Pawlak v Pesaturo No. Scgrg-94-266 Judgment No. S6805

PAWLAK V PESATURO

[1998] SASC 6805

Full Court: Doyle CJ, Olsson and Lander JJ

LANDER J

The appellant, who was born in Lodsz, Poland on 16 October 1957 was seriously injured in a motor vehicle accident which occurred on 23 May 1991 when the motorcycle which he was riding came into collision with a motor vehicle being driven by the respondent.
The appellant brought proceedings against the respondent for damages for the personal injuries received in the motor vehicle accident. The appellant and respondent agreed that the respondent was ninety five per cent responsible for the appellant’s damages and interlocutory judgment was entered for the appellant accordingly.
The matter came before a judge of this Court for the assessment of the appellant’s damages.
The learned trial Judge assessed the appellant’s damages as follows:
Non-economic loss  $58,950.00
                  Past economic loss  $165,000.00
                  Future economic loss  $300,000.00
                  Past voluntary services  $37,000.00
                  Future care  $150,000.00
                  Gardening and maintenance services                  $20,000.00
                  Mileage reimbursement  $1,275.00
                  Past medical expenses  $132,000.00
                  Future medical expenses  $34,600.00
                  Future dental expenses  $14,000.00
                  Motor vehicle allowance  $20,000.00
                  Travelling expenses overseas  $2,000.00
                  House modifications and painting  $19,000.00
  $953,825.00

