Leventeris v Terry
[2010] SADC 115
•27 August 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LEVENTERIS v TERRY
[2010] SADC 115
Judgment of His Honour Judge Boylan
27 August 2010
TORTS - NEGLIGENCE
Plaintiff suffered neck and shoulder injury in chain motor vehicle collision - whether injuries occurred as a result of defendant's negligence - whether plaintiff contributorily negligent.
Claim for past voluntary services only - basis upon which award for past voluntary services to be assessed.
Held - defendant negligent. No contributory negligence.
Award for past voluntary services $86,000.00.
Wrongs Act 1936 s24H; Survival of Causes of Actions Act 1940 Sections 2 and 3, referred to.
Watts v Rake (1962) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Van Gervan v Fenton (1992) 175 CLR 327, applied.
LEVENTERIS v TERRY
[2010] SADC 115
Sophia Leventeris suffered injuries in a motor vehicle accident and claimed damages, alleging that Mr Terry caused her injuries by his negligent driving. I have come to the conclusion that Mr Terry was negligent and is liable to pay damages but, as Mrs Leventeris died after I reserved judgment, the only damages her estate can claim are for past voluntary services rendered to her by her husband.
At trial, nearly everything was in dispute: the circumstances of the collision; whether Mrs Leventeris was herself negligent; which of two collisions caused Mrs Leventeris’s injuries; the extent of those injuries; the extent and causes of her subsequent incapacity; and the basis upon which an award of damages for past voluntary services is to be assessed.
The Accident
On 23 December 2002, Mrs Leventeris was driving a Subaru car west along Daws Road at Mitchell Park when she was involved in a chain collision. There were four cars involved. The leading car was a Holden Commodore; behind it was a Honda driven by Mrs Patricia Grainger; behind Mrs Grainger’s car was the Subaru; and a Nissan driven by the defendant Terry was the last car. The Nissan collided with the rear of Mrs Leventeris’s Subaru . The chief matter in dispute about the circumstances of the collisions is whether Mrs Leventeris’s Subaru collided with the rear of the Honda before the defendant’s Nissan collided with the rear of the Subaru.
I heard evidence from four witnesses about the circumstances of the collisions: Mrs Leventeris, Mrs Grainger, Mr Terry and Mr Christopher Hall, an accident reconstruction specialist.
I begin with Mrs Leventeris’s account. At about 11.00 a.m. on the 23 December 2002, she was driving west along Daws Road, approaching its intersection with Marion Road and Oaklands Road. Daws Road changes its name to Oaklands Road on the western side of the intersection. As Mrs Leventeris approached the intersection, the traffic lights were red for westbound traffic on Daws Road. She was driving in the left-hand lane and stopped her car. There were five or six cars ahead of her. After she had stopped her vehicle, she was one to one and a half metres behind the rear of the car in front of her, Mrs Grainger’s Honda. The traffic lights changed to green and the cars in front of Mrs Leventeris began to move forward across the intersection, as did Mrs Leventeris. Then, owing to a manoeuvre by a taxi somewhere ahead of her, the line of cars stopped suddenly. Mrs Leventeris was then travelling at a very low speed. The car in front of her stopped. Mrs Leventeris braked, but not heavily: owing to her low speed, she did not have to brake heavily. Her car came to a stop less than half a metre, behind the rear of the Honda. When she stopped, Mrs Leventeris had come through the intersection and was just on the western side of it, on Oaklands Road. Immediately after she had stopped, she was looking to the right as she wanted to move into the right-hand lane to get clear of the stationary line of traffic. Her body was turned to her right and her left arm was on top of the steering wheel. She was probably leaning forward. While she was in that position, the defendant’s Nissan drove into the back of her vehicle and she was thrown forward, hitting her left forehead on the A-Pillar. Her car was then pushed into the car in front, the Honda. That is, after she had hit her head, the front of her car collided with the rear of the Honda. Mrs Leventeris was wearing her seat-belt at the time of those collisions.
