Mercer v Allianz Australia Insurance Limited (No 2) - [2013] TASSC 35

[2013] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: Mercer v Allianz Australia Insurance Ltd (No 2) [2013] TASSC 35

PARTIES:  MERCER, Ivan
  v
  ALLIANZ AUSTRALIA INSURANCE LTD

FILE NO:  115/2012
DELIVERED ON:  18 July 2013
DELIVERED AT:  Hobart
HEARING DATE:  15 – 17, 19, 22 April 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Prevailing standards of general damages – Prevailing standards in other jurisdictions.

Civil Liability Act 2002 (Tas), s28(1).
Planet Fisheries Pty Ltd v La Rosa (1968) 199 CLR 118; Dodge v Snell [2011] TASSC 19, referred to.
Aust Dig Damages [54]

Damages – Particular awards of general damages – Tasmania – Quadriplegic aged 65 at accident, 70 at trial – General damages of $240,000 for pain and suffering and loss of amenities.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC, R J Phillips
             Defendant:  P L Jackson
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  Page Seager

Judgment Number: [2013] TASSC 35
Number of paragraphs: 126

Serial No 35/2013
File No 115/2012

IVAN MERCER v ALLIANZ AUSTRALIA INSURANCE LTD

REASONS FOR JUDGMENT BLOW CJ

18 July 2013

On 11 March 2008 the plaintiff, Ivan Mercer, was injured in the course of his employment when he was struck by a number of packages of laminate flooring. As a result, he is now a quadriplegic. He was employed as the managing director of a company named Windsor Agencies Pty Ltd. He and his wife controlled that company. He and a fellow employee, Mr Bacic, were in the early stages of unloading a shipping container which had arrived that day from France at the premises of Windsor Agencies at Bridgewater. Mr Bacic was using a forklift to move two pallets of the laminate flooring, stacked one on top of the other, when his load fell to one side and injured the plaintiff.

Windsor Agencies was subsequently deregistered. At all material times that company had a workers compensation insurance policy with the defendant, Allianz Australia Insurance Ltd. The plaintiff has sued that company pursuant to the Corporations Act 2001 (Cth), s601AG, alleging that his injuries were caused by the negligence of Mr Bacic, and that Windsor Agencies was vicariously liable to pay damages to him in respect of his injuries before its deregistration.

Section 601AG reads as follows:

"601AG   Claims against insurers of deregistered company
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a)   the company had a liability to the person; and
(b)   the insurance contract covered that liability immediately before deregistration."

The purpose and effect of that section were considered by the New South Wales Court of Appeal in Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148. As Ipp JA said in that case at par[34], the purpose of the section "is to require the insurer of a deregistered company to stand in the shoes of the company to the extent necessary to allow creditors of the company to recover from the insurer whatever amounts they were entitled, by force of law, to recover from the company had it not been deregistered". An insurer may therefore raise against a claimant whatever defences would have been open to the deregistered company: Almario per Ipp JA at par[35]; Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270 at par[4]. It follows that an insurer may rely upon a defence of contributory negligence that would have been available to the deregistered company under the Wrongs Act 1954, s4(1).

The plaintiff contends that he is entitled to recover from the insurer the amount that Windsor Agencies would have been liable to pay him if it had not been deregistered. The defendant denies that the plaintiff's injuries were caused by negligence on the part of Mr Bacic. It contends that the plaintiff's injuries were caused, or at least contributed to, by his own negligence. There are other issues that I will need to determine for the purpose of assessing the damages that the plaintiff would have been entitled to recover from the deregistered company. However much of the evidence relating to the quantum of damages was not disputed at the trial.

The accident

The plaintiff and Mr Bacic gave conflicting evidence as to how the accident occurred. Both seemed to be to be honest witnesses. No one else saw what happened. I have come to the conclusion that, on either version of events, there was both negligence on the part of Mr Bacic and contributory negligence on the part of the plaintiff. For the purpose of determining a just and equitable apportionment of liability, I will need to make findings as to the disputed facts.

A number of facts are not in dispute. The shipping container arrived at around noon on the day in question. The doors at the southern end of the container were opened. The plaintiff and Mr Bacic then took their lunch break. The container contained packages of laminate and rolls of underlay. The laminate was in cardboard packages, each of which was wrapped in plastic. Those packages were stacked on pallets which measured about 800mm wide by 1230mm long. The load on each pallet was wrapped in paper, shrink-wrapped in plastic, and secured by straps. The loaded pallets were stacked two high inside the container. There were straps securing each pair of pallets, passing over the top of the load of the top pallet, and under the floor of the bottom pallet. When the doors of the container were opened, one could see a pair of pallets on the left that were aligned north-south, running along the left side of the container, with one end, about 800mm wide, facing the open doors. To the right, there was another pair of pallets, aligned east-west, with their long side, about 1230mm long, facing the open doors. The east-west pallets on the right were further inside the container than the north-south pallets on the left. The void between the right-hand east-west pallets and the doors had been filled with rolls of underlay. There were some 70 rolls of underlay in the container. Each roll was wrapped in plastic. About 50 of those rolls were in the space between the doors of the container and the pallets nearest to the doors.

This was the third container of laminate flooring and underlay that Windsor Agencies had received from France over a period of about 12 months. The pallets and rolls of underlay in the first two containers had been arranged in the same way as those in the third. When the first two containers were unloaded, a subcontractor named Hepworth used Windsor Agencies' forklift to remove the pallets from the containers. Mr Bacic observed what he did on one of those two occasions. Mr Hepworth began by removing the right-hand east-west pallets using the forklift. He then positioned a metal ramp against the entrance to the container, wheeled a pallet jack belonging to Windsor Agencies into the container, used the pallet jack to turn the left-hand north-south pair of pallets through 90 degrees and bring them towards the entrance, and then removed them using the forklift.

On the day the plaintiff was injured, Mr Bacic did not follow the same methodology. Instead of removing the right-hand east-west pallets first, he began to remove the left-hand north-south pallets first, using the forklift. He had not placed the metal ramp in position, and had not made any use of the pallet jack. The plaintiff had eaten his lunch and resumed work before Mr Bacic did. He started unloading the rolls of underlay from the open southern end of the container, carrying them one at a time and placing them inside his warehouse. There is conflicting evidence as to what happened next.

The plaintiff gave evidence that, immediately before the accident, he was standing inside the container, in front of the right-hand east-west pallets, in a position from which he had removed rolls of underlay. His description of what happened was as follows:

"What happened next was I turned. I heard the forklift. I turned and the pallet was at that stage heading in my direction. … I said to Nick [Mr Bacic] to drop the load or, 'Drop the fucking load' because my interpretation was that if the load was dropped we'd only damage a bit of laminate. There wouldn't be any real major drama, but then we'd probably have to repallet it on – a box at a time onto a pallet. It was pretty much a reflex time. The time was very short. So then the pallet was getting reasonably close. I put my hands up in a protection situation and I got hit …".

He said that his head struck the container wall, and that he was forced into a very small, confined area.

Mr Bacic's account of the accident was as follows:

"… I remember looking in the container and seeing two pallets on top of each other, asking Ivan [the plaintiff] if I should be taking them, and he said 'Yes'. And I remember driving into the container, going into the container with the forklift, going – putting the forks into the fork in the container to lift up the pallets, and I slightly lifted it up and then I looked up the top of the container and I seen the pallets – the top one was leaning towards the right and I noticed that Ivan was in the container. I told him to get out, and he had his arms up – he was in – it looked like he was in shock – put his hands up and was leaning towards – going towards the top pallet that was falling like that – and then eventually the pallet fell on top of him."

The plaintiff's principal allegations of negligence are that Mr Bacic was negligent in the following respects:

·     Moving the left-hand north-south pallets before removing the right-hand east-west pallets.
·     Commencing and continuing the task of removing those pallets before ensuring that the plaintiff was well away from the area in which the forklift was operating.
·     Failing to spread the tines of the forklift to the maximum possible extent, so as to maximise stability of the load, before inserting the tines under the pallets.

The tines of the forklift were about 1100mm long. They were inserted under a pallet that was about 1230mm long. The load would have been more stable if it had first been turned through 90 degrees. As the pallet was only 800mm wide, the tines could have been inserted all the way under the load. The load would then have been more stable. In the light of those facts, the plaintiff contends that Mr Bacic was negligent in failing to remove the right-hand east-west pallets first, failing to use the pallet jack to move and turn the left-hand north-south pallets, and using the forklift when the tines were unable to be inserted sufficiently far under the pallets to ensure the stability of the load.

