Leslie v Smalley

[2003] NSWCA 247

CITATION:	LESLIE v SMALLEY [2003] NSWCA 247
HEARING DATE(S):	20 August 2003
JUDGMENT DATE:	28 November 2003
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2
DECISION:	Appeal allowed in part.
CATCHWORDS:	DAMAGES - non-economic loss - additional cost of accommodation - additional cost of travel - no question of principle. ND
CASES CITED:	Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Marsland v Andjelic (1993) 31 NSWLR 162
PARTIES :	Scott Noel Leslie (Appellant) Samuel Joseph Smalley (by his next friend Elizabeth Mary Smalley) (Respondent)
FILE NUMBER(S):	CA 40263/02
COUNSEL:	J D Hislop QC/P Gormly (Appellant) P Hennessy SC/P Frame (Respondent)
SOLICITORS:	Lee & Lyons (Appellant) Heard McEwan (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	8417/00
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

40263 of 2002

MEAGHER JA
HANDLEY JA

Friday, 28 November 2003

Scott Noel LESLIE v Samuel Joseph SMALLEY

(by his next friend Elizabeth SMALLEY)

CATCHWORDS

DAMAGES – non-economic loss – additional cost of accommodation – additional cost of travel – no question of principle

FACTS

The plaintiff who was 19 at the time was seriously injured in a motor vehicle accident in 1997. He recovered damages of $4,139,430 at the trial. On appeal the defendant challenged components of this award including those for non-economic loss, the additional cost of accommodation, and the cost of travel. The appeal as to economic loss and the cost of care failed. The trial judge awarded 100% of a most extreme case for non-economic loss, $85,680 for the additional cost of accommodation, and $122,827 for necessary taxi travel. HELD: (1) The plaintiff’s injuries did not constitute a most extreme case and an award based on 85% of a most extreme case was substituted; (2) The plaintiff was entitled to the cost of adding an ensuite bathroom to an existing three bedroom house for use by a live in carer but nothing more for the additional cost of providing for his accommodation as injured and an award of $20,000 would be substituted; (3) The award of $122,827 for the cost of future taxi travel was disallowed in full as it would be reasonable for the plaintiff to purchase a car and use his full-time carer as his chauffer.

40263 of 2002

MEAGHER JA
HANDLEY JA

Friday, 28 November 2003

Scott Noel LESLIE v Samuel Joseph SMALLEY

(by his next friend Elizabeth SMALLEY)

Judgment

1 MEAGHER JA: I agree with Handley JA.

2 HANDLEY JA: The defendant has appealed from the assessment of the plaintiff’s damages by Ainslie-Wallace DCJ in a Motor Accident Act case. The plaintiff was severely injured on 26 April 1997 in a head on collision on the Princes Highway when he was 19. Liability was compromised by a verdict for the plaintiff with a 10% reduction for contributory negligence. The compromise was approved by Garling DCJ.

3 The trial judge assessed the plaintiff’s damages at $4,343,982. This was reduced by 10% for contributory negligence and increased by $229,846 for the agreed cost of fund management, resulting in judgment for $4,139,430. The following components were challenged:

Non-economic loss
(the maximum was awarded)

Future care - 12 months after trial

Thereafter for life

Economic loss

Past

Past superannuation

Future

Future superannuation

Accommodation

Travel

$296,000

$99,764

$2,457,131

$87,600

$7,696

$635,167

$75,829

$85,680

$122,827

Non-economic loss

4 Non-economic loss is defined by s.68 of the Motor Accidents Act as meaning pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. There was no loss of expectation of life, but the plaintiff suffered from the other heads of loss. He was clearly entitled, on any view, to an award based on a very high percentage of a most extreme case. Her Honour awarded the maximum on the ground that this was “a most extreme case”. Mr Hislop QC for the appellant contended that the proper award was 85-90%.

