Marshall v Beaver & or

[1995] QSC 5

IN THE SUPREME COURT

OF QUEENSLAND

No. 532 of 1991

Brisbane

Before Mr Justice Byrne

[Marshall v Beaver & Or]

BETWEEN:

SCOTT DONALD MARSHALL
  an infant by his next friend,
  DONALD ROSS MARSHALL

Plaintiff

AND:
  ALAN RICHARD BEAVER

First Defendant

AND:
  PETER FREDERICK WARREN

Second Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :   08/02/1995

CATCHWORDS:     DAMAGES - Personal Injuries - Brain damage - Assessment of future economic loss and need for personal services.

Counsel:Mr W D Campbell for the Plaintiff

Mr R W Trotter for the Defendants  

Solicitors:Ebsworth & Ebsworth for the Plaintiff

Hemming & Hart for the Defendants                

Hearing Date:   1, 2, and 3 February 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 532 of 1991

Brisbane

Before Mr Justice Byrne

[Marshall v Beaver & Or]

BETWEEN:

SCOTT DONALD MARSHALL
  an infant by his next friend,
  DONALD ROSS MARSHALL

Plaintiff

AND:
  ALAN RICHARD BEAVER

First Defendant

AND:
  PETER FREDERICK WARREN

Second Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :   08/02/1995
           The plaintiff was born in October 1976.  On 12 May 1988 he sustained a serious head injury.  Brain damage resulted. Liability and most of the components of the damages are admitted.  Future personal services and diminution in future earning capacity remain as the issues.
           The plaintiff sustained a fracture of his skull over the occipital region and bilateral frontal contusions.  There was subarchnoid bleeding.  The plaintiff has no recollection of the accident and suffered a period of post-traumatic amnesia of about three weeks.  The brain damage was significant. As the neurologist, Dr Corbett, testified, "he is fairly severely disabled now". 
           Before the accident, the plaintiff was in excellent general health.  He was then in grade 6 at his local State school. He was good at sport, and he was adept at practical things around his family's farm.  He was of average intelligence; but he was a poor reader and was receiving remedial teaching to alleviate this relative weakness.  However, the plaintiff coped with his school work before the accident. 
           The brain damage has significantly impaired the plaintiff's physical functioning.  Although he can still participate in social tennis and cricket, he is awkward and inclined to stumble or fall because of problems with co-ordination and balance.  At work, he tires when others would not.  He has also suffered major impairment of mental faculties.  He now has a poor short-term memory, reading skills of a low order, reduced powers of concentration, difficulty with problem-solving, and limited insight into his condition.  Because of his intellectual and physical deficits and an associated impetuous streak to his post-accident nature, he is accident-prone.
           Were it not for his accident, it is very likely that the plaintiff would have followed in his brother's footsteps and successfully attended the Longreach Pastoral College.  After that, his prospects for remuneration were bound to be influenced by his interests and his abilities.  His interests, which were largely practical and manual, seem likely to have kept him on the land.  His pre-accident level of intellectual functioning, including his reading disorder, suggest that he probably would have progressed to managing or owning a smaller sized property.
           A calculation has been done of the present value of what the plaintiff could have expected to earn had he followed a likely career path, beginning as a jackaroo after graduating from a pastoral college, and eventually managing a small property where someone else kept the financial records.  The exercise (ex.6) assumes that the amounts which would have been paid in the years to come are the amounts now being paid to employees in broadly comparable positions.  Making allowance for superannuation, the exercise shows that, to age 60, the plaintiff might have expected to earn, at present value, about $600,000 after tax in cash or in money's worth.
           Of course, the plaintiff might not have earned as much as the exercise suggests.  He might have undertaken less remunerative work: for example, in a trade.  He might have peaked at the level of a head stockman.  Or he might not have been continuously employed.  Vicissitudes such as accidents or ill-health may have impacted on future earnings.  He may have experienced delays in progressing along the projected career path.  And the rewards of a working manager are, as Mr Henderson's evidence shows, negotiable and dependent upon the property-owner's capacity to pay.  But, for most people at any rate, life is not all misfortune. It should not be assumed that the contingencies bearing on an estimate of the lost earnings would all have been adverse.  Nevertheless, a discounting of the $600,000 figure is called for to reflect the chances that, for any number of reasons, the plaintiff might well have earned less than the projection tends to indicate.
           Attempting to prophesy what is now in store is even more difficult than predicting what the future may have held but for the accident.  The plaintiff is employed by his neighbour and family friend, Mr Cleary.  The employment will finish soon with the termination of a Commonwealth Government subsidy which has been paid for almost six months.  The plaintiff will have to look for work.  His prospects of finding remunerative employment are not good.  Opportunities for someone of his significantly impaired intellectual and physical functioning are very likely to be few for the foreseeable future.  He seems destined, for many years at least, to have real trouble in gaining, and in retaining, a job. No paid work is available for him on the family property.
           The plaintiff is not unemployable.  Provided that he is closely supervised - mainly so that he does not take unacceptable risks and to accommodate his poor memory - and is given simple, repetitive tasks of an unskilled nature, the plaintiff is capable of some work.  He might get a job with an especially sympathetic employer as, for example, a "cowboy‑gardener": someone who attends to light duties around a homestead, raking leaves and doing odd jobs.  He could earn a little money making leather belts or crutching sheep.  No doubt there are other things that he might occasionally do.  The plaintiff has his strengths: he wants to work; and he is presentable.
           The best prediction that can be made is, I think, Dr Corbett's, viz.:

