Nguyen v Hiotis
[2002] SASC 244
•30 July 2002
NGUYEN V HIOTIS
[2002] SASC 244
CIVIL
BLEBY J
Background
The plaintiff was born in Vietnam on 28 January 1975. In 1980 he migrated to Australia with his parents. On 7 October 1995 he was severely injured in a knife attack outside the Woodville Town Hall. His attackers were also of Vietnamese origin. They are not parties to this action.
The defendant was the proprietor of a security service hired to provide security services for the event which the plaintiff was attending at the Town Hall. He has since been declared bankrupt, but the plaintiff has obtained leave from the Federal Court of Australia to proceed against him in this action. The defendant did not enter an appearance, and on 24 July 2001 the plaintiff obtained interlocutory judgment against the defendant for damages to be assessed.
It falls to me to assess the plaintiff’s damages. In doing so, I must act on the evidence before me, but I am conscious that, the defendant not having appeared and not having been represented at the hearing, the evidence led on behalf of the plaintiff is uncontradicted and has not been subjected to the same rigorous testing as might have been the case if the defendant had been represented. However, that does not mean that I should ignore any of the evidence that has been led, and I do not do so. Nevertheless, the plaintiff’s claims must be approached critically and with some care, given the magnitude and devastating effect of his injuries.
Injuries and Disabilities
The plaintiff suffered multiple stab wounds, one of which entered his spinal canal at the T-8 level, rendering him paraplegic.
He was admitted to the Queen Elizabeth Hospital and later transferred to the Royal Adelaide Hospital. He had a leak of cerebral spinal fluid from the wound and was troubled by postural hypotension, both of which had resolved when he was transferred to the Hampstead Rehabilitation Centre on 26 October 1995. By the time of his discharge in February 1996, after intensive physiotherapy, physical education, occupational therapy and counselling, he was independently mobile in a wheelchair in most daily living activities, but required assistance for showering and dressing his lower body. He was capable of performing standing transfers, but walking was severely limited by spasticity, muscle spasms and diffuse and severe neuropathic pain. His functional abilities had deteriorated. Although his bladder function appeared to be normal, he was having increasing difficulties with bowel function which caused him emotional difficulties in relation to hospital staff.
He continued to attend the spinal unit as an outpatient and was readmitted for treatment of traumatic stress disorder for eight days in August 1996.
In August 1997 he was readmitted to the spinal injury unit for approximately six weeks for management of chronic constipation and assessment of urinary urgency, as well as treatment of his longstanding anxiety and depression. He was treated with anti-depressant medication and behavioural therapy. During that admission there was some moderate degree of improvement in his bladder function. Prior to admission he had been opening his bowels seven to eight times a day, with frequent occurrence of tenesmus or rectal discomfort. By the end of the admission there had been some improvement but less than full recovery, and he was no longer clinically constipated.
His constipation, bowel emptying frequency and urinary frequency deteriorated, and he continued to be seen as an outpatient until further readmission to the spinal injury unit in November 1998. At that time he was opening his bowels at least 20 times per day. This had approximately halved by the time of his discharge, the frequency being partly induced by fear of faecal incontinence. He was afflicted by an urge to open his bowels without knowing whether he needed to or not. The possibility of a colostomy was raised, but the plaintiff’s emotional state precluded such an operation. Urinary frequency and difficulties with bladder management were not able to be improved.
These difficulties continued, and the plaintiff was readmitted to the Royal Adelaide Hospital for assessment by the chronic pain management unit in August 1999. At that stage, in addition to his other disabilities, he was suffering shooting and electric shock type pain coupled with hyperaesthesia in the left leg with burning pins and needles in the right leg and persistent epigastric pain. These symptoms have continued. The plaintiff says that he began vomiting when first at the Hampstead Centre. He was given some medication which assisted in controlling that, but it has since become worse. He now vomits every day, often before he can reach a toilet.
