Nolan v Hamersley Iron Pty Ltd
[2000] WASCA 304
•25 OCTOBER 2000
NOLAN -v- HAMERSLEY IRON PTY LTD [2000] WASCA 304
| (2000) 23 WAR 287 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 304 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:128/1999 | 8 SEPTEMBER 2000 | |
| Coram: | PIDGEON J IPP J WALLWORK J | 25/10/00 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | SHAUN PATRICK NOLAN HAMERSLEY IRON PTY LTD |
Catchwords: | Damages Personal injuries Appellant's symptoms psychiatric in nature however the prospect of recovery was obscure and speculative The discount for contingencies reduced from 40 per cent to 15 per cent Loss of superannuation benefits Admissibility of actuarial evidence and need to have regard thereto Jongen v CSR explained Interest on gratuitous services Claims for various appliances Consequential amendment made to trial Judge's order |
Legislation: | Nil |
Case References: | Grincelis v House (2000) 74 ALJR 1247 Jongen v CSR Ltd [1992] A Tort Rep 61,706 Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 October 1997 Love v Clarona Pty Ltd, unreported; FCt SCt of WA; Library No 970012; 24 January 1997 Zappara v Jones, unreported; FCt SCt of WA; Library No 970264; 22 May 1997 Bowen v Tutte [1990] A Tort Rep 68,079 Gamser v Nominal Defendant (1977) 136 CLR 145 Lloyd v Faraone [1989] WAR 154 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Morris v Zanki (1997) 18 WAR 260 SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 Wilson v Peisley (1975) 50 ALJR 207 Wynn v NSW Insurance Corporation (1995) 184 CLR 485 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : NOLAN -v- HAMERSLEY IRON PTY LTD [2000] WASCA 304 CORAM : PIDGEON J
- IPP J
WALLWORK J
- Appellant
AND
HAMERSLEY IRON PTY LTD
Respondent
Catchwords:
Damages - Personal injuries - Appellant's symptoms psychiatric in nature however the prospect of recovery was obscure and speculative - The discount for contingencies reduced from 40 per cent to 15 per cent - Loss of superannuation benefits - Admissibility of actuarial evidence and need to have regard thereto - Jongen v CSRexplained - Interest on gratuitous services - Claims for various appliances - Consequential amendment made to trial Judge's order
Legislation:
Nil
(Page 2)
Result:
Appeal allowed in part
Representation:
Counsel:
Appellant : Mr D M Bruns
Respondent : Mr P McCann with Mr M L Williams
Solicitors:
Appellant : Separovic & Associates
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Grincelis v House (2000) 74 ALJR 1247
Jongen v CSR Ltd [1992] A Tort Rep 61,706
Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 October 1997
Love v Clarona Pty Ltd, unreported; FCt SCt of WA; Library No 970012; 24 January 1997
Zappara v Jones, unreported; FCt SCt of WA; Library No 970264; 22 May 1997
Case(s) also cited:
Bowen v Tutte [1990] A Tort Rep 68,079
Gamser v Nominal Defendant (1977) 136 CLR 145
Lloyd v Faraone [1989] WAR 154
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Morris v Zanki (1997) 18 WAR 260
SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Wilson v Peisley (1975) 50 ALJR 207
Wynn v NSW Insurance Corporation (1995) 184 CLR 485
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1 PIDGEON J: I have read in draft the reasons to be delivered by Ipp J. I agree with those reasons and the orders proposed.
IPP J:
The action in the District Court
2 On 24 May 1995 the appellant sustained personal injuries while operating what was described as a "Toyota HIRail" vehicle on a rail track operated by the respondent between Tom Price and Dampier. The appellant claimed that his injuries were caused by the negligence of the respondent. On the morning of the trial the respondent admitted liability and the action proceeded solely by way of an assessment of damages. Third, fourth and fifth parties were joined in the action, but their participation has no bearing on this appeal.
3 In the accident the appellant sustained an injury to his head. He was hospitalised for some six to eight weeks and was an out-patient for a period of some 12 months after his release from hospital. The sequelae from the head injury were various and serious. The appellant's memory was affected and he had no recollection of the accident or of the weeks following the accident. On becoming conscious he had difficulty in walking and being understood when talking. By the time of the trial his speech had improved but not completely. The difficulty with his walking was a significant disability. It was caused by ataxia and resulted in a tendency to fall to the right while moving. He experienced a considerable fall-off in energy and endurance. He had problems with his vision, especially his left eye. Eating and dressing were a problem. He suffered from seizures. He had muscle pain in the neck and shoulder and migraine type headaches.
