Routley v Bridgestone Australia Limited
[2004] NSWDDT 4
•03/02/2004
Dust Diseases Tribunal
of New South Wales
CITATION: Routley v Bridgestone Australia Limited [2004] NSWDDT 4 PARTIES: Dorothy Routley
Bridgestone Australia Ltd (Formerly known as S A Rubber Mills Pty Ltd)MATTER NUMBER(S): 464 of 2003 JUDGMENT OF: at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: Carson v John Fai-rfax & Sons Ltd (1993) 178 CLR 44;
CSR v Bouwhuis (1991) 7 NSWCCR 223;
Planet Fisheries Pty Ltd v La Rosa (1969) 110 CLR 118;
Kennedy v Amaca Pty Ltd (2003) NSWDDT 21;
Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503;
Griffiths v Kerkemeyer (1977) 139 CLR 161;
Thompson v CSR Ltd (2003) 25 NSWCCR 113;
Weinert v Schmidt (2002) SASR 307;
National Insurance Company of New Zealand Ltd v Espana (1961) 105 CLR 569DATES OF HEARING: 26 & 27/02/2004 DATE OF JUDGMENT:
03/02/2004LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr M J Joseph SC instructed by Alex Stuart and Associates
FOR DEFENDANT: Mr B R Ferrari instructed by Piper Alderman
JUDGMENT:
Liability1. This is an action in damages by Dorothy Jean Routley against Bridgestone Australia Ltd formerly known as SA Rubber Mills Pty Ltd. The action arises in consequence of the plaintiff being exposed to and inhaling asbestos dust and fibre at the premises of the defendant located at South Road, Edwardstown in the State of South Australia.
The Issues2. The defendant advised the Court that it does not contest the issue of liability. Given the nature of the evidence in this case I take the view the defendant has sensibly agreed that the plaintiff was negligently exposed to asbestos dust and fibre in her employment with the defendant.
The Life Expectancy Issue3. I am grateful for the assistance of counsel for the parties who have shortened the case to a point where the Court is asked now to determine only the following issues in regard to the plaintiff's claim for damages.
· General damages
· Interest on past general damages
· Loss of expectation of life
· Past medical expenses
· Future medical expenses
· Past Griffiths v Kerkemeyer expenses
· Interest on those past expenses
· Future Griffiths v Kerkemeyer expenses
· Future Sullivan v Gordon expenses
4. At the eleventh hour of the afternoon of the last day of this trial the defendant sought to disturb the state of the medical evidence in the written reports of Dr Greville and Dr Antic by seeking leave to call the plaintiff's treating GP Dr Soong and Dr Antic to give oral evidence. It also sought leave to put before the Court clinical notes of Dr Soong and an amended report by Dr Antic. Mr Ferrari explained the purpose of the proposed evidence as follows:
· To allow Dr Antic to change his prognosis of a life expectancy of four months to a lesser figure.
· To criticise the report of Dr Greville.
· To give detailed reasons explaining the basis of his prognosis.
· To amend his estimates of future out- of – pocket expenses
· To allow Dr Soong to update the plaintiff's clinical state.
5. Joseph, SC, for the plaintiff, expressed his outrage at this forensic manoeuvre condemning it as a trial by ambush and grossly prejudicial and unfair to his client's interests. At the heart of his objection was the fact that the plaintiff would not be able to explain previous representations to Dr Soong and Dr Greville was unavailable to consider either Dr Antic's or Dr Soong's fresh evidence. Joseph, SC, more specifically, submitted that the proposed evidence would be contrary to the Supreme Court Rules and the Evidence Act 1995. In particular he drew the Court's attention to Pt 36 r 13A of the rules, which deals with disclosure of expert's reports. R 13A subclause 3(b) provides that in case of trials outside Sydney medical experts reports are to be served not later than 21 days before the first callover. R 13A subclause 5(a) renders oral evidence of an expert witness inadmissible if the report is not served within the prescribed time. The rule is, of course, subject to the Court's discretion to abridge time. Indeed President O'Meally made such an order on 9 February 2004 when he directed all experts’ reports be served no later than 15 February 2004.