Mrs Patricia Grainger was driving her Honda west, also in the left lane, along Daws Road. She does not remember if she had to stop for a red light but remembers having to cross the intersection at Marion Road. She was travelling behind a Holden Commodore. She saw a taxi either going into or coming out of a shopping centre to her left. On account of the taxi’s manoeuvre, a Holden Commodore in front of her had to stop suddenly. Mrs Grainger braked and stopped. She did not hit the Commodore at that stage. She then felt a first bang from behind, and then a second bang, not quite as severe as the first one. As she felt each of those bangs, she bounced forwards and backwards. Her car was pushed into the rear of the Holden and was extensively damaged at both back and front. According to Mrs Grainger, the accident occurred outside a cheesecake shop on the southwest corner of the intersection. Therefore, the time of the collisions, her car was well beyond the intersection. She did not think that her brakes screeched when she stopped. Mrs Grainger was adamant throughout her evidence that she did not hit the rear of the Holden before her car had stopped. That is, she managed to stop without hitting the Holden and only hit the Holden when Mrs Leventeris’s car pushed her Honda into the back of it.
Mr Terry was also driving west along Daws Road, at about 60 km per hour. He, too, was in the left-hand lane. He said that he remembered following Mrs Leventeris’s car towards the intersection, about two car lengths behind her for 200 to 300 metres. As he approached the intersection, he started to slow down, as did the traffic in front of him. The lights were green. He slowed to about 35 to 40 km per hour. He heard a screech and a bang; then another screech and another bang; then he realised there was an emergency and he braked. His car ran into the back of Mrs Leventeris’s. He was sure that the screeches and the bangs came from ahead of him. Immediately before he heard them, he was one and a half to two car lengths behind Mrs Leventeris’s car. He was not tailgating. After the accident, his car came to rest in the intersection. Mr Terry said in cross-examination that it was not his memory that he joined a line of cars taking off from a red light. He did not think that the line of cars was stationary as he approached the rear of the line. He did not remember the lights being red. According to him, his collision with Mrs Leventeris’s car occurred in the intersection and not beyond it in front of the cheesecake shop. When describing the two bangs, he said that there was a smaller bang first and then a louder one and it was after he had heard that louder bang that his car collided with Mrs Leventeris’s car. He was quite sure that that was the correct sequence of events.
Mr Christopher Hall, mechanical engineer, is an expert in the field of accident reconstruction. He was asked to provide an opinion about the order in which the various collisions occurred, the severity of the impacts, and the likelihood of an injury arising from the front-end collision or the rear-end collision. I shall return to the third of those matters later.
Mr Hall was very careful in his evidence. He emphasised, in his report and in his evidence, that his opinions were based on limited information. Nevertheless, he was able to conclude that it was more likely that Mrs Leventeris’s Subaru collided with the rear of the Honda before it was struck from behind by the defendant’s Nissan. Owing to the limited information available to him, Mr Hall was not able to estimate the specific severity of the impact or the relative severity of the impacts between, on the one hand, the Subaru and the Honda and, on the other hand, the Nissan and the Subaru.
I have considered the evidence of those four witnesses and have come to the conclusion that Mrs Leventeris’s Subaru collided with the Honda before the defendant’s Nissan collided with the rear of the Subaru. I have, therefore, rejected Mrs Leventeris’s account of the collisions.
I shall have much more to say about Mrs Leventeris’s evidence. I emphasise here that, in my view, she was an honest witness but that on a number of matters she was unreliable. Her account of the collisions is wrong. She was very shocked by the collisions and was very distressed after them. She had to take a tablet, probably for her heart condition, shortly after the collisions, when she was sitting on a ledge near the roadside. An ambulance took her to Flinders Medical Centre where she was examined before being discharged some hours later. There is no doubt that she suffered an injury in the collision and was in pain after it. I find her account of what she says happened between the collisions most improbable. She said that, after stopping her vehicle behind the Honda without colliding with it, she turned her body to her right, looking to see if she could get out of the left-hand lane into the right-hand lane. But, at that stage, she had just managed to stop less than half a metre behind the Honda. With so little distance between those two cars, she could not have hoped to have turned out of the left-hand lane into the right-hand lane before cars ahead of her moved forward. Further, account of the accident is inconsistent with that of Mr Terry and Mrs Grainger. It is also, of course, inconsistent with Mr Hall’s opinion. While I acknowledge that none of the accounts of the collision given by the eyewitnesses is completely satisfactory, I find that Mrs Leventeris’s vehicle collided with the Honda before the defendant’s Nissan collided with the Subaru.
