Ranieri v Nominal Defendant
[2000] NSWSC 812
•17 August 2000
CITATION: Ranieri v Nominal Defendant [2000] NSWSC 812 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20860 of 1995 HEARING DATE(S): 14 July 2000 JUDGMENT DATE: 17 August 2000 PARTIES :
Jennifer Kathryn Ranieri (Plaintiff)
v
Nominal Defendant (First Defendant) & Ors
JUDGMENT OF: Master Malpass
COUNSEL : Mr D Hooke/Ms C Ross (Plaintiff)
Mr F McAlary QC/Mr D Ronzani (First Defendant)SOLICITORS: Robson & Oliver (Plaintiff)
Abbott Tout (First Defendant)
CATCHWORDS: Assessment of heads of damage LEGISLATION CITED: N/A CASES CITED: N/A DECISION: See Paragraphs 7, 15, & 19.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
THURSDAY 17 AUGUST 2000
20860 of 1995 JENNIFER KATHRYN RANIERI v NOMINAL DEFENDANT & ORS
JUDGMENT
1 On 9 March 2000, a judgment which determined most of the numerous heads of damage was delivered. On 14 July 2000, a further judgment was delivered refusing an application made on behalf of the first defendant for leave to re-open.
2 Save for the head of damage relating to the operation of the goods and services tax (and any question of interest), the heads of damage which remain outstanding are as follows:-
1. Future Care;
2. Home Alterations; and
3. Physiotherapy Costs.
3 The parties have been given the opportunity to make further submissions. Certain further submissions have been made.
4 Once again I turn to the claim for home alterations. Associated with this claim is a claim for additional maintenance costs. In paragraph 113 of the earlier judgment, I informed the parties of the approach that I intended to take in relation to the claim. The parties were given the opportunity to both make further calculations and put further submissions as to the global sum to be allowed. The plaintiff has made an amendment to the calculations. Neither party has addressed the question of the global sum. The parties have remained entrenched in their extreme positions.
5 The plaintiff has repeated the claim for home alterations in the sum of $355,180. There has been adjustment to the claim for additional maintenance. This is now put in the sum of $146,480.
6 In its original submissions, the defendant responded with a figure of $67,263 for home alterations. This figure was discounted to $52,734 to make allowance for a deferral for five years. The original submissions responded also with a figure of $12,167 for additional maintenance costs. This figure was also intended to be the subject of a discount (which was not calculated) to take allowance for a deferral of five years. The supplementary submissions do not advert to the matter of additional maintenance costs. The responses have been regarded by the first defendant as involving admissions.
7 In the circumstances, the court is left with a task which is usually not easy and in this case has been made more difficult. The task is significantly an exercise of judgment and the result is necessarily one with arbitrary characteristics. Doing the best that can be done in the circumstances, the global sum of $250,000 is allowed for home alterations, and the global sum of $100,000 is allowed for additional maintenance.
8 This assessment takes into account allowance for a hydro-therapy pool. In the earlier judgment, there had been an inadvertent reference to a figure of $14,025 as the costs of the unit and hoist. I wish to make it clear that this assessment was not made having regard to that figure.
9 I now turn once again to the claim for future care. In paragraph 72 of the earlier judgment, I expressed a concern as to whether or not the Banana Coast costings represented the appropriate measure. In paragraph 73 thereof, I gave the parties the opportunity to make further calculations and/or submissions. As could be expected, my expressed hope for some consensus on this matter, did not materialise.
10 After the correction of errors, the plaintiff’s further submissions identify the following costings:-
“(a) Bananacoast $5,469.00 per week
(b) Priority Care $5,277.00 per week
(c) Dial an Angel $5,203.00 per week”
These figures include an additional allowance for 15 hours per week domestic assistance. The relevant life expectancy is said to have been found to be 50.5 years (with the 5% multiplier being 978.5).
11 It is submitted by the plaintiff that the starting point in the assessment process is to take the average of the two Sydney agencies (which is put as $5,240 per week). Also, it is submitted that some further allowance should be made for the likelihood that the plaintiff will from time to time have a need to use a care provider in Coffs Harbour. Accordingly, it is submitted that a rate of $5,350 per week would be appropriate (together with an adjustment for the effect of GST). This adjustment was raised in submissions in reply.
12 The first defendant’s further written submissions advance a sum of $3,424,400 as its calculation of the costs of future care. This is calculated at a rate of $3,500 per week on what is said to be a determined life expectancy of 50.4 years (with the 5% multiplier being $978.4). It is based on the material provided by Priority Care. It is said that it satisfies the findings that have been made. These submissions do not deal with any adjustment for GST.
13 It comes as no surprise that the parties have come up with conflicting figures in calculating future care using Priority Care rates. The difference seems to be due inter alia to two matters. The first defendant has used what have been called inactive sleep over rates in reaching its figure. Also, there seems to be a minor difference in approach taken in calculating public holiday rates.
14 In addressing this conflict, it is my view that it should be resolved by preferring largely the approach taken by the plaintiff in the making of her calculations (inter alia this follows from what has been done in the original judgment).
15 Once again the court is left in a very difficult position. Doing the best that can be done in the circumstances, the sum of $5,127,340 is allowed for future care. The adopting of a median position in respect of the costings of the two Sydney providers seems to me to be reasonable in the circumstances of this case and inter alia enables allowance to be made for imponderables.
16 As the first defendant has not made any submission at this stage in relation to the GST adjustment, I propose to defer dealing with that matter until all of the GST considerations are disposed of.
17 Finally, once again I turn to the question of the claim for physiotherapy. The assessment of this claim has had dependency on what was done in relation to home alterations. In the assessment of that claim, allowance has been made for a hydrotherapy pool and hoist.
18 In the further written submissions, the plaintiff adheres to her previous stance that the sum of $10,000 should be allowed for periodic physiotherapist consultation and supervision. The first defendant has not made any further submission in relation to the claim.
19 The claim made by the plaintiff seems to be largely an estimate and there are imponderables. In the circumstances of this case, it would be reasonable to allow the sum of $7,000.
20 The GST component still remains outstanding. It is a matter which should be capable of resolution. This has taken place in other cases in which it has been raised. If it does not happen in this case, as mentioned in open court, perhaps it may have to be referred elsewhere for resolution.**********
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