Mato v Zarkas

[2005] NSWSC 800

CITATION:	Mato v Zarkas [2005] NSWSC 800 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	01/08/2005, 02/08/2005, 03/08/2005, 04/08/2005, 08/08/2005
JUDGMENT DATE :	15 August 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	Verdict for the plaintiff.

CATCHWORDS:	Assessment of damages - paraplegia, life expectancy, services to be performed by wife, chance of marriage not lasting, need for hydrotherapy pool.
LEGISLATION CITED:	Motor Accident Compensation Act 1999 Motor Accidents Act 1988
CASES CITED:	Husher v Husher (1999) 197 CLR 138 Matchan v Lyons [2003] NSWCA 384 Mortimer v Burgess (NSWCA, unreported, 16.6.97) Roads and Traffic Authority of NSW v Lolomanaia (2001) 34 MVR 249 State of NSW v Moss (2000) 54 NSWLR 536 Van Gervan v Fenton (1992) 175 CLR 327 Wynn v NSW Ministerial Corporation (1995) 184 CLR 485
PARTIES:	Peter Mato - Plaintiff Zois Zarkas - Defendant
FILE NUMBER(S):	SC 20200/04
COUNSEL:	CA Evatt/MK Rollinson - Plaintiff B Gross QC/K Kelleher - Defendant
SOLICITORS:	Teakle Ormsby George - Plaintiff McMahons National Lawyers - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

20200/04 – Peter MATO v Zois ZARKAS

Monday, 15 August, 2005

JUDGMENT

1 HIS HONOUR: On 2 August 2001 the plaintiff was riding a motorbike. As he was approaching an intersection with the traffic control lights green in his favour, a car travelling in the opposite direction made a right hand turn in front of him. The plaintiff’s bike struck the passenger side door of the car causing the plaintiff to fly over the car and strike a pole. The plaintiff was rendered a paraplegic as a result of the accident.

2 Liability has been admitted by the defendant.

3 The matter is before the court for the assessment of damages.

Factual background

4 It is useful to understand the background against which the plaintiff’s claim is made. I have indicated those matters which are disputed. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

5 The plaintiff was born on 18 July 1972. He attended Ambervale High School which he left in 1989 during Year 11. He had obtained his school certificate and was seventeen at the time. Thereafter he performed manual labouring work which included roof tiling and concreting.

6 In about 1994 the plaintiff took out a loan with Avco Finance for $115,000. The loan was secured by a mortgage of a property owned by his parents. The loan monies enabled the plaintiff to purchase a truck with a concrete pump. Thereafter the plaintiff was in business on his own account as a concrete pumper.

7 It is not clear how successful the plaintiff’s concrete pumping business was. What we do know is that the payments to Avco were not maintained so that by early 1996 the property of the plaintiff’s parents, which had secured the loan, was at risk. On at least two occasions a solicitor retained by the plaintiff’s parents wrote to him requesting that he bring the payments to Avco up to date. No tax returns were available before the year 1995-1996. I infer that the business was not sufficiently successful to both provide the plaintiff with a reasonable income and pay off the loan.

8 In approximately April 1996 the plaintiff and his girlfriend Monica (now his wife) commenced living together. At the time Monica was an employee of the National Australia Bank (NAB) at Campbelltown. Her evidence was that at this time the plaintiff would finish work before her. This meant that he would perform most of the household tasks. Otherwise they would share the household tasks between them.

9 In about June 1996 Monica stole $476,000 from the NAB. She was charged with the offence of larceny as a servant in August 1996 and her services were then terminated by the NAB. Monica’s evidence was that she was so traumatised by being charged that she became very depressed and not only was unable to perform paid employment, but due to her depression was unable to do very much around the house.

10 The plaintiff continued to operate his concrete pumping business at this time. The loan to Avco was paid off in July/August 1996. It is reasonable to infer that some of the monies stolen by Monica from NAB were used for this purpose. At this time the plaintiff also purchased a boat and parts for his car. As before, I infer that some of the stolen monies were used for this purpose.

11 The plaintiff’s taxation returns for this period show modest earnings from the business, ie 1995-1996 $516 net per week, 1996-1997 $329 net per week, 1997-1998 $379 net per week. Apart from the fact that these taxation returns were not filed until 2002, they are probably artificially inflated in that no payments to Avco finance have been included as part of the expenses of the business.

12 In June 1998 Monica was convicted by a jury of larceny as a servant and was sentenced to imprisonment for 6 years with a non-parole period of 4 years and 6 months. Monica maintained her innocence at that trial and in her evidence in these proceedings. $350,000 of the monies stolen from the NAB remain unaccounted for. At that same time the plaintiff was convicted of aiding and abetting Monica in that offence and he also was sentenced to 6 years imprisonment with a non-parole period of 4 years and 6 months. The plaintiff’s evidence in these proceedings was that Monica was innocent of the larceny offence.

13 In December 1999 the plaintiff’s conviction was quashed by the Court of Criminal Appeal and a verdict of acquittal was entered. He was released from prison at that time. Monica’s appeal was unsuccessful and she was not released from prison until December 2002.

14 The plaintiff found it difficult to obtain employment after his release from prison. Eventually in the second half of 2000 he obtained part-time work in the building industry working approximately two-three days per week. That work involved general labouring but also included some concreting. By the date of the accident, the plaintiff was working approximately three-four days per week. His tax return for the year 2000-2001 showed earnings of $340 net per week which included $5,000 in unemployment benefits.

15 Proceedings were brought by NAB against the plaintiff and Monica in the Equity Division of this Court. In 2000 judgment was entered against the plaintiff in favour of NAB for $213,318 and against Monica for $755,000. Those judgments remain unsatisfied.

16 Following the accident on 2 August 2001 the plaintiff did not lose consciousness. He was aware of pain in his back, but was unable to feel any sensation in his legs. He was taken by ambulance to Campbelltown Hospital and from there by helicopter to the Royal North Shore Hospital. He remained in the Spinal Unit at the Royal North Shore Hospital for approximately two months. Fractures were identified between the T4 and T8 vertebra. The diagnosis was T7 paraplegia. The plaintiff was admitted to the Royal Rehabilitation Centre at Ryde (the Moorong Spinal Unit) on 3 October 2001. He remained an inpatient of that unit until his discharge on 2 April 2002.

17 As a T7 paraplegic the plaintiff has a paralysed neurogenic bladder requiring self-catheterisation up to seven or eight times daily. His paralysed neurogenic bowel is emptied every second day with the assistance of an enema and medication. Because of the catheterisation process, he is prone to urinary tract infections (UTI) which are usually treated successfully with antibiotics. He has only required one admission to hospital for UTI. His susceptibility to neuropathic pain is partly but not completely controlled by medication. Because of his level of paraplegia, balance is a problem for him in that he has no control of his body below the T7 level.

18 Upon his discharge from the Moorong Spinal Unit the plaintiff was independent in his personal activities of daily living, although he occasionally fell from his chair due to lack of balance. He had an ability to walk for short distances using a walkabout support device (a form of calliper) and a walking frame. Exercise was achieved by way of hydrotherapy. He was proficient in the use of a manual wheelchair. He was able to drive a motor vehicle fitted with hand controls and was able to disassemble his wheelchair, load and unload it from a motor vehicle.