The defendant contends that the plaintiff failed to take proper care for his own safety, in that he entered and/or remained in the area in which the forklift was operating.

I am not able to make a finding as to why the pallets on the forklift truck were so unstable that the load fell to one side. One possibility is that the pallets were not properly wrapped and strapped before leaving France. Another possibility is that movement during the journey from France to Bridgewater caused them to become unstable. Another possibility is that their wrapping and strapping were damaged as they were removed from the container by Mr Bacic. The fact that the tines did not go under the full length of the load most likely contributed to the instability of the load. There was no evidence as to how far apart the tines of the forklift were at the time in question. The evidence does not warrant an inference that they could have been more widely separated to any significant extent. I therefore reject the argument that Mr Bacic failed to spread the tines to the maximum possible extent.

A number of photographs were tendered as exhibits at the trial. One showed the forklift with its tines inserted under one of the pallets with the 1230mm side of the pallet against the front of the forklift. I infer from that photograph that the forklift is less than 1230mm wide but more than 800mm wide. Having regard to the sizes and dimensions of the forklift, the pallets, and the container, it is clear that Mr Bacic would have been in a position to see the plaintiff when he was approaching and moving the left-hand north-south pallets. However he would not have been able to see the right-hand side of his load when sitting upright in the driving seat of the forklift.

Mr Bacic was an experienced forklift driver. He held a licence which authorised him to drive a forklift. He had made his living as a storeman/forklift driver for over 11 years, spending 7 years with another employer and then about 4½ years with Windsor Agencies. Under cross-examination he accepted that, as a basic matter of forklift safety, a forklift driver should be conscious of people working around him and should not allow people to be in close proximity to a travelling forklift. He accepted that a forklift driver should not allow people to be near stacked loads that were being unloaded. He accepted that high stacked loads could become unstable and topple. He accepted that the weight, shape, size and composition of a load affected the way it should be lifted. He accepted that the stability of a load was decreased if it was off-centre. He accepted that there could be stability problems if the tines did not fit all the way under the length of a pallet. He accepted that a forklift operator should take the time to familiarise himself with every new type of load before starting work. Counsel for the plaintiff also tendered a booklet on forklift safety published by WorkCover Tasmania which contained statements to the effect of those accepted by Mr Bacic.

I accept that Mr Bacic was negligent in moving the two pallets without ensuring that the plaintiff was a safe distance away from them. Mr Bacic should have kept a proper lookout for that purpose. Whether the plaintiff had recently arrived in the container, or whether he had been in it for some time, there was no reason for Mr Bacic not to have been aware of the plaintiff's movements or his presence. The plaintiff had been going to and from the container, removing rolls of underlay. Mr Bacic gave evidence to the effect that he saw the plaintiff standing on the ground outside the right-hand side of the entrance of the container before he began to move the pallets, and next saw him inside the container just before the load fell on him. Given the evidence as to what the plaintiff had been doing, I accept Mr Bacic's evidence as to those observations.

However I am not prepared to place any reliance on Mr Bacic's evidence to the effect that, immediately before moving the two left-hand north-south pallets, he asked the plaintiff whether he should be taking those pallets, and that the plaintiff replied, "Yes". During the cross-examination of the plaintiff, counsel for the defendant put to him that, at some point after Mr Bacic had begun to move the pallets, he had asked the plaintiff, "Should we be moving two at a time?" and that the plaintiff had replied to the effect of, "Yes. We've done it before. It's okay." The plaintiff denied that those things had been said at the time of the accident, but said that those things could possibly have been said at lunchtime or before lunch. In his evidence-in-chief, in the passage quoted above, Mr Bacic said something a little different from what had been put to the plaintiff. He said he remembered seeing two pallets on top of each other and asking the plaintiff if he should be taking them. Even though the plaintiff was his boss, it would have been inappropriate for Mr Bacic to have sought instructions from him as to how to go about unloading the container because Mr Bacic was a qualified and experienced forklift operator, whereas the plaintiff was not. If he had asked that question and thereby alerted the plaintiff to the presence of the forklift and the imminent moving of the two pallets, it is highly unlikely that the plaintiff would then have stepped into the container during the unloading operation. Mr Bacic gave evidence that, as a consequence of the accident, he had continuing troubles with post-traumatic stress, anxiety and depression, to such an extent that he was receiving continuing professional treatment for those problems. It does not necessarily follow that his memory of the day in question has been affected, but I think there is a risk that it has been, and that he did not really speak to the plaintiff from the forklift before the accident.

I accept that, until moments before he was injured, the plaintiff was oblivious to the proximity of the forklift, and to the noise it was making, even though it had been making a noise near him for some time. The evidence established that there was a gap between the entrance to the container and the left-hand north-south pallets. Mr Hepworth gave evidence that to remove the left-hand north-south pallets (which he would not have done because of safety concerns), a forklift operator would have to insert the tines as far as possible into the bottom pallet, raise it a little, move the load until the front of the bottom pallet reached the entrance to the container, lower the load, insert the tines further into the pallet, raise the load, and resume reversing. Mr Bacic must have taken all of those steps before the load began falling towards the plaintiff. The load could not have fallen until it had been moved clear of the right-hand east-west pallets. From the time the forklift approached the container until the time of the fall, its engine would have been audible. Whenever the load was raised or lowered, the hoist mechanism would have made an additional noise. There was nothing wrong with the plaintiff's hearing. He should have been aware of the noises that the forklift was making near him and, alerted by those noises, should have moved to a position of safety. The extent of the forklift's audible manoeuvring before the load fell on the plaintiff is relevant in assessing the degree of contributory negligence on his part. The louder the noise and the longer it persisted, the greater his contributory negligence.

The defendant also contends that the plaintiff was negligent in failing to instruct Mr Bacic to stop what he was doing until he had removed himself from the immediate area in which Mr Bacic was operating the forklift. I am satisfied that the plaintiff spoke to Mr Bacic, for the purpose of averting the danger to himself, as soon as he became conscious that there was a risk of him being injured. I do not think that this allegation of contributory negligence strengthens the defendant's case. The plaintiff's contributory negligence should be evaluated on the basis that he should have been aware of the noises that the forklift was making and, as a result, ensured that he was in a position of safety.

By moving out the two left-hand north-south pallets without turning them, Mr Bacic increased the risk of material falling onto someone. If the right-hand east-west pallets had been moved first, and the left-hand north-south pallets had been unstable, they might have fallen into the void created by the movement of the right-hand east-west pallets, but in that situation no one would have been standing where they fell. Removing the right-hand east-west pallets first might have resulted in the instability of the left-hand north-south pallets being apparent, in which case appropriate steps could have been taken to move the unstable boxes safely. I am satisfied that the plaintiff's injuries resulted from negligence on the part of Mr Bacic in moving the left-hand north-south pallets before the right-hand east-west pallets had been removed, and in moving them without ensuring that the plaintiff was well away from the area in which the forklift was operating. I am also satisfied that the plaintiff was negligent in failing to take proper care for his own safety, in that he failed to leave the container, and remained in it when Mr Bacic had begun using the forklift to unload it. Having regard to all the circumstances, but particularly the fact that the plaintiff was a pedestrian whose presence posed no danger to anybody else, whereas Mr Bacic, despite his qualifications and experience, was using a vehicle to move a heavy load inappropriately, I think it would be just and equitable for the amount recovered by the plaintiff to be reduced by 25%.

My conclusions in relation to liability can therefore be summarised as follows:

·     The plaintiff's injuries resulted from negligence on the part of Mr Bacic.
·     Windsor Agencies was vicariously liable for the negligence of Mr Bacic.
·     As a result of Windsor Agencies' deregistration, the plaintiff is entitled to recover an amount from the defendant equal to Windsor Agencies' previous liability to him.
·     The plaintiff's injuries were contributed to by negligence on his part.
·     The amount recoverable is to be reduced by 25% because of that contributory negligence.

Damages - Introduction

In order to determine the liability of the defendant insurer, it is necessary to assess the damages to which the plaintiff would have been entitled against Windsor Agencies if that company had not been deregistered, and then to make an adjustment to allow for contributory negligence. The plaintiff's injuries were catastrophic and are permanent. There will be ongoing complications for the rest of his life. He has permanently lost the ability to walk. He has permanently lost control of his bowel and urinary functions. His use of his arms and hands has been very substantially impaired. He has become permanently unfit for remunerative work, and permanently dependent on the provision of care by others.