Negligence
In considering the issue of negligence, that is, the possible negligence of the defendant, I confine myself to the collision between his car and Mrs Leventeris’s car. At the outset, I accept Mr Leventeris’s evidence that she and the cars ahead of her had had to stop for a red light. While Mrs Grainger, driving the Honda, could not remember whether or not she had had to stop, Mrs Leventeris gave evidence that the line of cars stopped. Although I am wary of Mrs Leventeris’s account of the accident, because she was so distressed by it, I accept her evidence that she had stopped at a red light. It fits with the defendant’s evidence that, although when he looked at it the traffic light ahead of him was green, he had to slow down for a line of cars about to cross the intersection. Accordingly, as he approached the intersection, he was coming up behind a line of cars which had been stationary and which had just begun to move forward after the change of lights.
Unfortunately, there is very little evidence about Mr Terry’s speed. He was driving at the speed limit, 60 kph, as he approached the intersection. He had to slow down. There can be only one reason for that: the traffic ahead of him was travelling more slowly than he. When asked about his speed immediately before he realised that he was in an emergency and had to brake, he was unable to give an estimate. He said that he does not think he could have been travelling at more than 35 to 40 kph because his crash repairer told him that, had he been travelling at a greater speed, his airbag would have deployed. There was no objection to his evidence about what the crash repairer said but I am not prepared to use it. It is inadmissible hearsay and possibly very unreliable. There is, therefore, no evidence from Mr Terry about his speed. He did not, however, suggest that he was travelling at anything much less than 35 to 40 kph. He failed to slow to an appropriate speed. That may be understandable because he was probably expecting that the traffic ahead of him would increase in speed as he approached it. But that expectation does not absolve him from the heavy duty placed upon a following driver to drive at an appropriate speed and at such a distance from the rear of the leading car that the following driver can stop, in an emergency, without colliding with the leading vehicle. In my view, the usual duty applying to a following driver applies in this case and I find that Mr Terry was negligent and was wholly responsible for the collision between his car and Mrs Leventeris’s.
Contributory Negligence
It was suggested that Mrs Leventeris was negligent by driving in such a way that, when faced with an emergency ahead of her, she could not slow and stop in the usual way; that is, by slowing gradually and warning Mr Terry by the use of her brake lights that she was doing so. It is said that she created a sudden and unexpected hazard in the road ahead of Mr Terry.
It is not uncommon, in a line of cars, that one of them will have to stop suddenly. The duty of each driver is to be able to stop in an emergency without colliding with the car ahead. As to the collision between his car and Mrs Leventeris’s, I find that Mr Terry was wholly liable for the accident. She was not contributorily negligent.
Causation: Which Collision Caused the Injuries?
Having found that Mr Terry was negligent, and being satisfied that Mrs Leventeris suffered injury in the collision, I must decide various issues of causation. The plaintiff argued that she suffered her injury as a result of the collision between her car and Mr Terry’s. The defendant submitted that it is more likely that she suffered her injuries before the collision with Mr Terry’s car, namely, when her car collided with the Honda in front of her. Alternatively, the defendant argues that the plaintiff cannot discharge her onus of proof in that she is unable to establish that it is more likely that she suffered her injuries in the Nissan collision than in the Honda collision.