4 By the time of the trial there had been some general improvement in the appellant's condition but he remained seriously affected by his symptoms. His principal problems were his movement disorder and the seizures. This was recognised by the learned trial Judge who pointed out that "from the point of view of a lay observer the biggest disability is the movement disorder. It appears to affect everything that he does. It was very apparent during the course of the court proceedings and whilst he was in the witness box".
5 A major issue at the trial was whether the appellant's symptoms were organically caused or whether they resulted from psychological or psychiatric reasons. Despite the fact that the appellant was examined by
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- several medical specialists there was no general agreement on the cause of his symptoms. There was no suggestion that he was malingering in any way but the medical witnesses were divided as to whether his movement disorder was organic or non-organic. In the end, the learned trial Judge concluded that the movement disorder had non-organic causes and there is no appeal from that decision. Additionally, his Honour decided that the seizures too, were non-organic. The appellant appeals against this particular finding.
6 The significance of the findings that the movement disorder and seizures were non-organic is that, on that basis, the learned Judge found that these conditions were "treatable" at "some time in the future". For that reason his Honour applied a discount of 40 per cent for contingencies to several of the different heads of damage awarded to the appellant. This finding is challenged by the appellant and lies at the heart of a number of the grounds of appeal.
7 Apart from the grounds that depend on the argument that the reduction of 40 per cent for contingencies was not justified, there are a number of other grounds which challenge certain awards made under different heads of damage. I deal with each of these below.
The 40 per cent contingency discount
8 The learned trial Judge said: "I … accept that it is reasonable to make a reduction of 40 per cent for contingencies." He also stated, in regard to the claim for loss of future earning capacity:
"In view of my findings that Nolan's disability is the result of a psychiatric condition and that the condition is treatable I am of the view that [sic- that] figure should be discounted by 40 per cent for contingencies."
- His Honour did not explain further how he arrived at the discount of 40 per cent for contingencies.
9 The inference to be drawn from the reasons, as a whole, is that the learned Judge was of the opinion that because the appellant's movement disorder and seizures were caused by psychiatric reasons and did not stem from pathological grounds, there was a strong possibility that the appellant would recover from his disabilities. When this finding was taken in conjunction with the contingencies that are ordinarily allowed for the vicissitudes of life, the learned Judge concluded that the overall
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- reduction which should be made in respect of contingencies was 40 per cent.
10 In considering the arguments raised by the appellant, concerning the contingency discount, it is necessary first to deal with the submission that the learned Judge erred in finding that the cause of the seizures was non-organic. In this regard the learned Judge said:
"Having come to the conclusion that Nolan's movement disorder is non-organic I am also of the view that Nolan's fits or seizures are pseudo seizures possibly from a dissociative reaction to stress and not epileptic seizures. I have come to this conclusion largely on the same basis that I come to the view that the movement disorder is non-organic. But in addition to that in my view there is insufficient evidence of true epileptic activity. Nolan is not and has not been taking for a considerable period of time any anti-convulsant medication. There are atypical characteristics to Nolan's seizures: …
There is no medical evidence that Nolan loses consciousness during a fit or that he is at risk when asleep.
Furthermore the evidence suggests that the frequency of pseudo seizures has increased with the build up of momentum in Nolan's legal case. There is an absence of contemporaneous evidence of seizures between the time that Nolan was discharged from Sir Charles Gairdner Hospital and early in 1997."
11 The learned Judge's statement that, in finding that the appellant's seizures were pseudo in nature, he relied "largely on the same basis" that led him to the view that the movement disorder was non-organic, appears to be a reference to his Honour's preference for the medical testimony of those doctors who were of the opinion generally that the causes of the appellant's condition were non-organic. On that basis, it seems to me, nothing in the learned Judge's reasoning on this issue has been shown to be faulty. There was ample medical testimony to the effect that the appellant's seizures were psychiatric in nature and the other factors referred to by his Honour support the conclusion to which he came. Of course, there was evidence that might have led his Honour to a different conclusion but there is nothing to demonstrate that the learned Judge erred in preferring the testimony to the contrary. In my view his Honour's finding in this regard must stand.