I was greatly assisted by the evidence of Dr Ruth Marshall who has specialist qualifications and extensive experience in rehabilitation medicine, particularly in spinal cord injury. According to her, the plaintiff has become increasingly depressed over time, a matter to which I shall return. For some time and up to the time of trial, he was going to the toilet in excess of 20 times per day. He continues to empty his bladder frequently on sensation but suffers pain when he does so. She considers that there is no benefit for the plaintiff to receive further physiotherapy or other allied health treatments except for the prescription of new wheel chairs and cushions from time to time.
In short, there have been many attempts to improve the plaintiff’s bladder and bowel function and to treat his chronic pain, but without success. He has required ongoing psychological and psychiatric support in relation to his emotional issues and Dr Marshall does not expect there to be any improvement in his condition.
He will need ongoing treatment. I will return to the question of domestic assistance, but some need for that is likely to continue. There may be added requirements as he becomes older, particularly if he injures his shoulders or elbows due either to degenerative change or because of injury. Degenerative change becomes more likely because of additional weight bearing stresses placed upon the shoulder and elbow joints. Dr Marshall considers that he has a reduced life expectancy of no more than 5 per cent, but he is unlikely to regain any of the function he has lost, and is likely to be troubled by neuropathic pain and bowel and bladder problems for the rest of his life. He will remain dependent on a wheelchair for his mobility.
Dr Marshall considers that the plaintiff may be assisted by a colostomy, but thus far he has declined that aid due partly to fear of surgical invasion of his body and the importance of his own body image to him. Even if that were to occur, she could not guarantee that his rectal pain would stop. He will need ongoing psychiatric treatment and support.
The plaintiff is impotent, and Dr Marshall considers that whilst some contemporary medication may overcome erectile dysfunction, in his case the problems may be emotional as well, and such drugs cannot ensure orgasm if there is absence of or diminished sensation.
Plaintiff’s mental state
The attack itself and the aftermath caused considerable emotional problems. He was seen by many psychiatrists through the spinal injury unit, and although enrolled in a clinical drug trial for treatment of post traumatic stress disorder and depression, he did not attend sessions because they were at the Queen Elizabeth Hospital. He found visits to that hospital to be extremely traumatic due to the large number of people from the Vietnamese community who also attended that hospital.
He complains of frequent nightmares and difficulty in sleeping. There is evidence of quite severe depression, giving rise to his hearing voices. He is not schizophrenic, but has attempted suicide. However, he is not considered to be a significant suicide risk because any form of self-harm is distressing and frightening to him. With his depression has come increased aggression and displays of temper towards his parents.
The plaintiff’s family had operated a French bakery in Vietnam. The plaintiff was aged five when the family came to Australia and the plaintiff’s father was employed at Vili’s Bakery. The plaintiff completed his schooling in Adelaide to year 11, and whilst still at school assisted his father in his work at Vili’s Bakery at weekends. On leaving school the plaintiff began working for his sister in a bakery business which she owned. He spent many and long hours working in all aspects of the business, and learning how it was run. During that time he began developing and making new products, particularly speciality pies and pasties, which were distributed on a trial basis and with ready acceptance through outlets serviced by the bakery.
The plaintiff always intended to operate his own business, and had been to Melbourne and Sydney to look at business opportunities there. The market he wanted to tap was too small in Adelaide. He had a number of relatives in Sydney where he also conducted some research on products being manufactured there by the major bakeries, and he began making plans to open a speciality bakery business in Sydney. At the time of his injury he had tentative plans in place for the location of the business and proposals for financing its operation. He had investigated the supply of baking equipment and had examined possible sites for the construction of a modern bakery.
The plaintiff obviously had enormous confidence in the products which he had developed in his sister’s bakery and great confidence in his ability to succeed in a bakery business in Sydney. He was engaged to be married in January 1996. His plans and that confidence were dashed when he suffered this debilitating injury. His marriage plans have never materialised. He now has no prospect of living in a normal heterosexual relationship. From an enthusiastic, fit, active and competent young man he has become introspective and depressed, living at home with his parents, spending most of his day in his bedroom, having no enthusiasm for even watching television and being scared to venture out of the house. He is embarrassed by his physiological problems and tries to conceal them from others. Although he needs a great deal of physical assistance, he does not even like his parents to see his disabled body.
