Moran v Nominal Defendant

[2008] NSWSC 804

CITATION:	Moran v Nominal Defendant [2008] NSWSC 804
HEARING DATE(S):	27-31 August, 24 September 2007
JUDGMENT DATE :	13 August 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	(1) Verdict and judgment for the plaintiff in the sum of $6,515,818.42. (2) The judgment sum, less the deductions referred to in para [88], to be paid into court pending further order. (3) The defendant to pay the plaintiff's costs.
CATCHWORDS:	COMMON LAW - personal injury - assessment.
CASES CITED:	Arthur Robinson (Grafton) Pty Ltd v Carter (1967-68) 122 CLR 649 Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166 Geaghan v D'Aubert [2002] NSWCA 260 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
PARTIES:	Renate Moran by her tutor Tanya Carlson (Plaintiff) Nominal Defendant (Defendant)
FILE NUMBER(S):	SC 20329/06
COUNSEL:	DA Wheelahan QC/E Romaniuk (Plaintiff) DJ Russell SC/BA Batchelor (Defendant)
SOLICITORS:	Keddies (Plaintiff) Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Wednesday 13 August 2008

20329/06 RENATE MORAN by her tutor TANYA CARLSON v THE NOMINAL DEFENDANT

JUDGMENT

Introduction

1 The plaintiff is a married woman, born on 14 October 1950. On 24 August 2003 she was a pillion passenger on a motorcycle which crashed when a bus encroached upon its path.

2 The plaintiff sustained significant closed head injuries in the accident as well as an avulsion injury to the left brachial plexus, fractured left radius and ulna, and a fractured left styloid. She was unconscious when conveyed by ambulance from the scene of the accident to the Prince of Wales Hospital.

3 The plaintiff’s recovery was slow and incomplete. She was transferred from the Intensive Care Unit at the Prince of Wales Hospital to the Neurological Ward on 15 September 2003. She was transferred from the Prince of Wales Hospital to Sutherland Hospital on 15 October 2003. She came out of her comatose state on 3 November 2003. On 9 December 2003 she was transferred to the Brain Injury Rehabilitation Unit, Liverpool Hospital for further inpatient rehabilitation. After a period of weekend home visits, becoming more frequent and extending to Fridays and Mondays later in her convalescence, the plaintiff was finally discharged home from the Unit on 10 June 2004. She has continued to reside at home with her husband (Mr Moran) since that time.

4 As a consequence of the accident, the plaintiff suffers from the effects of a significant brain injury with cognitive and memory deficits. She has diplopia, a slight paralysis of the left side of the face and left hemiparesis. Her left arm is completely paralysed and she suffers neuropathic pain in that limb. She is right handed. She has a limited capacity to walk using a quadstick and generally uses a wheelchair to mobilise outside the house. She suffers bouts of despondency and depression and at times becomes angry, moody and uncooperative. She does not, however, engage in antisocial or risk-taking behaviour.

5 The defendant has admitted breach of duty. Accordingly, the proceedings are before the Court for the assessment of damages only. The plaintiff did not give evidence at the hearing. The defendant took no point in this regard.

6 During the course of the proceedings the parties reached agreement as to a number of heads of damage. That agreement is recorded in the parties’ “Joint Statement of Agreed Heads of Damage” which I have initialled and placed with the court file. The remaining heads of damage are the subject of dispute and are considered hereunder.

Disputed heads of damage

Future care

Background

7 The plaintiff, on return home from hospital on 10 June 2004, had the assistance of carers from 8.00 am to 5.30 pm Monday to Friday and for 3½ hours on Saturdays. The carers were provided by a commercial agency and paid by the defendant’s insurer. Otherwise the plaintiff’s care was provided by Mr Moran who continued to be engaged in full-time employment, the carers covering the hours he was absent at work.

