Schelker and McCool v Vandenberg, Fergusson and Director-General Dept of Transport

[1997] QCA 360

IN THE COURT OF APPEAL	[1997] QCA 360
SUPREME COURT OF QUEENSLAND

Appeal No. 9412 of 1996

Brisbane

[Schelker & Anor. v. Vandenberg]

BETWEEN:

LESLIE ANDREW SCHELKER

(First Defendant) First Appellant

AND:

SHANE PATRICK McCOOL

(Second Defendant) Second Appellant

AND:

CLINTON PETER VANDENBERG by his next friend

SANTINA MARIS FERGUSSON

(Plaintiff) Respondent

DIRECTOR-GENERAL DEPARTMENT OF TRANSPORT

(Third Party)

Davies J.A. Demack J. Mackenzie J.

Judgment delivered 21 October 1997

Judgment of the Court

APPEAL DISMISSED. RESPONDENT'S NOTICE OF CONTENTION REJECTED.
EACH PARTY TO BEAR ITS OWN COSTS AND EACH PARTY TO BEAR EQUALLY
THE COURT COSTS INCLUDING THE COSTS OF PREPARING THE RECORD.

Shield Contractors Pty. Ltd. v. John Nicol McGill (Appeal No. 4632 of

1996)

Counsel:	Mr. K. C. Fleming Q.C. for the first and second appellants Mr. S. C. Williams Q.C., with him Mr. M. T. O'Sullivan for the respondent
Solicitors:	Murrell Stephenson as town agents for Roberts Leu & North of Townsville for the first and second appellants Charlton Muller & Madders of Bundaberg for the respondent
Hearing Date:	27 June 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9412 of 1996

Brisbane

Before Davies J.A. Demack J. Mackenzie J.

[Schelker & Anor. v. Vandenberg]

BETWEEN:

LESLIE ANDREW SCHELKER

(First Defendant) First Appellant

AND:

SHANE PATRICK McCOOL

(Second Defendant) Second Appellant

AND:

CLINTON PETER VANDENBERG by his next friend

SANTINA MARIS FERGUSSON

(Plaintiff) Respondent

DIRECTOR-GENERAL DEPARTMENT OF TRANSPORT

(Third Party)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an appeal from the assessment of the plaintiff’s damages in an action at the trial of which

the defendants accepted that the plaintiff’s injuries were caused by their negligence. The award of

damages was $807,460.

Mr Vandenberg was born on 19 June 1973. He was seriously injured in a motor vehicle accident on 26 March 1988. His injuries were described in brief by the trial Judge as follows:

"a head injury with depressed right parietal skull fracture and underlying extradural
haematoma and cerebral contusions;
a right brachial plexus injury;
a fractured right humerus;
abdominal injuries;
shock, pain, discomfort and diplopia.
He developed a further condition of his shoulder as a result of the injuries to his right

side. Fortunately his left side is dominant, but his right upper limb is seriously disabled."

Before the hearing began, counsel had agreed on the appropriate amount in respect of some

of heads of damage. Others were agreed during the hearing. The matters left to the trial Judge for

decision were economic loss and gratuitous care. The trial began in the afternoon, a bundle of

documents including medical reports was tendered and some evidence was heard. The next day, further

evidence was heard and the counsel addressed. During the course of addresses, the experienced trial

Judge indicated the approach he was taking to the matters left for his decision. He adjourned for an

hour and then delivered his reasons for judgment. In some respects, these reasons need to be read in

the light of what was said in the course of addresses which were recorded.

It was accepted that Mr Vandenberg was virtually unemployable. He said that he always

wanted to join the Air Force, hoping to be a member of an aircrew. Schedules were prepared on the

basis that he might have been successful in that, and these schedules were tendered to indicate potential

loss of income. When he was injured, Mr Vandenberg was at the beginning of Year 10 at High School

so there was no established pattern of employment. School reports were tendered, school teachers

gave evidence and a friend from school gave evidence about his employment path.

In his reasons for judgment, the trial Judge said:

"The other large area of dispute relates to earning capacity. The plaintiff was an average student at school. It is highly unlikely that he would have attained a university level of education with employment commensurate with such qualification, but it is equally unlikely that he would have been reduced to unskilled or even semi-skilled work. He probably would have been a qualified tradesman or a middle range clerical worker.

As best that can be assessed in relation to such amorphous possibilities, his income level should be assumed to be set at about $475 per week, allowing for all the contingencies in both directions. His loss to date after an allowance for the ordinary contingencies of life should be assessed at $140,000, on which interest should be allowed a $35,000 after taking into account the amount which he has received by way of social services.

Future economic loss should be assessed globally at $375,000 after allowing for the
contingencies of life.
It will be seen that some of these figures are not strictly in accordance with the
mathematical calculations that have been mentioned, but a mathematical calculation has
been used as the foundation and then suitable adjustments have been made in both
directions to take account of countervailing factors that need to be recognised. In
effect, the result of those adjustments has produced some small upward adjustment of

the figures."

This was attacked on the basis that the figure for past economic loss was too high and did not

allow for the fact that, in the early years of employment, he would earn much less than $475 per week

and that, in any case, that was too high a figure for a sustainable weekly income.

