plaintiff has adjusted reasonably well to her situation. She has completed a TAFE course in hydroponic gardening, participates in wheelchair rugby, and has completed a computing skills course in June 1999. She has also received training in counselling with Lifeline. At the present time the first plaintiff believes herself to be emotionally stronger and more independent than she was immediately after the accident. She does not consider that she needs psychiatric help, although she does experience some panic attacks from time to time.

11. It is in those broad circumstances that quantum must be assessed for pain and suffering and loss of amenities. Recent cases indicate a range of $180,000 to $200,000 for pain and suffering and loss of amenities where the plaintiff has sustained complete tetraplegia. The most recent cases are Scarf v State of Queensland (No 1272 of 1993, judgment 30 October 1998) where White J awarded $180,000, and Hornberg v Horrobin (No 8196 of 1996 and No 836 of 1997, judgment 24 October 1997) where Ambrose J awarded $200,000. Given that this plaintiff has somewhat more upper body movement than either of those plaintiffs, I am of the view that the appropriate award is $170,000.

[19] I allow interest on the award for pain and suffering and loss of amenities in the sum
of $15,300.

1. The plaintiff’s life expectancy has been shortened by her injuries by some 10 to 15 years. But for the incident her present life expectancy would be of the order of 48 years but it is now somewhere between 33 and 38 years. It was submitted on her behalf that $3000 should be allowed under this head, and that is not unreasonable. That amount will be allowed.

2. The plaintiff has submitted material in support of a claim for special damages in the sum of $215,835.37. It would have been of assistance to the court if her evidence supporting all the claims was tested. As will be evident I have some concerns with respect to some of the items claimed and in the circumstances I have adopted what may be described as a conservative approach in deciding what items should be allowed.

3. The evidence supports the allowance of medical expenses in the sum of $54.75 being Health Insurance Commission gap payments. It also supports the allowance of pharmaceutical expenses to date totalling $14,690.72.

4. So far as travelling expenses are concerned there is no doubt that the plaintiff is entitled to the ambulance costs claimed. She was flown to Brisbane for hospitalisation and her return fare to Cairns is clearly allowable, as are expenses associated with travelling to visit medical practitioners. In addition to those claims there is a total claim of $1,967 for air fares for her husband and daughter travelling to and from Brisbane. Given the plaintiff’s condition and the fact that she required hospitalisation so far from home I am satisfied that the claim made with respect to fares for both the husband and daughter satisfies the test in Wilson v McLeay (1961) 106 CLR 523. It was necessary for the husband to make arrangements in Brisbane relating to his wife’s welfare, and it was also necessary for her emotional stability that she have some access to her young daughter; that undoubtedly assisted in her rehabilitation. In consequence I will allow the full amount claimed, namely $2,731.50, for travelling expenses.

5. Whilst I can see some justification for the $949.85 claimed as “vehicle expenses” I am not satisfied that the evidence establishes an entitlement to recover that amount. I will however allow “rent expenses” in the sum of $4,140. As already noted the presence in Brisbane of her husband and child was an important part of the plaintiff’s rehabilitation and that was the rent paid whilst they were living for 6 months in Brisbane. Were it not for the accident and plaintiff’s hospitalisation the family would have resided in their Cairns home.

6. Again, whilst it may be possible to justify some telephone expenses, I am not satisfied on the evidence that the plaintiff is entitled to the $884.41 claimed. In the circumstances no specific entitlement is proved and nothing should be allowed under this head.

[26] I am satisfied that the evidence establishes the plaintiff’s entitlement to $7,457.50
for “equipment expenses” to date. That amount is allowed.

1. Certain modifications were carried out to the home in order to accommodate the use of a wheelchair. Pantries and cupboards were altered to provide wheelchair access, the bathroom was modified to accommodate wheelchair use, and the driveway was concreted, again to facilitate wheelchair access. In the circumstances I allow the full amount claimed of $5,457.

2. The plaintiff then claims $500 per year over 9 years for clothing alterations. I accept that there would have been some necessary alterations to clothing to facilitate dressing given the plaintiff’s condition, but I am not satisfied that the evidence establishes that amount. Doing the best I can on the evidence I allow $1,500 under this head.

3. Under the heading “miscellaneous expenses” the plaintiff claims $181.85. Much of that relates to mail redirection, and there is a claim for costs of transporting possessions from Brisbane to Cairns. I am not satisfied that the mail redirection costs are recoverable, but I allow the cost of transporting possessions from Brisbane to Cairns on 9 July 1991. I allow $51.85 under this head.