8 By February 2005 Mr Moran had become dissatisfied with the level of service provided by that agency. This caused him to make inquiries which identified a local carer, All Parental Care Aust Pty Ltd (APC), as a possible alternative. He then approached the defendant’s insurer to ascertain whether a change of agency could be made. This led to discussion between the insurer and APC and the latter’s engagement in place of the earlier agency. Mr Moran in his evidence described the standard of care provided by APC as “quite good” and said:

“There have been a number of carers we have had issues with and we have arranged for a change, but otherwise we are happy with the service.”

9 From August 2006 the hours of care were extended from 5.30 pm to 7.00 pm on weekdays to accommodate a change in the demands of Mr Moran’s employment. Those hours have continued since that time.

10 Initially the APC care was provided by a single carer each day. This worked satisfactorily in Mr Moran’s opinion. APC then introduced shift carers, the shifts being 8.00 am to 1.00 pm and 1.00 pm to 7.00 pm. This created difficulties with the timing of the plaintiff’s activities and, at the suggestion of the plaintiff’s case manager, the problem was overcome by changing the shifts to 8.00 am to 4.00 pm and 4.00 pm to 7.00 pm.

11 The defendant conceded that the rates attributed to APC were rates that had been set with the defendant’s insurer and had been paid in the course of that arrangement for the past 2½ years.

Assessment

12 Three matters require consideration:

(a) What level of care is required by the plaintiff as a result of her injuries?

(b) How should such care be provided?

(c) What sum should be awarded for the provision of such care?

These issues are considered hereunder.

(a) What level of care is required by the plaintiff?

13 The plaintiff is entitled to recover the reasonable cost of commercially provided care which is reasonably necessary and which flows from the injury inflicted upon her - Arthur Robinson (Grafton) Pty Ltd v Carter (1967-68) 122 CLR 649 at 661.

14 Mr Moran gave evidence that the plaintiff needed assistance drying herself after a shower, dressing and getting her food cut up. She needed standby assistance when rising from the supine position, to get out of a lounge chair or to walk. The plaintiff has particular difficulty if the walking surface is not flat and hard or if she is negotiating steps and stairs. There is a concern that in the absence of standby assistance she may overbalance and fall. She has worn a Pelican belt which has grab handles on it which a carer can access to prevent a fall. The plaintiff, however, prefers not to have the belt on and to have assistance from someone holding her clothing. The plaintiff is unable to drive a motor vehicle and requires the provision of transport.

15 The neurological injury suffered by the plaintiff has made her incontinent of urine. This problem has improved but from time to time assistance is required in this regard, mainly during the night. Mr Moran gave evidence that the plaintiff is very restless at night and her sleep may, from time to time, be disturbed by dreams. Her restlessness has caused him to sleep in another room. On her return home the plaintiff was incontinent of urine every night and a complete change of her attire and bed clothes was required on each occasion. However, over the last twelve months this problem has only occurred on one, two or three occasions per week. The plaintiff now wears incontinence pads and it is necessary only to change her night attire and not the bed clothes. There was evidence from Ms Vanderburg, a registered nurse employed by a care provider (Southern Cross), that incontinence products are now available that can “see a person through the night dry”. The plaintiff, on occasions, will wake up during the night and request to be assisted to the toilet. The plaintiff tends to go to bed at 10.00 pm and rise about 5.30 am.

16 Mr Moran continues to be engaged in full time employment but outside of working hours he is the sole carer of the plaintiff. He considers he could not leave the plaintiff by herself. He has found the situation difficult as he has no freedom and his relationship with the plaintiff has become that of carer and care recipient. He desires to have freedom to engage in pursuits that interest him and to alter the relationship from carer and recipient to husband and wife. He said he would welcome the provision of an overnight carer for the plaintiff.

17 The bulk of expert medical opinion (Associate Professor Jones, Dr Buckley, Dr Faithful, Professor McLeod, Dr Spira) was that the plaintiff required full time care.