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12 Accepting, therefore that the appellant's movement disorder and seizures are psychiatric in nature, the next question is: what potential is there for the appellant being cured of his condition?
13 After stating that the movement disorder and the pseudo seizures arise out of the appellant's "conversion disorder which is a recognised psychiatric condition", the learned Judge observed: "The evidence is to the effect that these matters are treatable. There is not a lot of evidence as to how and when they could be treatable and the prospects of success." He said, at a later stage: "It is my finding that his condition is likely to improve after the litigation in any event. It is also the case that some time in the future his condition is treatable." His Honour remarked further that there was evidence that the "movement disorder manifested by the condition is treatable" and referred to the testimony of two psychiatrists, Dr Mustac and Dr Risbey. Additionally, the learned Judge observed: "It is also clear that resolution of this litigation will remove significant stresses and assist focused psychotherapy." His Honour did not address this issue further and made no reference to how the seizures could be treated.
14 Perhaps the most important evidence concerning the prospects of the appellant being cured was given by Dr Mustac. In a report which was tendered in evidence Dr Mustac suggested "an Amytal interview" as a treatment which the appellant should receive. A drug assisted interview is a significant medical procedure that has to be administered by anaesthetic.
15 Dr Mustac expressed no opinion as to the prospects of success of such treatment. In his evidence in chief, he explained that Amytal is a short acting barbiturate. He said: "The idea of it [Amytal] is that a certain amount is given to the individual which is sufficient to dull their cognitive functioning but not sufficient to put them to sleep." While affected by the drug, the patient is questioned. When asked how an Amytal interview would help, Dr Mustac said:
"Amytal interview can, and of course doesn't always but it can have a dramatic impact in terms of resolving the physical complaint. You see, the nature of a conversion disorder is that a person is presenting with some physical complaint which has an underlying psychiatric cause. It does not have a physical cause in other words. The idea of a conversion disorder is that it's outside the person's awareness so its different from malingering … and the difference is that the person is not consciously aware that they are able, for example, in the case of a paraplegic to
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- move their legs. So in the case of Mr Nolan the reason for doing it is that if he was, for instance, video-taped during the Amytal interview and his trunkal movement or tendency to fall to the right was totally absent, that that would provide him with the opportunity to become (a) aware that this is something which is psychiatric and not of a physical nature and (b) that it forces some change. It forces a change in emotionally evaluating the situation and dealing with it and often people are quite depressed afterwards or distressed. They have emotional difficulties in dealing with a situation that perhaps has become very much part of their self-image when it suddenly changes like that, but on the other hand it opens the avenue for effective treatment."
- Dr Mustac was not cross examined about the issue.
16 Dr Obiri-Boateng, a psychiatrist who treated the appellant, also suggested that the appellant should have a drug assisted interview "to further elucidate any problem areas that could be too painful to talk about but which may shed some light on the possible reason for his truncal ataxia". He explained the purpose for the interview in the same terms as Dr Mustac. Unlike Dr Mustac, Dr Obiri-Boateng said that he would use Diazepam for the interview and not Amytal as the latter drug could cause respiratory suppression.
17 Dr Risbey testified:
"If it is a conversion reaction then it is amenable to treatment if psychotherapy enables him to make the connections needed, such that he no longer unconsciously requires such a defence mechanism as 'conversion'."
- Dr Risbey explained that a conversion disorder was potentially reversible, depending upon "the loss of anxiety which is manifesting in the loss of function". He said: "If that anxiety can be worked through, then we often find the conversion symptom disappears."
18 Dr Risbey was asked about an Amytal interview. He explained that Amytal is administered intravenously in hospital. He said: "It is almost like giving a general anaesthetic." When the patient wakes he becomes "labile and disinhibited and a little bit drunken". He said that one has to be careful in administering drugs of this kind. This observation was particularly significant in the light of the fact that, according to Dr Risbey, the appellant had tried several medications for his psychiatric condition,
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- "but unfortunately he appears to fall into a minority of patients who suffer severe side effects from even moderately small doses".
19 Dr Risbey explained that, when taking psychiatric medications, the appellant experienced "deterioration of his walking, increased tiredness, additional twitching, a reduction of appetite, and even faecal incontinence". Various medications were tried but the appellant was unable to tolerate any of them and frequently developed very unpleasant side effects and had to cease taking the medicines after a few days. According to Dr Risbey: "In view of the history of possible seizures, there is an even greater need for caution with medication because some of the medication tried … can lower seizure threshold." Dr Risbey said that, in the light of this history, drug assisted interviews would "bring up big problems because he is very, very sensitive to a whole range of drugs". In administering drugs of this kind to the appellant, great care would have to be taken as the appellant had shown to have extremely severe side effects from drugs which had in the past been administered to him for psychiatric purposes.