The family home has been modified to accommodate his disability, as has the family car, which has been equipped with hand controls to enable him to drive it. However, he seldom drives by himself, claiming to have difficulty in loading his wheelchair.
He remains ever hopeful that sometime his condition will improve, and has grasped at any and every possible treatment which he thinks might offer some hope. This has included herbal medication, acupuncture and a trip to Perth for treatment by a specialist, but without result. He believes that acupuncture eases his tension and pain, but recently he has not been able to afford it. As his mother said, he will act on any advice that might be given and will try anything suggested in the hope of diminishing his pain and his present condition. Most of these have had no effect. According to Dr Marshall, there is no clinical proof that any of the treatments are effective in reducing his pain or increasing his ability to control his bowels. She considers that acupuncture may have a role in some patients for reducing neuropathic pain. It would not be unreasonable for him to try that.
Without wishing to underestimate the magnitude of the plaintiff’s injuries and the consequential disabilities that he suffers, there has been a deterioration in his own enthusiasm for self help. Many of the activities for which he receives assistance from his parents around the home are activities which, on Dr Marshall’s evidence, which I accept, he would be able to perform. Dr Marshall gave some examples:
“Once upon a time, Michael never came to my clinics with a member of his family. Now he always comes with his sister, or somebody else. You know, he was able to drive to the clinics. He doesn’t now. So I think that, yes, he needs four or five hours of hands-on support because that’s what he’s been trained to need, and rehabilitating him out of that is very difficult. Because when he comes into the ward he doesn’t do it. I don’t assist him – if I need to have a look at his feet or something, I don’t assist him to transfer onto the examination couch. He does it himself.”
In Dr Marshall’s words, “he is well and truly entrenched in the sick role”, assisted in that by utterly devoted and well meaning parents and family. But, to quote Dr Marshall again, “his disability has become the whole family’s disability”. He does not physically need all the assistance his parents now give him, but he has now become emotionally and psychologically dependent upon them, as he has to some extent on his medical and psychiatric advisers.
The plaintiff is, at the moment, severely impaired, not only by his paraplegia but by his inability to control his bowel and urinary functions and his ongoing chronic pain. According to Dr Waite his current treating psychiatrist, the disabilities impact adversely on his mental state. He is likely to continue to be depressed with ongoing psychotic symptoms, and that in turn, according to Dr Marshall, inhibits effective pain management. Both doctors agree that his present prognosis is poor. He will require long term medication and long term psychiatric services. He has a very severe illness, and unless new treatments become available, the likelihood of his engaging in any sort of productive life is very low.
Non-economic loss
The assessment of non-economic loss in circumstances such as the present is extremely difficult. The plaintiff has been reduced from the prospect of an active, challenging, healthy and fulfilling life to one of severe disability and ongoing depression, chronic pain, debilitating bowel and urinary malfunction, and enforced inactivity, with no great prospect of being able to engage in any useful activity or any fulfilling marriage or similar relationship.
Unlike some severely injured people, the plaintiff is all too aware of the nature and extent of his pain and disabilities. While his present outlook is bleak, there are ways in which some of his discomfort may be able to be reduced in the future if, for example, with a maturing outlook he sees fit to undertake a colostomy. It may be that as his parents become less able to attend to his every need, he will realise the undoubted abilities that he has to help himself to a greater extent, and to gain more confidence in the use and exercise of those abilities.
I assess the plaintiff’s pre-trial non-economic loss at $60,000 and his future non-economic loss at $170,000. In doing so, I have made some small allowance for the loss of expectation of life: Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563, Gibbs and Stephen JJ at 584.