18 Associate Professor Jones, who was qualified for the plaintiff, concluded the plaintiff needed “a carer to be in her near vicinity for all her waking hours and on sleepover during the evening. This will not change throughout her life” as

“her degree of brain damage and the physical problems both indicate to me that she requires somebody to be near her. In the first instance it is because of her poor cognition she minimises her problems. She is not realistic in her problems that she really has. And I think that, without somebody with her, she would be at risk from a cognitive point of view, in other words, make a silly decision. Also, from a safety perspective, she has a hemiparesis and is unstable, a paralysed arm and I think she is at risk of falling and therefore causing fractures and more damage.”

19 Associate Professor Jones said:

“The extent of her dependency on carers is she will need assistance in transferring, standby assistance in walking, assistance in washing, drying and dressing herself and assistance around the home, partly of a domestic nature.”

20 Associate Professor Jones was strongly of the opinion that the care should be provided by an independent entity as, in his experience, loving spouses who provide care “have either deteriorated significantly themselves or the relationship has broken up”.

21 Dr Buckley also agreed it was inappropriate for Mr Moran to provide the care, though Professor McLeod and Dr Spira considered the employment of a carer overnight was unnecessary as Mr Moran could attend to the plaintiff’s needs in that period. The defendant conceded it was appropriate Mr Moran should no longer provide such care.

22 There was evidence from Ms Sandford, an occupational therapist qualified by the plaintiff, that the plaintiff required full time care and would continue to do so for the remainder of her life.

23 The defendant called Dr Henke, a consultant physician in rehabilitation medicine. Dr Henke had concluded in his report that the plaintiff

“does not need the presence of a person with her at all times. She is not subject to epilepsy or to other medical emergencies which would render her incapable of requesting help.”

Dr Henke concluded the plaintiff had a total need of nine hours of paid care per day. In cross examination Dr Henke agreed that the plaintiff was unsafe to transfer without standby assistance and that, accordingly, she would require such assistance every time she got into or out of a chair, got into or out of her bed, got onto or off the toilet and that such assistance would be required on a permanent basis.

24 In my opinion, the weight of medical and associated evidence establishes that it would be appropriate that the plaintiff be afforded 24 hour paid care 7 days per week.

25 Dr Buckley was of the opinion that each day the plaintiff requires full time care by a registered nurse for two shifts with an inactive night shift by a lay person. However, the care provided since the plaintiff left hospital has been provided to her by assistants in nursing. This has been adequate. The plaintiff did not press a claim that care should be provided by a registered nurse.

26 Dr Buckley also gave evidence that in his opinion an additional carer was required for two hours in the morning and one hour in the evening. In my opinion the plaintiff does not require a second carer. Since leaving hospital she has had only one carer at a time. Associate Professor Jones gave evidence the plaintiff did not require two attendant carers. Drs Spira and Henke and Ms McMasters, an occupational therapist qualified on behalf of the defendant, also considered a second carer was not required. I prefer that evidence to that of Dr Buckley.

(b) Should the care be provided by live-in carers or carers working in shifts?

27 The need to have someone with the plaintiff at all times and to provide care may be met by either a live-in carer or shift carers.

28 The plaintiff submitted that provision should be made for future care for 24 hours per day 7 days per week to be delivered by three 8 hour shifts and with at least two of those shifts, if not all three, being active shifts. It was submitted the costs should be calculated on the basis of the cost scale of APC as that organisation had been providing care for the plaintiff at the defendant’s insurer’s expense for some years, APC rates had been accepted following negotiation by the insurer as fair and reasonable and the plaintiff was familiar with many of its carers.

29 The total cost of providing 24 hour care on a shift basis depends, in part, upon whether the night shift is classified as active or inactive, the rate for an inactive shift being substantially less than the rate for an active shift.