5 Before the accident the plaintiff was a fit, good looking young man who was popular with his peers and in a steady relationship with a young woman. He was a keen and active sportsman and gifted soccer player. He had commenced a pre-apprenticeship course with a view to qualifying as an electrical tradesman. As a result of the accident he suffered considerable brain damage, and facial disfigurement. He suffers from cognitive impairment and short-term memory loss. He is not able to live alone or look after himself. His longstanding girlfriend eventually broke off their relationship. His former friends have drifted away. He would like to marry but will not. He will never work.

6 He had poor vision in his left eye from childhood but now has impaired vision in both eyes. He cannot close or blink his left eye and must take eye drops in the form of artificial tears four times a day. He is totally deaf in his left ear and has left-sided tinnitus. He has a 10% loss of the efficient use of his right pelvis. He suffers from some loss of balance. He has no interest in reading or watching television. He largely amuses himself by playing computer games. All in all he has a formidable list of continuing disabilities.

7 On the other hand he does not suffer severe continuing pain. He had considerable pain in the early years associated with his injuries and operations. He suffers from left sided tinnitus but his treating specialist, Dr Tamhane, stated in 1998 that he will get accustomed to it and it will not be as distressing (blue 1/96). The plaintiff said it was very annoying (black 1/22). In March 1999 Dr Ho, his treating orthopaedic surgeon, said that there is “residual pain” in the right sacram area (hip) (1/121). The plaintiff said that he gets uncomfortable if he sits for too long and has to stand up and move around. He may develop osteoarthritis in this area in later years. He sometimes gets “some” pain in his jaw when chewing something hard (black 1/24). Dr Evans, who was qualified for the plaintiff, said in 1999 that he had mild discomfort in his left jaw (1/155). He has lost some of his sense of taste and smell but this may be more a matter of perception (1/148). He had an injury to his left hand and feels pain if he bumps two of his left fingers (1/29).

8 It is clear therefore that the plaintiff’s continuing physical pain is at a moderate level. However he does experience substantial mental pain. He gets depressed and from time to time cries in private when he is down. He knows that he has lost his pre-accident male friends and his longstanding girlfriend. He has no memory of events before the accident after early 1995. The plaintiff’s mother said that he does not feel “different” and does not recognise that he has brain damage (black 2/206), but the plaintiff’s own evidence was to the contrary (1/30). Her Honour found that he retained a degree of insight and some memory of his life before the accident (red 35). His life expectancy at trial of 55 years had not been effected but he will have to live with his disabilities for a long time.

9 The judge said, correctly, that “there is hardly any part of this young man’s life which has not been affected by the injuries he sustained in this accident.” She directed herself, correctly, that the court was not obliged to imagine “the most extreme case”. On the contrary s.79A(6) speaks of “a most extreme case”. My mind has fluctuated on whether the present is truly such a case but ultimately I have concluded that it is not. A number of matters are important. The plaintiff is mobile and is not in a wheelchair. He can walk, sing, dance, go ten-pin bowling, go on short simple errands, and attend to the physical aspects of his personal care and hygiene. He can play computer games. He is relatively free of physical pain.

10 In my judgment these matters should be recognised in the assessment. In these circumstances I have given careful consideration to the decision of the majority in Marsland v Andjelic (1993) 31 NSWLR 162, 167-70 (not referred to by counsel) that the award there of 85% of a most extreme case was erroneous and that appellant was to be assessed as “a most extreme case”. It goes without saying that a decision on one set of facts is no precedent for another, but this Court should endeavour to maintain a broad level of consistency. After much consideration I have reached the conclusion that there are significant and relevant distinctions between the two cases. In Marsland the plaintiff had left side paralysis, he could not walk safely and had a tendency to fall. His speech was poor. He would require periodic surgery for his impaired urinary function. His use of a wheelchair would increase and become substantial.

11 In these circumstances I have decided to adhere to my original view that this was not “a most extreme case”. I would substitute an award based on 85% of such a case.