20 The appellant declined to have a drug assisted interview. On the evidence, it cannot be said that his refusal was unreasonable. Moreover, no witness testified as to degree of likelihood of any drug assisted interview being successful. The prospects of success on this score remain obscure and entirely speculative.
21 Dr Risbey referred to a different kind of treatment for the appellant's conversion disorder. He explained that the appellant had received "supportive psychotherapy and, at times, attempts to process unresolved trauma through ventilation of emotions, making connections with meaning, and … attempts at eye movement desensitisation and reprocessing (with some positive results)". The eye movement desensitisation and reprocessing treatment was referred to in evidence as "EMDR". Dr Risbey described various attempts to administer EMDR to the appellant. Although, after two EMDR sessions the appellant felt better than he had previously, there were also contrary effects. Dr Risbey concluded that these "probably indicated that he was not yet ready to handle the experience". Since then no further EMDR has been attempted. Dr Risbey said:
"This is not to say that it will not be attempted again in the future. There are major issues of grief of the loss of normal health, of work capacity and of pre-accident marital and family
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- harmony which remain unresolved, in addition to the trauma as such."
- Dr Risbey recommended that further EMDR be considered in the context of on-going supportive psychotherapy. He said: "We have tried [this] and may well try again in the future, if that still seems to be worthwhile."
22 It is apparent from Dr Risbey's report that prospects of any significant success from EMDR in the future are, as he put it, "hypothetical". They could also be termed highly conditional and speculative. Dr Risbey was of the opinion that the appellant would "continue to be totally unfit for work unless his difficulty with walking, standing, sitting (balance and coordination) can be rectified and this may not be possible". He was of the view that, even if these matters were improved, the appellant would be severely disabled in the foreseeable future.
23 I appreciate that Dr Risbey concluded that there was an organic reason for the appellant's condition and his views as to the overall prospects of the appellant recovering have to be treated with considerable caution. Nevertheless, he was the only psychiatrist who presented an alternative to the drug assisted interview as a means of treating the appellant, namely through EMDR. As I have attempted to demonstrate, Dr Risbey was extremely pessimistic as to the overall prospects of success of effecting a cure in that way, or at all.
24 In the circumstances, and with respect to the learned trial Judge, I consider that the contingency deduction of 40 per cent which he took into account generally was far too high. Having regard to the usual deduction that has been taken into account for the ordinary vicissitudes of life, I would allow a deduction of 15 per cent for contingencies, generally. This discount takes into account the real possibility that, even if the appellant at some time in the future is cured or his condition is alleviated, his past medical history may make it extremely difficult for him to get work in the labour market. This discount also has regard to the fact that not all contingencies are adverse and regard has to be had to the possibility that but for the accident, the appellant might have received increases in his wages or might have been promoted.
Pain, suffering and loss of amenities
25 The learned Judge awarded the appellant $75,000 in respect of pain, suffering and loss of enjoyment of life. This award was predicated on the
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- finding that, as represented by the contingency deduction of 40 per cent taken into account by the learned Judge, there was a substantial chance of the appellant's condition being successfully treated in the future. I have come to a different view and that affects the award under this head. In my view, taking into account the relatively remote prospects of the appellant being cured, I consider that the award under this head should be $105,000.
Future economic loss
26 The learned Judge awarded the sum of $264,448 for loss of capacity to earn in the future. He arrived at this figure by deducting 40 per cent for contingencies from a figure which his Honour determined as being the "starting point" of $440,747.48. For the reasons I have expressed only 15 per cent should be deducted from the sum of $440,747.48. On this basis the award for loss of capacity to earn in the future should be $374,635.
Loss of past gratuitous services
27 The learned Judge awarded $55,440 for past gratuitous services. Included in this award of $55,440 was an amount of $49,392 based on gratuitous services of three hours a day for 196 weeks (being part of the relevant period covered by the award under this head). The appellant challenged the allowance of three hours a day. The only direct reason given by the learned Judge for arriving at this award based on three hours a day was that he considered "the weight of the medical evidence" to be to the effect that the appellant probably needed three hours of care per day during the period in question.