30 Southern Cross, an organisation which provides care on a shift basis, defined an inactive sleepover as:

“an eight hour period where the Service Personnel are allowed to sleep on duty. If the Service Personnel is required to attend the Service User for more than one hour in total during the night, or attends the Service User more than twice, then the whole eight hour shift is paid at the full standard hourly rate.”

31 Associate Professor Jones and Dr Buckley were of the opinion that the night shift in this case would be properly classified as inactive.

32 Ms Vanderburg was cross examined as to the problems encountered by Mr Moran during the night with the plaintiff. In re-examination she gave the following evidence:

“Q. If you assume that the incontinence occurs between one and three times a week, that there is a toilet request made every night so that is one get up for sure, and that there are some other nights when there are dreams and disturbances, does that sound to you like it could still be managed on an inactive sleepover?
A. Yes.”

33 In my opinion, if care was to be provided by a shift arrangement, two active shifts and one inactive shift would normally be appropriate though, on occasions the night time attendances on the plaintiff may exceed the inactive shift limit.

34 There was evidence of the rates charged by six organisations which provide shift care. The evidence revealed a wide range in such rates. An impression of the difference may be gained by comparing the hourly day rates from Monday to Friday which were as follows:

Southern Cross $18.75
Allied Medistaff Nursing Service Pty Ltd $32.00
Eldercare $33.00
Australian Home Care Services Pty Ltd $33.30
Calvary Silver Circle $35.75
APC $40.78

35 The plaintiff calculated her claim on a two active one inactive shift basis at $8822.53 per week, by reference to the APC rates. The defendant, using the rates put forward by Southern Cross, calculated the care of the plaintiff on the basis of two active shifts and one inactive shift per week at $3466.76. The rates of the four other organisations which provide shift care were also before the Court. The rates selected by the plaintiff were the highest in the range put before the Court. The rates of Southern Cross were the lowest.

36 The defendant submitted the care should be provided by live-in carers working three or four days at a time or, alternatively if live-in care was held inappropriate, by the provision of shift care at the rates provided by Southern Cross.

37 There was evidence a number of named organisations, including Eldercare, were in the business of providing live-in care for, inter alia, brain damaged patients. It was not suggested Eldercare, or the other organisations named, could not provide adequate live-in care for a brain injured patient. The defendant calculated the cost of providing live-in care for the plaintiff, based on the Eldercare rates, at $2820.54 per week. The rates charged by Eldercare were toward the upper end of the range of rates charged by the other organisations for live-in care.

38 In determining this issue I have had particular regard to the following principles:

(a) “The question is not what are the ideal requirements but what are the reasonable requirements of the [plaintiff].” - Arthur Robinson at 661;

(b) “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 incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest.” - Sharman v Evans (1977) 138 CLR 563 at 573;

(c) The legal onus is upon the plaintiff to establish that the claim is reasonable - Sharman v Evans at 573;

(d) In determining such issues the court must hearken to all the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be - Arthur Robinson at 662.

39 Drs Henke and Spira, who were qualified by the defendant, were each of the opinion that full time paid care was not required. Dr Henke stated that “Given there is only a requirement for assistance during the day periods there is no indication for any live-in assistance.” Dr Spira considered there was no requirement for professional care at night. Neither doctor compared the advantages and disadvantages of full time live-in care with full time shift care. Ms Tredenick, a registered nurse and the Clinical Services Manager of Eldercare, had assessed the plaintiff’s needs and had concluded live-in care would be best suited to those needs.

40 Associate Professor Jones gave evidence that although he had seen successful live-in care arrangements, his experience led him to conclude live-in care was a less stable arrangement and more prone to failure than a shift regime and that live-in care was not his preferred option. The reasons advanced by Associate Professor Jones for his preference seemingly were that he considered there was a risk a live-in carer may become too emotionally involved with the patient, and it was easier to replace a person for a shift than for a three day live-in period if the carer became unwell.