4. The plaintiff then claims various amounts she is legally obliged to refund to hospitals, the Royal Flying Doctor Service, the Commonwealth Rehabilitation Service, and the Health Insurance Commission. All of those amounts are justified and I allow the total of $174,787.79 under this head.

5. I allow in total for special damages $210,871.11.

[32] Actual out-of-pocket expenses amount to $36,083.32 and the plaintiff is entitled to
interest thereon. I allow interest in the sum of $19,484.80.

1. The plaintiff has not worked since the accident. She began receiving a Disability Support pension in March 1999 of $370 per fortnight; to date she has received approximately $8,800 from that source.

2. On leaving school in Victoria after completing Grade 10 in 1980 the plaintiff completed a 3 year apprenticeship as a florist. Part of that included a course at Box Hill College of TAFE. During the apprenticeship she worked for 3 years for Flowers Naturally and stayed there for some time after qualifying; she left that firm in 1984 and for some 2 years was employed by East Burwood Greenary. She was there until she moved to Cairns in 1985 where she obtained employment as a cook. She returned to Melbourne late in 1985 and was employed as a waitress. It was then that she fell pregnant with Tara and did not work again until 1987 when she moved to Cairns. From then until about June 1989 she had various jobs as a cook. Then in mid 1989 she became the manager of Smithfield Florist. She remained there for approximately 6 months. That was followed by a period working as a housekeeper at a tourist resort, and then in the Catering Department of the Cairns Base Hospital until the date of the accident.

3. After Tara’s birth the husband was regarded as the main income earner, and the plaintiff took part time or casual employment enabling her to spend time caring for her daughter. I am satisfied that at the time of the accident she had an intention to commence her own floristry business once Tara had reached school age. Her earnings from such a business would undoubtedly have been affected by any decision to have more children, though she may well have been able to keep a business going by employing staff.

4. The award wage for a florist in the Cairns region demonstrates a range for the period 1990 to the present of from $337.15 gross to $419.65 gross. That fairly represents the plaintiff’s earning capacity whilst working full time. That is not significantly different from the wages payable in the other areas in which she had found employment in the years immediately prior to the accident. If one adopts the award wage for a florist and applies it to every week from the accident to date of assessment, the plaintiff’s loss would be $145,148.30. However, the evidence does not satisfy me that she would have worked full time throughout the whole of that period. The probability is that until her daughter commenced school she would have, at best, worked part time. If at some stage thereafter she commenced her own business there would be expenses associated with that which may have resulted in her net return being less than the award wage for a period. Taking such factors into consideration I am of the view that the figure of $145,148.30 should be discounted by 25%. I therefore allow $108,861 for past economic loss.

[37] In calculating interest thereon the amount of the Disability pension received has to
be subtracted. I allow interest on past economic loss in the sum of $24,000.

1. Adopting a similar approach to that utilised by Ambrose J in Hornberg v Horrobin in assessing lost superannuation benefits for the period to trial I allow $4,500 under that head.

2. In calculating future economic loss one has to give effect to a number of discounting factors. If the plaintiff had remained married it is unlikely that she would have worked beyond age 60. If she had more children that would have interfered with her earning capacity during that period. One has also to have regard to the uncertainties associated with owning and operating a small business.

3. I have also had regard to the plaintiff’s current hope that she may be able to get some gainful part time employment. It may well be, for example, that she could earn something as a telephone operator or the like. However, given her condition it is highly unlikely that she will earn a substantial amount regularly over a period of time. However, her residual earning potential has to be taken into account in determining the figures to be adopted in calculating future economic loss.

4. Given all the circumstances it is appropriate to assess the plaintiff’s future economic loss on the basis of a net loss of $300 per week over 25 years. I allow $226,080 for future economic loss.

5. In addition the plaintiff is entitled to lost superannuation benefits for that future period. Again the calculation cannot be accurate, but adopting a similar approach to that for calculating loss of superannuation benefits to date I assess the future loss in the sum of $16,616.

[43] Next I turn to the question of past care pursuant to the Griffiths v Kerkemeyer
principle.