19 Upon his discharge from the Moorong Spinal Unit, the plaintiff resided in a ground floor unit in Gladesville. He was discharged into the care of his mother. At the time his mother and father were living on a farm at Guyra. His mother initially looked after the plaintiff on a fulltime basis upon his discharge and then divided her time on an approximately equal basis between Guyra and Gladesville. The CTP insurer provided some hours of paid assistance on a weekly basis to the plaintiff. That assistance comprised house cleaning, ironing, shopping and car care.

20 After Monica’s release from prison in December 2002, she helped the plaintiff’s mother in providing assistance to him. In April 2003 Monica moved into the Gladesville unit with the plaintiff and thereafter was the principal person who provided assistance to him. The exact level of that assistance is a matter in dispute.

21 The plaintiff and Monica continued residing in the Gladesville unit until November 2004. At that time they moved into their present accommodation which is a house at Narellan. This house is owned by the plaintiff’s mother but the intention is for the plaintiff to pay off the mortgage and gain ownership. Exhibit D comprised coloured photographs of the property taken in January 2002. It has a pool, reasonably extensive lawns and a garden. Considerable modifications were made to this house before the plaintiff and Monica moved in. These are shown in the photographs Exhibit G. The CTP insurer contributed in excess of $100,000 to those modifications. The modifications are not complete. There was a dispute as to the extent to which the modifications related to the plaintiff’s disability.

22 Since the plaintiff and Monica moved into the house at Narellan, the CTP insurer has provided five hours per week of paid domestic assistance. This assistance is delivered by two cleaners who attend for two and a half hours each. Lawn mowing, gardening and handyman expenses have also been paid for by the CTP insurer. Washing, ironing and housecleaning over and above that performed by the paid cleaners have been performed by Monica. Some personal tasks such as washing the plaintiff’s feet have also been performed by Monica. Monica does the shopping, although the plaintiff usually accompanies her.

23 The plaintiff is able to achieve an erection but has no feeling. He and Monica intend to have children but in order to do so they will need to participate in a special fertility program with its attendant costs.

24 As of the date of trial, the plaintiff had been diagnosed with carpal tunnel syndrome affecting both wrists, the right worse than the left. It was generally accepted by the medical practitioners that the cause of this condition was the plaintiff’s use of his arms and hands to propel his manual wheelchair. The plaintiff’s evidence was that he was not prepared to undergo a carpal tunnel release operation because success could not be guaranteed. Although this condition was present it had not prevented the plaintiff using his manual wheelchair. He had modified his technique in order to reduce the pressure on his wrists and found that this was reasonably successful.

25 Apart from the disabilities naturally associated with a T7 paraplegia, the plaintiff also suffered from back pain of an unremitting kind which required medication.

26 The other factual issues will emerge from the discussion of the heads of damage.

Life expectancy

27 As of the date of trial the plaintiff had just turned thirty-three. The current life tables for a thirty-three year old male show a life expectancy of forty-six years. There was a dispute between the parties as to what effect the plaintiff’s paraplegia would have upon his life expectancy. The competing positions were:

Dr Yeo – 91%.
Dr Buckley – 95%
Dr Bowers – 80%.

28 Doctor Yeo arrived at his figure of 91% by means of the following reasoning. In Volume 36 of the journal “Spinal Cord” which was published in 1998 (pp 329-336) Dr Yeo and a number of other medical professionals conducted a retrospective mortality study of 1,452 spinal cord injured patients admitted to specialised spinal injuries units within New South Wales during the preceding forty years. That study showed the life expectancy for a person with the sort of paraplegia from which the plaintiff suffers to be 84%. Doctor Yeo then had regard to the fact that statistically the life expectancy of the general population had been steadily increasing so that in making a prospective calculation of life expectancy for the next forty years or more, one had to have regard to that steady increase. On the assumption that life expectancy would continue to increase at the same rate over the next forty years as it had in the past, Dr Yeo added a further 7% to the plaintiff’s life expectancy thereby producing a final figure of 91%.

29 I am not entirely convinced by Dr Yeo’s reasoning. Whilst it is undoubtedly true that over the past four decades life expectancy has steadily increased as a result of better food, better social conditions and better medical care, it seems to involve a significant level of speculation to assume that this same rate of improvement will continue over the next forty years. One cannot help but think that there must be some objective level of life expectancy in human beings which, when reached, will at the very least significantly slow down the rate of increase.

30 With that consideration in mind, I would only be prepared to allow an increase of 3.5% (ie half of that suggested by Dr Yeo) to be added on to the 84% which the retrospective study identified for paraplegics such as the plaintiff. The figure which I propose to use for the plaintiff’s life expectancy is 87.5% of that predicted in the life tables, ie 40.25 years. That produces a multiplier on the 5% tables of 919.3.

31 Doctor Buckley arrived at his figure of 95% by reference to the process of reasoning of Dr Yeo. He increased Dr Yeo’s assessment by a further 4% because he had regard to the positive elements available to the plaintiff in relation to his treatment, ie access to health professionals, care by members of his family etc. The fallacy in the approach by Dr Buckley is that these matters were already factored into the calculation of 84% arrived at in the 1998 retrospective study. To take those specific matters into account in relation to the plaintiff is to double count them.

32 Doctor Bowers reached his figure of 80% by taking an average of the results of the 1998 retrospective study in New South Wales, a similar retrospective study carried out in the United Kingdom by Frankel (life expectancy of 76%) and a retrospective study carried out in the USA by Stover (a life expectancy of 79%). It seems to me that the criticism of this approach by Dr Yeo is well founded. Conditions in the United Kingdom and the USA are different to those in New South Wales. More guidance for the future of this plaintiff is, in my opinion, provided by the New South Wales study than by adding to that data the overseas experience.

Non-economic loss

33 This was agreed between the parties at 100% of a most extreme case -

$341,000.00

Past hospital, medical, pharmaceutical and other treatment expenses

34 Pursuant to s83 of the Motor Accident Compensation Act 1999 (the Act) the CTP insurer has paid $350,872.12 in respect of hospital, medical, pharmaceutical treatment and other treatment expenses. The plaintiff did not identify any claim in addition to the amounts paid to date by the CTP insurer. Accordingly the plaintiff is entitled to have that amount included in his damages.

Future hospital, medical, pharmaceutical and other treatment expenses

Specialist

35 In argument it was agreed between the parties that seeing a spinal specialist once a year at a cost of $150 per visit was reasonable - $2,651.82

GP

36 The parties agreed that four visits per annum were appropriate. The only difference was the rate of charge. I propose to allow three visits at $50 per visit and one visit at $92, ie $242 per annum - $4,278.28

Occupational therapy

37 The parties agreed that four visits per year at $120 per visit was appropriate - $8,486.00

Physiotherapy

38 The parties agreed that six visits per year were appropriate. The difference between them was the cost of each visit. I propose to allow $75 for each visit given the passage of time between when Dr Buckley set out the appropriate rates and the date of trial - $7,955.00

Hospital

39 All doctors agreed that eventually the plaintiff would need to undergo carpal tunnel surgery. There was a chance, which was not quantified, that the plaintiff might thereafter need to undergo a second round of carpal tunnel surgery. The figure of $4,000 put forward by the plaintiff for the cost of such surgery appears reasonable. I assess the chance of the plaintiff having to undergo a second carpal tunnel operation at 50%. If he did so the occurrence of such an operation is unlikely to occur for at least 10 years - $5,228.00

40 It was the opinion of Dr Buckley that an allowance should be made for the plaintiff spending one week per year in hospital for the rest of his life. That seems to be excessive. After his discharge from Moorong almost three and a half years ago, the plaintiff has to date spent less than one week in hospital and that was for UTI. A more reasonable allowance is one week every three years - $23,572.00

Renal ultrasound and intravenous pyelogram

41 It was Doctor Buckley’s opinion that the plaintiff would require one renal ultrasound annually at a cost of $255 and an intravenous pyelogram (IVP) every three years at a cost of $345 per time. Doctor Bowers was of the opinion that one or other test was needed, but not both. On this issue I prefer the opinion of Dr Buckley. His assessment is that almost universally prescribed for paraplegics - $6,541.00

Fertility treatment

42 The parties agreed that two periods of fertility treatment at a cost of $20,000 each were reasonable. The defendant submitted that the second treatment would be postponed for at least three years and I agree.