41 Dr Buckley’s opinion was that shift work carers were the best means of providing care in this case, with a person sleeping over in the house at night. He agreed it was quite likely he had given evidence in other court proceedings that “if live-in care was available, then I believe it is preferable for brain injured patients”. He explained it was necessary to try and come up with the most satisfactory arrangements for a particular patient and that particular patient’s circumstances.

42 He gave evidence:

“There are advantages and disadvantages attached to each kind of option of care in this case. So there are definite advantages in having live-in carers and there are definite advantages in having shift work carers. There are disadvantages in both circumstances.”

He identified the advantages of live-in care as continuity of carers with the great advantage of familiarity with the daily routine and needs of the patient and a lesser issue of reliability of attendance than with shift care workers. He identified the disadvantages of live-in care in that it is harder to put in place than shift care, there is difficulty finding live-in carers, there is a risk of carer burn-out and greater problems of replacement if the carer does not get on with the patient.

43 Dr Buckley concluded:

“I don’t think in this case there is any advantage in live-in care for her. I think that shift work care for this lady, and given the range of her problems, is more appropriate”

However, he agreed that he could not identify any medical reason why live-in care would be disadvantageous to the plaintiff.

44 Ms Tredenick gave evidence that the usual approach for live-in care was a three day and a four day rotation with three carers. She had never encountered a problem in placing another carer in the home if one had called in sick or could not do the shift and had never had a situation where the patient had been left without a carer.

45 There was no evidence that Mr Moran was burnt out as a result of caring for his wife, notwithstanding engaging in full time employment, nor that it was likely that the plaintiff’s behaviour was such that it would cause burn out to a carer working three or four days per week.

46 Mr Moran gave no evidence that a live-in carer arrangement would not work or was unsatisfactory from his perspective. He did not express any preference for one form of delivery of care over the other.

47 In my opinion, the reasons advanced by Associate Professor Jones and Dr Buckley for preferring shift care are not such as to justify the defendant being made liable for a care regime up to three times as expensive as that which would be provided by a live-in carer. I reject the plaintiff’s submission that care should be provided on a shift basis at the rates prescribed by APC. I accept the defendant’s submission that live-in care would be appropriate and is available and reliable and should be the basis upon which damages under this head are calculated.

(c) The sum to be awarded for the provision of such care

48 The plaintiff is entitled to recover the reasonable cost of the provision of such services.

49 The defendant has provided calculations based upon the rates of Eldercare for the provision of live-in carers. The Eldercare rates are slightly above the mid range of the rates provided by other organisations providing live-in carers and in my opinion constitute a reasonable basis for the calculations.

50 The sum calculated by reference to such rates does require some adjustment to take account of the following matters:

(a) the meal allowance allowed by the defendant of $150 per week appears inadequate;

(b) an allowance must be made to cover the possibility that the carer may not provide hydrotherapy and this may have to be accessed elsewhere;

(c) an allowance must be made for the possibility that on occasions circumstances will arise which result in the night shift being treated as an active shift at a higher rate;

(d) an allowance must be made for the possibility that if the live-in carer is required to get up to the plaintiff more than twice during the night for a number of successive nights, shift care may have to be resorted to for a period at increased expense;

(e) an allowance must be made for the possibility alluded to by Associate Professor Jones and Dr Buckley that live-in care arrangements may not prove successful.

51 It is impossible to be precise in determining the appropriate allowances to be made for the above matters which, in some respects, may overlap. As Barwick CJ observed in Arthur Robinson at 661:

“Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment.”

Doing the best I can, I consider fair and reasonable compensation would be achieved by increasing the figure calculated based upon Eldercare live-in carer rates by an additional 25 percent. This would also result in a figure slightly in excess of the costs calculated for shift care by Southern Cross.

52 The damages for future care should be assessed at the Eldercare live-in rates increased by 25 percent.

Case management

53 The duties of a case manager are essentially those of overseeing and coordinating the patient’s maintenance programme, liaising with all agencies, doctors and others involved in his or her care, and acting as the patient’s advocate when appropriate.