The clear effect of the evidence of both Mr Hall and Dr Lim is that, all other things being equal, the occupant of a motor car is much more likely to suffer injury from a rear end collision than from a front end collision. I accept that evidence but it does not, of itself, resolve the causation issue here. Because he had inadequate information, Mr Hall was unable to form any opinion about the severity of any of the impacts in the chain collision or about the relative severity of those impacts. But in my view, it is possible to conclude that the impact between the defendant’s car and the plaintiff’s was more severe than the impact between her car and Mrs Grainger’s Honda. Little damage was done to the first car in the chain, the Commodore. I infer that from the fact that the driver did not even remain at the scene. He simply drove on. There was significant damage to both the Honda and the Subaru. Both were “written off”. The Commodore, the Honda, and the Subaru cannot have been travelling very fast at the time of the various collisions. After all, they had been stationary and were moving away from their stationary positions after the lights had turned green. The evidence about the precise location of the various collisions is unclear. Mr Terry, the defendant, who seems to be the least upset by the accident of the various witnesses said that his car ended up in the intersection. The plaintiff, whose evidence about the accident is generally unreliable on account of her injury and her distress, says that her car had passed through the intersection and was a little way into Oaklands Road. Ms Grainger puts the collisions in which her car was involved as having occurred well into Oaklands Road, opposite the Cheesecake shop. I prefer Mr Terry’s evidence. As I said, he was the least upset of the eyewitnesses who gave evidence. He had a clear memory of having to remove his car from the intersection itself and the accident’s having occurred in or just on the western side of the intersection accords with his evidence that he had to slow for the line of traffic as he approached the intersection. I find that the collision between his vehicle and Mrs Leventeris’s vehicle occurred in the intersection. In those circumstances, none of the Subaru, the Honda and the Commodore could have been travelling at much speed at all at the time of the collisions. Mr Terry, I find, was travelling at a significantly greater speed. In those circumstances I find that the impact between his vehicle and Mrs Leventeris’s vehicle was more severe than the impact between Mrs Leventeris’s vehicle and the Honda. Given those findings, I find that, on account of the evidence of Mr Hall and Dr Lim to which I have referred, that it is more likely than not that Mrs Leventeris suffered her injuries when Mr Terry’s vehicle collided with hers.
Sophia Leventeris
Mrs Leventeris was nearly 53 at the time of the collision and nearly 61 when she died on Christmas Day 2009. She was born in Greece but came to Australia when she was 4. She was educated here, doing all of her secondary schooling at a business college. She married when she was 17 and she and her husband had two children, a son and a daughter, both now married with children.
I need not describe Mrs Leventeris’s work history in any detail as there is no claim for economic loss. But the evidence is that she was always industrious. After finishing school, she worked mainly as a book-keeper and sometimes in retail stores in fur departments. Later, she worked in businesses of hers and her husband’s. She did not work at all after the motor vehicle accident in December 2002.
Injury
I find that, in the collision, Mrs Leventeris suffered injury to her left shoulder and neck and, later, suffered from a chronic pain disorder on account of those injuries.
Pre-existing Medical Conditions
In about 1988, Mrs Leventeris was injured when she was struck by a fork-lift at Big W. After that accident, she spent five weeks in hospital, five to six months in a wheel-chair and then some months on a walking frame. For some of the time after that accident, she took medication for depression. As a result of the accident at Big W, she suffered from back pain. She sued for damages for her injury but that claim was unsuccessful.
Other than lending occasional assistance to her son and daughter in their businesses, Mrs Leventeris did not work after 1992, the year in which she and her husband’s business failed. From that time up until the car accident she suffered from lower back pain and a heart condition. The lower back pain, which had been caused by the fork-lift accident, eventually became stable. Mrs Leventeris managed that condition by being careful how she moved and by taking pain killers when needed. While her evidence was that the condition had stabilised some years before the 2002 motor vehicle accident, she said that it could still be triggered: she could have occasions of severe pain when she would be unable to do anything for some time. She also suffered from angina and, on two occasions, had been rushed to hospital with a suspected heart attack. For many years before 2002 she was taking medication for angina. Mrs Leventeris told me that she had no problems with her neck or shoulder before the 2002 accident. Nor did she suffer from anything but occasional headaches before that accident. Further, apart from taking anti depressants for some months while recovering from the 1988 accident, she had never suffered from any form of mental illness.
Before the motor vehicle accident in 2002, and despite her heart condition and lower back problem, Mrs Leventeris led a full life. She ran the house and attended to the household’s business affairs. She enjoyed a number of hobbies: tapestry, sculpture, painting and sewing. She regularly babysat for, and enjoyed activities with, her grand-daughter.