6. Joseph, SC drew the Court's attention to r 13C in the context of Mr Ferrari wishing to tender a document amending Dr Antics report. R 13C cl 3 provides for the furnishing of a supplementary report indicating a witness' opinion has changed on a material matter but requires service of that report and would prevent the use of the earlier report in proceedings.
7. Joseph, SC’s Evidence Act objections related to the admission of evidence concerning previous representations that Mrs Routley or others may have made to Dr Soong. He was concerned that they had not been put to the plaintiff during the cross-examination and consequently would be inadmissible. Joseph SC also raised the admissibility of any such previous representations in the context of the general discretion under s 135 of the Evidence Act to refuse to admit evidence where its probative value is substantially outweighed by the danger that it is unfairly prejudicial to the plaintiff. Joseph SC saw the potential disadvantage to his client in terms of her not being available to explain previous representations to Dr Soong which Dr Antic would be relying upon to amend his prognosis on life expectancy.
8. I must say that I agree with Joseph SCs view that there was a danger that the proposed evidence would be unfairly prejudicial to the plaintiff. It was sought to be admitted at the end of a trial in breach of the Supreme Court Rules. For those reasons I was not prepared to exercise the Court's discretion to allow Dr Soong to give evidence or to allow the admission of his clinical notes. With regard to Dr Antic, for the same reasons, I had concerns about matters he might want to put before the Court concerning Dr Greville's report. However, in the end, I granted leave for him to give oral evidence to explain the basis of his conclusions. In the event he did not seek to impugn Dr Greville in any way. I refused leave to tender a further report by Dr Antic amending his original report ( see T2: 51.6).
9. Turning to the substantive issue, I have before me two widely differing medical prognoses on life expectancy. They come from eminent specialists working together in the Department of Thoracic Medicine Chest Clinic at the Royal Adelaide Hospital. Each has decades of experience as a respiratory physician. Dr Antic's prognosis is 4 months, Dr Greville's is 12 to 18 months. They both saw the plaintiff about the same time. Dr Antic made it clear in his oral evidence that his opinion was very much based on his clinical impression of the plaintiff. Dr Greville on the other hand noted Mrs Routley had epithelioid mesothelioma which is a form of cancer where survival rates tend to be a little longer. He also relied on the available statistics which saw a median survival rate of nine and a half months. Given the nature of the cancer he thought the plaintiff would last longer than that.
10.Both approaches have their merits and need to be weighed along with the lay evidence which suggests to me that Mrs Routley has become very frail recently, as Mr Ferrari emphasised at considerable length. There is evidence that she has lost a great deal of weight (in the vicinity of 38kg.) Mind you I am not a medical expert and without guidance from the expert medical evidence I am not in a position to reach conclusions that the loss of that weight over 6 months is necessarily terminal. I note Dr Antic had things to say (at T2;62.11) about proper management of diet. Like all Australians I am aware that patients are sometimes force fed on drips and other measures taken to get them through these sorts of dietary problems. In the end I am not a medical expert and notwithstanding Mr Ferarris’s importunations do not propose to set myself up as one. What I must do is make a decision on the balance of probabilities on the medical evidence as it stands before me.
General Damages11.Joseph SC intuitively guessed where I was leaning on the medical evidence however, because instead of relying entirely on Dr Greville's report, ultimately he submitted that I should find that the expected date of death would be about the end of August 2004. Taking all the evidence into consideration on the balance of probabilities I determine that the plaintiff's life expectancy is to 1 September 2004.
12.General damages in this case are fixed by considerations of the injury done to Mrs Routley. I am not only concerned in my assessment with her physical pain but also to assess damages for her injured feelings including her hurt, anxiety, loss of self esteem, sense of indignity and sense of outrage. See Carson v John Fairfax & Sons Ltd 1993 178 CLR 44 at 71 per Brennan J.