Judgment was entered for the appellant in the sum of $883,968.79 inclusive of interest. The judgment reflects the agreement on liability and some prepayment by the respondent of some aspects of the appellant’s damages.
The respondent was ordered to pay the appellant’s costs incurred up to and including 13 March 1997. The appellant was ordered to pay the respondent’s costs incurred from 14 March 1997.
The appellant now appeals against that aspect of the assessment of damages which relates to past voluntary services and future care.
The grounds of appeal are:
“1..... The Learned Trial Judge’s assessment of damages for past voluntary services was grossly inadequate.
2.The Learned Trial Judge’s assessment of damages for future care was grossly inadequate.
3...... The Learned Trial Judge erred in finding that the plaintiff’s need for past personal care required approximately one hour per day personal care support services since his discharge from the Hampstead Centre and a slightly increased level of approximately for one week after some of the plaintiff’s discharges from hospital.
4.The Learned Trial Judge erred in finding that, at the present time, the plaintiff’s need for personal care support services and assistance in performing every day tasks amounts to approximately one hour per day.
5...... The Learned Trial Judge erred in failing to place any or any sufficient weight upon the evidence of Dr Marshall whose view was that the plaintiff requires someone to assist him for approximately three hours per day to perform personal and domestic tasks which he is unable to accomplish or unable to accomplish without undue hardship or danger to himself.
6.The Learned Trial Judge erred in finding that the plaintiff would be confined to a wheelchair in ten to twelve years time and should have found on the whole of the evidence that the probabilities are that the plaintiff will be confined to a wheelchair in approximately five years time.
7...... The Learned Trial Judge did not give sufficient weight to the probability or at least the possibility of the plaintiff suffering from multiple neuropathic joints which if occurring in the arms and shoulders as well as the knees would render the plaintiff totally disabled or significantly disabled.
8.The Learned Trial Judge erred in only allowing an extra one hour per day for personal care support services and assistance in the event of the plaintiff’s wheelchair confinement.
9...... The evidence of Dr Marshall, the Rehabilitation Specialist was that the plaintiff presently required three hours per day and in the event of wheelchair confinement required an extra half hour per day for personal care support services and assistance, in all 3 1/2 hours per day. The Learned Trial Judge found that the plaintiff presently required one hour per day and in the event of wheelchair confinement an extra one hour per day for personal care support services and assistance, in all two hours per day, and in so doing erred in not finding when wheelchair bound the plaintiff required at least 3 1/2 hours per day personal care support services and assistance.
10.The learned trial Judge did not give any or sufficient weight to:-
(i)the significant possibility of the plaintiff’s marriage breaking down irretrievably and the plaintiff’s wife leaving him or;
(ii)the plaintiff’s wife suffering an injury and being unable to care for him.
......... In the event of either of these two contingencies occurring the plaintiff would require personal care support services and assistance in excess of two hours per day and in addition thereto psychiatric and/or psychological treatment and in the circumstances the learned trial Judge’s award of damages for future care and future medical expenses was grossly inadequate.”
In short, the appellant claims that the learned trial Judge erred in the assessment of damages for both past voluntary services and future care in arriving at a figure which was manifestly inadequate. Moreover it is complained that the learned trial Judge erred in his understanding of the evidence and failed to find, as he should have, upon the evidence of a Doctor Marshall, that the appellant had a need for voluntary services and future care to a greater extent than found by the learned trial Judge.
The learned trial Judge assessed past voluntary services at $37,000 and allowed a sum of $150,000 for future care. They were but two aspects of a number of heads of damages considered by the learned trial Judge.
Notwithstanding that the appeal is directed to only two of the many heads of damages it is necessary for a proper consideration of the appellant’s complaints to summarise the whole of the injuries suffered by the appellant and the effect which those injuries have had upon the appellant.
The appellant suffered serious injuries in the motor vehicle accident including a closed head injury, extensive facial injuries including fractures, a fracture of the right tibia and most importantly damage to the spinal cord. He was admitted to the Queen Elizabeth hospital where his skeletal injuries were dealt with. Plain x-rays of the cervical spine did not disclose any abnormality but he was removed to the Royal Adelaide Hospital and underwent a magnetic resonance scan. This more sophisticated x-ray showed cord oedema and a contusion of the fifth and sixth cervical vertical levels. The injury was described by Doctor Marshall as ‘incomplete spinal cord injury’. Mr Hall, an orthopaedic surgeon, described the spinal injury as giving rise to incomplete quadriplegia. The appellant also suffered crush fractures of the thoracic spine at the T5, T6 and T7 levels and Harrington rods were inserted from the T2 to T9 level. At the same time he underwent an extensive reconstruction of his facial features in response to the serious injury suffered to his face.
About a month later he was transferred to Hampstead Centre for rehabilitation. He remained at the Hampstead Centre until 8 November 1991, a period of about four months. After his discharge from the Hampstead Centre, he underwent further surgery to reconstruct his jaw. He remained in hospital about eight days before he was discharged. In April 1992 he was readmitted to the Royal Adelaide Hospital to have the Harrington rods removed.