$37,280.00

Podiatry

43 The parties agreed that the plaintiff would require treatment thirteen times per year at a cost of $40.00 per attendance - $9,193.00

Pharmaceutical expenses

44 The difference between the parties on this issue was that the plaintiff had given an estimate of the cost at $80 per week, but this estimate was not otherwise verified. Although the defendant had records of those pharmaceutical expenses it had paid over the three years since the plaintiff was discharged from Moorong, no evidence was adduced as to the weekly cost of those pharmaceuticals. In those circumstances I accept the plaintiff’s figure. The parties agreed that $20 per week was appropriate for the cost of Viagra - $ 91,930.00

Total $196,408.10
Equipment needs

45 These needs were set out in Exhibit 3 on which the defendant marked with a cross those items which were contested. Where the item was not so marked it was agreed. The document used three headings – “Current equipment needs”, “Additional items” and “Anticipated future needs”. I propose to follow the same format.

Current equipment needs

- $150 per annum – agreed - $ 2,652.00

Quickie Titanium Ultralite Manual Wheelchair -
$2,096.67 per annum – agreed $37,067.00.00
Wheelchair maintenance - $150 per annum – agreed - $ 2,652.00
Walking frame with wheels and glides - $194 per annum

- agreed - $ 3,430.00

Internet access

46 The only evidence as to the plaintiff’s use of a computer was to play games. He expressed no interest in engaging in internet shopping or in any other activities which related to the internet. I reject this claim.

Mobile phone

47 There is a need which has been created by the accident for the plaintiff to have a mobile phone. As well as compensating for his lack of mobility, it would operate as a safety device should his car break down or he become disabled in circumstances where he was not able to gain access to a telephone.

The claim was for $720 per annum. No cross-examination challenged this figure - $12,729.00

Internet grocery shopping

48 This claim was not pursued by the plaintiff and is rejected.

Walkie talkie

49 The need for this piece of equipment arose from the possibility that the plaintiff might be on his quad-bike while traversing his parents’ property at Guyra and not be able to use his mobile phone. I do not regard that piece of equipment as reasonable and I reject it.

Teal pool lift and pool service

50 I will deal with these matters when I deal with the need for a pool.

Jay Deep Contour cushions x 2

51 This was agreed - $498.67 per annum - $8,816.00

Portable shower hose

52 This was agreed at $24 per annum - $ 424.00

Padded toilet seat

53 This was agreed at $75 per annum - $1,326.00

Two metre portable ramps

54 This was agreed at $131.20 per annum - $2,319.00

Quad bike

55 This was provided to the plaintiff by the CTP insurer before trial. Its need, however, was disputed on the basis that it was a hobby and met a desire on the part of the plaintiff to drive around his parents’ property at Guyra, but did not satisfy a reasonable need. It seems to me that it is not unreasonable for the plaintiff to want to accompany his father or mother when those persons are walking or otherwise travelling about their property at Guyra. The only way the plaintiff can do this is by using the quad bike, which has a cross-country capability. I allow the cost of that piece of equipment.

56 It was submitted on behalf of the plaintiff that the quad bike would need to be replaced every four years. That assumed that the quad bike was being constantly used. The quad bike would only be used on those occasions when the plaintiff visited his parents and would only be used for five or six weeks a year. In those circumstances the quad bike would only need to be replaced once every ten years. Accordingly I assess the annual expenditure to be $1,400 - $24,750.00

Quad bike - maintenance

57 A claim has been made at the rate of $1,600 per annum for the maintenance of the quad bike. That assumes that the bike is being constantly used. On my assessment that is not the case. I allow $400 per year for maintenance of the bike - $ 7,072.00

Trailer for quad bike and sit ski

58 Since the need for the quad bike only arises on the Guyra property when accompanying his parents, it can be garaged on that property and there is no need for a trailer. This claim is rejected.

Washing machine/dryer

59 This item is challenged on the basis that every modern home has a washing machine and dryer and consequently the presence of such pieces of equipment in the plaintiff’s home does not satisfy a need created by the accident. This challenge is valid in relation to the washing machine, but not in relation to the dryer. It also seems to me that the replacement of the dryer every four years is rather excessive and that the dryer should have a useful life of at least six years.

Accordingly I allow the claim for a dryer at the rate of $200 per year - $ 3,536.00

Massage (weekly)

60 The plaintiff’s weekly massages were of beneficial effect after his discharge from Moorong. Their indefinite continuation for the next forty years is not supported by the medical evidence. This claim is rejected.

Car wash and ironing

61 These items are dealt with under the heading of “Domestic Assistance”.

Home delivery of groceries

62 This claim is dealt with under the heading of “Domestic Assistance”.

Hand controls for car

63 This claim was accepted by the defendant but the defendant disputed the need for a new car every four years. I agree. It is unlikely that the plaintiff will be driving long distances. It is more likely than not that he would change his car every eight years. I propose to allow the claim for hand controls at the rate of $650 per year. After 22 years (when the plaintiff is 55) he will be using the specialised VW van. This claim is only allowed for 22 years - $ 8,798.00

Gardening

64 This claim is dealt with under the heading of “Domestic Assistance”.

Personal trainer

65 This claim is rejected. There was a need for the plaintiff to have a personal trainer in the past so that he would learn appropriate exercises. That need has now past. The plaintiff is well able to perform the necessary exercises for himself without a personal trainer.

Total $105,577.00

Additional equipment items required

66 Jay Protector cushion – the claim for this piece of equipment appears reasonable even though the defendant was not prepared to concede it. The claim is for $86.33 per annum - $ 1,526.00

Overbed table x 4

67 This was agreed - $69.60 per annum $ 1,230.00

Custom Reclining Armchair

68 This item was disputed by the defendant on the basis that whereas a reclining armchair was reasonable, such an armchair need not be customised for the plaintiff. That criticism appears reasonable. The annual cost of a non-custom reclining armchair was $214 -

$ 3,783.00
Hamatic single hi-low bed with partner ensemble

69 The need for a special bed for the plaintiff is reasonable. The defendant submitted that the plaintiff would have required a bed in any event and the cost of an ordinary bed should be deducted because the plaintiff’s entitlement is to the additional cost brought about by the accident. I agree. I allow $442 per annum - $ 7,814.00

Stable Table

70 The plaintiff was not able to justify this piece of equipment in submissions and it is rejected.

Stool-floor/chair transfers

71 Similarly the plaintiff was not able to justify this piece of equipment in submissions and it is rejected.

Seating Clinic Assessment

72 This piece of equipment has already been allowed under the heading “Current Equipment Items” and is rejected.

Wheelchair push mitts x 6

73 This was agreed - $229.80 per annum $ 4,063.00

Quickie Tennis Wheelchair

74 The basis for this claim was that the plaintiff might wish to play wheelchair tennis. In the almost three and a half years since his discharge from Moorong, the plaintiff has not made any attempt to learn or play this game. The suggestion was made by Ms O’Reilly, occupational therapist, who was supervising the plaintiff on behalf of the CTP insurer, that he should hire equipment to see whether he wished to play the game. That suggestion was never taken up. It does not seem to me that this is a reasonable requirement on behalf of the plaintiff. I am not convinced that if an allowance is made for this piece of equipment, the plaintiff would avail himself of it. The claim is rejected.