On the day of his accident he was 65 years old. He was still working full-time. He was physically active. His recreations included golf, fishing and walking. He had been actively involved in landscaping and gardening at his home. He and his wife enjoyed overseas travel. He had made a good recovery from spinal surgery in 2004.

On the day of his accident he was taken by ambulance to the Royal Hobart Hospital, where doctors established that his spinal cord had been partially severed. It was decided to airlift him to Melbourne for treatment by the Victorian Spinal Cord Service, based at the Austin Hospital. He was flown to Melbourne on the day after the accident, 12 March 2008.

Surgeons at the Austin Hospital operated on his cervical spine on 12 and 19 March 2008. His neck was fused in a slightly forward position. On 13 May 2008 he was transferred from there to the Royal Talbot Rehabilitation Centre, which is also within the Austin Hospital. He underwent intensive rehabilitation there for about three months. He underwent an operation on his right vocal cords, involving the injection of fat retrieved from his abdomen, on 17 May 2008. He was not able to speak from the time of his accident until then because of vocal cord palsy.

The plaintiff suffered a number of complications during his time at the Austin Hospital. He was treated with intravenous antibiotics for pneumonia. He was diagnosed as suffering from steroid induced Type 2 diabetes. He was treated for hypothermia. A percutaneous gastronomy feeding tube was inserted so that he could receive nutritional fluid directly through the abdominal wall into the stomach. That tube remained in position for seven months. A suprapubic catheter was inserted because of ongoing bladder dysfunction. At one point he was treated for a bladder infection. On another occasion his catheter became blocked and had to be changed. He was treated for epididymorchitis – an inflammation of the testicles.

While the plaintiff was in the Austin Hospital he suffered several episodes of autonomic dysreflexia. That condition occurs when an unpleasant stimulus, such as a distended bladder, initiates excessive reflex activity of the sympathetic nervous system. This results in increased blood pressure. If the blood pressure becomes very high, it can cause a brain haemorrhage. The plaintiff was trained to recognise the symptoms, which include a pounding headache, flushing or blotching of the skin, profuse sweating, and chills.

While the plaintiff was in hospital in Melbourne, his wife negotiated the sale of Windsor Agencies' business. She has not undertaken any paid work since then, but has devoted herself to the care of her husband.

On 12 August 2008 the plaintiff was discharged from the Royal Talbot Rehabilitation Centre. He returned to Tasmania for some months. Initially he spent two weeks at the St John's campus of Calvary Hospital in South Hobart while equipment was being delivered and discharge plans were being organised. It was while he was in Hobart that the feeding tube was removed.

The plaintiff had lived in New South Wales until the age of 50. He and his wife decided not to continue living in Tasmania after his accident. They bought a ground level unit in East Gosford, New South Wales. They left Tasmania in early 2009, and took up residence in that unit. They have lived there ever since. From the time the plaintiff moved to East Gosford, the defendant has arranged for carers to look after him in his home.

The plaintiff's physical symptoms and their consequences

The plaintiff has suffered a variety of physical symptoms as a result of the accident. All of the medical problems described below resulted from his injury.

Motor and sensory abilities

The plaintiff has no problem moving his head up and down. He can move it only slightly to the left or right. He suffers neck pain at all times. It varies in intensity. He sometimes takes Panadeine Forte to relieve that pain.

His right arm is almost normal. He can grip things with it, and can write with it. It has almost a full range of movement. He has good sensation in it.

He has less movement in his left arm, but can raise it above shoulder height. He has trouble straightening it. On 2 April 2012 the plaintiff underwent tendon transfer surgery involving his left forearm and left hand. Before that procedure he had practically no power to grip things with his left hand. Since that procedure he has been able to make some use of that hand. He is now able to use it to hold wide things, such as water bottles. He cannot use it to hold narrow things, such as knives and forks.

He has feeling and movement in his trunk down to nipple level. He has limited sensitivity to touch between about nipple level and hip level. Below hip level he has no sensation at all. He has no power in his legs. They tend to swell. He therefore wears special socks.

He is able to peddle on an exercise machine, using a motor to start his legs moving. He does that two or three times per week in order to preserve muscle tone. His carers stay with him while he does that.

Feet

The plaintiff's feet have begun to change shape. A consultant physician observed a mild inversion of his right foot in 2010. Both feet are now affected. The plaintiff cannot get either foot into an ordinary flat position on the floor, or on the footplates of a wheelchair.

Bladder difficulties

As a result of his injuries, the plaintiff has no control over his bladder. He still has a suprapubic catheter, which drains into a bag worn on his leg. At night, and on other occasions when necessary, he wears an overnight bag that is larger than an ordinary leg bag. He is able to empty and replace his own leg bag. On occasions sediment causes blockages in the catheter line. If the sediment solidifies, the urine flow is blocked, and steps need to be taken to restore it.

Such a blockage can result in autonomic dysreflexia. The symptoms can sometimes be relieved by the use of a sublingual spray. The plaintiff was admitted to hospital in Gosford suffering from autonomic dysreflexia in May and December 2010. In May 2011, on medical advice, he commenced taking cranberry tablets in order to reduce the risk of autonomic dysreflexia, apparently with some degree of success. However he was admitted to hospital with another episode of that condition in late 2011. His carers have since learned how to deal with sediment in his suprapubic catheter, with the result that recurrent catheter blockages, and consequent episodes of autonomic dysreflexia, have been avoided.

Bowel difficulties

As a result of his injury, the plaintiff has no control over his bowels. Carers administer an oral laxative to him every second night. The following morning they insert a suppository. The plaintiff is wheeled into his bathroom, where his bowel is manually stimulated by a carer. He has very little sensation in relation to his bowels and needs to be told when his bowel movements are complete. His carer then moves him into the shower. This routine is repeated every two days.

On occasions the plaintiff has had bowel movements in bed at night, often without realising what has happened. This problem has become less frequent. It happens to him now only once or twice per year.

Respiratory difficulties

The plaintiff suffers from sleep apnoea. He sleeps with a CPAP (continuous positive airway pressure) machine on his head. His carers put it on. That machine enables him to breathe better, and prevents his mouth from opening in his sleep. However he has chronic insomnia, and difficulty initiating sleep.

On 16 June 2012 the plaintiff was admitted to hospital in Gosford suffering from pneumonia. He was discharged on 3 July 2012, but his symptoms recurred, and he was re-admitted from 12 July until 20 July. Renal failure and septicaemia were diagnosed at the time of that admission. He has had respiratory problems, to a decreasing extent, ever since. With the help of his carers, he undertakes breathing exercises every day.

Skin care

Because of his lack of mobility, the plaintiff is particularly vulnerable to skin difficulties. Care has to be taken not to damage his skin when he is being moved in and out of his bed and his wheelchairs. If a break of the skin occurs, there is a risk of serious infection. He has to be moved regularly so that pressure does not build up and damage his skin. He has a special mattress that changes formation every seven seconds in order to reduce the risk of bed sores. His carers have to inspect the areas of the skin that he is unable to see. He has received medical treatment for pressure sores and skin tears on several occasions since moving to Gosford.

Sensitivity to cold

The plaintiff experiences unusual sensitivity to cold conditions. If he gets cold, it takes a long time for his body temperature to return to normal. He avoids going out during the winter.

Leg spasms

The plaintiff gets spasms in his legs, more often in the left leg than the right. On occasions he gets full body spasms from the chest down. His spasms sometimes interfere with his sleep. They are a nuisance, but there is no suggestion that they can lead to medical complications.

Voice

Since he regained the power of speech, the plaintiff's voice has been a lot huskier than it was before. He now finds it difficult to talk at length.

Exercises

The plaintiff undertakes physiotherapy at home with a carer for about 30 to 45 minutes per day. He spends one hour per week undertaking physiotherapy with a professional physiotherapist.