In July and October of 1992 he underwent two surgical procedures to his jaw and nose. In April 1993 he underwent an arthroscopy to both knees. He had further surgical procedures in September and October 1993 to his face. In January 1994 he had a mouth implant. In July 1994 his nose was reconstructed yet again and a procedure was performed to his right cheek. In July 1994 and again in November 1995 he had further dental treatment. The appellant has undergone extensive cranio facial surgery and extensive dental surgery in response to the very serious injuries he suffered to his face and head. Indeed he has required some fourteen operations to repair the damage caused to his face and teeth.
Doctor Ruth Marshall, the director of orthopaedic and spinal injury rehabilitation at the Hampstead Centre, reported on 31 March 1992 of the appellant’s condition at the time he was admitted to the centre and his progress during his stay there. She said:
“At that stage he had commenced mobilisation and was able to perform standing transfers with two people assisting him. He had poor leg control but was able to sit on the edge of the bed. Upper and lower limb power was significantly reduced with the left side being somewhat worse than the right. He was able to feed and shave himself and complained of reduced sensation on the left side of his body. Because of his facial fractures he could only manage a ‘non-chew’ diet. Mobilisation was made more difficult by pain in the right knee secondary to the fracture of the tibial plateau and a further urinary tract infection. He also suffered from pain at the level of the chest lesion which did not respond to the medications, so TENS was tried.
Over the ensuing weeks Mr Pawlak continued to suffer from pain and was concerned by the swelling and disfigurement of his face. His bladder was managed with an indwelling urethral catheter and his bowels worked well with the Spinal Injury Unit second day regime. He was woken at night by extensor spasms and so was commenced on baclofen.
By early August he was able to dress the upper part of his body and was generally working hard in his rehabilitation programme. Although his pain was slightly less, he complained of a funny sensation all over his body and was commenced on carbamazepine and amitriptyline to deal with this dysaethesia. He rapidly learnt to manage a wheelchair adequately and was able to transfer in the ward using a sliding board and only stand by assistance.
He continued to improve but noticed that as the facial swelling subsided he had a loss of sensation over the maxillary area on both sides of his face.
In early August bladder function returned had (sic) he was able to void without the use of a catheter or drugs. Renal ultrasound, however, revealed bladder calculi which where thought to have developed around the balloon of the catheter and when it had been in situ. After discussion with Mr Bolt, Mr Pawlak was subsequently transferred to the St Andrews Hospital for cystoscopy and crushing and removal of the stones without complication. Renal and bladder function was otherwise good.
Mr Pawlak continued to improve in function and in September commenced weekend overnight leaves. He continued to have problems with pain, hypersensitivity in the hands and dysaesthesia. In early October he complained of left wrist pain which interfered with his activities of daily living and on examination was tender in the anatomical snuff box and over the abductor tendons of the thumb. Steroid injection was suggested for this.
During this time he was seen by Dr George Rawson for relaxation therapy and counselling and he was reviewed by the plastic surgeons or (sic) further management of his facial injuries.
He was discharged for the ward to home on the 12th November with plans for him to be admitted to Parkwynd Hospital for staged facial reconstruction procedures on 18th November.
At the time of discharge from his inpatient programme, Mr Pawlak had a mild residual limb weakness with patchy sensory loss. His right plantars were downgoing and his left plantars were equivocal, and apart from increased knee jerks he was not hyperreflexic. He was ambulant with a walking frame but used a manual wheelchair for longer distances, was independent in personal self care activities, was able to drive an automatic motor vehicle with power steering, and bladder and bowel were functioning normally. He was using carbamazepine to help control his dysaesthesia, baclofen to control his spasm, and Capadex for pain. Bisalax suppositories were used when required.”
As can be seen when the appellant was discharged from the Hampstead Centre he was ambulant with a walking frame. His walking ability improved and Doctor Marshall observed that on 23 March 1992 that he was able to walk with a wider based gait. He used a walking stick to walk longer distances. When she reviewed him on 24 August 1994 she observed that he remained severely disabled. He suffered spasticity at night and his sleep was interrupted by spasms and pain. She commented that the plaintiff suffered “lack of joint position sense and sensation which affects his whole body below the level of his spinal chord lesion, but is worse on the left than the right”. This lack of joint position sense and sensation had resulted in a fall. Doctor Marshall believed that the appellant was at risk in the long term of suffering joint damage. She also noted that the appellant suffered from a loss of sensation and feeling which makes it difficult for him to empty his bladder and bowel. His enjoyment of sexual activity was severely impaired.
She believed it was unlikely that he would make any improvement from that condition.
The appellant’s case was that, as a result of this accident and the various injuries which he suffered and the treatment for those injuries, he has suffered and will continue to suffer depression. The learned trial Judge did not make any express findings in relation to the medical evidence adduced by the appellant in support of that aspect of his claim but I agree with Mr Eriksen, counsel for the appellant, that in view of his Honour’s conclusion in his consideration of non economic loss that the injuries had “transformed him from an outgoing person and skilful tradesman into someone who is withdrawn and depressed” that his Honour implicitly accepted the evidence upon which the appellant’s case was based.