Quickie Tennis Wheelchair maintenance

75 This claim is rejected.

Hand Cycle

76 This is a form of exercise equipment. In view of the allowances made for other exercise equipment and a pool, this claim is rejected.

Sit-ski-snow

77 The basis for this claim was that the plaintiff might wish to learn disabled skiing. In the almost three and a half years since he was discharged from Moorong, the plaintiff has shown no interest in snow sports. I am not persuaded that if an allowance was made for this piece of equipment it would be utilised by the plaintiff. The plaintiff gave no evidence about wishing to use such a piece of equipment. The claim is rejected.

Sit-ski club membership

78 This is rejected.

Sit-ski-water-wakejammer

79 This basis for this claim was that the plaintiff before being injured had an interest in water sports and might wish to take up water skiing for disabled persons. As with the other suggested sports such as wheelchair tennis and disabled snow skiing, I am not persuaded that, if an allowance was made for this piece of equipment, the plaintiff would utilise it. He gave no evidence about wanting to undertake water skiing. This claim is rejected.

Life jackets x 2

80 This claim is rejected. The plaintiff would have had to purchase life jackets even if he had not been injured, had he wanted to continue to use his boat.

Ceiling hoist plus installation plus slings for garages x 2

81 This claim related to the installation of a hoist in the plaintiff’s garage at Narellan and a hoist in his parents’ garage in Guyra so that he could gain access to his quad bike. The plaintiff’s evidence was that he was able to gain access to the quad bike without the need of a ceiling hoist. In any event there was no occasion for the plaintiff to use his quad bike while at Narellan. This claim is rejected.

Total $18,416.00

Anticipated future needs
Dual-flex back

82 This claim was agreed - $363.33 per annum $ 6,423.00

Quickie P222 Power wheelchair with tilt in space

83 The evidence of Dr Yeo was that the plaintiff would be able to drive his own motor vehicle until the age of fifty-five. The plaintiff would be assisted in that activity after the age of fifty by utilising a roof hoist for the transportation of his wheelchair. Accordingly I cannot see any present need for a motorised wheelchair, although I certainly can see such a need when the plaintiff reaches fifty-five. I propose to allow the cost of a motorised wheelchair, but postponed until the plaintiff turns fifty-five. Thereafter the cost would be as claimed at $3,200 per annum -

$19,348.00
Transporter VW Van with automatic clampdowns and side entry hoist excluding on-road costs

84 As with the motorised wheelchair, I do not see a need for this specialised motor vehicle until the plaintiff turns fifty-five. Thereafter I would allow $10,026 per annum - $60,619.00

Pro-med Voyager ceiling hoist, plus installation, plus slings for bedroom

85 The plaintiff has no present need for such a piece of equipment but as he ages and requires more assistance such a piece of equipment will become necessary. In line with the assessment of Dr Yeo, I do not see the plaintiff needing this piece of equipment until he turns fifty-five. Thereafter I would allow $675 per annum - $ 4,081.00

Trixie hydraulic hoist

86 This was agreed $292.50 per annum - $ 5,171.00

Slings for hydraulic hoist

87 This was agreed - $65 per annum - $ 1,149.00

Auto-excel mattress overlay

88 This claim appears reasonable to minimise pressure sores

- $1,026.00 per annum - $18,138.00

Dunlop foam high density overlay and datex protective foam cover

89 These items also relate to protection against pressure sores and are reasonable - $160.25 per annum - $ 2,823.00

Nimbus III mattress

90 It is reasonable that the plaintiff have a specialised mattress to protect against pressure sores. I accept the defendant’s submission that the cost of an ordinary mattress, which the plaintiff would have required in any event, should be deducted from the cost of this specialised mattress. I allow $1,285 per annum - $22,717.00

Sit-ski lessons

91 This claim is rejected for the reasons that the other snow ski claims have been rejected.

92 This claim is rejected. The plaintiff gave no evidence concerning an intention to engage in scuba diving. I am not persuaded that if an allowance is made for lessons and equipment that they will be utilised.

Boat/wheelchair accessible
The plaintiff did own a boat at the time when he was injured. That boat has subsequently been sold. Part of the renovations carried out in relation to the Narellan property includes a large garage designed to take a boat as well as a car. I am of the opinion that the plaintiff will acquire a boat in due course and that such a boat will need to be made wheelchair accessible so that he can adequately use it. It seems to me that although the use of the boat is in the nature of a hobby, it fits in with the plaintiff’s pre-accident activities. In my opinion access to a boat is reasonable to maintain the plaintiff’s quality of life. I allow the cost of modifications to a boat to make it wheelchair accessible on a one off basis - $6,500.00
Total $146,969.00
Future personal aids

93 It is agreed that the cost of these personal aids will be $115.00 per week -

$105,720.00

Past domestic assistance/care

94 A matter at issue between the parties was how s128 of the Act ought be applied to the facts of this case.

“128(1) Compensation, included in an award of damages, for the value of attendant care services:
(a) which have been or are to be provided by another person to the person in whose favour the award is made; and
(b) for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident;
(3) No compensation is to be awarded if the services are provided, or are to be provided:
(a) for less than 6 hours per week; and
(b) for less than 6 months.
(4) …
(5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subs (4)(a) or (b), as the case requires.
(6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined in subs (4) or (5), as the case requires.
(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.”

95 The defendant emphasised the limitation in subs 28(2). The defendant submitted that had the plaintiff not been injured, the sort of services which he received from his mother and from Monica between April 2002 and the present would have been provided at least in part by Monica in the ordinary give and take of family life and to the extent that services actually performed either by the plaintiff’s mother or Monica came within that category, they should be deducted from the hours claimed on behalf of the plaintiff.

96 It seems to me that the approach by the defendant to s128(2) of the Act is correct. In that regard subs 128(2) of the Act is the same as s72(3) of the Motor Accidents Act 1988 (MAA) and ought be interpreted in the same way.

97 The Court of Appeal had occasion to consider s72(3) MAA in Mortimer v Burgess [NSWCA, unreported, 16 June, 1997]. The Court there determined that the extract from Van Gervan v Fenton (1992) 175 CLR 327 at 343-4 provided broad guidance for the application of s72(3) MAA.