Future care

12 The judge gave careful consideration to this issue. She considered that the plaintiff would live with his parents for about a year after her judgment. For this period she awarded the maximum permitted by the Act for the voluntary care that would be provided by the parents. She also awarded 6 hours a day for paid care for the same period. This award does not contravene the Act and, contrary to Mr Hislop’s submission, there is no doubling up. The provision for paid care will allow the plaintiff’s parents, in particular his mother, to resume something approaching a normal life. They had looked after the plaintiff on practically a full-time basis for five years following his discharge from hospital. The award for additional paid care is entirely reasonable and the appellant’s challenge to the awards of $99,764 fails.

13 The assessment of the appropriate level of care for the plaintiff after the first year (the second period) required the judge to consider a number of issues. She found that the plaintiff would have the greatest of difficulty negotiating his way in unfamiliar territory and would get lost. He has a fear of being left alone, particularly at night. To some extent he has overcome his fear of being left alone during the day and before the trial his mother was able to go out and leave him for a few hours a day. The defendant’s experts suggested that the plaintiff could be educated to overcome his fear at being left alone at night, but the judge said she could not find that “there was a reasonable possibility that in the future with the assistance of a behaviour modification regime” he would be able to do this.

14 She also found that there were many more difficulties facing the plaintiff in living on his own than simply his fear of being alone at night. He had a poor capacity to deal with unusual or unexpected situations and would be particularly at risk were he to be left alone for relatively long periods. The evidence traversed ten possible methods of providing for his care. Her Honour considered each and concluded that during the second period “the only reasonable care option for him is to have full-time supervision” and that “the two options which provide the plaintiff with full-time supervision are the only options which afford this young man the quality and dignity of independent living and which are also mindful of his safety”.

15 These findings were challenged by the appellant, but they were amply supported by evidence, and cannot be disturbed.

16 Mr Hislop said that the award for this period involved the assessment of future possibilities and probabilities and attracted the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (Malec v Hutton). This is correct. He then submitted that her Honour’s award made no allowance for the possibility that the need for care may be reduced as the respondent may be capable of being trained to overcome his fear of the dark or that this fear may be allayed if he were to live in a security block of home units. That is also correct. However I am not prepared to assume that her Honour overlooked the principles in Malec v Hutton particularly in the light of her findings that there was no reasonable possibility that the plaintiff would be able to overcome his fear of the dark and being alone at night. These show that her evaluation of the future left no room for the application of those principles.

17 The cost of care for the second period was also in dispute. On this issue the plaintiff tendered price lists of the Home Care Service NSW, Illawarra North Branch and a report from Carolyn Grinter, an occupational therapist, who gave oral evidence. The defendant tendered a report from Shirley Wruck, the manager of the Macquarie Nursing Service, Carlingford. The plaintiff contended for a rate of $2600 a week for a full-time carer allowing for time off and holidays, while the defendant contended for a rate of $2000 on the same basis. The judge adopted the higher rate for the reasons she gave.

18 The remaining challenge to this award was that it was costed “on the basis of a qualified carer”, that is with nursing experience.

19 This has not been established. Her Honour did not find that a carer with nursing experience was required and Carolyn Grinter did not give evidence to that effect. The price lists for the Home Care Service do not, in terms, cover carers with nursing experience. The only references to carers with such experience are in the report of Shirley Wruck (2/382-3) tendered for the defendant. The appeal against the award for care for the second period fails.

Economic loss

20 The plaintiff was undertaking a TAFE pre-apprenticeship electronics and electrical course when he was injured. The judge allowed for four years past economic loss during the apprenticeship he would otherwise have undertaken (the first period) at the rate of $400 net per week. His economic loss for the rest of his normal working life (the second period) was based on the average weekly earnings of an electrical tradesman with the conventional discount of 15%. The appellant submitted that in each case the judge should have taken the average award wage and should have adopted a discount of 20% for the second period.

21 The judge based the figure of $400 per week for the first period from the evidence of a contemporary of the plaintiff’s who worked as an electrician at One Steel who had been paid that rate on average during his apprenticeship. Work at the steel works is noisy and dirty and one could infer that the over award rates, at least in part, were intended to compensate for this. The young electrician also said that there was plenty of work for electricians at the steel works. The Court is entitled to know that the metal industry, including One Steel, is a major source of employment in the region. It would be reasonable to infer that the over award rates paid at the steel works would tend to flow on to other employers in the metal industry. The award for the first period cannot be disturbed.