I turn to the household duties which she was able to do in a little more detail.
Before the motor vehicle accident in 2002, Mrs Leventeris was living with her husband in a Unit at Ascot Park. Mr and Mrs Leventeris had bought that Unit in about 2000. There are two bedrooms and a full bathroom upstairs. The kitchen, laundry, a second lavatory and living areas are downstairs. With the exception of the wet areas, the whole house is carpeted, including the staircase. Mrs Leventeris did most of the general housekeeping including mopping floors, scrubbing bathrooms, vacuuming, some of the window cleaning, washing and ironing, cooking, shopping, and very light gardening. She was a scrupulous housekeeper, regularly taking down the curtains to wash and iron them, regularly emptying the pantry shelves and all shelves in the kitchen to clean them and all items on them. She regularly cleaned the skirting boards. She kept the house in immaculate condition. She had no problems driving a car and she regularly babysat for her son’s young daughter.
Mrs Leventeris’s evidence was that, owing to the injuries she received in the motor vehicle accident, she was unable to do much housework at all and she had difficulties with other activities, including cooking and shopping.
Reliability and Credibility of Mrs Leventeris
Mrs Leventeris and other witnesses were cross-examined at some length with a view to demonstrating that Mrs Leventeris was an unreliable witness. The defendant relies on a number of matters in his argument that she is unreliable. They include the following.
Mrs Leventeris claims not to be able to remember anything that happened from the time she got out of her car after the accident until the time her husband collected her from the Flinders Medical Centre later that day. But it appears from the hospital notes that she gave an account of some of those events to staff at the hospital. It was also suggested that she gave an account of those same events to an investigator, Mr Doig, who spoke to her some weeks after the accident. I ignore that interview because the relevant document was not tendered. The defendant argued that Mrs Leventeris has falsely claimed a loss of memory in an effort to avoid apparent admissions made by her about the circumstances of the accident when she was at the hospital.
Although she gave evidence at some length about ongoing problems with her lower back in the three years or so leading up to the motor vehicle accident she failed to make any mention of her low back condition to a number of doctors who saw her in the years before the trial. In particular she failed to mention it to Dr Blakemore, psychiatrist, Associate Professor Bauze, orthopaedic surgeon, and Mr Darren Richter, an occupational therapist who assessed her needs and abilities.
Some parts at least of the history she gave to Dr Felix Lim, orthopaedic surgeon, seemed different from the history she gave in court. It was argued that she also told Dr Lim that she had played tennis occasionally before the accident whereas, in fact, she had not played social tennis since the injury at Big W in 1988. She also told Dr Lim that she spent her days “watching TV and doing painting”. In evidence she said that she had done no painting although she varied that by saying that she had “tried a little”.
She gave evidence about the effort involved in her hobbies of tapestry, sewing and sculpture. The effect of her evidence was that the injuries she suffered in the motor vehicle accident prevented her from doing any of those activities. But, in cross-examination, she gave evidence about a condition in her wrists and hands – perhaps carpal tunnel syndrome – which resulted in pins and needles and numbness. She said that that condition had first appeared in 2004.
Mrs Leventeris told me that she would like to travel and she gave some evidence about her travels before the accident. She failed to mention when she was giving evidence on that topic that, in July 2003 she had travelled to Greece to attend her daughter’s wedding and she had told Mr Richter that she had not had any holidays since the car accident.
I have considered all of those matters, and other less prominent matters, carefully. Some of them do not bother me. For example, I do not think there is anything sinister in Mrs Leventeris’s having failed to mention the travel to Greece for her daughter’s wedding. I heard evidence about that trip from her daughter, whose credibility has not been challenged. Leah Leventeris’s account of her mother’s behaviour while she was in Greece supports Mrs Leventeris’s evidence that it was not a holiday. Her only daughter was being married. She and her husband could not afford for both of them to travel to the wedding and, according to her husband, it was almost a duty for her to go. She could not have enjoyed the travel. She had to stay overnight in Singapore to break the journey and was unable to deal with her own luggage. Her account of the trip accords with her daughter’s description of it.