"On balance, my prediction would be that this patient will have a chequered employment career, but he will probably eventually settle in some low-level job in which his tasks are mainly of a repetitive nature, in a non-demanding, non-physical environment, where regular supervision is available."

The neuro-psychologist, Dr Field, was more optimistic about available job opportunities.  But she saw the plaintiff only briefly and has, in my assessment, overestimated his capacities and underestimated his limitations.  Dr Corbett's view, which Dr Harwood shares, is, I think, preferable.  Incidentally, I accept the evidence of the plaintiff's parents and that of Mr Cleary. 
           Other things could affect the plaintiff's future prospects.  He does not yet have a driver's licence, and his capacity to earn income might be affected to a small extent by whether he succeeds in obtaining a licence.  That he is accident-prone is important.  As I have said, he is impetuous at times, essentially because he is lacking in insight into his condition and his judgment is poor.  These related attributes, coupled with his physical disabilities, mean that he is at appreciable risk of sustaining injuries which may further reduce, if not eliminate, his already impaired capacity to earn.
           No mathematical exercise really assists much in determining the compensation for diminution in future earning capacity.  In a case such as this, lots of calculations may create the false appearance of precision in the assessment and are more likely to beguile than to inform.  However, a couple of calculations are not entirely without interest.  First, on the 5% tables, the present value of a loss of $300 net per week after tax, every week until age 60, is a little less than $275,000.  (A full-rate stockman commonly earns about $300 per week after tax.)  Secondly, if $600,000 is discounted by 15%, and from that $510,000 there is deducted the present value of an assumed residual capacity of an average of, say, $150 net per week, the loss yielded is about $370,000.
           All things considered, the present value of what he can now expect to earn seems unlikely to exceed about a third of the present value of what he might well have expected to receive otherwise.  As it happens, an appropriate reflex of the loss seems to lie between $275,000 and $370,000.  I fix on $325,000.
           This brings me to future care.
           It is common ground that the plaintiff has a need for services in future, that the present cost of providing such services is $13.50 per hour, that that amount should be the basis for calculating this component of the award, and that it should be assumed that the need will be life-long.  The contest is a limited one, viz. how many hours per week should be allowed for.  The plaintiff proposes 4.  The defendants submit that the need would be met by care for less than 1.5.
           The plaintiff needs assistance with reading, writing, correspondence, shopping, banking, paying bills and other things.  He will require help to complete forms for the Department of Social Security, the Commonwealth Rehabilitation Service and other emanations of government.  He needs general guidance.  If he does not get a driver's licence, that may generate an occasional need also.  Again, it is impossible to predict with precision the extent of the need.  On balance, I think it reasonable to allow 100 hours per year.  Rounded off, the compensation to be awarded for this component is $25,000.
           The award is therefore:

Pain and suffering and loss of the enjoyment of the
 amenities of life, past and future (as agreed)  $70,000.00

Interest on past pain and suffering at the agreed rate
 and period (2% p.a. for 6.75 years) computed on 40%  $3,780.00

Past economic loss (as agreed)  $2,500.00

Interest on past economic loss (as agreed)  $300.00

Special damages (as agreed)  $18,055.10

Interest on special damages (as agreed)  $2,783.00

Past care (as agreed)  $25,000.00

Interest on past care (as agreed)  $3,375.00

Future care   $25,000.00

Future economic loss  $325,000.00

$475,793.10

plus the applicable Public Trustee charges.