Daily routine

The plaintiff usually wakes up at about 5am. His carers arrive at 8am. They give him a shower. He is able to shave without assistance. He has breakfast at 9am. He has a small gym in his home. He goes there after breakfast and does exercises while the carers supervise him. They leave at about 10am to 11am. The plaintiff's wife looks after him in the absence of the carers. She makes coffee for him. He used to cook before the accident, but no longer cooks at all. On some days his wife drives him to medical or physiotherapy appointments. When he does not have to attend appointments, he sketches, paints, does crosswords, uses his computer, or reads books on a Kindle. As he is confined to a wheelchair, many things in his home are not within his reach. The carers return at 10pm for about an hour. They give him his medication and take his blood pressure. He cleans his teeth and washes his face before the carers put on his CPAP machine. They also put the toothpaste on his toothbrush.

Respite care

For the benefit of his wife, the plaintiff occasionally spends time in respite care at a facility for quadriplegics in Sydney named Ferguson Lodge. His wife goes with him. They spend a fortnight at a time there.

Transport

The plaintiff and his wife have acquired a van and had it modified to transport a passenger sitting in a wheelchair. The plaintiff's wife drives him to all his medical appointments, and everywhere else that he goes, in that van. The plaintiff drives his electronically powered wheelchair up a ramp into the back of the van, where his wife secures it.

Destruction of earning capacity

The defendant accepts that the plaintiff's earning capacity was completely destroyed as a result of his injuries. However there is a dispute between the parties as to the extent to which the destruction of his earning capacity has resulted in financial loss, and will result in financial loss in the future. The plaintiff contends that, but for his accident, he would have continued to work until about the age of 75, earning no less than $520 per week gross. Further, he contends that, but for his accident, his wife would have earned no less than $595.76 per week gross from Windsor Agencies, their family business, until he retired. He contends that her income from Windsor Agencies should be brought into account in accordance with the principles discussed by the High Court in Husher v Husher (1999) 197 CLR 138.

Windsor Agencies had not been sufficiently profitable for the plaintiff and his wife to receive dividends for several years prior to his accident. The company's only employees were the plaintiff, his wife, and Mr Bacic. Remuneration was also paid to subcontractors and to commission agents, but that expenditure was fairly minor. The plaintiff's wife attended to the office work of the business, working from 9am to 4pm, Monday to Friday. Under cross-examination the plaintiff agreed that she "earned her salary".

Counsel for the defendant submitted that the principles discussed by the High Court in Husher v Husher (above) were not applicable in this case. He pointed out that that case concerned a woman whose contribution to the income of a partnership business was described by Gleeson CJ, Gummow, Kirby and Hayne JJ at par[20] of their judgment as "negligible". It was against that background that it was held that the whole of the partnership income in that case was produced by the exploitation of her husband's earning capacity, and that it was incorrect to award damages relating only to the share of the profits that he would have received from the continuation of the pre-accident partnership arrangements.

There may be cases concerning husband-and-wife partnerships or companies in which one spouse provides some services to the business and is paid more than those services are worth, the excess being attributable to the exploitation of the other spouse's earning capacity. In such a case, if the earning capacity of that other spouse were destroyed, I think it would be appropriate to bring into account the excess income paid to the uninjured spouse when assessing damages for the destruction of earning capacity. However the evidence does not establish that this is such a case. There is no evidence that the salary paid to the plaintiff's wife exceeded what the company would have had to pay someone else if she had not been available to do the office work. It follows that the damages for the destruction of the plaintiff's earning capacity must be assessed by reference to his salary alone.

At the time of his accident, the plaintiff had been working full-time for some 50 years and was planning to continue working. He left school when he was 15 and obtained work with a cabinet making company, but not for long. As a teenager he worked in a specialist pen shop in Sydney, then behind a sales desk at a bedding company, and then doing retail work at a store in Parramatta. From there he moved to Forbes, where he worked as a buyer, buying furniture and floor coverings for a retail company. Next he worked for Burns Philp in the Blue Mountains, where he was involved in sales of carpets and furniture, and the acquisition of stock. From there he went to work for a carpet company in Windsor, managing a shop. He started a business named Windsor Carpet Centre. He moved to Devonport in about 1992, working as an agent for carpet companies. After a few years there he moved to Hobart. It was in Hobart that he established Windsor Agencies, which carried on business as a distributor and agent for carpet and floor covering companies. Distributors purchase and re-sell merchandise, whereas agents sell merchandise on behalf of their principals.

When the plaintiff's accident occurred, he was making plans for Windsor Agencies to cease to be a distributor, and to function only as an agent. He gave evidence that there was plenty of scope to build up the agency side of the business, and that that would have enabled him to cut down on his travelling around Tasmania, so that he could work perhaps for only three or four days per week. He had discussed arrangements with a man in Launceston with a view to that man acting as the agent of certain companies in the north of Tasmania and him acting as their agent in the south.

Before the accident, the plaintiff and his wife had registered with Centrelink for participation in the pension bonus scheme that was provided for in Part 2.2A of the Social Security Act 1991 (Cth). Under that scheme, if a person was qualified to receive the age pension, but instead chose to work for a minimum of 960 hours per year, that person could, after ceasing work, receive the age pension with a bonus. To be eligible for such a bonus, the person would need to keep working for at least one year, working no less than 960 hours per year. If at least that many hours were worked per year, each completed year of work, up to a maximum of five years, would entitle the person to a greater bonus. I accept that the plaintiff and his wife intended to take advantage of this scheme if they could. The availability of benefits under this scheme to the plaintiff and his wife is a factor that should be taken into account in his favour when making allowance for the contingency that the plaintiff might have retired before reaching the age of 75.

As I have said, the claim in respect of the destruction of the plaintiff's earning capacity has been quantified on the basis that he was earning $520 per week gross for the 12 months preceding his accident. That figure was not in dispute at the trial. However the defendant contended that the plaintiff and his wife were on the brink of retirement; that they would have continued to earn incomes from Windsor Agencies only for as long as it took them to sell the business; and that an award of damages representing one year's earnings would be generous.

I disagree. There are a number of factors that suggest that, but for his accident, the plaintiff would have continued to work for several more years, possibly well into his seventies. He was fit and active. He enjoyed his work. Retirement would have resulted in a much more frugal lifestyle. The couple would have received age pensions, whereas the plaintiff had been earning about $27,000 per annum and his wife's income must have been roughly similar. Their house was mortgaged. With the salaries from their business, they had been able to enjoy occasional overseas holidays. I am satisfied that, but for his accident, the plaintiff would probably have continued working past the age of 70, and possibly much longer.

I also accept that he and his wife planned to change the nature of their company's business by confining it to the business of a commission agent, rather than a distributor. That would have involved selling at least the stock of the business, since distributors do not own stock. That would have released substantial capital. When the business was sold following the accident, the price paid for the stock was $150,000. I do not know the extent of the mortgage debt, but it seems likely that the mortgage could have been paid off from the proceeds of the sale of stock and distributorship assets.

Several years' tax returns of Windsor Agencies, which include its annual financial statements, were tendered at the trial. It appears from those documents that the proceeds of commission sales made by the company were as follows:

Year Ended

Commissions

30 June 2003

$107,409

30 June 2004

$101,176

30 June 2005

$28,098

30 June 2006

$24,275

30 June 2007

$22,994

30 June 2008

$26,263

The plaintiff was an experienced and successful businessman. He was proposing to stay in the field of business that he knew, selling carpets and floor coverings. He was proposing to build up the commission agency side of Windsor Agencies' business. I infer that the overheads of a commission agent must be very much lower than those of a distributor. I think it is likely that the plaintiff could have built up the commission agency side of Windsor Agencies' business to such an extent that it would have generated an income in the vicinity of the pre-accident figure of $520 per week gross. It is therefore appropriate to use that figure as a starting point for the assessment of damages for the destruction of his earning capacity, and then to make allowance for contingencies.

It is now some five years and four months since the plaintiff's accident. In assessing his damages for past economic loss, allowance must be made for various adverse contingencies including illness, injury, retirement, reduction of working hours, and under-performance of the revamped business. Allowance should also be made for the possibility that the business would have been very successful and generated significantly more than $520 per week gross by way of profits.

According to a calculation in the plaintiff's particulars, the amount required to compensate him for a loss of $520 per week gross from the date of his accident until 1 October 2012, after making allowance for income tax and the Medicare levy, was $109,076. That calculation was not challenged at the trial, and it appears to be correct. I estimate that the amount required to compensate for such a loss from the date of the accident to August 2013 is about $130,000. Making allowance for the contingencies that I have referred to, I think the plaintiff's damages for his past loss of earnings should be assessed in the sum of $100,000. These figures do not include components relating to superannuation.