That evidence, from two psychiatrists, Doctors J Lucas and Bassett, was that he had suffered depression and would be vulnerable to periods of depressive illness in the future. It was Doctor Bassett’s opinion that the “effect upon his family may also be considerable”.
The learned trial Judge summarised the appellant’s physical and mental condition at the time of trial. In arriving at his findings in those respects he accepted the evidence of the appellant and his wife, whom he believed were honest witnesses who had provided him with a reasonably accurate picture of the appellant’s condition.
Apart from the matters to which I have already referred the learned trial Judge found that the plaintiff suffered continuous pain in his head, chest, back, neck, knees and hands although the extent of the pain fluctuated depending on the weather conditions. During the night he suffers spasms and he suffers significant interference to his sleep patterns. He still has difficulty with urinating and defecating because of the lack of sensation and feeling. He uses enemas to assist him with his bowel problems. The plaintiff still has difficulty with co-ordination which results in him bumping into objects from time to time and tripping over. He walks with a walking stick except around the house. He wears knee braces to support his legs. The very act of walking and movement leave him exhausted by the end of the day. He suffers pain in the hip and knee joints and the joints have a tendency to crack when he sits down or stands up. He still suffers headaches for which he takes medication. The medication is of no assistance when the headaches are severe. Whilst he likes to use his computer he finds difficulty in concentrating because of headaches. He is depressed. He often becomes tearful and relies upon his wife for comfort. He does some little housework around the house but can only work for a while before he must rest. He still suffers a lack of enjoyment in sexual relations. In particular he has difficulty maintaining an erection. The plaintiff and his wife now have little social life.
The extent of the plaintiff’s injuries were such in the view of the Judge as to completely destroy his earning capacity.
In respect of the heads of damages which are the subject matter of the appeal the learned trial Judge was obliged to determine exactly what needs the appellant had had and will have and how these needs had been catered for and would need to be catered for in the future.
The learned trial Judge was faced with competing evidence. The respondent called a Doctor Flett, who was an experienced medical practitioner specialising in rehabilitation medicine. Doctor Flett’s view was that the appellant could cope independently without any additional care or support except in relation to house cleaning and gardening where he would require assistance. Doctor Marshall, on the other hand, expressed the opinion that the appellant required someone to assist him in a number of aspects of his life for approximately three hours per day. The appellant, in her opinion, needed some assistance and care for personal and domestic tasks which he could not accomplish for himself.
An instance of that is the care that his wife has given him in relation to helping him during the night when he has to urinate or defecate and assisting the appellant to get in and out of bed. A further instance of care which the appellant’s wife delivers is in helping him to dress by fastening and unfastening buttons.
The appellant is able to cook meals and he is also able to assist in the preparation of meals. He makes sandwiches for his children two or three times per week. He has to be careful not to cut himself or burn himself on the microwave oven. He can do some housework. He can do ironing but again he must be careful not to burn himself. He can vacuum for short periods. He is able to assist in the washing up.
He assists his wife with the shopping but he cannot carry a large number of items. He can drive a car but not for long trips. He does transport his children to school and to sporting fixtures. He also takes them to Polish language lessons.
That he does have a measure of independence, as the learned trial Judge found, was demonstrated by the fact that in January 1996 the appellant’s wife went interstate for ten days leaving the appellant with the children who were then on holidays. The appellant cared for the children, cooked for himself and his children and took them on outings. He also did the housework.
Moreover the appellant has been left to cope for two six week blocks per year whilst his wife has undertaken full time work. He has coped without any form of assistance.
Mr Trim QC referred this Court to a document which had been compiled by a panel of medical and para medical experts in March/April 1997 which recorded the assessment of those experts’ collective views of the independence of the appellant (Functional Independence Measurement). The experts’ opinion was that in all but two respects of ordinary every day personal care the appellant was quite independent. In respect of bowel management they believed him to have modified independence. It was only in respect of climbing stairs that he required assistance and then it was total assistance.
The learned trial Judge was obliged to choose between the competing opinions from Doctor Flett and Doctor Marshall. In the end he reached the conclusion that the appellant was in need of some carer support because of his physical disabilities although he was not convinced that he needed carer support to the extent suggested by Doctor Marshall. The learned trial Judge reached the conclusion that the appellant probably needed carer support to the extent of about one hour a day rather than no support as suggested by Doctor Flett or three hours support as suggested by Doctor Marshall.