But two of those matters have caused me to approach Mrs Leventeris’s evidence with caution: her failure to mention her lower back condition to various doctors and her claim not to remember much of what happened immediately after the accident.
There is no doubt that Mrs Leventeris did not mention her lower back condition to a number of doctors. Her failure to do so troubled me at first. But, having considered her evidence together with that of her husband and daughter, her failure has not caused me to doubt the reliability of her evidence about the effects of her injuries. Her claim for damages after the accident at Big W was unsuccessful. She perceived that the insurers, who did not accept that she had suffered any long term injury in that claim, asserted throughout this claim that she had suffered such an injury and that that earlier injury caused or largely contributed to her later incapacity. Indeed, in evidence, she protested to me about that perceived approach to her claim. In my view, owing to her previous experience, she was unwilling to volunteer to doctors information which she thought was irrelevant but which might be used against her. Her unwillingness must be considered along with her belief about the cause of her incapacity. I have no doubt that Mrs Leventeris honestly believed that her incapacity was caused solely by Mr Terry’s negligence. Given that honest belief, she was not being dishonest when she did not mention her low back condition to doctors. The evidence of her husband and daughter demonstrate the honesty of her belief. Their evidence was that, before the accident, and despite her lower back problems and, indeed, her heart condition, Mrs Leventeris was doing the lion’s share of the housework and leading a fairly active life. In those circumstances, while I accept that she did have bouts of quite debilitating low back pain in the three years or so before the motor vehicle accident, neither that back pain nor her heart condition was much interfering with her life. While those conditions bothered her, she coped with them. Given her experience with the previous claim and the fact that she was in fact coping before the car accident, I do not draw any inference adverse to her credibility on account of her failure to tell the doctors about her low back problem.
The other feature of her evidence which worried me was her asserted claim that she does not remember much of what happened immediately after the accident. But I am not prepared to disbelieve her on that account. It was many years between the accident and trial. Mrs Leventeris has seen many doctors and other professionals. No doubt, she has discussed the matter with others, including her family. I do not now think that she would be able to say what she did remember as opposed to what she had been told by others about what happened on that day. On the issue of liability, given my findings, it does not matter.
One other aspect of her evidence needs to be mentioned. Mrs Leventeris said that on arrival back at home on the day of the accident, she began vomiting and continued to vomit on and off for a few days. She made only faint efforts to get in touch with a doctor and did not go to hospital. One might expect that a woman in that condition would be worried and would have sought medical treatment. It was, of course, Christmas. Mrs Leventeris said that she did not want to attend hospital in case she was admitted. That evidence fits, I think, with some evidence given by both her daughter and her husband, albeit on different topics. When Leah Leventeris was living in Greece and her mother was rushed to hospital after a heart or angina attack, her parents did not tell her about it. It seems plain from that that Mr and Mrs Leventeris were anxious not to worry her. Mr Leventeris gave evidence that his wife was not the sort of woman to complain. Putting those pieces of evidence together, I do not find it especially surprising that Mrs Leventeris chose not to make more serious attempts to see a doctor or to attend hospital during the period of vomiting after the collision.
I have considered all the issues of credibility which were argued before me and have approached Mrs Leventeris’s evidence with caution. When one stands back and looks at the general effect of her evidence, especially her evidence about the difference between her condition before the accident and her condition after the accident, and compares it with the evidence of her husband and her daughter, Mrs Leventeris’s evidence is reliable.
I pause here to mention the defendant’s submission that I should draw an inference adverse to Mrs Leventeris’s case because she did not call her general practitioner to give evidence about her health, and especially about her lower back condition, before the motor vehicle accident. I am not prepared to do so. Indeed, it is unnecessary for me further to consider the submission. I accept that, whatever her pre-accident health was, she was coping.