The plaintiff will turn 75 in a little over four years' time. In assessing his damages for future lost earnings, I think it is appropriate to begin by calculating the amount required to compensate for a loss of $520 per week gross over a period of four years. This financial year, a person with an income of $520 per week gross will be liable for income tax at the rate of $32.30 per week and, if married, will not be liable for the Medicare levy. I will therefore proceed on the basis of a net income of $487.70 per week. The discount rate prescribed by the Civil Liability Act 2002 does not apply because, by virtue of s3B(3) thereof, that Act does not apply to civil liability relating to an injury to which Division 2 of Part X of the Workers Rehabilitation and Compensation Act 1988 applies. The plaintiff's injury was such an injury. The common law as to discount rates therefore applies. The applicable discount rate is therefore 3%: Todorovic v Waller (1981) 150 CLR 402. The amount required to compensate for a loss of $487.70 per week for a period of four years, discounted at 3%, making no allowance for mortality, is calculated as follows:

$487.70 x 196.9 = $96,028.13.

The multiplier of 196.9 is derived from tables tendered at the trial.

Allowance must be made for adverse contingencies including death, sickness, accident, retirement before 75, reduction of working hours, and under-performance of the business. Allowance must also be made for favourable contingencies, particularly working beyond 75, and the generation of an income substantially in excess of $520 per week gross. Taking those contingencies into account, I think the plaintiff's damages for future lost earnings, excluding superannuation losses, should be assessed in the sum of $60,000.

The parties have agreed that the plaintiff's damages should include a component in relation to the loss of superannuation benefits, and that that component should be equal to 9% of the sums assessed for past and future lost earnings. Accordingly, his damages for loss of superannuation benefits should amount to $14,400, representing 9% of $160,000.

Future medical expenses

The parties have agreed that the plaintiff's damages under this head should be assessed in the sum of $150,000.

Expenditure required for life – appropriate multiplier

As a result of his injuries, the plaintiff will incur very substantial expenditure for the rest of his life, particularly in relation to attendant care, various types of professional assistance, and various types of equipment. In accordance with Todorovic v Waller (above), when such expenditure will be required for the rest of the plaintiff's life, his damages must include a capital sum which, if invested at 3% per annum, would be exactly enough to cover the required expenditure. For the purposes of calculating such a capital sum, it is necessary to determine an appropriate multiplier, based on the plaintiff's life expectancy. It is common ground that his life expectancy has been reduced as a result of his injuries.

Counsel for the plaintiff submitted that I should use a multiplier of 632.2 when assessing damages in respect of expenditure that will be required for the rest of the plaintiff's life. Counsel for the defendant submitted that 608.74 would be a more appropriate multiplier. In a report tendered at the trial, a specialist rehabilitation physician, Dr Bowers, said the following:

"Using the scientific paper Mortality Following Spinal Cord Injury by Yeo published in 1998, my interpretation is that using Standard Life Tables, Mr Mercer has a life expectancy of 86% of the normal years remaining. If one were to use the methodology of Cumpston Sarjeant Mr Mercer would have a life expectancy of 91% of the normal years remaining using Standard Life Tables."

Cumpston Sarjeant appears to be a firm of consulting actuaries. A series of tables published by that firm was tendered at the trial. One of those tables showed life expectancies as at 2013 for males and females of various ages. The High Court held in Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498 that the assessment of a plaintiff's life expectancy should be based on prospective tables published by the Australian Bureau of Statistics that take into account the predicted improvement in life expectancy, and not on historical tables published by that bureau that make no allowance for any such future improvement. The tendered life expectancy table published by Cumpston Sarjeant contains a footnote indicating that that methodology was adopted in compiling that table. Senior counsel for the plaintiff submitted that I should therefore prefer the Cumpston Sarjeant figure of 91% to the Yeo figure of 86% when determining the appropriate multiplier.

I reject that submission. I have no information as to how the differing figures of 86% and 91% were produced, other than the information contained in the passage quoted above from Dr Bowers' report. Nothing in the quoted passage sheds any light on the methodology of Cumpston Sarjeant that was used to produce the figure of 91%. The High Court's decision in Golden Eagle International Trading v Zhang relates to the selection of the appropriate "Standard Life Tables", as Dr Bowers called them. It relates to the quantification of what he called "normal years". The figures of 86% and 91% relate to a different stage in the process of estimating the plaintiff's life expectancy – the stage when "normal" life expectancy is reduced to take account of the effects of his injury. The evidence in this case does not provide any basis for me to prefer the figure of 91% over the figure of 86%, or vice versa.

The multiplier of 632.2, which counsel for the plaintiff urged me to adopt, is based on the plaintiff having a life expectancy equal to 91% of the normal figure. The multiplier of 608.74, which counsel for the defendant urged me to adopt, is based on a life expectancy equal to 88.5% of the normal figure. That percentage represents the mean of 86% and 91%. There being no evidence that would enable me to choose either 86% or 91% as the more appropriate figure, and bearing in mind that the plaintiff bears the onus of proof, I think it appropriate to adopt the defendant's counsel's multiplier of 608.74.

"Physical needs"

In the particulars of the plaintiff's claim, under this heading, there are claims for damages in respect of the services of an occupational therapist, physiotherapy, therapeutic massage, acupuncture, podiatry, reviews by a dietician, psychotherapy, and dental expenses. The claims in respect of therapeutic massage, acupuncture, psychotherapy and dental expenses were not pursued at the trial.

Occupational therapist

There is uncontroversial evidence that the plaintiff will require the services of a case manager or occupational therapist to monitor function, address equipment issues, and ensure a co-ordinated approach to service delivery. Damages were claimed on the basis that such services would cost $2,512 per annum, the equivalent of $48.17 per week, and that they would be needed for the rest of the plaintiff's life. The defendant does not dispute the figure of $48.17 per week. The only dispute was as to the appropriate multiplier. For the reasons stated above, I will adopt the multiplier of 608.74. Accordingly, I assess the damages in respect of future case manager/occupational therapist expenses as follows.

$48.17 x 608.74 = $29,323.

Physiotherapists

The parties are agreed that the plaintiff will need physiotherapy for the rest of his life, but there is conflicting evidence as to what will be needed. In one of his reports Dr Bowers said that, in the long term, the plaintiff would be likely to require "an average of one hour physiotherapy assistance per fortnight to maintain joint range of motion and treat complications of musculoskeletal conditions". He was not called as a witness. The defendant obtained a report from a Gosford occupational therapist, Ms O'Dwyer, and called her as an expert witness. In her report she said that the plaintiff would require regular review and treatment by a physiotherapist and that, given that the focus would be on "maintenance", one hour per month to monitor and upgrade his exercise program would be sufficient. She was not cross-examined about that. Both experts estimated that a charge of $100 per hour would be reasonable for a physiotherapist. There is no basis in the evidence for me to be satisfied, on the balance on probabilities, that Dr Bowers' prediction should be preferred to that of Ms O'Dwyer. I will therefore assess the plaintiff's damages on the basis that he will need physiotherapy services at a cost of $1,200 per annum, which is the equivalent of $23.07 per week.

Using the same multiplier, I assess the plaintiff's damages in respect of future physiotherapy expenses as follows:

$23.07 x 608.74 = $14,044.

Podiatrists

There is undisputed evidence that, as a result of his injuries, the plaintiff needs to see a podiatrist every five weeks, at a cost of $70 per session. Dividing that figure by 5, this is the equivalent of $14 per week. Some lawyers are not very good at arithmetic. The plaintiff's solicitors calculated that this worked out at $13.42 per week. I prefer the approach that I was taught at primary school. I will assess damages on the basis that the plaintiff's podiatry expenses cost the equivalent of $14 per week. Using the same multiplier, I assess his damages in respect of future podiatry expenses as follows:

$14 x 608.74 = $8,522.

Dietician

There is unchallenged evidence from Ms O'Dwyer that the plaintiff needs review by a dietician every three months, and that this would cost $150 per session. She calculated that this represented a cost of $450 per year, but she was wrong. It represents a cost of $600 per year, which is the equivalent of $11.54 per week. I assess the plaintiff's damages in respect of future dietician expenses as follows:

$11.54 x 608.74 = $7,025.