In my opinion the learned trial Judge was entitled to reach a conclusion between the two opinions expressed by the medical practitioners.
It was a matter of judgment after hearing the appellant and his wife and the expert evidence as to first whether carer support was required at all and secondly the extent of that carer support. He resolved the first question in accordance with the opinion of Doctor Marshall but was not persuaded that carer support of the order of three hours a day was required. In my opinion the learned trial Judge was entitled to reach a judgment that carer support less than that suggested by Doctor Marshall would satisfy the appellant’s needs.

Post Voluntary Services

The learned trial Judge in considering the assessment of damages for past voluntary services concluded that the appellant had demonstrated a need for voluntary services of in the order of one hour per day except for some periods when he was discharged from hospital when he had required more support. He made an allowance for that more extensive support over those shorter periods.
He reached the conclusion that the plaintiff had lost his handyman skills and therefore had demonstrated a need for a handyman’s services. He also reached the conclusion that the plaintiff’s ability to perform gardening had been considerably reduced and therefore a need was demonstrated in respect of that. In respect of handyman and gardening services he allowed a further one and a half hours per week.
In the end his Honour concluded that an appropriate assessment would be at the rate of fifteen dollars per hour and reached the conclusion that a sum of $37,000 for past voluntary services would be appropriate.
As I have already said, all of those matters were matters of judgment which had to be arrived at on a consideration of the whole of the evidence. The learned trial Judge was under no obligation to simply accept or not accept the evidence of either Doctor Flett or Doctor Marshall. It was for his Honour to decide the extent of the care necessary, if any, and in my opinion he has arrived at a judgment which is consistent with the evidence.
In my opinion the appellant has not demonstrated any error in the learned trial Judge’s assessment of the appellant’s claim for past voluntary services.

Future Care

In respect of future care his Honour approached the assessment in the same way. First he determined the extent of the appellant’s needs and secondly he quantified those needs.
As I have already observed, his Honour had determined that as at the date of trial the plaintiff was in need of carer support for about one hour per day. He was also in need of handyman and gardening services in the order of one and a half hours per week.
In respect of the future, however, it was necessary to take into account any possible deterioration in the appellant’s condition.
It is likely that in the future the appellant’s mobility will be affected. An orthopaedic surgeon, Mr Hall, said that the appellant had the potential to develop a condition known as Charcot’s Joints which is a description of a condition of neuropathic arthropathy. The condition arises when the autonomic nerve supply to a joint is disturbed. Because of the injury to the spinal cord the plaintiff is at risk.
The autonomic nerve sends signals to the brain and the spinal cord to protect a joint from injury. Because of the spinal cord injury the appellant does not receive those signals and he lacks a sense of joint position. As a result of that he is prone to over stretching his joints without being aware of the fact thus causing them damage. In due course it is probable the appellant will suffer arthritis of the joints which will be destructive of the joints itself.
Potentially the condition could affect all of the appellant’s joints but it was Mr Hall’s opinion that that was unlikely and it was more likely that only the right knee would be affected. The right knee is more susceptible to the onset of the condition because of early signs of arthritis which is a result of the fracture of the tibia.
Mr Hall’s opinion was that the appellant’s right knee was not neuropathic at the time of trial. He said, however, there was almost 100 per cent chance that the knee would develop Charcot arthropathy. His opinion was that it would probably take five to ten years to develop. In cross examination he conceded that the knee might not develop the condition for fifteen or twenty years. He conceded that time limit to be as likely as five to ten years.
Mr Hall believed that eventually the appellant would be confined to a wheel chair because of his present gait, the effects of the spinal cord injury and the development of neuropathic joints. He thought that the plaintiff would be wheelchair bound within two years or so of the onset of the neuropathic condition.
Doctor Marshall also gave evidence on this topic. When the matter was first raised with her she recommended that the appellant’s solicitor seek orthopaedic advice in relation to this matter. In a later report she indicated that she thought that the worst case scenario would lead to a deterioration in the appellant’s knees within five years although she said “it may not occur for a significantly longer time”.
In her examination in chief at trial she agreed with the view expressed by Mr Hall that a Charcot Joint could develop within five to ten years of his report although she thought it would be closer to five rather than ten. In cross examination she agreed that she was in no position to disagree with Mr Hall’s final position that the time frame was just as likely to be fifteen or twenty years as five or ten.
The learned trial Judge concluded that Doctor Marshall’s view was reliant upon that of Mr Hall. In my opinion the learned trial Judge was right to conclude that Doctor Marshall did defer to the opinion of Mr Hall.
The learned trial Judge concluded:
“It is clear that Dr Marshall’s view is heavily reliant on that of Mr Hall. There is no other expert evidence on the issue. The difficulties of predicting the time of onset of this condition and any consequential confinement of the plaintiff to a wheelchair are evident from the evidence of Mr Hall and the concessions which he made in the course of cross-examination. Without any other evidence to assist me, I can do no more than conclude that there is a distinct possibility that neuropathic joints will develop within five to twenty years of the date of Mr Hall’s report: that the right knee joints will succumb eventually. Confinement to a wheelchair is likely within two years of the onset of neuropathic joints and, obviously, mobility out of the wheelchair will be more restricted if both knee joints are affected. I accept Mr Hall’s view that it is inadvisable to employ a wheelchair in an attempt to prolong the use of the joints prior to them becoming neuropathic.”
Having reached that conclusion his Honour further found that if the appellant was to become confined to a wheelchair the level of assistance required in respect of handyman and gardening services would increase. He said that Doctor Marshall’s opinion was that if he was confined to a wheelchair he would need an extra half an hour per day personal assistance. However the learned trial Judge noted that opinion was predicated on the basis that he was already receiving three hours per day assistance, a view which the learned trial Judge had rejected.
The learned trial Judge thought that it would be appropriate to allow for an extra one hour per day personal assistance in the event of wheelchair confinement which he thought was a clear possibility in approximately ten or twelve years. He therefore assessed damages accordingly.
The learned trial Judge assessed damages for future personal care at $150,000. He did not identify precisely how that figure was calculated. However the calculations can be tested. The learned trial Judge assumed the cost of care to be at the rate of $17.00 per hour. That rate is appropriate. His assessment must have proceeded upon the following basis:
1)..... One hour per day from the date of trial for the whole of the appellant’s life.