“The appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidents of that relationship and the give and take activities of the parties to it provided a significant part of the active services and passive attendance in and about the marital home which were necessary to look after the appellant’s accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into “services” rendered or to be rendered by the other spouse even if they obviate a need for such “services” which would otherwise exist. Nor, subject to an important qualification, can domestic services which are taken, as part of the mutual give and take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. A qualification is that such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.
It is clear that, in the present case, the additional services which are being and will be provided by the wife to attend to the appellant’s accident-caused needs during the relevant period are very extensive. They involve both active care and protective attention to an extent that represent an oppressive restraint upon the wife’s freedom of activity. It was clearly reasonable that the appellant’s damages for loss of capacity include a substantial amount calculated by reference to the value of those additional services and that, in ascertaining the extent of the wife’s additional services, account be taken of the drastic curtailment of the appellant’s ability to do things for his wife (and himself) in return. Nonetheless, it would be illegitimate to treat the burden of additional care which the wife has assumed in the context of a devoted marriage and in the environment of her own home as converting her into the equivalent of a full-time live-in housekeeper to be remunerated not only for the active services which she renders to her husband but on the basis that time spent with her husband in her own home is to be treated as if it were services rendered to a stranger in a strange environment.” (Deane and Dawson JJ)

98 A similar approach was approved by Hodgson JA in Roads and Traffic Authority of NSW v Lolomanaia (2001) 34 MVR 249 and in Matchan v Lyons [2003] NSWCA 384 at 4-5 where his Honour said:

“(4) As regards unpaid domestic care, s72 imposes limits on what would otherwise be recoverable at general law. As to what is recoverable at general law, I adhere to what I said in Roads and Traffic Authority of NSW v Lolomanaia (2001) 34 MVR 249 at 45-50 as to the true effect of Van Gervan v Fenton (1992) 175 CLR 327. In my opinion, there should be no compensation in respect of domestic care that is given as part of the fair give and take of family life, although there may be compensation for the contingency that care may not be given in this way in the future.
(5) In my opinion, a plaintiff seeking compensation for unpaid domestic care should prove what domestic tasks he or she previously did and does not now do, that this is due to the relevant injuries and disabilities, and that these tasks are now done for the plaintiff otherwise than as part of the fair give and take of family life.”

99 The plaintiff’s claim is for 12 hours per week from April 2002 until the present, ie 171 weeks at an hourly rate of $19. Whilst the defendant does not dispute that this amount of care was provided, it argued that this figure needed to be reduced by reference to services which would have been provided in any event by Monica and the defendant relied upon s128(2) of the Act.

100 The defendant also submitted that the hours of paid care actually provided by the CTP insurer should be deducted from the 12 hours per week claimed on behalf of the plaintiff. If those two deductions were made, the result would be less than 6 hours per week of assistance and consequently there would be no entitlement to any damages for attendant care services for the past.

101 It is not clear to me why the hours of paid assistance provided by the CTP insurer should be deducted from the hours of assistance actually provided for the plaintiff. It is likely that the plaintiff would have taken some time to become used to fending for himself after being discharged from Moorong and certainly during the early months if not the first twelve months following discharge. He may well have required more assistance then than he does at the present time. If one adds the 3 – 5 hours of paid assistance to the 12 hours of unpaid assistance provided for the plaintiff, the result is very close to the assessment of care made by Doctors Yeo and Buckley. The fact of that paid assistance would seem to explain why less assistance than that assessed by those doctors was provided to the plaintiff during that period. I do not propose to deduct the paid assistance which was provided in the past from the 12 hours per week provided to the plaintiff by his mother and Monica.

102 Nevertheless the reliance by the defendant on s128(2) does have force. It is likely that some of the services performed for the plaintiff by his mother and Monica would have been performed for him in any event even if he had not been injured.

103 The situation as between the plaintiff and Monica before the accident was rather unusual. For a substantial period she was in prison. Her evidence was that before then she was so depressed after being arrested and charged, that she was unable to perform any domestic duties. The only representative period appears to be between April and August 1996. Although the evidence of Monica was that the plaintiff performed most domestic duties during that period because he finished work earlier, the more usual situation seems to be that the plaintiff and Monica shared domestic duties and that is the approach which I adopt. (T.36)

104 Taking into account the paid assistance which was provided by the CTP insurer, I am of the opinion that at least 6 hours of services would have been provided for the plaintiff by Monica even if he had not been injured. Accordingly, I award for the past under s128 of the Act 6 hours per week at $19 per hour for 171 weeks, ie $19,494.00. I also award the paid care which the plaintiff has received and which was itemised by the defendant as follows:-

Housecleaning	$ 15,215.60
Ironing	$ 3,038.00
Shopping	$ 792.00
Garden Maintenance	$ 5,282.00
Handyman	$ 4,130.00
Car care	$ 3,355.10
Total	$ 31,812.70

105 If one adds the s128 component, the plaintiff’s damages for past assistance are $51,306.70 in relation to which the defendant is entitled to a credit of $31,812.70.

Future domestic assistance/care

106 The claim by the plaintiff under this heading was in accordance with the assessment of assistance by Dr Yeo in his report of 22 July 2005. On the assumption that the plaintiff was living alone and that he had an appropriately modified home, Dr Yeo assessed 15 hours per week of assistance to age 40, 20 hours per week to age 55 and 28 hours per week thereafter. Under cross-examination it became clear that what Dr Yeo had in mind was paid assistance for 3 hours per day during the week with friends or relatives of the plaintiff providing some unpaid assistance on weekends (T.83.36, 84.19-33). I infer that he had in mind a similar regime between the ages of 40 and 55, except that 4 hours of paid assistance per weekday would be provided. After the age of 55, the 28 hours of paid assistance would also need to be supplemented by unpaid assistance on weekends. Dr Yeo’s regime envisioned a combination of paid and unpaid assistance.

107 When Dr Yeo was asked to justify that regime of care by reference to the tasks actually performed, his evidence was that some of the time prescribed by him would involve an “observer role” by the person providing the assistance. That observer role would comprise approximately one hour per day of the time prescribed by him. (T.85.26-.34)

108 The defendant submitted that the regime assessed by Dr Yeo was excessive and unreasonable. Reliance was placed on the care regime suggested by Dr Bowers which was 7 hours of assistance per week on the assumption that the plaintiff was living alone and that his house was appropriately modified to accommodate his wheelchair. Doctor Bowers was of the opinion that the need for 7 hours of assistance would remain constant for the rest of the plaintiff’s life and would not increase as the plaintiff became older.

109 Although the plaintiff did not rely upon the assessment of assistance made by Dr Buckley, in particular that from age 65 the plaintiff would require a live-in carer, it is not without significance that Dr Buckley made allowance for increased levels of assistance as the plaintiff became older. Not only am I persuaded by the explanations for this given by both Drs Yeo and Buckley in their evidence, but it accords with common sense and human experience that a person with the sort of disabilities which the plaintiff has is likely to require increasing levels of assistance as he becomes older and is less able to do things for himself. On that issue I prefer the opinions of Drs Yeo and Buckley.

110 I also prefer the evidence of Drs Yeo and Buckley that the plaintiff’s needs are in excess of 7 hours’ assistance per week. This evidence accords with that of the plaintiff and Monica as to what services are actually being provided for him. In that regard it should be noted that the plaintiff could do more for himself if he were provided with appropriate aids. For example, there would be no need for Monica to wash the plaintiff’s feet if he was provided with a long handled brush.