13.Mrs Routley told the Court that with the exception of a bilateral hip replacement in 2000 and some intermittent arthritic aches and pains in her spine and legs she lived a remarkably healthy and active life until August 2003. She was certainly a spry octogenarian enjoying life to the full, riding her bicycle, driving her car, walking around her suburb and making frequent trips interstate including Queensland. Indeed she took a train journey to Cairns. At home she did all the usual housework including heavy work such as scrubbing floors, chopping firewood, painting the house, climbing ladders to replace lights and to clean out gutters and digging in her gardens which surround her home. Even the hip replacement did not slow her down much as her neighbours report that soon after she was, with the assistance of a stick, back walking to the shopping centres and around the suburbs, also travelling interstate and caring for her husband who suffers from prostate and bladder cancer.
14.Mrs Routley told the Court that her arthritis troubled her from time to time but she was not prepared to let it get her down and with conservative treatment she got on with her normal activities. Late in July of 2003 the plaintiff, who had a longstanding back problem, developed severe backache which caused her GP, Dr Soong, to refer her for x-rays which in turn revealed a right pleural effusion. That led in September 2003 to some extremely painful and intrusive medical procedures in the form of a thorascope, pleural biopsy and talc pleurodesis. The plaintiff gave graphic evidence of the high level of pain she endured with this surgical intervention describing a continuing pain in her chest which she felt like she was "being belted with an iron bar." She was given morphine for her pain but reacted badly to that narcotic and had to make do with milder analgesics.
15.Dr Lance noted highly suspicious atypical mesothelial cells on cytology on 8 August 2003 and the diagnosis of malignant mesothelioma was made on 18 September 2003. Mrs Routley told the Court that she was very upset at the news of this diagnosis of terminal illness, particularly by the fact that it was kept from her by her medical advisers and it was left to a social worker to give her the terrible news.
16.The evidence from the plaintiff, her husband and neighbours suggest that for a period of about a month Mrs Routley was not too well after she returned home in September 2003. However, she is a stoic soul and managed to get mobile again and return to light domestic duties and personal care of her husband. The stay in hospital and at home in October left her with a large weight loss, (at that time something like 14 kilograms) constant tiredness, innovation, shortness of breath, severe vomiting after ingestion of food and loss of appetite. By November 2003 she needed more assistance from her neighbours both in her personal care and domestic chores. She became less mobile. By the beginning of February 2004 her ability to care for herself had deteriorated yet further, as had her weight. She spends more of the day sleeping and has extreme difficulty moving about the house. Her invalid husband has to assist her. Her neighbours have increased their efforts to provide personal care for her and to attend to her domestic chores, gardening, home maintenance and transport. A palliative care nurse now lends assistance.
17.Mrs Routley's future is bleak and hopeless as she inexorably moves into the final stages of a terrible illness. Her breathing problems will exacerbate and according to Dr Antic major chest wall pain will eventually develop as the cancer spreads. That pain is clinically managed with morphine and it is of some concern that Mrs Routley does not react well to that drug. The terminal stage of the illness involves excruciating pain and Mrs Routley's may be especially painful.
18.It is true, as Mr Ferrari submits, that Mrs Routley is in the twilight of her life and the claim does not sound in the highest range of damages that a younger woman might expect to be awarded for the loss of the more rewarding years of her life. Nevertheless in my findings on life expectancy I have rejected Mr Ferraris unsubstantiated theory that Mrs Routley will be spared the usual period of excruciating pain because she will succumb to a rapid death. Instead I have found that her life expectancy is about the norm for mesothelioma sufferers.
19.Since CSR v Bouwhuis 1991 7 NSWCCR 223 judges of this Tribunal have awarded substantial general damages in mesothelioma cases. I am cognisant of the principles in Planet Fisheries Pty Ltd v La Rosa 1969 110 CLR 118 that awards in similar cases are not to be regarded as determinative or particularly helpful because an appropriate award of general damages in any individual case depends on its own facts. Keeping that principle in mind the Court is still bound to acknowledge what is within the bounds of reason given the state of the evidence. Joseph SC puts to the Court that the sum of $185,000 would be an appropriate verdict.