2) One and a half hours per week for handyman and gardening services.
3)..... A further one hour per day personal assistance commencing from ten to twelve years time when the appellant becomes wheelchair bound.

That can be reduced to an arithmetical calculation as follows:
1)     $17 x 7 x 8571 =      $101,983.00
2)     $25.5 x $8572   =      $21,853.50
3)     $17 x 7 x 4873 =      $57,953

[1..... Assumes one hour per day for personal care at the rate of $17.00 per hour for the whole of life of the appellant. The multiplier of $857 is taken from Exhibit D5 and represents the present day value of an annuity of $1.00 per week to a male of the age of the appellant during his life assuming a discount rate of 5 per cent.

2.Assumes one and a half hours per week at the rate of $17.00 per hour for handyman and gardening services for the whole of life of the appellant using the same multiplier as in 1.

3...... Assumes a further one hour per day for personal care after the appellant becomes wheelchair bound sometime between ten and twelve years time. The multiplier of $487 is taken from Exhibit D7 and is the midpoint between the multiplier appropriate for an annuity of $1.00 per week to commence ten to twelve years hence and then to be payable during the whole of life of the appellant.

In this appeal the appellant submitted a series of calculations relating to the cost of future care. The calculations overlooked 2. above. They also assumed a multiplier in respect of 3. of $448 which was said to be derived from Exhibit P30. P30 is a medical report and not relevant to a calculation of future care.
The annuity I have used is derived from basic figures in Exhibit D7.
The actuarial calculations produced at trial were extraordinarily and unnecessarily complicated. It was only necessary for the appellant to produce the cost of an annuity assuming a discount rate of 5 per cent for the working life and the whole of life of the appellant from the date of the trial and from various relevant periods into the future. The calculations put forward were unnecessarily confusing.]