Conclusion

In his closing submissions, when dealing with the claim for damages in respect of "physical needs", counsel for the plaintiff asked me to include components in respect of gardening, home maintenance, and nursing expenses. No such components were included in the plaintiff's particulars under "Physical Needs". I accept that the plaintiff will have to incur expenditure in respect of gardening and home maintenance tasks that he would otherwise have been able to undertake himself, but I will take that into account when assessing general damages for pain and suffering and loss of amenities. I accept that the plaintiff will incur expenditure on specialised home nursing care, and that he will need about 26 hours of such care per year. I do not know whether this was taken into account when agreement was reached as to future medical expenses. As the cost of such nursing care was not claimed under the heading "Physical Needs" in the particulars, I will not make any allowance for it under this heading.

The amount assessed under this heading will therefore be as follows:

Occupational therapy

$29,323

Physiotherapy

$14,044

Podiatry

$8,522

Dietician

$7,025

Total

$58,914

Attendant care needs

Because of his disabilities, the plaintiff requires the presence of a carer, paid or unpaid, at all times. At present the defendant is paying for two carers at a time to attend to his needs in his home for 4½ hours per day, comprising about 3½ hours commencing at 8am, and about an hour commencing at about 10pm. His wife looks after him at all other times, except when respite care is arranged and when he is in hospital. The parties are agreed that the current arrangements are unsatisfactory, and that the plaintiff has a reasonable need for the provision of care by paid attendants at all times. Counsel for the plaintiff submitted that I should assess damages on the basis that he requires two carers to look after him for 5 hours per day, and a single carer at all other times. That is to say, they submitted that I should assess damages on the basis of a need for 29 hours of paid care per day. Counsel for the defendant submitted that 27 hours' paid care per day was all that the plaintiff reasonably required.

There is no evidence that, if the plaintiff were to receive care from a paid attendant for 24 hours per day, it would be necessary for a second carer to be present for more than three hours per day. Dr Bowers, the specialist rehabilitation physician who provided reports to the plaintiff's solicitors, wrote in his report of 6 February 2013 that "a second carer would be required to assist of a morning and evening", but did not estimate the number of hours that the second carer would need to be present. Such an estimate was provided by Ms O'Dwyer, the occupational therapist who gave evidence for the defendant. She estimated that the second carer would need to be present for two hours in the morning and one hour in the evening. Those estimates were not challenged when she was cross-examined. The current arrangement in the evenings is that two carers attend together for one hour. That is consistent with Ms O'Dwyer's opinion as to future needs. Although two carers currently attend together in the morning for 3½ hours, it does not follow that two carers would be needed for more than two hours in the morning if a single paid carer were present and attending to the plaintiff's needs before the second carer's arrival and after the second carer's departure. That being the state of the evidence, I think I should assess damages for future attendant care on the basis that there is currently a need for 27 hours' paid attendant care per day. There is a chance that more hours per day might be required in the future. I will return to the question of contingencies.

The plaintiff's paid carers are currently provided by a non-profit organisation known as ParaQuad. That organisation was engaged to provide those services by an agent of the defendant when the plaintiff moved to New South Wales. If it were to provide attendant care services for 27 hours per day, 7 days per week, it would charge $8,930.43 per week. That figure is based on an assumption that each overnight shift would be charged for at the "sleepover" rate of $132.70 for 8 hours. The sleepover rate is applicable if the carer has the opportunity to sleep overnight, and is available on call. If a carer were required to get up and attend to the plaintiff during the night for more than 15 minutes at a time, or more than twice, the cost would be greater. If an overnight carer were required to be on duty at all times, ParaQuad would charge $11,476.39 per week. These figures are inclusive of GST, as are all subsequent figures, unless otherwise stated.

There are a number of other entities that could provide the plaintiff with the attendant care services that he requires at a lower cost. Ms O'Dwyer obtained quotes from four such providers. Counsel for the defendant submitted that 27 hours of attendant care per week could be provided by each of the following providers at a cost per week as shown below:

Southern Cross Community Healthcare  $7,931.66
All About Caring  $7,090.82
Allcare Nursing and Community Services Pty Ltd          $7,133.40
Dolleina Pty Ltd  $7,216.67.

Some of these providers would also charge one-off establishment fees of up to $2,000.

Although it might be possible for the plaintiff to get the attendant care that he requires for something like 20% less than ParaQuad would charge, staying with ParaQuad would have a number of advantages for him. He has had no complaints about the level of service provided by ParaQuad carers, but has had some bad experiences with carers provided by agencies when his usual ParaQuad carers have been unavailable. After some four years with ParaQuad, its carers are well aware of his needs. A change of providers would involve disruption, and a risk that the new carer would provide somewhat inferior service. ParaQuad is a specialist organisation whose core service is the provision of care and support for people with spinal cord injuries. It has been providing home-based services since 1986. It runs Ferguson Lodge, which I have already mentioned - a residential facility in the Sydney suburb of Lidcombe that is purpose-built for people with spinal cord injuries. Its clients have priority access to that facility. When the plaintiff has gone there for respite purposes, all has gone well. He has a strong personal preference for staying with ParaQuad.

The other providers, from whom Ms O'Dwyer obtained quotes, are all accredited by the New South Wales Government's Lifetime Care and Support Authority. According to Ms O'Dwyer, that authority is responsible for overseeing the provision of care and treatment for people who have been seriously injured in motor accidents in her State. There is no reason to think that any of the four providers in question would fail to provide satisfactory care, but none of them appears to specialise in spinal cord injuries.

The plaintiff's damages in respect of future attendant care expenses should be assessed on the basis of ParaQuad's charges if, but only if, it is reasonable for him to incur that level of expenditure. The applicable principles were stated by Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 as follows:

"The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant … The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two imponderables, financial cost against relative health benefits to the plaintiff, becomes manifest."

In Kostik v Giannakopoulos (1989) Aust Tort Reports ¶80-274, which concerned excessive physiotherapy expenses, King CJ, with whom Bollen J agreed, said at 68,904:

"A plaintiff is entitled to recover only the reasonable cost of the treatment which he requires. A reasonable amount of latitude may properly be allowed in choosing professional advisors and providers of treatment and the cost of treatment need not be regarded as unreasonable simply because the treatment might have been obtained more cheaply elsewhere, Wyld v Bertram [1970] SASR 1. A plaintiff cannot recover, however, exorbitant charges made by those from whom he has obtained treatment."

In the circumstances, I consider it to be reasonable for the plaintiff to continue receiving care from ParaQuad indefinitely, rather than terminating his relationship with ParaQuad and engaging a less expensive provider of attendant care services. However I think I should take into account, in the defendant's favour, the possibility that the plaintiff might one day make such a change.

There are other contingencies that should also be taken into account. There is a possibility that, as the plaintiff gets older, his need for attendant care will increase above the current level of 27 hours per day. There is also a possibility that his need for the services of a carer at night might increase, with the result that, on some or all nights, he will have to pay for the services of a carer who remains on duty all night, rather than paying on the less expensive "sleepover" basis.

On the other hand, allowance must be made for periods when the plaintiff will require hospitalisation. He will not require attendant care services when he is in hospital. Dr Bowers said in his report of 6 February 2013 that the plaintiff was likely to require readmission to hospital for an average of one week per annum to treat complications of his condition. That evidence has not been challenged or contradicted. That factor alone warrants reducing the plaintiff's damages for future attendant care by about 2%.

Using the multiplier of 608.74 again, the amount required to compensate the plaintiff for the cost of 27 hours' attendant care per day, based on ParaQuad charging $8,930.43 per week, can be calculated as follows:

$8,930.43 x 608.74 = $5,436,309.

Making allowance for future periods of hospitalisation and the favourable and unfavourable contingencies that I have referred to, I think it appropriate to reduce that figure by about 5%. I assess the plaintiff's damages in respect of future attendant care expenses in the sum of $5.164 million.

Future hospital expenses

The parties have agreed that the plaintiff's damages under this head should be assessed in the sum of $130,000.

Past care

Except for periods of hospitalisation and respite care, the plaintiff's wife has provided him with care and domestic assistance every day and night since his accident, without any payment. It is common ground that, in accordance with the principles discussed by the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161, the plaintiff is entitled to recover damages in respect of his need for those services. As the Full Court observed in Potts v Frost [2012] TASFC 6 at par[52], s5 of the Common Law (Miscellaneous Actions) Act 1986 did not abrogate the rules in Griffiths v Kerkemeyer, but had the effect of significantly confining the damages that could be recovered in accordance with those rules, until the repeal of s5 by the Civil Liability Amendment Act 2005 removed the restrictions placed by that section on the recovery of damages for gratuitous services.