28 It is to be noted, however, that his Honour did find that the appellant was "able to participate in normal activities" and that the appellant's "own evidence and the surveillance videos indicate that he has a good level of personal living skills and home management skills". The learned Judge observed: "He does have some special needs created by the accident and in particular I include transportation. Otherwise he is reasonably able to perform all other activities of daily living." These are factual findings which are not challenged on appeal.
29 The appellant's wife testified on this issue. She explained that the appellant needed her when he showered because of the chance that he might have a fit and fall in the shower. Further, he could not dry himself or dress himself. She testified that he could not feed himself and moving around the house was difficult. He could not drive himself and required
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- assistance in walking. He was not capable of cooking a meal for himself as he could not deal with hot objects. He had trouble putting on his clothing although most of the time he did do that himself. He was not able to walk about in public on his own because if a person darted across his path he could fall. This testimony was supported by the evidence of the appellant's general practitioner Dr Van der Moezel. Counsel for the appellant pointed out that the learned Judge had made no mention of the relevant evidence of the appellant's wife and Dr Van der Moezel in regard to gratuitous services.
30 Counsel for the respondent pointed to the evidence of the occupational therapist, Ms Jodrell, to whose assessment Dr Van der Moezel said he would defer. While Ms Jodrell did not quantify the time needed by the appellant's wife or some other person to assist the appellant in his daily needs, her evidence as a whole supports the findings of the learned Judge.
31 In the circumstances I am not persuaded that the learned Judge made an error when he assessed the time he needed for the purposes of gratuitous services as being three hours per day. There was evidence which entitled his Honour to come to the conclusion that he did.
Loss of future gratuitous services
32 The learned Judge awarded the appellant $82,454 for loss of future gratuitous services. He reduced the three hours per day required for such services to two hours per day. His Honour also allowed for a reduction of 40 per cent for contingencies of life.
33 The learned Judge did not explain why he reduced the three hours per day to two. On my reading of the evidence there is no compelling reason to differentiate between the time spent in the 196 weeks that partly made up the claim for past gratuitous services and the time needed to care for the appellant in regard to the claim for future gratuitous services. The improvement in the appellant's condition is not such that it would significantly detract from his need for assistance of the kind rendered to him prior to the trial. The problems he had then remain now. I would therefore allow three hours per day for care for the future. The learned Judge deducted 40 per cent for future contingencies from the award under this head. As indicated, in my view that deduction should only be 15 per cent. Following the formula utilised by his Honour, but with adjustments in accordance with my findings, I would allow future
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- gratuitous services as follows: 3 hours x 7 days x $12 x 818 (multiplier for 42 years) x 85 per cent = $175,215.60.
Interest on gratuitous services
34 The learned Judge made no allowance for interest on past gratuitous services, saying that there was no such claim. It is common cause that his Honour erred in this respect. Counsel for the appellant submitted that the appellant was entitled to interest on the award for gratuitous services at 3-1/2 per cent per annum as from the date of the accident to the date to trial. This is based roughly on half the interest applicable under the Supreme Court rate. I understood counsel for the respondent to accept that interest according to this principle should be awarded (see Grincelis v House (2000) 74 ALJR 1247).
35 I would therefore allow the appellant interest at the rate of 3-1/2 per cent per annum on $55,440 for 206 weeks. The sum in question is $7,687.
Loss of superannuation benefits
36 At trial the appellant tendered, by consent, actuarial evidence of the appellant's loss of superannuation benefits. The learned Judge said in this regard:
"Actuarial evidence of Nolan's loss of superannuation benefits is inconsistent with the approach in Jongen v CSR (1992) Aust Torts Reports 81-192. I assess Nolan's past loss of superannuation benefits according to the formula in Jongen as follows:
$41,600 x 7 per cent x 70 per cent 52 x 212 weeks = $8,310
I allow the sum of $8,310 for past loss of superannuation."
37 His Honour dealt with the claim for loss of future superannuation benefits in the same way but deducted 40 per cent from the sum arrived at by reason of his Honour's findings in regard to the contingency discount that should be allowed. The sum so arrived at by his Honour was $17,797.