20.Mr Ferrari commenced his submissions in Adelaide by drawing my attention to the decision of President O'Meally in Kennedy v Amaca Pty Ltd 2003 NSWDDT 21. That was a case where the defendant submitted that this NSW Tribunal, in a case where the tort was committed in Queensland, should assess general damages within a range that would be awarded by a Supreme Court judge of that state. The inference was that I should discount my verdict accordingly in this case because the tort was committed in South Australia.
21.However, President O'Meally in Kennedy considered he was bound by the decision in John Pfeiffer Pty Ltd v Rogerson 2000 203 CLR 503 at 544 where the High Court held that all questions about the kinds of damage or amount of damages that may be recovered should be treated as substantive issues governed by the lex loci delicti. For reasons of comity I would of course follow Judge O'Meally's interpretation of the principle in John Pfeiffer. I am sure Mr Ferrari expects nothing less. What I infer him to be really saying is that like Judge O'Meally in Kennedy I should be bringing in a verdict for general damages at about $100,000: I formed the impression that in the end he did suggest that even though he does not mention any figure in his written submissions.
Loss of Expectation of Life22.Damages must be considered in the light of the particular facts of each case, and there must be fair and reasonable compensation for the injuries received. Bearing in mind the particular situation of Mrs Routley, her past pain and suffering and the horrific pain and suffering she is about to face as she moves into the final phases of her illness I think that in all the circumstances an appropriate award to be made in respect of general damages is $175,000 upon which is to be 2 per cent interest for months months on $80,000 past general damages or $800.
Griffiths v Kerkemeyer Damages23.Mrs Routley, according to the tables, has a premorbid life expectancy of 6.32 years. I found that her likely date of death is 1 September 2004. I take the view that such unrelated conditions that she suffers would not materially affect her life expectancy and that an appropriate award for loss of expectation of life is $6,000.
Past Needs24.The plaintiff's loss of capacity entitles her to past and future damages for services that need to be provided for her. As Joseph SC points out this is a legal, come factual, issue requiring identification of the needs the defendant's tort has created.
25.The applicant's evidence is that since returning home in September 2003 she has suffered from the following problems that have incapacitated her requiring assistance from others.
· Recent Shortness of Breath
· Strong chest pain since the operation
· Nausea
· Fatigue and lethargy
· Incapacity to engage in physical exertion
· Loss of appetite
· Anxiety and depression
· Weight losses
· Constipation
· Dependence on strong medications
· Inability to do gardening and home maintenance
26.Mrs Routley was hospitalised at Flinders Private Hospital and later in a respite nursing home from 17 September 2003 to 28 September 2003 and the costs of those expenses is agreed. The past Griffiths v Kerkemeyer expenses are therefore from 29 September 2003 to date.
27.There is little agreement between the parties on this issue. The defendant bases its submissions on the report of the occupational therapist Angela Shanahan, who saw the plaintiff at the end of January 2004. I found Ms Shanahan's very conservative assessment somewhat inconsistent with the defendant's anxiety to have Dr Antic tell the Court that Mrs Routley's death was imminent. I say that because Ms Shanahan opines that Mrs Routley needs only low to moderate care until March and moderate care to April 2004. This is certainly not the impression of her neighbours who have rallied around to provide a great deal more domestic and personal and home maintenance care than Ms Shanahan contemplates. Having listened to the evidence I am in agreement with the view of Joseph SC, who submits that the plaintiff's needs equate to a moderate level of care since she left the hospital on 29 September 2003. My earlier remarks, however, will have indicated that I do not agree with Joseph SCs global approach to this calculation because I hold the view that in the three months between October 2003 and January 2004 Mrs Routley could do more for herself than was the case when she just got out of hospital and has been the case over the past month.