I find that, in the three years or so before the motor vehicle accident, and despite her lower back and heart conditions, Mrs Leventeris was doing most of the housework, some 80% of it. I find that, in that same period, she suffered from lower back pain on occasions. She also suffered from a heart condition which required her to take medication. She adjusted the way in which she did her housework and other chores and the times at which she did them to suit those conditions. I find that, in the three months immediately after the accident, on account of her injuries, Mrs Leventeris was almost totally dependent on her husband, not only for housework and other domestic chores but also for bathing, dressing and grooming. Thereafter, her condition improved somewhat and she resumed some housework and domestic chores but her husband continued to do much of such work, including some cooking. She was able to manage personal grooming. Both Mr and Mrs Leventeris did the housework and other chores significantly more slowly than would a commercial cleaner or cook; he, because he suffered from a back condition as a result of which he received a disability pension; and she, on account of the injuries received in the motor vehicle collision.
I find that, as a result of the defendant’s negligence, Mrs Leventeris became incapacitated to such an extent that she needed the assistance which her husband gave her. The assistance given by her husband was reasonable in the circumstances.
Mrs Leventeris died of a heart attack on Christmas Day 2009. The fact that her heart disease caused her death is irrelevant to her estate’s claim. As I have said, I accept her evidence that she was managing with her heart condition, as she was coping with her low back condition. I find that neither of those conditions, either separately or in combination, contributed to her incapacity after the motor vehicle accident.[1]
[1] See Watts v Rake (1962) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
Past Voluntary Services
A claim for past voluntary services survives for the benefit of Mrs Leventeris’s estate.[2] The damages payable are subject to the statutory limitations.[3] All else that survives is her claim for interest and special damages.
[2] Survival of Causes of Action Act, Sections 2 & 3
[3] At the time s.24H of the Wrongs Act, 1936 applied.
Mrs Leventeris is entitled to damages for past gratuitous services calculated at hourly commercial rates for the assistance rendered by her husband.[4] What is the extent of that assistance? For the first three months or so after the accident, as I have said, Mrs Leventeris was almost completely dependent on her husband. Had he been unable or unwilling to assist, she would have had to engage someone to attend to most of her personal and domestic needs in that period.
[4] Van Gervan v Fenton (1992) 175 CLR 327
Mr Leventeris’s evidence was that, once his late wife’s capacity had become more or less stable, he was spending about eighteen to twenty hours rendering the necessary domestic assistance. His evidence was necessarily imprecise and, as I have said, a commercial cleaner or “helper” would have done the same amount of work in less time.
I also heard evidence from Mr Richter, a physiotherapist, about the amount of assistance Mrs Leventeris would have needed were she living alone at the time he saw her. He thought that she would then have needed about eleven hours each week. That time allowed for house-cleaning, shopping and laundry and included an hour each day for the preparation of an evening meal, cleaning up after it with perhaps “a little bit of extra work as well”.
I do not find his estimate of future care time of much assistance as it was predicated upon Mrs Leventeris’s having been supplied with particular household equipment and upon her needing to pay specific amounts for irregular services, such as delivered meals. Mr Richter said that the commercial rate for such general household cleaning services would have been, in the future, about $30 per hour.
None of the hourly estimates is especially helpful as Mrs Leventeris’s need fluctuated, depending upon her condition from day to day.
There was much argument about what rate I should use to assess Mrs Leventeris’s damages for past gratuitous services from the date of injury up to the time of trial. And, while there was some evidence about current market rates, there was none about past market rates during the relevant period.
Taking into account Mrs Leventeris’s varying needs, I am of the view that an allowance in the order of 11 hours per week is appropriate. Using Mr Richter’s evidence that current rates are in the order of $30 an hour as no more than a yard stick, I use an hourly rate of $22 over the relevant period of some 354 weeks, being the time between Mrs Leventeris’s injury and her death, less some 10 weeks spent in Greece around the time of her daughter’s wedding.
I assess damages for past gratuitous services at $86,000.00.
Mrs Leventeris’s estate is entitled to interest. Mr Krupka, for the plaintiff, sensibly suggested that I adopt a rate of 4%, so taking into account the fluctuations in commercial rates and in the number of hours of assistance needed over a period of some 7 years. I cannot be precise. I fix a lump sum of $12,000.00 by way of interest.
The estate is also entitled to special damages which are agreed at $5,199.74.
There will be judgment for the plaintiff’s estate in the sum of $103,199.74.
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