38 In Jongen v CSR Ltd [1992] A Tort Rep 61,706 both parties adduced evidence from actuaries to support their respective cases. One of
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- the actuaries adopted an approach concerning which Anderson J said (at 61, 713): "It involves too much speculation and too much investigation." His Honour went on to say:
"It is, I think, well recognised that the task of assessing damages in personal injuries cases should be kept as simple as possible. It would not be conducive to the efficient disposition of such cases as this that there should be a sophisticated, elaborate and expensive actuarial inquiry into the value of superannuation benefits lost, especially where the item of claim is likely to be relatively modest in the overall award. Policy considerations are against encouraging that kind of approach … The preferable approach in this kind of case is to leave out of account altogether any consideration of the benefits likely to be received on maturity and actually received by the plaintiff on early termination and to have regard only for the value of what would be the employer's contribution if the disability had not occurred, appropriately discounted for tax and the fact that it is a payment to a privately administered fund rather than into the hands of the plaintiff.
This approach has the virtue of simplicity…"
40 The basic policy enunciated in Jongen has generally been regarded as appropriate (see, for example, Zappara v Jones, unreported; FCt SCt of WA; Library No 970264; 22 May 1997 and Love v Clarona Pty Ltd, unreported; FCt SCt of WA; Library No 970012; 24 January 1997) and I do not intend to say anything that detracts from that. It is to be noted, however, that its application must depend upon the conditions governing the fund in question and from time to time this Court has remarked on the problems caused by the lack of evidence as to loss of anticipated benefits. The absence of appropriate evidence has on occasion led to an award for loss of superannuation benefits being disallowed in its entirety: Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 October
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- 1997. No particular rule can be laid down as to the extent of evidence required to prove loss of superannuation benefits. Each case has to be determined by reference to the particular fund in question, bearing in mind the desirability of maintaining a simple approach and avoiding unnecessary expert testimony, as Anderson J explained in Jongen.
41 In the present case, the actuarial evidence consisted of a report tendered by the appellant. The report sought to establish the loss of superannuation benefits by reference to the fund established under the Superannuation Guarantee (Administration) Act 1992. As I have pointed out that fund is a different fund from the one considered in Jongen. In particular, the employer contribution rate changes from time to time and other calculations that are required are complex and sophisticated. The actuarial report dealt with these matters with commendable clarity and simplicity. It set out the employer contribution rate according to the legislation, the actual salary received (subject to an error not presently relevant), expenses (based on the actuary's experience) and the actuary's estimate as to the allowances to be made for taxation. The report also contained, in effect, opinions by the actuary as to the likely performance of the fund in the future.
42 There was no challenge to any of the figures reflected in the report. There was no suggestion that anything in the report was erroneous or based on wrong principles. The report calculated the loss of superannuation benefits in a far more accurate way than the arbitrary approach adopted by the learned Judge. The report was admissible in evidence and rightly admitted. In this regard, it is to be noted that nothing said in Jongen is authority for the proposition that relevant actuarial evidence may be disallowed. In my opinion, his Honour should have accepted the evidence so tendered and based his award on it.
43 On the evidence of the actuary, the overall loss of superannuation benefits amounts to $58,313. This represents the present value of the loss. No submissions were made by either counsel as to whether the whole or part of this sum should be reduced by the discount for contingencies (which I would determine at 15 per cent) and, if so, to what extent. I would therefore hear counsel further on this issue.
Refusal to allow claims for particular appliances
44 The appellant claimed the cost of several appliances and articles of equipment which he contended he needed in consequence of his injuries. The learned Judge rejected the claims made for several of these on the
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- ground that there was insufficient evidence as to the appellant's need for the items in question. His Honour did not question the amounts claimed (that is to say, the only ground for disallowing the claims was insufficiency of evidence as to need). The appellant challenges certain decisions made by the learned Judge in regard to absence of evidence as to need.
45 The appellant claimed $4,567.35 for the maintenance of manual and electronic wheelchairs and scooters. His Honour made no reference to this claim. It is common cause that an award should have been made for this item. The cost of maintenance over the relevant period is $4,567.35, and the discount of 15 per cent for contingencies should be allowed in respect of this sum. The amount to be awarded for this item is therefore $3,882.
46 The appellant claimed $2,740.40 for a carrying device to be attached to the rear of his vehicle to enable the electric wheelchair to be transported. According to Ms Jodrell, the appellant would need such a device when travelling by vehicle with the intention of later proceeding by wheelchair. The appellant's need for this item was proved by Ms Jodrell's testimony (in respect of which there was no cross examination). I would allow $2,329.35 being the sum of $2740.40 less contingencies of 15 per cent.