Period One 29.9.03 to 31.10.0328.Before I attend to these calculations I should remark on the labour rates. While I have some expertise in New South Wales labour rates I am not yet fully acquainted with the cost of labour in South Australia. Accordingly I have adopted Ms Shanahan's rates for property management of $26 per hour and personal care of $24 per hour. I have slightly lifted her labour rate for domestic services, which is almost $16 per hour to $17 per hour to take weekend and night work into account.
29.During this time Mrs Routley was recuperating from the effects of her surgical procedures. Ms Shanahan gives her 14 days to do so, but because the plaintiff's evidence describes great post operative chest pain I have chosen to extend that period for a further two weeks.
30.Mrs Routley has been unable to do any home maintenance or gardening work since her hospitalisation. Ms Shanahan holds to the view that a large garden such as Mrs Routley's can be cared for in 1.5 hours per week. She obviously knows little about the proper maintenance of gardens. Mr Geppa has been spending 10 hours per week on the job, and to this judge's observation it could well do with more care. I take the view that 10 hours per week is an appropriate estimate for the time required to service this very large garden.
31.I next take the view of the evidence that Mrs Routley requires 35 hours per week domestic care and 56 hours per week personal assistance during this period.
32.The calculations are:
Domestic care, 35 hours per week at $17 per hour for 4 weeks, $2,380.
Personal care, 56 hours at $24 per week for 4 weeks, $5,376.
Maintenance care, 10 hours at $26 a week for 4 weeks, $1,040.
Period 2, 1.11.03 to 31.1.04:
33.During this period I take the view of the evidence that Mrs Routley only needed about 25 hours per week domestic care and her need for personal assistance was only 14 hours per week. The calculations are therefore:
Domestic are, 25 hours per week at $17 times 12: $ 5,100.
Personal care 56 hours per week at $24 times at:$ 16,128.
Maintenance care 10 hours per week at $26 times 12:$ 3,120.
Period 3, 1.2.04 to 1.3.04:
34.During this period I take the view of the evidence that Mrs Routley has reverted to the need to have 35 hours per week domestic care and 56 hours personal assistance. The calculations are:
Domestic care 35 hours per week at $17 times 4: $ 2,380.
Personal care, 56 hours per week, $24 times 4:$ 5,376.
Maintenance care, 10 hours per week at $26 times 4:$ 1,040.
35.I summarise past care as follows:
Domestic care: $ 9,860.
Personal care: $ 26,880.
Maintenance care:$ 5,200.
Total: $ 41,940.
Interest:
Future Griffiths v Kerkemeyer Expenses35.The plaintiff is entitled to interest on those damages at the rate of 5 per cent for 6 months or : $ 1,049.
36.I have decided the plaintiff has 26 weeks to live. The plaintiff will need gardening and home maintenance for all that period. On the projected deterioration of her condition the consensus in the reports is that she will spend the last four weeks in a hospice. That means she will need 22 weeks of domestic assistance. She will receive full domiciliary nursing care for a period which is hard to ascertain given that we are only talking about six months now. It may be eight weeks, it may be less. On the balance of probabilities I take the view she will require full-time personal care, for 22 weeks.
37.The calculations are as follows:
Domestic care: 35 hours per week, $17 per hour for 22 weeks: $ 13,090.
Personal care, full-time $3,250 per week for 22 weeks: $ 71,500.
Home maintenance care, 10 hours per week at $26, for 26 weeks: $ 6,760.
I assess the total future care at: $ 91,350.
Out Of Pocket Expenses.
Past expenses
Past expenses are agreed at: $ 3,631.51.
Future expenses:
38.The medical evidence suggests that the plaintiff will need the following palliative care services.
• Medication
• GP consultation
• Specialist visits
• Radiation consultation
• Radiotherapy
• Chemotherapy
• Oncology specialist
• Palliative care consultant
• Palliative care nurse
• X-rays
• Blood analysis
Palliative Care Costs
39.Mr Ferrari has pointed out to me that some of these services may not become necessary. Dr Antic has opined that might be the case and I have taken what Mr Ferrari says into consideration. Joseph SC calculates that Dr Greville's figures based on 18 months when adjusted to a six-month period would result in palliative care services costing $12,096 over six months. I am inclined to agree with Mr Ferrari's figures which suggest that the true cost of these services would be more in the range of $4,086.33.