54 The plaintiff’s present case manager is a member of the Liverpool Hospital Brain Injury Unit. Meetings are held at the unit about once every three months with the case manager, treating doctors, physiotherapists, occupational therapists, a representative of the carer, the plaintiff, her carer and Mr Moran. The meeting affords an opportunity for any concerns for the plaintiff’s treatment or care to be considered and appropriate action taken. Mr Moran is satisfied with the plaintiff’s treatment at the Brain Injury Unit and content that the plaintiff should continue to go there. The case management is provided for four hours each quarter at $120 per hour.

55 There was evidence from both Dr Buckley and Associate Professor Jones that it was unlikely the care at the Unit would continue. As Associate Professor Jones explained, such units do not have the staff to continue input to patients in the long term and over time the input would diminish and the care would be passed to a general practitioner, though the plaintiff would always need a case manager of some description.

56 Dr Buckley gave evidence that the case management required by a patient with brain injury on a routine basis was eight hours per month of active involvement for the first six months and at the commencement of any significant new arrangement such as moving to a new home or changing nursing agencies, say every five years, and thereafter for four hours per month plus any travelling time that might be required. The plaintiff submitted that Dr Buckley’s prescription would be accepted by the Court.

57 Dr Buckley’s assessment was well in excess of that suggested by other witnesses. Associate Professor Jones considered that the need was one hour per month. Ms Sandford estimated an overall need of two hours per month; Professor McLeod considered a case manager who the plaintiff consulted twice per year would be an advantage. Ms McMaster considered that twice annual review was appropriate and would allow four hours annually. Dr Henke did not consider there was a need for a case manager at the time of his consultation with the plaintiff in 2007.

58 Associate Professor Jones confirmed that in practice there was a substantial reduction in case management as time passed and case management became largely the province of the general practitioner, family and care provider. Ms McMaster confirmed this evidence.

59 In my opinion, the case management presently provided is reasonable and adequate for the plaintiff’s needs. It is probable that in the future fewer hours of case management will be required but there may be some occasions when particular circumstances will require a greater input for a time.

60 The defendant does not dispute that four hours of case management per quarter is appropriate. It submitted that appropriate compensation would be afforded by allowing the plaintiff compensation at four hours per quarter at $120 per hour. The defendant accepted that there would be some additional case management required if there were changes in arrangements but submitted this should be offset by the decline in the hours of case management with the passage of time.

61 I accept the defendant’s submission which is in accordance with the case management presently provided, is more generous than the allowance suggested by the majority of witnesses and takes account of the likely reduction in future case management.

62 I allow this head of damage at $120 per hour for 16 hours per annum.

Domestic cleaning

63 Mr Moran gave evidence that prior to the plaintiff’s injury she would attend to most of the domestic duties though he would prepare breakfast and assist with vacuuming.

64 Associate Professor Jones was of the opinion that in addition to cleaning by the carers an allowance of 2-3 hours per fortnight for domestic cleaning was appropriate whilst Dr Buckley considered that all domestic duties should be provided by the carers.

65 The evidence of Ms Tredenick was that carers do light housekeeping such as keeping the kitchen tidy, general cleaning, cleaning the bathroom if necessary, some washing, and hanging out the washing. The carers do not do heavy household work, such as cleaning windows and the like nor outside or garden type work. Eldercare would provide domestic cleaners to do spring cleaning and the heavier household duties at $23-25 per hour.

66 The defendant submitted that Associate Professor Jones’ prescription of 2-3 hours per fortnight should be adopted and that a rate of $24 per hour, being the mid point of Eldercare’s rates, was appropriate.