Past losses
The injury occurred on 7 October 1995. The time lapse to the date of assessment is a little over six years and nine months – say 353 weeks. Of that period the plaintiff has spent approximately 23 weeks in hospital, leaving a balance of 330 weeks. This calculation will be relevant for some purposes associated with the calculation of past economic loss.
Past loss of earning capacity
Although the plaintiff was working long hours in his sister’s bakery at the time of the injury, he was only being paid $350 gross per week or about $297 per week net.
His plans were to move to Sydney in about March 1996. On that basis, assuming that he had continued working in his sister’s business for another six months, he would have earned approximately $7, 700 net. Thereafter, his likely earnings become problematic. He came from a family with a strong baking tradition. That was his chosen career. I have no reason to doubt that he would have pursued it, with some vigour. Mr Possingham, counsel for the plaintiff, invited me to infer that in the six months following his move to Sydney he would be unlikely to have earned anything while he proceeded to set up his proposed business. I think it would be at least six months before the business became revenue producing or before he began to seek work as an employed pastry cook or baker in some other enterprise, whether it be in Adelaide, Sydney or elsewhere.
The only award rates in evidence are current rates applicable in South Australia. At level five or six, below which I consider that he would not have been employed, the award presently requires payment of a base rate between $507 and $518 per week gross. He would no doubt have worked overtime, especially on Saturdays, and may have attracted shiftwork penalties. On that basis his present gross weekly pay would be between $650 and $700 per week.
Mr Possingham invited me infer that over the whole period he would have averaged something in the order of $600 per week. I think that is not unreasonable. That results in net earnings of approximately $465 per week. Allowing a period of between 280 and 300 weeks, I would allow a sum of $135,000, plus the $7,700 he would have earned before going to Sydney, making a total of $142,700.
However, the plaintiff’s intention was not to remain merely an employed baker. It was always his intention to commence his own business in Sydney. That may or may not have been successful. If he encountered problems in Sydney, he may have returned to Adelaide. He may have taken some equity in his sister’s business or in some other South Australian business. In that regard, it must be considered whether there should be some compensation for the loss of a chance to earn higher income through operating his own business. The start up costs and financial costs for a modern bakery would be high. It might be some years before the business began to return a profit. The value of a loss of a chance of earning a higher income, at least for this period, must be very small, if any. It must be offset by the possibility of the business failing or making a loss. After all, the plaintiff’s experience in actually running a medium sized business was untested. If the business did return a profit after some years, for the period in question it would have had to generate a substantial profit to offset the initial loss making period, in order to return to the plaintiff what I have calculated he would have been able to earn as an employee in that period. I would not allow anything for loss of a chance in the pre-trial period.
Past care
Dr Marshall, who has obvious experience in the area, estimated the cost of personal care assistance at a casual hourly rate of $23.50 for weekdays. Rates for ordinary domestic assistance, which is predominantly what the plaintiff has needed, would be less, although it is required seven days per week. I accept Mr Possingham’s suggestion of a rate in the order of $20 per hour.
After allowing for the 23 weeks in hospital, he has been cared for at home for some 330 weeks. The plaintiff estimated that his mother spent about five hours per day looking after him. The plaintiff’s mother suggested a higher figure. There was evidence from both the plaintiff and his father that his father also rendered assistance, especially in activities associated with showering. The plaintiff estimated this at two hours per day.
Dr Marshall’s evidence was that he had the physical capacity to do most things at home, as had been demonstrated when he was in hospital, and that he would only need approximately one hour per day hands on assistance. She accepted, however, that through his physical and mental condition he had been trained to need between four and five hours per day assistance as at present. For past care I am prepared to allow five hours per day taking into account all sources of family assistance. At $20 per hour, this equates to $100 per day or $700 per week. Over 330 weeks that yields an amount of $231,000 in respect of past services.