111 The defendant submitted that because assistance was being provided for the plaintiff by Monica within a marriage relationship, the “observer role” component referred to by Dr Yeo should be deducted. I agree. Similarly, the defendant relied upon s28(2) and submitted that those services which would have been provided to the plaintiff in any event by Monica should be deducted. I agree. While the plaintiff and Monica remain together the need for assistance should be calculated by reference to s28. The plaintiff at no time suggested that he would pay for care while he and Monica remained married. I agree.

112 Before making those calculations, however, one needs to understand the assessment of assistance made by Dr Yeo. His assessment assumed that the plaintiff was living alone. It also assumed that unpaid assistance would be provided by friends and/or family over a weekend. In other words the full assessment by Dr Yeo was 15 hours of paid assistance during the week with at least 6 hours of unpaid assistance over the weekend, ie 21 hours per week.

113 If 1 hour per day of that assessment is deducted because it involved an “observer role” the remaining 14 hours per week is the same as that assessed by Dr Buckley. Applying s28(2) it seems reasonable that in the give and take of family life Monica would have performed approximately 7 hours of services for the plaintiff in any event and accordingly the plaintiff should be compensated in relation to unpaid services to age 40 at the rate of 7 hours per week.

114 The same approach should be applied to Dr Yeo’s assessment of assistance between the ages of 40 and 55 years. His assessment of 20 hours related to paid assistance Monday to Friday. It assumed unpaid assistance of a similar kind on the weekend. This produces a total assessment of 28 hours of assistance per week. If one deducts 1 hour per day for the “observer role”, and 7 hours per week for services which Monica would have provided in any event, the plaintiff is left with an entitlement under s128 of the Act of 14 hours of unpaid assistance per week between the ages of 40 and 55.

115 If one applies the same approach to the period from age 55 for the plaintiff’s life expectancy, deducting 7 hours per week for services which Monica would otherwise have provided and deducting an hour a day for an “observer role”, and if one assumes that a similar level of unpaid care would be provided over weekends, the plaintiff has an entitlement for that period of 21 hours per week of unpaid care.

116 This does not end the question of what allowance needs to be made for the plaintiff in respect of future assistance. The above approach assumes that the plaintiff’s marriage will last for the next 40 years and that he will always have Monica available to assist him. I am of the opinion that it cannot be taken as a certainty that the marriage will last or that Monica will always be available to assist the plaintiff over the next 40 years. Monica’s evidence on this issue was telling.

“Since Peter’s accident he is, obviously, things obviously are not the same between us. When I used to visit him in hospital and at the rehab he was very cold, he used to push me away a lot and when I came home after I was released from in gaol he was very jealous, we argued a lot. It was hard for both of us I guess and I guess I just thought if we got married and I proved to him that, you know, I do love him, it doesn’t matter that he is in a wheelchair and things have changed. Unfortunately it’s not quite like that. He is still very – I don’t know how to explain how he is. I think he feels inadequate as a man, as a partner and there’s a lot of arguments all the time and I guess I just thought if we got married it would be different.” (T.118.18-31)

117 The plaintiff and Monica were only married in April 2005. Although it is clear that Monica loves the plaintiff, wants to stay with him and wants things to be better between them, it is equally plain that there are real difficulties and strains in this marriage. In my opinion there is a real chance that this marriage will not survive and appropriate allowance has to be made for that chance and for the fact that if the marriage does fail, the plaintiff will have no alternative but to pay for any assistance which he requires.

118 This kind of situation was considered by Beazley JA in Mortimer v Burgess at pp 11-13. There the Court assessed the chances of the marriage failing and calculated the cost of paid assistance in that circumstance. Additional

damages were then awarded to the plaintiff by reference to the difference between paid assistance and voluntary assistance and the percentage chance of the marriage failing.

119 My assessment of the chance of the marriage failing is 40%. The parties agreed that the hourly rate under s128(5) is $20.71. The parties agreed that the commercial rate for care if it had to be paid for was $25 per hour. The parties also agreed that when calculating the rate of paid assistance, no deduction was to be made for services which otherwise would have been performed by Monica and no deduction was to be made for “the observer role”.

120 In accordance with the above findings, I calculate the plaintiff’s entitlement to unpaid domestic assistance pursuant to s128 as follows:

7 hours per week to age 40 - $ 44,854.00
14 hours per week between age 40 and 55 $114,357.00
21 hours per week from age 55 to age 73 - $ 93,706.00
$252,917.00

121 Following Dr Yeo’s assessment for assistance if the plaintiff was on his own the figure would be $612,565. This figure includes paid and unpaid care. I propose to allow to the plaintiff in addition to the s128 assessment 40% of the difference between that assessment and the amount calculated for paid and unpaid care as assessed by Dr Yeo, to take account of the chance that the plaintiff’s marriage might fail. This will add an extra $143,859.00 to the calculation for future assistance.

122 Accordingly, the plaintiff is entitled to $396,776.00 for future assistance.

Handyman assistance

123 The claim by the plaintiff was in accordance with the prescription by Dr Yeo of 3 hours of handyman assistance per week. It was agreed between the parties that $30 per hour was the commercial rate for such assistance.

124 The defendant challenged that assessment on a number of bases. The first was that Dr Bowers had included handyman assistance in his assessment that the plaintiff needed 7 hours of assistance per week. I have already rejected Dr Bowers’ assessment in relation to domestic assistance. It follows that I do not accept as reasonable that handyman assistance would be included in the provision which he suggested.

125 The other challenge was based on reasonableness. The defendant submitted that the handyman tasks essentially involved mowing the lawn and maintaining the garden and that these were matters which could be adequately dealt with by Monica. It was also suggested that a low maintenance garden should be installed and that this would reduce the amount of handyman assistance. No costing was provided for the expense of removing existing plants and replacing them with low maintenance plants. In the absence of such evidence this last submission cannot be taken further.

126 The plaintiff and his wife moved into their present accommodation in November 2004. I have been provided with photographs of the house and surrounds at that time. There is certainly a requirement for lawn mowing and a requirement for garden maintenance. There would also from time to time be a requirement for minor repairs to be carried out in relation to the house, these being matters which the plaintiff would have been able to deal with had he not been injured. In my opinion it is unreasonable to expect the plaintiff’s wife to mow the lawn and to carry out those kinds of repairs. She could certainly water the garden but it would not be reasonable to expect her to do the heavier work to the extent that such was required.

127 There is, however, some force in the defendant’s submission that 3 hours of handyman assistance per week is more than would be required to maintain the lawn, garden and to carry out repairs from time to time. It seems to me that such handyman assistance should extend to such items as washing the car and routine maintenance of the pool. If those components are added to the tasks to be performed by a handyman, 3 hours per week is reasonable.

128 On the agreed hourly rate this would give to the plaintiff an entitlement of $82,737.00.

Vacation assistance

129 The claim by the plaintiff was for 4 weeks of holidays per year with paid assistance on a fulltime basis for that period.

130 The defendant challenged that approach by reference to the evidence that on any holiday the plaintiff would take his wife. Travel companies and airlines now made adequate provision for the travel of disabled passengers. An allowance had already been made for assistance to be provided by Monica in the normal home situation and it had not been established on behalf of the plaintiff that she would be required to provide additional services while on holidays. On the contrary, many of the services which Monica would have performed at home would now be done by others, eg room cleaning, bed making etc, performed by hotel staff.

131 I have not been persuaded that any additional services will be needed by the plaintiff on any holidays during which he is accompanied by his wife. It seems to me that s128(2) applies equally to the holiday situation.