67 There was, however, evidence from Eldercare that it imposed a minimum charge out rate of 2-3 hours per visit. The plaintiff submitted that the defendant’s submission took no account of the evidence as to industrial issues concerning a minimum call out fee. However, as Associate Professor Jones reported that for a time the plaintiff employed cleaners to perform this work and that those cleaners attended once every two weeks no industrial issue would appear to arise in practice. Accordingly, in my opinion, an allowance of three hours per fortnight at $24 per hour is appropriate.

68 I allow the claim for domestic cleaning at three hours per fortnight at $24 per hour.

Handyman/maintenance

69 Mr Moran gave evidence that prior to the plaintiff’s injury he attended to the outside duties such as lawn mowing and the heavier forms of gardening work but that the plaintiff was a very keen gardener who had many plants and would “spend at least half a day a week just pottering in the garden”. He said that since the plaintiff’s accident the garden had deteriorated both because the plaintiff had not been able to continue to work therein and because of the weather. The plaintiff claimed the cost of employing a gardener for 3-4 hours per week at the rate of $75 per hour.

70 Mr Moran gave no evidence that a gardener had been employed since the injury to the plaintiff or that the plaintiff intended to employ a gardener. There was no evidence from him that he provided any additional services in the garden or that, if he did, such services were at a level which would be compensable.

71 As Ipp JA observed in Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166:

“The concept of ‘need’ involves more than a mere desire. Compensation for need does not encompass compensation for services that are not reasonably necessary for the plaintiff’s wellbeing.”

No evidence was led to establish that the continuation of the garden at the pre-injury level was reasonably necessary for the plaintiff’s wellbeing. In my opinion, it has not been established that the injury gave rise to a compensable need. Additionally, the gardening activities of the plaintiff were, in my opinion, in the nature of a hobby, and the cost of others continuing that activity is not recoverable - Geaghan v D’Aubert [2002] NSWCA 260.

72 This head of damage is rejected.

Additional care to assist in hydrotherapy

73 The plaintiff has hydrotherapy twice per week in a heated pool at the Sutherland Aquatic Centre. Her carer assists her in entering the pool and enters the water herself to provide further assistance.

74 The parties have agreed that the damages should include the cost of installing and maintaining a hydrotherapy pool at the plaintiff’s home together with a hoist to assist her in entering and exiting the pool.

75 The plaintiff accepted “there is no medical need for the plaintiff to have more than the carer in the pool at the plaintiff’s own premises”. However Ms Tredenick gave evidence that Eldercare carers would not enter the water and that an outside person would have to be engaged to provide those services for the plaintiff. The plaintiff therefore claimed the cost of engaging such a person for two hours per day, three days per week at $40.78 per hour.

76 The evidence established a patient could be transferred in and out of a hydrotherapy pool using a hoist with only one carer. The plaintiff conceded only one person was required in the pool to assist the plaintiff. The defendant submitted:

“As APC carers will go into the water there was no clear evidence about any usual industrial arrangement and the situation was simply that some carers will do hydrotherapy and others will not.”

It further submitted there was no reason to believe that a carer who would administer hydrotherapy exercises could not be obtained.

77 The plaintiff’s present hydrotherapy regime is two days per week and a number of reports record a history at times that the plaintiff was receiving hydrotherapy once per week. However, it is not unreasonable to anticipate that the plaintiff may increase her level of hydrotherapy if the facility is provided at her own home. Accordingly, I would accept that it is reasonable to approach this aspect of the claim on the basis that the plaintiff will engage in hydrotherapy three times per week.

78 In my opinion, the evidence indicates there is a possibility that future carers may not provide hydrotherapy and that an additional cost may be incurred in sourcing that service elsewhere. An allowance should be made for this possibility - Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. However, there is no evidence upon which to assess with any precision the extent of the likelihood that the carer selected will not provide hydrotherapy. Accordingly, I have taken this possibility into account as part of the assessment of damages for future care.

Additional accommodation costs

79 The plaintiff and Mr Moran continue to occupy the house they lived in prior to the plaintiff’s injury. The parties have agreed on the sum of $600,000 for modifications to that house consequent upon the plaintiff’s injuries.