1. The plaintiff was in hospital in Brisbane until the end of November 1991. A claim is made that she required and received assistance from her husband, mother, father, aunt, brother and sister over the first 12 week period of hospitalisation for a total of 12 hours each and every day. Then it is claimed that she required and received assistance from her husband and mother for the next 14 weeks to the extent of 12 hours a day and for the remaining 18 weeks to the extent of 10 hours per day. The material does not satisfy me that assistance to that extent was either given or required during the period she was in hospital. As already noted the involvement of close relatives, particularly her husband and daughter, was a necessary part of her rehabilitation, but merely visiting the hospital and being present does not satisfy the Griffiths v Kerkemeyer test. Undoubtedly towards the end of the period in hospital when the plaintiff’s rehabilitation was significantly advanced, family members undoubtedly played a more significant role in her care. I reject the claim as made for the period from 29 December 1990 to 30 November 1991. Doing the best I can on the evidence (and I feel this may be even generous) I would allow a total of 8 hours per day during that period; that combines assistance given by all the family members. The average appropriate hourly rate during that period is $9. I allow $22,176 for the period from 29 December 1990 to 30 November 1991.

1. There is no doubt that for the first approximate 2 year period after her return to Cairns the plaintiff required fairly constant assistance around the home. That assistance was mainly provided by her husband and her mother. It is not unrealistic to allow 10 hours per day for that period. The average appropriate rate during that period was $9.50. For the period 1 December 1991 to 30 November 1993 I allow $66,500.

2. For the next period from 1 December 1993 to 30 November 1995 I would allow the 8 hours per day as claimed, though I think for the latter part of that period that may well have been on the high side. By this stage the plaintiff was able to do many things for her own care and enjoyment. For this period I will allow 8 hours per day and the appropriate hourly rate is $10. I allow $56,000 for this period.

3. Then for the period 1 December 1995 to 20 June 1999 the maximum assistance per day would have been of the order of 6 hours. These services were provided by the plaintiff’s mother after the marital separation. During this period the average appropriate hourly rate was $12. I allow $92,736 for this period.

4. From 1 July 1999 to the present the plaintiff was receiving assistance from her sister and also from Family Services. The claim there was for $18,124 and that is not unreasonable; it will be allowed.

[49] It follows that the total for past care is the sum of $255,536. I allow interest thereon
in the sum of $45,996.

1. So far as future care is concerned the claim is for 4 hours per day gratuitous care, probably to be provided by the plaintiff’s sister, and paid care of 17 hours per week as presently provided by Family Services. In all the circumstances that claim is not unreasonable. Taking into account the discounting considerations appropriate to a case such as this the cost of future care should be calculated for a 33 year period. I accept that the rate in calculating the gratuitous care should be $13.30 per hour weekdays and $19.82 per hour on weekends, a total of $424.56 per week. The paid care from Family Services should be calculated at $19.80 per hour. When all that is discounted over the 33 year period one arrives at the figure of $754,960. That should be allowed.

2. The plaintiff next makes a claim for approximately $170,000 being the cost of home modifications, including the capital cost of a swimming pool. Presently she resides in what was the former matrimonial home, and as noted above it is the subject of Family Court proceedings. It appears that in all probability the plaintiff will be in a position of having to acquire new residential premises at the conclusion of those proceedings. There is force in the architect’s evidence that it would be cheaper building a new small home designed to meet the plaintiff’s needs rather than purchasing some existing dwelling and then modifying it. In the light of that evidence the plaintiff has made her claim based on the cost of a purposefully designed house over and above the cost of an ordinary home. In the circumstances it is clear that the home should have wheel-chair access and be air conditioned. The plaintiff also claims the capital cost of installing a swimming pool. That is not a necessary item given the medical evidence. Something in the nature of a small spa pool could be justified. Given all of the architect’s costing and the matters to which I have referred, it is appropriate to allow $110,000 as the extra cost to be occasioned by the plaintiff in meeting her future home needs.

[52] On the assumption that a new home meeting the plaintiff’s needs is acquired I will
not allow anything for the recurring cost of home maintenance and depreciation.

1. The next major claim is that for the cost of future aids and equipment. A schedule has been placed before the court detailing the items claimed and the period after which they would have to be replaced. Generally the schedule is unremarkable, but there are some items which, in my view, should not be allowed.