22 The appellant criticised the use of average weekly earnings of electrical tradesmen for the second period but I can discern no error. The average will be inflated by the earnings of successful self employed contractors, but the judge was entitled to rely on the potential demonstrated in the plaintiff’s reports from his early years in high school to find that he would have at least remained at the average level. The award figures relied upon by the defendant do not include over award and overtime earnings, which the plaintiff had the opportunity of earning at One Steel and elsewhere, which increased average earnings above the award figures.

23 There was no evidence, other than the plaintiff’s age when injured, and the long period before normal retirement, to support a higher allowance for contingencies. The appeal from the award for the second period fails. Mr Hislop abandoned the appellant’s challenges to the awards for loss of superannuation (T 25).

Accommodation

24 The judge found that the plaintiff’s need for care required the provision of separate accommodation for the live-in carer in the form of a bedroom and ensuite bathroom. She allowed $90,000 discounted to a present value for the future cost. This was based on the difference between the cost of a house in the Dapto area where the plaintiff’s parents had lived since they arrived from England and “a house that would provide for the plaintiff and a live-in carer”. She found that the plaintiff would probably choose to live close to his parents.

25 The appellant’s challenges to this award, other than those disposed of by my conclusions on the care issues, were that a three bedroom one bathroom house would be sufficient for two adults, and if not the award should have been based on the cost of adding an ensuite.

26 Carolyn Grinter, the occupational therapist, said in her report (blue1/202E) that a live-in carer will require their own bedroom and bathroom. This evidence was not challenged. The defendant’s only evidence on this issue was given in report form by Shirley Wruck who said that a carer should have his/her own comfortable room with hanging space and drawers for clothing and personal effects (2/383). It may not be easy to attract and retain the services of appropriate carers for the plaintiff and their living accommodation should be attractive and comfortable. The judge was entitled to accept the evidence for the plaintiff and the appellant’s submission that it would be unreasonable to provide an ensuite for the live-in carer fails.

27 The plaintiff’s evidence which formed the basis of this award was given by an estate agent in a report dated 19 September 2001 (blue 1/48). He valued a four bedroom, two bathroom house in Dapto close to the shops at between $320,000 and $280,000. He also valued the three bedroom, one bathroom house where the parents lived at $175,000 giving a difference of between $145,000 and $105,000. The plaintiff’s case was that uninjured he would probably have married and purchased a three bedroom, one bathroom house but now it was reasonably necessary for him to purchase a four bedroom, two bathroom house and the award was properly based on the difference in cost.

28 The defendant’s evidence was from a builder, in a report dated 12 November 2001 (2/396), who stated that the cost of adding a bedroom with an ensuite bathroom to an existing two or three bedroom house in the Wollongong area “assuming an average site” would be $40,000 plus or minus 20%. An ensuite on its own was said to cost $12,000 plus council fees, drawings etc.

29 The judge allowed $90,000 discounted to a present value as the reasonable differential between a house in Dapto such as the one where the family have lived since they arrived and a house which would provide for the plaintiff and a live-in carer. This award was based on the price differential identified by the estate agent.

30 If the plaintiff had not been injured he would have purchased a home and paid it off over many years from his earnings. He has been awarded damages to replace those lost earnings and those damages must be the primary source to fund the purchase of his post injury accommodation. The plaintiff’s compensable loss is for the extra cost incurred in providing accommodation suitable for his needs as injured.

31 A four bedroom house provides no benchmark for the plaintiff who will not marry or have children. His needs are for a house with three bedrooms, two for sleeping, and one for his computer, with two bathrooms, one for himself and an ensuite for his carer. With respect the cost of a four bedroom house was irrelevant and the judge erred in placing any reliance on the cost of such a house.