80 Evidence was given by Ms Tredenick that if live-in carers were to be engaged a separate bedroom and bathroom must be provided for their use. The defendant accepted that the provision of a separate bedroom and bathroom for a carer was necessary and reasonable where 24 hour per day live-in care was provided.

81 The plaintiff submitted that the modifications agreed upon did not include a separate bathroom for a 24 hour per day live-in carer and to provide a separate bathroom for his or her use it would be necessary to demolish and totally rebuild the existing house.

82 The defendant observed the modifications agreed upon would result in, on the ground floor level, a main bedroom with en-suite, an adjoining room set up as a computer/craft area, equipment store and exercise therapy area, a carer’s room, a bathroom and toilet, and, on the first floor level, two bedrooms and a bathroom. There was thus provision for three bathrooms.

83 As only the plaintiff and Mr Moran live in the house (their children being adult and living elsewhere) it would seem to me appropriate that, in the event a 24 hour per day live-in carer was engaged, one of the three bathrooms could be allocated to the carer’s sole use, thus leaving the plaintiff and Mr Moran with the choice of two bathrooms, one of which would be available for the use of any visitors.

84 The plaintiff is only entitled to recover damages which are reasonably necessary. In my opinion, the provision of a fourth bathroom, particularly if it involves the cost of demolishing and rebuilding the house is neither reasonable nor necessary. I reject the plaintiff’s claim under this head.

Conclusions

85 A copy of the preceding remarks was circulated to each of the parties to enable them to reach agreement as to the final figures to be included in the verdict and judgment. The parties have advised the Court of the agreed figures and of the appropriate deductions to be made from the judgment. The relevant figures are contained in a document headed “Consent Orders” dated 12 August 2008 and signed by the legal representatives of the parties. I have placed a copy of that document in the court file.

86 The agreed figures accord with the parties’ joint statement of agreed heads of damage save for an increase in the items of non economic loss and past out of pocket expenses to $381,000 and $986,149.39 respectively and include figures for the heads of damage future care, case management and domestic cleaning calculated in accordance with my determination of those matters. The sum of $466,314.80 is agreed for fund management.

87 Insofar as part of the verdict comprises heads of damage which were the subject of settlement between the parties, I approve such settlement for the purposes of the Civil Procedure Act, 2005, Pt 6, Div 4.

88 I note it is agreed by the parties that the defendant is to have credit for payments made for and on behalf of the plaintiff to the date of judgment in the sum of $978,921.14 and to have credit for any further payments made by it until the judgment is paid. I also note that it is agreed by the parties that the sum of $4676.20 is to be deducted from the judgment sum and paid to Medicare Australia.

89 I note it is agreed the judgment sum, after the deduction of the payments made by the defendant on the plaintiff’s behalf and the sum of $4676.20 to Medicare Australia, is to be paid into court pending further order.

90 I summarise the assessment of damages as follows:

Non economic loss $381,000.00
Past out of pocket expenses $986,149.39
Past economic loss $100,000.00
Future economic loss $235,000.00
Past superannuation $11,000.00
Future superannuation $25,850.00
Past care $170,000.00
Future care $2,959,451.60
Other future care $4,000.00
Future medical management $109,401.00
Future special equipment $72,500.00
Future medication $83,940.00
Accommodation $600,000.00
Future travel $110,000.00
Future computer $5,000.00
Future motor vehicle $135,000.00
Case management $30,993.23
Domestic cleaning $30,218.40
Funds management $466,314.80
Verdict and judgment $6,515,818.42

Orders

91 The orders of the Court are:

1. Verdict and judgment for the plaintiff in the sum of $6,515,818.42.
2. The judgment sum, less the deductions referred to in para [88], to be paid into court pending further order.
3. The defendant to pay the plaintiff’s costs.

**********