Terminal care costs:
Home Care Cost40.This item involves fees associated with hospice care, palliative care and blood analysis. Dr Greville says the costs will be about $15,500. Again I have adopted Mr Ferrari's figure of $12,785.
41.The costs of home care involved:
• Oxygen
• Nursing
• Domiciliary care
• Meals on Wheels
• Home care aids
42.Dr Greville estimates $8,678. I adopt Mr Ferraris figures and find $4,331.
Transport costs:
Equipment Costs43.Angela Shanahan estimates 1 hour per week at $23.95 per hour over 20 weeks. That would be $479 and I find accordingly.
Sullivan v Gordon Damages44.To date the plaintiff has been utilising equipment installed in her home for her husband by the Department of Veterans' Affairs. She will now need more personalised equipment. Angela Shanahan assesses that at $648 and I find accordingly.
45.The plaintiff, who because of the defendants' tort, has lost the capacity to care for a family member namely her husband, is entitled to be compensated on the same basis as a Griffiths v Kerkemeyer claim following the decision in Sullivan v Gordon. Mrs Routley makes no claim for past damages, claiming damage only from the predicted date of her premature death.
46.In Thompson v CSR Ltd (2003) 25 NSWCCR 113, President O'Meally held that notwithstanding the South Australian authority of Weinertv Schmidt (2002) SASR 307 that such damages are not available in South Australia, this Tribunal is nonetheless bound to follow Sullivan v Gordon.
47.As Dr Baczyks reports on 8 February 2004, "Mr Routley has been in very poor health for some years". The litany of his health problems include:
• Carcinoma of the prostate and bladder
• Severe low back pain and bilateral sciatic pain
• Chronic lung disease
• Sleep apnoea
• Hypertension
• Vertigo and labyrinthitis
• Reflux
• Glaucoma
• Widespread osteoarthritis
• Incontinence
• Swollen ankles.
48.The plaintiff's evidence is that, notwithstanding her age, that up until the time she was damaged by the defendant's tort she did all the domestic tasks including cooking, cleaning, laundry, shopping, gardening and minor home maintenance such as cleaning the gutters, replacing lights and painting. Mr Routley has cancer of the bladder and prostate but the evidence does not suggest that those cancers or his other medical problems are going to end his life within the next five years which is his expected lifespan.
49.Joseph SC, drawing on the plaintiff's and her lay witnesses' evidence, suggests that the Court should find that it would take Mrs Routley about four hours per day to attend to the cooking, cleaning, laundry, shopping, gardening and other personal needs of Mr Routley. Ms Shanahan on the other hand takes a different approach based on the assumption that the Department of Veterans' Affairs and charities such as Meals on Wheels would be providing most of the services and that all Mrs Routley would have to do is cook on the weekends and spend about 1.5 hours a week in the garden.
50.Despite the fact that Mr Routley has cancer, lung disease, cardiac problems, Ms Shanahan sees no need for attendant care over the five years. I think Ms Shanahan's assumptions here miss the point of the awarding of future damages under the principle in Sullivan v Gordon which is, of course, an extension of the principle in Griffiths v Kerkemeyer. Claims for gratuitous services rendered by publicly or privately funded charitable institutions are not payable by tortfeasors merely on the ground that the injured person must establish a need for the services in question. If they are subventions given out of benevolence with the intention of no repayment they will ordinarily reduce the plaintiff's entitlement for damages.
51.If, for example, Mrs Routley had arranged for free Meals on Wheels or free home care services for her husband then she would not be entitled to claim past Sullivan v Gordon damages for those services. See National Insurance Company of New Zealand Ltd v Espana (1961) 105 CLR 569. Simply put, this is because both Griffiths v Kerkemeyer are anomalous forms of damages limited to services rendered gratuitously by one close member of the family to another.