47 The appellant claimed $7,000 being the cost of a bidet. Ms Jodrell testified, that because of problems in cleaning himself when urinating, the appellant would need a combined bidet/toilet. There was no cross examination of Ms Jodrell as to her evidence concerning how the bidet would be useful to the appellant. I would allow the claim.
48 The appellant claimed $590 being the cost of a suitable specially designed lounge chair. Ms Jodrell testified that such a chair would be needed by the appellant. There was no cross examination in respect of this item. I would allow the claim.
49 The appellant claimed $2,435.90 being the cost of certain "customised seating which incorporated lateral blocks". Ms Jodrell testified that this seating might be of assistance to provide stability to the appellant while he is trying to use his hands for "bilateral tasks". The evidence in this regard was fairly tentative and in my view his Honour was justified in making no allowance for the item.
50 The appellant claimed $3,894.40 for the use of a mobile telephone. Ms Jodrell justified the need for this by saying that if the appellant fell out
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- of his wheelchair or otherwise needed help in an emergency while he was alone he should have the aid of a mobile telephone. I would allow this claim subject to a deduction of 15 per cent for contingencies. The amount I would award is therefore $3,310.25.
51 The appellant claimed $10,946.40 as the cost of a computer over his lifetime. According to Ms Jodrell, in view of the appellant's difficulty in writing, a computer with a speech-activated writing program would be of use to enhance his communication skills and independence in daily affairs. In my view sufficient need has been justified by the evidence and I would award the amount claimed less 15 per cent. The amount I would award is therefore $9,304.45.
52 Finally, the appellant claimed $1,823.90 as the cost of specialised software for the computer. Ms Jodrell pointed out that to accommodate his involuntary upper body movements the appellant may require specialised computer access. I would award the amount claimed, less 15 per cent, the amount so arrived at being $1,550.30.
Home modification
53 The appellant claimed household alterations required to accommodate his disability. He claimed separate amounts for modifications required immediately, modifications anticipated to be needed in the year 2014 and modifications anticipated in the year 2029. The amounts involved were agreed between the parties and the respondent admitted liability for modifications required immediately but denied the need for modifications required thereafter. Expert evidence was led to the effect that, generally speaking, a householder of the appellant's age would change house twice in a lifetime and there was a contingency that the appellant would do the same. Should that occur it was likely that the appellant would have a need to effect modifications to his new homes.
54 The learned Judge refused to make any allowance for the contingency in question. The amount claimed, in aggregate, for future home modifications was $10,792. In my view there was plainly a contingency that the appellant might in the future need reasonably to install modifications again. Therefore, some allowance should have been made. I would award $3,000 under this head.
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The need to attend additional specialists
55 The appellant claimed an amount for attending specialist medical practitioners in the future. The learned Judge found that there was no need for the appellant to attend specialists other than a psychiatrist. The basis of this decision was his Honour's finding that all the appellant's symptoms were caused by a psychiatric condition. In my view, his Honour was justified in coming to the conclusion that he did. I would dismiss the appeal in respect of this head of damage.
Summary
56 I would therefore increase the damages awarded of $813,381.10 by the following amounts which should be added to that sum:
| General damages for pain, suffering and loss of amenities | $30,000.00 |
| Future economic loss | $110,187.00 |
| Future gratuitous services | 92,761.60 |
| Past gratuitous services | $7,687.00 |
| Maintenance of wheelchairs and scooters | $3,882.00 |
| Carrying device for wheelchairs | $2,329.35 |
| Cost of bidet | $7,000.00 |
| Cost of specially designed lounge chair | $590.00 |
| Mobile telephone | $3,310.25 |
| Computer | $9,340.45 |
| Cost of special software | $1,550.30 |
| Cost of home modification | $3,000.00 |
| Total | $271,637.95 |
57 In addition, I would add to the sum of $271,637.95 an appropriate amount in respect of loss of superannuation benefits, this sum to be determined after hearing counsel, as I have explained.
(Page 18)
58 I would therefore uphold the appeal to the extent that I would increase the award of damages of $813,381.10 by $271,637.95 to $1,085,019 plus whatever sum is awarded in respect of loss of superannuation benefits.
59 WALLWORK J: I agree with the reasons for judgment and the conclusions of Ipp J. There is nothing I wish to add.
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