As a general rule, it is the market cost of the services provided gratuitously that the defendant must pay by way of damages as the reasonable and objective value of the need for those services: Van Gervan v Fenton (1992) 175 CLR 327 per Mason CJ, Toohey and McHugh JJ at 333 – 334.

Counsel for the plaintiff submitted that the market value of the domestic care services provided to the plaintiff by his wife should be quantified by reference to the rates charged by ParaQuad, and on the basis that she provided on average the services of a sleepover carer for 8 hours each night and those of a carer for 11 hours each day. Counsel for the defendant submitted that the care services provided by her were substantially less than that, and that the adoption of ParaQuad's rates per shift and per hour would be excessive.

The evidence establishes that the plaintiff has needed 24 hour care ever since he was first discharged from hospital because he cannot safely be left alone. His wife has cared for him in many ways in their home, and has acted as his driver practically every time he has gone out from his home. She has been responsible for taking him to medical and physiotherapy appointments in Gosford and Sydney, amongst other things. I accept that, on practically every night that she has spent at home with the plaintiff, she has provided a level of care equivalent to that provided by a professional carer on a sleepover shift, being available to help the plaintiff at any hour if required. But during waking hours many of the more difficult and more unpleasant tasks, including those associated with the plaintiff's bowel and bladder functions, have been undertaken by the paid carers. It must follow that the market value of the services provided by the plaintiff's wife during waking hours has been somewhat less than the market value of the services of a professional carer.

In assessing the market value of the services provided by her, it must also be remembered that, of the five service providers whose scales of charges have been referred to in the evidence, ParaQuad is by far the most expensive. Counsel for the plaintiff calculated that, on the basis of ParaQuad's rates, the cost of 19 hours of care per day, comprising a sleepover plus 11 hours, for 7 days per week would amount to $5,165.06 per week. I have calculated that, if one were to apply the Lifetime Care and Support Authority's scale of fees that took effect on 1 December 2012, the equivalent figure would be $4,578.81 per week. For the purpose of that calculation, I have assumed that, on weekdays, 9 hours of care would be provided before 8pm and 2 hours of care after 8pm, in addition to a sleepover shift. On that basis, my calculation is as follows:

Weekdays:     5 days x 9 hours @ $33.58 per hour

$1,511.10

Weeknights:   5 days x 2 hours @ $40.58 per hour

$405.80

Saturdays:     11 hours @ $45.25 per hour

$497.75

Sundays:      11 hours @ $57.47 per hour

$632.17

Sleepovers:     7 shifts @ $159.39 each

$1,115.73

$4,162.55

Plus GST

$416.26

$4,578.81

From the plaintiff's first release from hospital until 1 August 2013, the plaintiff will have been in his wife's care for about 1,664 days. I accept that she attended to her husband's needs, or was available to do so, for about 11 hours per day on average during waking hours over the relevant period. Because of inflation, the market value of the services provided by her must have been a little lower at the start of that period, and must have gradually increased since then. To take account of that fact, and of the level of care provided by her in comparison with that provided by the professional carers, I think it appropriate to allow about $500 per day, the equivalent of $3,500 per week, for her services. I therefore assess the plaintiff's damages under this head in the sum of $832,000, representing about 1,664 days at about $500 per day.

Aids to daily living

In the plaintiff's particulars, it was claimed that he would need a variety of equipment for the remainder of his life and that, making allowance for the replacement of items from time to time, the cost of such equipment would be $18,561.50 per annum, or $355.99 per week. The particulars included the following table which sets out details of the equipment and the basis upon which those figures were calculated:

equipment item cost Replace (yrs) initial cost annual cost weekly cost

a Electric adjustable bed 6,500 10 0.00 650.00 12.47

b Pressure care mattress 1,950 10 0.00 195.00 3.74

c
Manual wheelchair –

modified
7,000 5 0.00 1,400.00 26.85

d Levo-Stand Up chair 31,000 5 31,000.00 6,200.00 118.91

e Northcott beach chair 3,750 5 3,750.00 750.00 14.38

equipment item cost Replace (yrs) initial cost annual cost weekly cost

f Wheelchair cushions x 3 3,000 2 0.00 1,500.00 28.77

g Portable wheelchair ramps 2,340 5 0.00 468.00 8.98

h Motomed Viva II 6,000 10 0.00 600.00 11.51

i Exercise equipment 2,650 10 0.00 265.00 5.08

j Ceiling hoist 6,000 10 0.00 600.00 11.51

k Portable hoist 4,500 10 4,500.00 450.00 8.63

l Commode chair 9,590 5 9,590.00 1,918.00 36.79

m Portable commode 2,420 5 2,420.00 484.00 9.28

n Pool hoist 4,350 10 4,350.00 435.00 8.34

o Abdominal binders x 2 236 1 236.00 236.00 4.53

p Aids for dexterity 200 1 200.00 200.00 3.84

q Beveridge holder 41 2 41.00 20.50 0.39

r Wheelchair bag 75 3 75.00 25.00 0.48

s Memory foam pillows x 2 460 3 0.00 153.33 2.94

t
Equip maintenance &

repairs
2,000 1 0.00 2,000.00 38.36

u Mobility parking scheme 35 3 0.00 11.67 0.22

$56,162.00 $18,561.50 $355.99

There was no dispute as to the need for most of these items, nor as to their annual or weekly cost. Most of the above table is based on a passage in a report by Ms O'Dwyer.

As to item (d), which concerns a special chair, Ms O'Dwyer recommended a different chair which would cost $17,000 and have a replacement life of 5 years. There was no evidence as to the plaintiff having any need for the more expensive chair referred to in the particulars. Accordingly, there should be an adjustment to item (d) so as to allow for the less expensive chair, at an annual cost of $3,400, which is the equivalent of $65.38 per week.

As to item (f), the particulars are based on the plaintiff having three wheelchair cushions, but Ms O'Dwyer's opinion is that he only needs two. That opinion was not challenged or contradicted. Accordingly the amount allowed should be reduced to $1,000 per annum or $19.23 per week.

As to item (g), which concerns portable wheelchair ramps, there were mistakes in both Ms O'Dwyer's report and the particulars. According to her report, these cost $1,780 each, the plaintiff needs two of them, and they will need replacing every 5 years. That works out at an annual cost of $712, not $312 as stated in the report, and not $468 as stated in the particulars. The appropriate weekly figure is $13.69.

As to item (l), which relates to a commode chair, Ms O'Dwyer's evidence was that it would need to be replaced every 10 years, but the particulars assert that it will need to be replaced every 5 years. Ms O'Dwyer's evidence was not challenged or contradicted. I am satisfied that this item will need replacement only about once every 10 years. I calculate that the appropriate figure should be $18.44 per week.

The claim in respect of item (n) was abandoned. Items (q), (r), (s) and (u) were not mentioned in Ms O'Dwyer's report, were disputed by counsel for the defendant in his closing submissions, and were not mentioned by counsel for the plaintiff in their closing submissions. I infer that the claims in respect of those items are abandoned.

No other items in the table were disputed. After making appropriate adjustments to the weekly figures in the table, I calculate that the plaintiff's damages under this head should be assessed on the basis of a need for weekly expenditure of $262.39. Again applying the multiplier of 608.74, I assess his damages under this head as follows:

$262.39 x 608.74 = $159,727.

"Employment needs"

In the plaintiff's particulars, it was asserted that he would benefit from training in the area of computer literacy; that he required assessment by a specialist team in the area of assistive technology at a cost of $2,000; and that he would require a laptop computer costing $2,000 and requiring replacement every 5 years. Perhaps "computer needs" would have been a better heading. This head of damages was mentioned very briefly by senior counsel for the plaintiff in his opening, but not in the closing submissions. Apart from evidence that the plaintiff had a computer and used it, there was no evidence relevant to this component of the claim. I will therefore treat it as abandoned.

Transport needs

The plaintiff needs a specially modified vehicle, which will have to be replaced from time to time. The parties have agreed that his damages under this head should be assessed in the sum of $100,000.