132 In relation to the chance that the plaintiff’s marriage may not last, and that the plaintiff may require paid assistance, allowance has already been made for such assistance on the basis that it is supplied 52 weeks per year. Nothing has been put on behalf of the plaintiff which would indicate that while on holidays, the services which the plaintiff would require would be greater than those for which allowance has already been made, if he were living on his own in his home.

133 My conclusion is that the provision for care which I have made for the plaintiff while living in his home is adequate to cover those periods when he might wish to take a holiday and that no additional provision needs to be made.

Past economic loss

134 At the time when the plaintiff was injured he was working part-time in the building industry, three – four days per week. His taxation return for the year ending 30 June 2001 showed net earnings of $340 per week. $5,000 of those earnings came from unemployment benefits. The effect of the receipt of unemployment benefits on his overall earnings for that year is not clear. On the one hand it indicates that his average weekly earnings for the whole year were less than $340 net per week. On the other hand it may indicate that during the periods which he was working, his weekly net earnings exceeded the figure of $340 per week.

135 What is clear is that following his release from prison the plaintiff had difficulty in settling down and resuming regular work. He had not become self-employed. He had only been able to obtain part-time work. He appears to have earned nothing between his release in December 1999 and July 2000.

136 I am of the opinion that uninjured the plaintiff would have continued to earn at approximately that rate, at least until Monica was released from prison in December 2002. The plaintiff’s loss, therefore, from the date of the accident until 31 December 2002 was $350 net per week.

137 After Monica’s release from prison she and the plaintiff would probably have resumed their relationship and the plaintiff would have had the added responsibility of looking after her as well as himself. This is because she may well have had difficulty in obtaining regular employment due to her conviction and long period of imprisonment. In those circumstances the plaintiff’s earnings were likely to have been greater. I assess his loss of earnings between 2002 and the present time at $450 net per week. That figure has adequate regard to the plaintiff’s relatively modest earnings before his imprisonment and before his accident, but also has regard to the likelihood that with the increased responsibility of looking after Monica and planning for their future that his earnings would increase.

138 Following that approach I assess the plaintiff’s loss of earnings to date to be $87,100.

Future loss of earning capacity

139 The difference between the parties on this issue was stark. The claim by the plaintiff was $850 net per week for the next 32 years on the basis that $850 net per week represented net average weekly earnings for male employees in Australia at the present time. Reliance was also placed by the plaintiff on the evidence of Mr Messina, who was a self-employed concreter. He gave evidence to the effect that a good concreter could make up to $2,000 gross per week, ie before expenses were deducted and before tax was taken out. His evidence was that he was currently earning $1,000 per week after tax.

140 The defendant submitted that uninjured the plaintiff would not have earned more than that which he was earning before the accident, ie $300 - $350 net per week. When the plaintiff was self-employed his business did not appear to be particularly successful. He was not able to maintain payments to the finance company. He was unskilled and consequently more exposed to employment downturns, particularly in the building industry. Reliance was also placed upon certain comments made by the plaintiff to doctors after the accident that he was “semi-retired” at the time of the accident.

141 The defendant also relied upon the judgment obtained by the NAB against the plaintiff in the sum of $213,000. The argument was that the plaintiff was unlikely to accumulate assets since if he were successful in doing so, the Bank would seek to recover the monies which it was owed.

142 The defendant sought an increase in the allowance for adverse contingencies to 20% to have regard to the plaintiff’s unskilled status and the fact of his imprisonment which might stand against him with some employers despite the fact that the original conviction had been overturned on appeal.

143 A useful statement of principle is set out in Husher v Husher (1999) 197 CLR 138 at para 7.

(7) Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss “by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss”. But damages for both past loss and future loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss”. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.”

144 In this case there is no dispute that the plaintiff’s earning capacity has been destroyed. The only issue is the extent to which he would have utilised his earning capacity had he not been injured.

145 It seems to me that $850 net per week being the average weekly earning of male employees in Australia is too high a start point for calculating the plaintiff’s loss of earning capacity. That figure includes the earnings of very high earners and is significantly in excess of that which the plaintiff has ever earned in the past. Little assistance is provided by the evidence of Mr Messina. He did not produce his tax returns and was not prepared, or was not able to indicate his net earnings for the financial year ending 30 June 2004. He was aged 46, had been in the building industry for over 20 years and has been a concreter on a self-employed basis for the last 2 years. It seems to me that his evidence went no further than to establish that a successful concreter could earn up to $1,000 net per week. There was, however, nothing to equate the plaintiff’s employment experience and background with that of Mr Messina.

146 On the other hand the submission put on behalf of the defendant makes no allowance for the plaintiff’s situation improving. It makes no allowance for the plaintiff settling down and working hard after marriage and the taking on of family responsibilities. The undisputed evidence was that at the time when he was injured the plaintiff was very fit and one can infer that with proper motivation and if economic conditions allowed it, he should have been able to work consistently in the building industry for most of his working career.

147 Taking those matters into account, I assess the plaintiff’s loss of earning capacity at $650 net per week. I appreciate that such an assessment involves considerable imprecision. Nevertheless, I am mindful of what was said in State of NSW v Moss (2000) 54 NSWLR 536 at 551. I see no reason to increase the allowance for adverse vicissitudes beyond the conventional figure of 15% (Wynn v NSW Ministerial Corporation (1995) 184 CLR 485).

148 The plaintiff’s entitlement to damages for future loss of earning capacity is $466,863.00.

Superannuation

Past

149 Although the plaintiff had run his own business before his imprisonment, it is clear that following his release from gaol he worked as an employee only. I infer that uninjured he would have continued to have done so up to the present time. As an employee he would have been entitled to the statutory rate of superannuation for the period. The relevant rate was 8% per annum until 30 June 2002 and thereafter 9% per annum. That percentage was applied to gross earnings. This would give to the plaintiff an entitlement for lost superannuation in relation to the past of -

$ 9,860.00
Future

150 In relation to the future it seems to me that the plaintiff would have continued to work as an employee. I make this finding on the basis that the plaintiff’s previous experience as a self-employed concreter had not been particularly successful and that he would have been unlikely to repeat it. Using a figure of 9% per annum on the plaintiff’s gross earnings for the next 32 years, the plaintiff would have an entitlement to superannuation for the future - $58,187.00

House and other modifications

151 It is common ground that before the plaintiff’s accident, plans had been submitted to the local council, which involved significant alterations to the Narellan house. Those planned alterations had nothing to do with the plaintiff’s disability.

152 It seems to be agreed between Mr Watts, the architect retained on behalf of the plaintiff, and Mr Hesse, the architect retained on behalf of the defendant, that on the assumption that these modifications would have been carried out in any event, their cost should be deducted from the plaintiff’s claim for alterations to the Narellan house to the extent that these proposed changes duplicate changes which have now been recommended to accommodate the plaintiff’s disability.

153 The report from Mr Watts of 29 July 2005 has identified another problem. Substantial alterations have already been made to the Narellan property. Those alterations are of such a kind as to make some of the recommendations of Mr Watts impossible to achieve. For example the very large double garage and a carport which have now been constructed will prevent the covered wheelchair access to the house proposed by Mr Watts. Similarly the construction of a ramp to provide access to the Day Room has eliminated the need to raise the floor level of that room as was recommended by Mr Watts.