52.There is no evidence before the Court that so far as future Sullivan v Gordon damages are concerned that if Mrs Routley had not been incapacitated by the defendant's tort she would have been calling into her home Meals on Wheels or other home care services to do the cooking, cleaning, laundry, shopping, gardening and home maintenance she had been happily providing until she was struck down by the mesothelioma.
53.On the contrary the evidence suggests that Mrs Routley was a proud housewife who enjoyed keeping house, working in the garden and shopping. The Routleys live in an impressive home with spacious gardens. Mr Routley is on superannuation and tells the Court that he has substantial investments. They do not strike me as a couple who would be living on Meals on Wheels or charity of any form. It is true that Mr Routley as a veteran has taken advantage of his entitlement as a returned serviceman to have certain renovations made to his home, to assist him with his disabilities. However, he tells the Court that he is not entitled to other services from the department because of his assets. The defendant has not discharged its onus to prove that Mrs Routley would have availed herself of such services in any event. She certainly has not done so to date, despite the parlous conditions both her husband and herself are in.
54.As a judicial officer I often have problems with the reports of occupational therapists who feel qualified to express medical and legal opinions and purport to use their clinical observations to give evidence on labour markets and a wide range of other matters that seem to have little to do with providing therapy to get people back to work. In this case I was somewhat confounded by Ms Shanahan's asserted expertise in the provisions of home maintenance and gardening services. The evidence before me is that the Routleys live on a large block of land with spacious gardens back and front, with the garden's crowning glory being a large fernery at the back. A neighbour is spending 10 hours a week trying to keep the garden in order. I say "trying" because it was clear to my observation that the front garden though well planted was somewhat in need of care, and the evidence is that 90 per cent of the fernery has died. There is a sizeable back lawn to mow and edge as well as gardens to till, plant, water and weed. Ms Shanahan is convinced that all that work can be done in 1.5 hours per week. Most home unit dwellers would spend that time on their pot plants. I have no confidence in Ms Shanahan's gardening expertise and prefer the figure of 10 hours per week suggested by the plaintiff as necessary to properly tend to such a large garden.
55.I am also confounded by Ms Shanahan's assertion that Mr Routley will need no attendant care over the next five years. I will not bother to reiterate the litany of his serious illnesses, several of which could be eventually the cause of his death. There is no doubt in my mind that Mr Routley needs care and he needs it now. Whether it should be on a full-time basis or not would be a matter for evidence that is not before me. What evidence is before me is that Mrs Routley was providing for him a degree of care before her hospitalisation in September 2003. That is why I regard Joseph SC's estimate of four hours of care per day as most conservative and I readily adopt it as a proper basis for my calculations.
56.The costs of the various services to be provided will no doubt increase over the next five years. On that basis I take the view that Joseph SC's estimate of an average of $26 per hour is not unreasonable. Accordingly the calculation is four hours per day at $26 per day for 4.97 years. Using the 3 per cent discount tables over five years that figure becomes $176,540. Joseph SC argues that because the period is so short a 10 per cent rather than a 15 or 20 per cent discount for vicissitudes should be made. I do not agree. I agree with Mr Ferrari's proposition that the discount should be 20 per cent and therefore award $ 141,232.
Summary of the Damages Awarded:
General Damages: $ 175,000 Interest on past damages: $ 800 Loss of expectation of life: $ 6000 Past Griffith v Kirkemeyer damages: $ 41,940 Interest thereon: $ 1049 Future Griffith v Kirkemeyer damages: $ 91,350 Past out of pocket expenses: $ 3631.51 Future out of pocket expenses: $ 22,329.33 Sullivan v Gordon Damages: $ 141,232 Total: $ 483,331.84
57.In the result there should be a verdict for the plaintiff for $ 483.331.84 plus costs.
Mr M J Joseph SC instructed by Alex Stuart and Associates Solicitors appeared for the plaintiff.
Mr B R Ferrari instructed by Piper Alderman Solicitors appeared for the defendant.
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