The calculation which I have carried out assumes, of course, all of the findings made by the learned trial Judge.
The learned trial Judge must have deducted $32,000 for contingencies to arrive at the figure of $150,000.
It is difficult to understand why any deduction was allowed for favourable contingencies. There was no evidence to suggest that the appellant was likely to improve. In my opinion any deduction from the basic assessment to allow for favourable contingencies was inappropriate and in my opinion demonstrates error. In those circumstances it is necessary to reassess this head of damage.
I believe that his Honour’s findings in respect of need were appropriate. Therefore I believe that a basic assessment of the appellant’s needs would be in the order of $182,000.
However, I believe that figure does not make any allowance for other factors which indicate the probability or the possibility of need for additional care.
The appellant will continue to suffer depression of varying severity for the whole of his life. That depression will give rise to the need for care and comfort.
Doctor Lucas said that the appellant’s condition gives rise to a need for emotional support which he believed was being satisfied by the appellant’s wife. He said that the appellant was dependent upon his wife for that support. Indeed he said that if the appellant’s wife was not available to give that support the appellant would be at risk of a major depressive episode.
Doctor Bassett said that the relationship between the appellant and his wife had been central to the appellant’s survival to trial. He also thought that if the appellant’s wife was not available the appellant would become very significantly depressed and the risk of self injury would be very high.
Clearly enough the appellant has a need for ongoing emotional support and that need is satisfied by his wife. Absent the appellant’s wife the need would be greater and would have to be satisfied by some other party.
The appellant therefore is entitled to be compensated under this head of damages for a present need and the possibility of a greater need in the event that his wife was not available to satisfy the present need. A sum must be included for that aspect of his damages.
The appellant’s case at trial was that there was a real risk that the appellant might suffer a syrinx or a syringarriglia in the spinal nerve which would cause further damage to the central nervous system.
If the condition developed and was not able to be treated then the appellant would be left a quadriplegic. Of course if that eventuated the appellant would need twenty-four hour care. The cost of that care probably could not be delivered at the rate of $17.00 per hour but even if it could the total cost would still be very significant.
The appellant is still a relatively young man and so there is still a long period over which this possibility could arise.
The learned trial Judge found that the chance of this condition developing was very slight and even if it did develop there was a good chance that the condition would be successfully treated. He said that he allowed a modest amount for the contingency.
The findings made by the learned trial Judge cannot be criticised and his decision to allow a modest amount for the contingency was appropriate. It is, however, difficult to see that even a modest amount was allowed.
In any event, I would also allow a modest amount in the reassessment.
In determining an appropriate figure on this head of damages regard must be had to contingencies both favourable and unfavourable. I cannot identify any contingency which would impact to reduce the award. The assessment so far has assumed the most basic care over the shortest period. It has assumed that the appellant’s wife will be almost on full time call to perform very short periods of care. I cannot identify any contingency favourable to the appellant.
On the other hand there are adverse contingencies.
There is a possibility, albeit small, that the appellant will suffer quadriplegia. There is the possibility that he will require greater care and at greater cost than that allowed in the basic assessment. In short his condition could worsen but even if it does not there is the possibility that his needs will require greater attention than presently allowed for.
I proceed on the basis that to that basic assessment there ought to be added: something for the probability that in response to the appellant’s continuing depression the appellant’s wife will provide care in the form of emotional support; something for the possibility that the appellant will suffer from quadriplegia; and something for the possibility that, even if the appellant’s condition does not worsen, his needs will require greater care than allowed for in the assessment thus far.
Even if that probability and those possibilities only amounted to an hour a day from the trial onwards that would mean that an additional sum of $100,000 or thereabouts should be added to the basic assessment.
In the end I have reached the conclusion that an appropriate allowance for future personal care is $250,000. That allows a further sum of a little less than $70,000 to allow for the probability and possibilities mentioned.
I would thus increase the award by $100,000.
I assume that it would be appropriate to simply increase the judgment entered on 23 December 1997 by $95,000 to reflect the agreement on liability arrived at by the parties. Because the sum relates only to future losses there would be no impact on the award of interest. I would propose the following orders:
That the appeal be allowed.

That the judgment entered on 23 December 1997 for the plaintiff in the sum of $883,968.79 inclusive of interest be set aside.

That judgment be entered for the appellant in the sum of $978,968.79 inclusive of interest.

I would hear the parties on the orders for costs made by the learned trial Judge if the increase in the award reflected in the judgment is relevant to the orders for costs made by the learned trial Judge.
I would hear the parties as to the costs on this appeal.

Doyle CJ

I agree that the appeal should be allowed. I agree with the orders proposed by Lander J, and with his reasons for allowing the appeal. There is nothing that I wish to add.

Olsson J

I agree with the conclusion come to by Lander J.

[1998] SASC 6805

21 August 1998