Past medical expenses
No claim is made for hospital or other specialist services. Evidence of actual expenditure is sketchy, and because of that the award I make may not reflect the full amount that has been expended. Based on a letter from the plaintiff’s pharmacy, I am prepared to accept that the plaintiff has spent approximately $150 per month on recurrent pharmacy expenses. Allowing for approximately five months hospitalisation, that leaves a period of 76 months, for which he would then be entitled to reimbursement of $11,400.
The plaintiff gave evidence that he has expended between $150 and $200 per week for indefinite periods of time on acupuncture and herbal remedies. No accounts were produced, but the plaintiff claimed that he had spent the proceeds of an insurance claim and $50,000 he received by way of criminal injuries compensation claim in pursuing such remedies.
There is no evidence that any costs associated with the provision of herbal medicines were reasonably incurred. Furthermore, Dr Marshall considers that they had no beneficial effect. She was prepared to concede that expenditure on some acupuncture was not unreasonable. I am prepared to make some allowance for that, but in the circumstances I could allow no more than $10,000.
There is evidence that the plaintiff has had to attend a general practitioner on a number of occasions. I accept as reasonable Dr Marshall’s evidence of approximately nine visits per annum being reasonable when he has not been in hospital. I accept Mr Possingham’s suggestion of an average of $30 per visit, depending on the length of the visit and whether it was a home visit or not. On this basis, I would be prepared to allow $1,600 in that respect, making a total under this head of $23,000.
Home modifications
The plaintiff’s father gave evidence that he has spent approximately $70,000 in total on home modifications to accommodate the plaintiff, principally to the bathroom, kitchen and tiling throughout the house. I accept that evidence and allow $70,000 under this head.
Future losses
Future earning capacity
On the evidence before me, I must find that the plaintiff is unlikely ever to be able to work again. I begin with the assumption that he would have been employed as a baker or pastry cook. He had shown some aptitude for developing new products. He had become reasonably well versed in all aspects of the operation of a small bakery. I believe he would have been able to be employed at a relatively senior level for most of his future working life as (say) a production manager in a large bakery. The plaintiff estimated that as such he would earn between $1,400 and $1,500 per week. I assume, perhaps conservatively, that he would be able to command a salary in the order of $70,000 per annum or $1,350 per week in such a capacity. Income tax and Medicare levy on that salary is 30.3%, resulting in a net weekly figure of approximately $940. Based on Mr Watson’s evidence, the appropriate multiplier at 3% per annum to age 65 is 1,147. To the nearest $1,000, that means the net present value of his loss of future earning capacity on that basis is $1,078,000. However, that assumes that he would be working as a production manager now. I have not made that assumption when calculating his past economic loss. Given his industry and apparent skill, I would be prepared to assume that he might reach that level in the next three to five years. Accordingly I allow a sum of $1,000,000 for loss of future earning capacity.
In arriving at that figure I have had no regard to Australian Bureau of Statistics figures of average weekly earnings. They can be no more than what they purport to be – an average of persons in employment across the whole spectrum of jobs in the community. In my view, they are of use only in measuring trends or relative movements. As an absolute indicator of what the plaintiff may have earned they are of no use.
Superannuation benefits
I accept that compulsory superannuation payments by employers over the past 6 – 7 years have been of the order of an average of seven per cent. Based on the figure I have determined for past economic loss, an employer would have paid approximately $10,000 into a superannuation fund on behalf of the plaintiff.
The current rate of compulsory payment by employers is 9% of salary. Based on assumed future weekly earnings of $1,350 per week (gross) the employer contribution would be $121.50 per week.
However, that is not money to which the plaintiff would be entitled until his retirement. He must be compensated for the loss of future entitlement to a lump sum produced by the assumed weekly payment of contributions by an employer to a superannuation fund for the rest of his working life. From that must be deducted contributions tax payable in respect of employer contributions at the rate of 15%. There must be added accumulations to those payments as a result of the investment of the funds, less any superannuation fund entry and management fees, income tax payable by the fund on income from investments and any tax payable on a lump sum on retirement, or on an annuity if he chose that course. All of these influence the ultimate benefits payable on retirement. The result would also be dependent on how the fund is invested.