2. A microwave oven and a dishwasher are now normally part of a kitchen and I cannot conclude that they are items specifically related to the plaintiff’s disability. Such expenses would be incurred in any event. For similar reasons I do not allow the costs of a dryer and a clothes airer in the laundry. Again, I do not conclude on the evidence that remote control television is an item which should be allowed; the plaintiff will incur no additional expense in relation to a television set because of her disability. As a pool is not being allowed the hoist must be rejected.

[55]	Making those adjustments to the plaintiff’s claim, and allowing such items over a 33 year period, I assess $75,234 as the cost of future aids and equipment.
[56]	The next claim is for future pharmaceutical expenses. The items as claimed are reasonable and will be allowed over a 33 year period in the total sum of $50,067.

1. As noted above the medical evidence is to the effect that the plaintiff on average will require 10 days hospitalisation per year. On current costs that will be at the rate of $611 per day. Over a year that works out at $117.50 per week. That should be allowed over a 33 year period. I allow $100,545.

2. The plaintiff also makes a claim of $529 per year as the cost of future medical care. She will need to see her general practitioner regularly, particularly because of ongoing urinary tract infections. The claim is not unreasonable. Over a 33 year period that comes to $8,702 and that amount will be allowed.

3. Finally, there will be additional costs associated with the plaintiff having holiday excursions. That is understandable, but it is difficult to put a precise figure on the cost. The claim is for $20,000 over the 33 year period. That in all the circumstances is not an unreasonable figure and it will be allowed.

4. The assessment can therefore be summarised as follows:

Pain and suffering and loss of amenities	$ 170,000.00
Interest	$ 15,300.00
Loss of expectation of life	$ 3,000.00
Special damages	$ 210,871.11
Interest	$ 19,484.80
Past economic loss	$ 108,861.00
Interest	$ 24,000.00
Loss of past superannuation	$ 4,500.00
Future economic loss	$ 226,080.00
Loss of future superannuation	$ 16,616.00
Past Griffith v Kerkemeyer	$ 255,536.00
Interest	$ 45,996.00
Future Griffith v Kerkemeyer	$ 754,960.00
Future housing needs	$ 110,000.00
Future Aids and Equipment	$ 75,234.00
Future Pharmaceutical expenses	$ 50,067.00
Future Hospital expenses	$ 100,545.00
Future medical care	$ 8,702.00
Future holidays	$ 20,000.00

Total $2,219,752.91

1. The husband, the second plaintiff, claims damages for loss of consortium. Such a claim is a relic of a bygone age, and the basis of the claim is difficult to reconcile with current social philosophies. Essentially the claim is one for the loss of such things as the comfort, society and assistance of the wife. As the judgments in Toohey v Hollier (1955) 92 CLR 618 demonstrate, the focus is more on the material consequences of the loss or impairment of the wife’s society rather than, for example, the emotional consequences for the husband. For that reason it has been said that one does not recover damages for distress of mind or diminished happiness consequent upon the wife’s injury.

2. In this particular case the loss must be limited to the period between the date of the accident on 19 December 1990 and the date of separation on 10 October 1997. The fact that the marriage was dissolved on 29 May 1999 and the second plaintiff has now remarried is irrelevant.

3. In support of his claim the second plaintiff refers to the fact that prior to the accident the parties were very active socially in the Cairns community and spent a deal of time together in outdoor activities. Following the accident they were unable to continue that lifestyle. Because of her disabilities the first plaintiff was disinclined to go out to dinner or the movies. That placed a strain on the relationship. As already noted sexual intercourse ceased as from the date of the accident. In those circumstances it is not surprising that the parties became isolated and eventually the matrimonial relationship broke down completely.

4. During the period between the accident and date of separation the second plaintiff performed a number of tasks in caring for his wife, but that has been taken into consideration in assessing the wife’s entitlement to damages under the Griffiths v Kerkemeyer heading. In consequence such factors cannot be taken into consideration when assessing damages for loss of consortium by the husband. To do so would involve duplication.

5. In recent times relatively moderate awards have been made for loss of consortium.

[66] Taking everything into account I assess the damages to which the second plaintiff is
entitled for loss of consortium in the sum of $4,000.

1. It follows that the first plaintiff, Jennifer Doreen Lebon, is entitled to judgment against the first defendant, Lake Placid Resort Pty Ltd, in the sum of $2,219,752.91 with costs to be assessed, and the second plaintiff, Jean-Noel Lebon, is entitled to judgment against the first defendant, Lake Placid Resort Pty Ltd, in the sum of $4,000 with costs to be assessed.