When the discussion in the course of addresses is considered, it becomes apparent that the

assessment of $140,000 for past economic loss is based mainly on the schedule prepared for

employment as a general aircraft mechanic. That showed a nett loss of $183,000, but counsel for the

plaintiff recognised that it was far too generous because it assumed a year 10 entry on 2 January 1988.

Mr Vandenberg was only beginning year 10 at that date. Counsel reduced the amount to $156,000

by taking off the last year from the calculation. The other schedule of possible Air Force employment

was calculated on the rates of pay for a general hand, and its comparable figure was almost $146,000.

His Honour saw Mr Vandenberg in the witness box and was impressed by him. He also heard

teachers speak well of him. The selection of $140,000 for past economic loss was within the range

available on the evidence, and is based, to a significant extent, on the assessment made of Mr
Vandenberg’s capacity.

In the course of discussion with counsel for the defendants, His Honour asked counsel about

the appropriate weekly rate for future economic loss. Counsel for the defendants was contending for

an assessment of $300,000, starting from a weekly loss of $400. His Honour indicated that, looking

at the figures counsel for the plaintiff had given, the range would be between $450 and $500 per week.

There was also considerable discussion about the period over which the loss should be assessed, and

about where the discounting for contingencies should be made. Counsel for the plaintiff submitted a

figure of $400,000, based on a weekly loss of $480 over a period of 42 years, discounted by about

10%.

The amount of $375,000 for future economic loss is apparently based on the favourable

assessment that His Honour made of the plaintiff. Clearly these assessments cannot be made precisely,

and the learned trial Judge knew that. He considered all of the relevant matters, mostly in the course

of counsel’s addresses, and the assessment he made is within the range available on the evidence.

The appeal in respect of the assessments of pre-trial economic loss and future economic loss

should be dismissed.

The plaintiff has given notice of his contention that the award in respect of the future cost of

gratuitous assistance was manifestly low as was the award for future economic loss. By an amended

notice of contention, the plaintiff further contended that the learned trial Judge was in error in taking into

account the amount that Mr Vandenberg received by way of social security payments in assessing

interest on pre-trial economic loss. This latter point was decided by this Court in Shield Contractors

Pty Ltd v. John Nicol McGill (Appeal No. 4632 of 1996) and does not need to be considered any

further.

So far as the assessment of future economic loss is concerned there is no basis for finding that

the assessment is too low, any more than there was any basis for saying it was too high. This has been

adequately discussed.

With reference to the need for gratuitous services in the future, the case advanced for Mr

Vandenberg relied on the opinion of Dr Maureen Field, clinical neuropsychologist, that he needed one

hour’s supervision per day. The difficulty arises because of brain damage which affects his

concentration, memory and speech. In the course of evidence, His Honour was clearly unwilling to

accept the need for daily supervision. He findings were:

"He is largely able to function independently, though he needs some minor supervision
to check on his welfare from time to time. He certainly does not require anything like
one hour per day for supervision and assistance, as claimed on his behalf.
Nevertheless, it would be desirable that there be some assistance of a supervisor who
may pay attention to his needs and condition for a brief time on a weekly basis.
While he cannot cook, he can provide himself with a range of domestic services, and
when sharing accommodation can perform these by way of his contribution to a real
division of labour in domestic affairs. Providing he is in a position where he shares
accommodation with someone else, which he can probably arrange, he will have no
other need for paid domestic assistance. Otherwise, he can make reasonable
arrangements for things like ironing and cooking on a reasonably economic basis
without bringing in domestic help for those purposes. He could easily make some
arrangements for the provision of meals by a neighbour on a paid basis from time to
time, or even for the purchase of prepared food from food stores. He should,
however, be allowed a small further component within this head to provide for
contingencies."
Mr Vandenberg had been in shared accommodation and was able to contribute to the tasks that

were necessary and to receive the benefit of the activities of others in respect of tasks he could not

perform. Thus the finding about shared accommodation was based on evidence. Also he had lived for

a time with his grandmother. She did the cooking and he performed other domestic tasks. As he was

assessed as virtually unemployable, it was of no significance that he performed tasks slowly or needed

things that reminded him how to do tasks. His Honour’s assessment of the cost of future care was

expressed in this way:

"For the future there should be an average allowance of two hours per week at a commercial rate of $13.50 per hour or $27 per week. This includes an allowance for his deterioration well into the future. It is for his lifetime, but allowance should also be made for the various contingencies that might reduce the estimate of that figure. This should produce a global figure of $30,000 after making suitable minor adjustments for various minor countervailing features."

His Honour was told that Mr Vandenberg’s life expectancy was 50.04 years, i.e. a multiplier

of 976. The assessment of a need for two hours’ services a week is based on the assessment His

Honour made of Mr Vandenberg’s capacity to care for himself. It is not possible for this Court to

substitute its view of that. The rate of $13.50 is a generous one. Only $9 per hour was allowed in the

past and that has not been challenged. Over a period of 50 years a weekly cost of $27 amounts to

$26,352 so that the amount allowed has been increased from the mathematical base.

All of the relevant factors have been taken into account and the final figure is justified on the

evidence and the other findings. There is no basis for interfering with the award.

As both the appeal and the respondent’s contention were argued unsuccessfully, each party

should bear its own costs and the court costs including the cost of preparing the record should be borne

equally.