However, the plaintiff’s present entitlement is to the net present value of those future benefits, or what the plaintiff would have to invest now at an assumed compound rate of interest, less tax on the income from that investment, in order to obtain those assumed benefits upon retirement.
Without expert evidence, making many assumptions, and without complex calculations, I am in no position to determine with any precision what the net figure might be. However, one can assume and must allow for weekly contributions made over the balance of the plaintiff’s working life. One must deduct employer contributions tax at a rate of 15 per cent. The net present value of such net payments can be calculated. I have calculated past gross contributions at about $10,000. The net amount available for investment after deduction of tax would therefore be $8,500. The net weekly employer contribution until the plaintiff’s assumed retirement age of 65 would be $121.50 less 15% tax or (to the nearest one dollar) $103 per week. The net present value of that amount, i.e. assuming it were all paid into a superannuation fund now, is $118,141. Some discount must be made for the fact that the employer would not be paying at that rate until three to five years hence. I allow $112,000 for future superannuation contributions.
The rate of taxation on the income of a superannuation fund differs from the rates applicable to personal income. On the other hand, there are additional taxes paid on the proceeds of payment of superannuation funds, depending on the chosen method of payment at that time. It is here that one enters the realm of speculation without evidence. In those circumstances, all I can do is to ignore the possible varying tax consequences, some of which will offset others. There are also management fees paid by superannuation funds. In the absence of any evidence, these must be ignored also. Indeed, it is not unreasonable to assume that the amount awarded by way of lost future superannuation benefits may itself be paid in as a contribution to a personal superannuation fund, and be subject to similar taxation and management fee consequences.
I would allow the loss of superannuation benefits at $8,500 for past contributions and $112,000 for future.
Loss of a chance
I have already discussed some aspects of the loss of the chance that the plaintiff has had to run and operate his own business. The chance he has lost is to earn a higher income as a successful business proprietor than he would have been able to earn as an employee, and the ability to create a future saleable asset. It is for the plaintiff to prove his case on the balance of probabilities. I have no evidence as to what the plaintiff might hope to earn in business or to generate by way of capital asset as a result of his own personal exertion. The plaintiff was planning to borrow over $1,000,000 to set up his bakery. He was hoping to make “millions of dollars”. I am not prepared to make any findings based on the balance of probabilities where the only evidence is of the plaintiff’s own hope. His chances of obtaining finance and of succeeding, and if so to what extent, must, without further evidence, remain speculative. If any allowance were to be made for loss of such a chance, it would have to be a very conservative figure, given the many and uncertain contingencies involved in setting up and operating such a business. I would have to deduct any employer superannuation contributions, as they would not be paid for him. On the other hand, I have no reason to build in any adverse contingencies into the calculation of the plaintiff’s loss of earning capacity or superannuation benefits as an employee. In the circumstances, I do not consider that any additional allowance under this head can properly be made.
Future care
Mr Possingham invited me to assume that the plaintiff’s requirements for future care will continue at the same rate as I have found that they exist at present, i.e. at the rate of $700 per week. According to Mr Watson’s evidence, the appropriate multiplier based on the life expectancy of a man the age of the plaintiff is 1,325. That would yield a figure of $927,500.
As I have noted, Dr Marshall considered that the plaintiff has the physical capacity to do much more than he does. I consider that the present high level of dependency may well diminish with the plaintiff’s age, maturity and the growing acceptance of his condition, possibly aided by future surgical intervention such as a colostomy. Overall, I consider that the plaintiff’s requirements for future care are likely to diminish rather than increase or remain static. I allow $500,000 for future care requirements.
Future medical and like expenses
Dr Marshall prepared a helpful schedule of likely future services, the frequency with which they are likely to be required and the present cost. I do not find it necessary to set the table out in full detail. It is sufficient to say that it covers medical and allied health services, private health cover, various testing and equipment requirements. Mr Watson, an actuary, has converted the current cost and frequencies into present lump sum equivalents. When added together they come to a total sum of $1,185,547.