154 I have compared the recommendations as to housing modifications made by Mr Hesse and Mr Watts. It seems to me that some of the criticisms by Mr Watts of the costings by Mr Hesse and his quantity surveyor have substance in that the allowance for professional fees and GST on occasions is either inadequate or has not been made. On the other hand some of the recommendations by Mr Watts go beyond what is required to meet the reasonable needs of the plaintiff and provide what could be better described as an optimum result rather than a reasonable result.

155 What I propose to do is to take as my start point the recommendations by Mr Watts. Those recommendations should be adjusted downwards to take account of the modifications to the property which would have been carried out in any event, to remove the cost of those recommendations which are now impossible to achieve and to remove those recommendations which, in my opinion, are unreasonable.

156 I take as my start point the figure of $172,260 set out in the alternative conclusion of Mr Watts in his report of 30 January 2003, after making an allowance for the cost of alterations which the plaintiff planned to make in any event.

157 I then propose to deduct the cost of the covered access of $16,600 and part of the cost attributed to alterations to the Day Room, ie $7,500. These alterations can now never be made because of the building work which has already been carried out on the premises. Those adjustments reduce the figure to $148,160.

158 In relation to the specific recommendations made by Mr Watts, the provision for an office ($6,300) is not a need created by the accident. There is no need for a separate room for exercise therapy. There is, however, a need to have adjustments made to an existing room to allow for pulleys to be attached. I propose to reject the figure of $14,000 for an exercise therapy room but allow $3,000 so that adjustments can be made to an existing room to accommodate a set of pulleys with weights attached to them. Some of the security features, such as an intercom system, and some of the alterations to the laundry appear to be excessive and I propose to deduct a further $5,000 in relation to those matters. After making those adjustments the figure for housing alterations becomes $125,860.00. That figure needs to be increased by 17% to have regard to cost increases which have occurred between 2002 and the present time. The resulting figure is $147,256.00 and that is what I award for housing modifications.

Hydrotherapy pool

159 Doctor Buckley and Dr Yeo recommended that the plaintiff have his own “small domestic size heated swimming pool” which was enclosed to allow him to use that facility during winter and summer. Doctor Bowers, whilst not agreeing that such a facility was necessary, did agree that it would better enable the plaintiff to exercise and maintain his physical fitness.

160 It was suggested on behalf of the defendant that a better option was for the plaintiff to use a nearby heated pool, which was available to the general public. Doctors Yeo and Buckley rejected this idea because of the possibility that the plaintiff might become incontinent. It was their opinion that the authorities running the pool would refuse to allow the plaintiff access to it because of the risk of him becoming incontinent. In that circumstance the pool would have to be closed for a number of days because of general health considerations.

161 I am of the opinion that such an option is not feasible and that the plaintiff should have access to his own small domestic sized heated swimming pool which was enclosed.

162 There was a considerable dispute as to how that need should be met. The Narellan house already has an existing pool. It is quite a large pool, having dimensions of 8 metres by 4.5 metres. A difficulty is that this pool is rather larger than required to meet the plaintiff’s needs and the costs of enclosing it to enable all weather use are quite extensive. On the calculations of Mr Watts enclosure costs are $56,160 out of a total of $112,028. The estimate by Mr Hesse of modifying the existing pool so as to heat it and enclose it was very similar to that of Mr Watts.

163 Two other alternatives were put forward in the course of evidence. Mr Hesse was asked to provide a quote for a “heated covered portable spa pool on a concrete base including electrical connections”. The cost of installing such a spa pool was $14,385.

164 I was also provided with a quote from Pride Pools for the construction of a purpose built hydrotherapy pool with dimensions of 5 metres by 5 metres. The cost of installing such a pool was $220,000. As was conceded on behalf of the plaintiff in argument, there were a number of features in the Pride Pools quotation which went well beyond the reasonable needs created by the plaintiff’s injuries.

165 From the description and dimensions of the portable spa pool described by Mr Hesse, I do not think it would achieve the objective of providing the plaintiff with proper exercise such as was described by Drs Yeo and Buckley. I do not think it adequately meets the plaintiff’s needs.

166 I have concluded that the most appropriate way of meeting the plaintiff’s needs for a heated and enclosed pool is to modify the existing pool in the way described by Messrs Watts and Hesse. Accordingly I propose to allow to the plaintiff the amount of $112,028 so that the existing pool can be appropriately modified and enclosed.

Maintenance and running costs

167 The parties agreed on the annual cost of air conditioning at $2,493.00 per annum.

168 There was a dispute on the question of the annual running and maintenance costs of an appropriate pool. On the basis of the portable spa pool the defendant’s position was a cost of $770 per annum whereas the figure put forward on behalf of the plaintiff was $5,265. In view of the finding which I have made in relation to the pool I need to consider the reasonableness of the plaintiff’s figure for annual maintenance and running costs.

169 The assumptions upon which the pool costings are based are somewhat deluxe and go beyond the recommendations of Drs Yeo and Buckley. The costs relating to heating of the enclosure should be rejected. Much of the pool water maintenance costs would be included in the allowance made for a handyman, although an allowance would have to be made for the cost of chemicals. Similarly the claim for “miscellaneous equipment” would seem to be excessive given the limited use to which the pool is going to be put. The energy costs are based on a daily use of the pool and water heating taking place for 6 hours per day. That also seems to be excessive. I propose to allow $2,200 per year on the basis of the 2002 costings. When that is increased by 17% the amount per annum which I allow for the pool is $2,574.00.

170 Accordingly the running and maintenance costs of the air conditioning and the pool for the next 40.25 years is $89,579.

Conclusion

171 In summary I find the plaintiff’s entitlement to damages to be as follows:-

Non-economic loss	$ 341,000.00
Past hospital, medical, pharmaceutical expenses	$ 350,872.12
Future hospital, medical, pharmaceutical expenses	$ 197,115.10
Equipment needs	$ 115,571.00
Additional equipment items	$ 18,416.00
Anticipated future needs	$ 146,969.00
Future personal aids	$ 105,720.00
Past domestic assistance/care	$ 51,306.20
Future domestic assistance/care	$ 396,776.00
Handyman assistance	$ 82,737.00
Past economic loss	$ 87,100.00
Future loss of earning capacity	$ 466,863.00
Past superannuation loss	$ 9,860.00
Future superannuation loss	$ 58,187.00
House and other modifications	$ 147,256.00
Hydrotherapy pool	$ 112,028.00
Running and maintenance expenses for pool and	$ 89,579.00
air conditioning
Total	$ 2,777,355.42

172 From that total the defendant is to be given credit for the following amounts:

Past assistance/care	$ 31,812.70
Past hospital, medical, pharmaceutical expenses	$ 350,872.12
Home modifications	$ 13,479.60
General advance on damages	$ 277,219.10
Total	$ 673,383.52

173 Allowing for the credit to the defendant in the amount of $673,383.52 I make the following orders:-

1. Judgment in favour of the plaintiff in the sum of $2,103,971.90.

2. The defendant to pay the plaintiff’s costs of the proceedings.

3. Liberty is granted to the parties to approach the Court on 2 days’ notice if any special costs order is sought and if any mathematical error in the judgment has been identified.

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09/09/2005	-	Slip Rule - arithmetical errors. - Paragraph(s) 37, 45, 105, 122, 171, 173
09/09/2005	-	Arithmetical error - Paragraph(s) 173