Accommodation needs

In certain respects the plaintiff's present home is not reasonably adequate for his needs. He and his wife wish to purchase a house in or near the Sydney suburb of Pennant Hills, and to modify it so that it is reasonably fit for use as the plaintiff's home. He has a brother at St Ives, which is not far from Pennant Hills. The parties have agreed that the plaintiff's damages under this head should be assessed in the sum of $380,000.

Additional claims

The plaintiff has claimed a total of $48,056.71 to cover miscellaneous out-of-pocket expenses that have not been claimed under any other head. The parties have agreed that his damages under this head should be assessed in that sum.

Pain and suffering and loss of amenities

There is no evidence that the plaintiff's catastrophic injuries have had any significant psychological impact on him. He gave evidence that he does not get distressed about anything to do with his condition. He was offered professional psychological help at the defendant's expense, but declined the offer, saying that he did not feel he needed it.

It is also significant that the plaintiff's incapacity did not begin until he was 65 years old. An older plaintiff with fewer years to endure pain, suffering and loss of amenities should receive less by way of general damages than a younger plaintiff: Clark v Kramer [1986] WAR 54 at 60, 65; Packer v Cameron (1989) 54 SASR 246 at 251.

However, age and psychological impact aside, in all other respects the plaintiff's injuries and their consequences have been so extreme that a very substantial award of damages is warranted under this head. I need not repeat all that I have said about the plaintiff's injuries and their impact. He has a substantial permanent disability requiring full-time paid attendant care, sometimes by two carers. He will be confined to wheelchairs for the rest of his life. He has considerable personal difficulties, particularly in relation to urination and bowel evacuation. He has ongoing medical complications. There is much that he can no longer do, such as gardening and home maintenance. Going anywhere and doing anything outside his home will ordinarily be more expensive and more troublesome than it would be for someone without his disabilities.

The Civil Liability Act provides in s28(1) that, "In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings." As Wood J pointed out in Dodge v Snell [2011] TASSC 19 at par[490], comparable cases may be too few in number to provide an adequate guide to the range of awards for a particular jurisdiction. Nevertheless, it is well known that awards of damages for non-economic loss have for many years been significantly lower in Tasmania than in most, if not all, mainland jurisdictions, particularly New South Wales. There is no reason why that should any longer be so, given the mobility of the Australian population, as this case illustrates very well. The disparity between the States was discussed in the High Court during the hearing of a special leave application in Grimsey v Southern Regional Health Board [1999] HCA Trans 498. Callinan J suggested during argument that it might cost a lot less to buy a house in Tasmania than on the harbour in Sydney. In this case, we have a plaintiff who wishes to live in or near Pennant Hills, and who has spent much of his life in or near the northern suburbs of Sydney. But in my view the quantum of his damages under this head should not depend on where he chooses to live or the reasonableness of his choice.

I do not think it appropriate to refer to the awards of damages in a few isolated New South Wales quadriplegia cases. The High Court said in Planet Fisheries Pty Ltd v La Rosa (1968) 199 CLR 118 at 125 that a judge making an assessment of general damages "will be aware of and give weight to current general ideas of fairness and moderation". Since the introduction of s28(1) of the Civil Liability Act, it must be appropriate to take into account such general ideas from other Australian jurisdictions, even if the result is not in keeping with past Tasmanian ideas of fairness and moderation. I will proceed on that basis.

In all the circumstances, I consider that the plaintiff's damages under this head should be assessed in the sum of $240,000.

Conclusion

The defendant is making substantial ongoing payments of medical and other expenses for the benefit of the plaintiff pursuant to the Workers Rehabilitation and Compensation Act. The payments made pursuant to that Act in respect of reasonable medical and care expenses and so forth, up to the date of final judgment, will need to be brought into account for the purposes of s133 of that Act. There is also a need for a calculation to be undertaken in relation to the damages that the plaintiff should recover in accordance with Fox v Wood (1981) 148 CLR 438 to allow for the income tax paid on the periodical payments of workers compensation that will have to be deducted from the judgment sum. At the trial, counsel for the parties asked me to make determinations as to liability, contributory negligence, and all other heads of damage, and then to adjourn the matter so that calculations could be undertaken and judgment subsequently entered for an appropriate sum. That is the most sensible course to take.

Subject to the addition of an appropriate amount in respect of expenses paid by the defendant that have not been included in the figures below, and the addition of Fox v Wood damages, I assess the plaintiff's damages as follows:

Pain and suffering and loss of amenities

$240,000

Past economic loss

$100,000

Future economic loss

$60,000

Superannuation

$14,400

Future medical expenses

$150,000

Physical needs

$58,914

Future attendant care needs

$5,164,000

Future hospital expenses

$130,000

Past care

$832,000

Aids to daily living

$159,727

Transport needs

$100,000

Accommodation needs

$380,000

Additional claims

$48,056

Total

$7,437,097

After the addition of further amounts in respect of expenses and Fox v Wood damages, there will have to be a reduction of 25% to allow for contributory negligence, and a deduction pursuant to s133 of the Workers Rehabilitation and Compensation Act, in order to calculate the amount recoverable by the plaintiff.

I will hear counsel as to the steps that need to be taken to bring this action to a conclusion, and their timing.

Citations

Mercer v Allianz Australia Insurance Limited (No 2) [2013] TASSC 35

Most Recent Citation

Cases Citing This Decision

12

Patiniotis v Garling [2025] TASFC 5

Allianz Australia Insurance Limited v Mercer [2016] TASFC 2

Cases Cited

14

Statutory Material Cited

1

Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270

Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19

Husher v Husher [1999] HCA 47

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Year Ended	Commissions
30 June 2003	$107,409
30 June 2004	$101,176
30 June 2005	$28,098
30 June 2006	$24,275
30 June 2007	$22,994
30 June 2008	$26,263

Occupational therapy	$29,323
Physiotherapy	$14,044
Podiatry	$8,522
Dietician	$7,025
Total	$58,914

Weekdays: 5 days x 9 hours @ $33.58 per hour	$1,511.10
Weeknights: 5 days x 2 hours @ $40.58 per hour	$405.80
Saturdays: 11 hours @ $45.25 per hour	$497.75
Sundays: 11 hours @ $57.47 per hour	$632.17
Sleepovers: 7 shifts @ $159.39 each	$1,115.73
$4,162.55
Plus GST	$416.26
$4,578.81

equipment		item cost	Replace (yrs)	initial cost	annual cost	weekly cost
a	Electric adjustable bed		6,500	10	0.00	650.00	12.47
b	Pressure care mattress		1,950	10	0.00	195.00	3.74
c	Manual wheelchair – modified		7,000	5	0.00	1,400.00	26.85
d	Levo-Stand Up chair		31,000	5	31,000.00	6,200.00	118.91
e	Northcott beach chair		3,750	5	3,750.00	750.00	14.38
equipment		item cost	Replace (yrs)	initial cost	annual cost	weekly cost
f	Wheelchair cushions x 3		3,000	2	0.00	1,500.00	28.77
g	Portable wheelchair ramps		2,340	5	0.00	468.00	8.98
h	Motomed Viva II		6,000	10	0.00	600.00	11.51
i	Exercise equipment		2,650	10	0.00	265.00	5.08
j	Ceiling hoist		6,000	10	0.00	600.00	11.51
k	Portable hoist		4,500	10	4,500.00	450.00	8.63
l	Commode chair		9,590	5	9,590.00	1,918.00	36.79
m	Portable commode		2,420	5	2,420.00	484.00	9.28
n	Pool hoist		4,350	10	4,350.00	435.00	8.34
o	Abdominal binders x 2		236	1	236.00	236.00	4.53
p	Aids for dexterity		200	1	200.00	200.00	3.84
q	Beveridge holder		41	2	41.00	20.50	0.39
r	Wheelchair bag		75	3	75.00	25.00	0.48
s	Memory foam pillows x 2		460	3	0.00	153.33	2.94
t	Equip maintenance & repairs		2,000	1	0.00	2,000.00	38.36
u	Mobility parking scheme		35	3	0.00	11.67	0.22
$56,162.00	$18,561.50	$355.99

Pain and suffering and loss of amenities	$240,000
Past economic loss	$100,000
Future economic loss	$60,000
Superannuation	$14,400
Future medical expenses	$150,000
Physical needs	$58,914
Future attendant care needs	$5,164,000
Future hospital expenses	$130,000
Past care	$832,000
Aids to daily living	$159,727
Transport needs	$100,000
Accommodation needs	$380,000
Additional claims	$48,056
Total	$7,437,097