I accept the evidence of Dr Marshall as to the nature of the requirements and their frequency, and the evidence of Mr Watson as to the present lump sum equivalents, subject, however, to a number of qualifications which have the effect of reducing the overall figure.
Mr Watson’s calculations allow pharmaceutical expenses at $150 per week, whereas the evidence is that that has been and is likely to continue to be the rate of expenditure of the plaintiff per month. That converts to a figure of $34.61 per week, and has the effect of reducing Mr Watson’s calculations by $152,871.
Secondly, Mr Watson has allowed $500 per week by way of Chinese herbs and medicines, an expenditure which I have found is not and will not reasonably be incurred. That has the effect of further reducing Mr Watson’s figure by $662,430.
At first sight there appears to be some duplication in the provision of incontinence aids, the two types suggested by Dr Marshall being alternatives. However, her evidence was that one box would last one month, and each has been included in Mr Watson’s table as expenditure of one item every two months. I see no need to make any adjustment on that account.
No allowance has been made in the calculations for the cost of future radiological investigations. Their necessity and frequency is quite uncertain, although it would be reasonable to allow some notional sum for such investigations.
There are new medications which have been tried on the plaintiff, and no doubt there will be new ones to be tried in future. Some allowance could perhaps be made for this, although these may well replace existing drugs.
I also note that no allowance has been made in Dr Marshall’s list, and therefore no financial allowance made for possible increased medical and other expenses associated with possible premature degeneration or injury caused by additional strain on the shoulders and elbows.
After making allowance for the major items which need to be deducted from Mr Watson’s calculations, and making some allowance for the matters just referred to, I allow the sum of $380,000 for future medical and like expenses.
Future holidays
The plaintiff has obvious limited mobility and restriction in the manner in which he can take holidays. There is no reason why he should not take holidays. However, there will inevitably be additional expense associated with the taking of such holidays. Mr Possingham suggested an allowance at the rate of $20 per week on this account or a little over $1,000 per annum. I would be prepared to allow something in the vicinity of $800 per annum or $16 per week. After capitalisation of that figure I would allow $18,500.
Interest
Interest is payable on past losses which are assessed as follows:
Past non-economic loss of earning capacity 142,700 Past superannuation payments (net) 8,500 Past care 231,000 Past medical expenses 23,000 Home modifications 70,000
_______Total
$475,200
On the calculations I have made, the loss of earnings in the first 12 months is relatively smaller than in subsequent years. The same would apply to superannuation payments. Likewise, past care and medical expenses would have been generally less in the first year than subsequent years owing to periods of hospitalisation. Interest on past care by relatives is to be allowed at the same commercial rate as other losses: Grincelis v House (2000) 201 CLR 321.
There is no evidence as to when or over what period the home modifications were performed. In the circumstances, I would allow no greater period of interest on that amount than I do for the others.
Assuming an otherwise reasonably even distribution of expenses over the period, I would allow interest on the full amount for a period of three years at the rate of 7% per annum. Allowing for rounding off, I would allow interest on past economic loss at $100,000.
Interest on past non-economic loss is to be assessed at 4% over approximately one-half the period since the date of the injury. On this account I would allow $8,000, making a total award for interest of $108,000.
Conclusion
I assess the plaintiff’s damages as follows:
Past non-economic loss 60,000 Future non-economic loss 170,000 Past loss of earning capacity 142,700 Past superannuation contributions (net) 8,500 Past care 231,000 Past medical expenses 23,000 Home modifications 70,000 Future economic loss 1,000,000 Future superannuation contributions (net) 112,000 Future care 500,000 Future medical expenses 380,000 Future holiday expenses 18,500 Total
Interest
2,715,700
108,000
TOTAL
$2,823,700
There will be judgment for the plaintiff in the sum of $2,823,700.
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