32 There is no evidence that three bedroom houses with two bathrooms including one ensuite are available in the Dapto area. However there was also no evidence or even suggestion that three bedroom, one bathroom houses were not readily available and the plaintiff’s parents had such a house. Prima facie therefore the plaintiff’s damages on this head are the reasonable costs of adding an ensuite bathroom to such a house.

33 The judge rejected this measure of damages as unreasonable because the cost estimate excluded consideration of whether or not “the house and land can be extended without further cost” (red 69). The question of extending the land can hardly arise but the judge may have intended to refer to the availability of sufficient land around the house to support the extension within planning and building approval constraints. However there is no evidence that this would be a problem, and the builder’s report suggested otherwise because it was based on an existing two or three bedroom house in the Wollongong area assuming an average site. Moreover it envisaged adding a bedroom and ensuite to the first or an ensuite to the second. The judge’s finding that an award on this basis would be unreasonable was contrary to the evidence and her award must be set aside, and the damages reassessed.

34 In my judgment the award on this head of damages should be based on the cost of adding an ensuite bathroom, to an existing three bedroom, one bathroom house. The builder’s estimate for the cost of adding a bedroom and ensuite ranged from $32,000 to $48,000 to reflect a margin of plus or minus 20%. The direct cost of the ensuite itself was said to be approximately $12,000. If an ensuite alone were added the cost of drawings and council fees would still be incurred. In reassessing I would adopt the builder’s worse case scenario (plus 20%) and include $5000 for the cost of the drawings and fees to give a total of $19,400 which I would round up to $20,000.

Travel

35 The plaintiff claimed for the additional cost of taxi travel above the running cost of a motor vehicle he would otherwise have owned and driven. He cannot drive himself and will have to be driven by others. The judge directed herself, in accordance with Marsland v Andjelic (1993) 31 NSWLR 162, 180, that the damages under this head were to be calculated by deducting the cost of running a car from the cost of taxis which the plaintiff will now have to use.

36 The plaintiff claimed on the basis of 100km of taxi travel a week. The judge found that the plaintiff would use taxis to this extent, and that the difference in cost each week would be $123.73. On this basis she allowed $122,827.

37 The judge found that the plaintiff, if uninjured, would have purchased and driven a car. The cost would have been met out his net earnings. He has no need to travel additional distances because of his injuries and apart from holiday periods his travelling will be restricted within a fairly narrow radius of his probable home at Dapto. He will need to travel to the club, the nightclub, the gymnasium, and to the homes of his parents and siblings. He is likely to travel less than he would have uninjured.

38 His cheapest and most effective method of travel would be in his own car driven by his carer. The judge said that it was not likely that all of the plaintiff’s outings would be in the company of the carer, and he might like to attend the club on his own but he needed someone to supervise his goings out and comings in. This is true but she then concluded, by way of inference, that the plaintiff would use taxis “either with the carer or alone”.

39 Since the defendant is having to pay for a full-time carer, who for much of the time will only be on stand by, there is no reason why the carer should not also act as the plaintiff’s chauffer. He could drive the plaintiff to the club or any other destination, and if he was not going to stay, return at a pre-arranged time to collect him and drive him home. This should prove to be safer and more congenial than allowing the plaintiff to find his own way home by taxi. In the circumstances of this case Marsland v Andjelic does not require any award of damages under this head. The judge erred in allowing these damages and I would set aside her award.

Conclusion

40 Accordingly the appeal must be allowed in part, but otherwise dismissed. The variations in the assessment will require the amount to be allowed for the cost of fund management to be recalculated. This amount was agreed below and this Court cannot undertake this exercise.

41 The appellant’s success has been modest in relation to the overall verdict, and the appeal on the major items of economic loss and care failed. In the circumstances there should be no order as to costs.

42 The parties are directed to bring in short minutes to give effect to these reasons before Handley JA on Friday, 12 December 2003 at 9.30 am unless in the meantime an agreed minute of judgment is filed with the Registrar.

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Last Modified: 12/11/2003