Short v Wenham No. Scciv-02-553
[2002] SASC 369
•13 December 2002
SHORT v WENHAM
[2002] SASC 369
Full Court: Doyle CJ, Wicks and Besanko JJ
DOYLE CJ: I agree with the orders proposed by Besanko J. I agree with the reasons which he gives for the making of those orders, and there is nothing that I wish to add.
WICKS J: I agree with the orders proposed by Besanko J in this matter for the reasons he has given.
BESANKO J: On 11 November 1996, Ms Pauline Wenham was driving a motor vehicle, namely, a Ford Escort sedan, along Kings Road, Woodside, in the State of South Australia. The road was described in the evidence as a very narrow dirt road. Ms Wenham’s motor vehicle collided with a motor vehicle which was travelling in the opposite direction and which was being driven by Mr Peter Short. As a result of what was described as an “almost head on collision”, Ms Wenham suffered very severe injuries to her eyes. Her left eye was surgically removed on the day of the accident. Almost all of the iris in her right eye was removed and the vision in that eye is significantly impaired.
Ms Wenham was not wearing a seat belt at the time of the accident.
Ms Wenham commenced an action for damages against Mr Short in the District Court of Adelaide. The action was listed for a determination of liability before his Honour Judge Herriman on 6 August 1996. On 7 August 1996 the parties advised his Honour that they had agreed on an apportionment of liability, namely, 60/40 per cent in favour of the plaintiff leaving aside any reduction by reason of the plaintiff’s failure to wear a seat belt. As the agreement did not finally determine the question of liability it was not possible to enter a judgment reflecting the agreement. The agreement was noted by the Judge. There may well have been good reason for not resolving all aspects of liability at that time, but it had the potential to give rise to difficulties. I will refer to those difficulties shortly.
In December 2001, the action came on for final determination before his Honour Judge David of the District Court. The remaining issues were the appropriate reduction in the plaintiff’s damages for the failure to wear a seat belt and the assessment of damages.
The trial Judge held that it was appropriate to reduce the plaintiff’s damages by 15 per cent for her failure to wear a seat belt. Having regard to the agreement between the parties, the trial Judge reduced the plaintiff’s damages by a total of 55 per cent. He determined that the plaintiff’s damages should be assessed as follows:
$ Non economic loss 53,200.00 Past economic loss 75,000.00 Past loss of superannuation 3,750.00 Future economic loss 175,000.00 Future loss of superannuation 19,100.00 Past care 200,000.00 Future care 685,249.95 Housing 50,000.00 Special damages 20,463.91 Sub-total 1,281,763.86 Reduced by 55% 704,970.12 576,793.74 Less amount already paid by way of special damages 20,374.91 Total 556,418.83
For reasons which are not made clear in the appeal books, the trial Judge entered judgment in favour of the plaintiff for a lesser sum (ie $553,039.30) which sum includes interest of $16,620.47.
The defendant appeals to this Court. The grounds of appeal are as follows:
“1.That the Learned Judge’s finding that the plaintiff hit her head on the steering wheel and not the windscreen is against the evidence and the weight of the evidence. The Learned Judge should instead have found that the plaintiff hit her head on the windscreen by reason of failing to wear a seat belt and that accordingly, her failure to wear a seat belt contributed to the severity of the plaintiff’s injuries whereby the Learned Judge should have reduced the plaintiff’s damages by reason of contributory negligence in not wearing a seat belt by an amount greater than the 15% required by section 35A(1)(i) of the Wrongs Act and reduced the plaintiffs’ damages for overall contributory negligence by a percentage greater than the 55% adopted by him.
2.The damages awarded for past economic loss are manifestly excessive, in that the Learned Judge disallowed damages under this head for a period of 15 months only, when on the evidence before him the plaintiff was disabled from working by reason of a condition of her shoulder unrelated to the accident for a period between 15 months and 24 months.
3.The award for future loss of superannuation benefits is manifestly excessive in that it was not reduced for contingencies.
4.That the amount allowed by the Learned Judge for past care was manifestly excessive.
5.That the total amount allowed by the Learned Judge for future care including general household assistance, future transport, cleaning, laundry and ironing, passive overnight care and future gardening and household maintenance is manifestly excessive.
6.That, consequential upon the reduction of the plaintiff’s damages by reason of the matters set out in paragraphs 1 to 5 above so as to reduce the plaintiff’s damages to less than the amount of the plaintiff’s filed offer, the award to the plaintiff of costs on a solicitor/ client basis should be replaced by an award to the plaintiff of costs on a party/party basis only.
7.That consequential upon the reduction of the plaintiff’s damages by reason of the matters set out in paragraphs 1 to 5 above, the interest payable to the plaintiff be reduced.”
The plaintiff accepted that the trial Judge erred in his award for future loss of superannuation. The plaintiff accepted that the figure which should have been allowed for that head of damage is $16,050.00. That figure is not disputed by the defendant and it is the figure which I will allow.
Liability (Ground 1)
There was no dispute at trial that at the time of the accident the plaintiff was not wearing a seat belt.
At the relevant time, s 35A(1)(i) of the Wrongs Act 1936 provided:
“(1)Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
…
(i) if the injured person (not being a person under the age of 16 years) was, contrary to the requirements of the Road Traffic Act, 1961, not wearing a seat belt at the time of the accident, the damages to be awarded shall, on account of that contravention, be reduced by 15 per cent or such greater percentage as the Court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury;”
A reduction of 15 per cent is automatic and follows a finding that the plaintiff was not wearing a seat belt contrary to the requirements of the Road Traffic Act 1961. The Court may reduce the plaintiff’s damages by a greater amount on account of a failure to wear a seat belt if it is satisfied that the proper use of the seat belt would have reduced or lessened the severity of the plaintiff’s injuries.
In Barnard v Towill (1998) 72 SASR 27, this Court considered the inter-relationship between s 35A(1)(i) and the then s 27A(3) of the Wrongs Act 1936. At the relevant time s 27A(3) provided:
“(3) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:
Provided that –
(a)this section shall not operate to defeat any defence arising under a contract;
(b)this subsection is subject to subsection (4) of this section.”
Neither party suggested that s 27A(4) is relevant.
Section 27A(3) requires an examination of all the circumstances surrounding an accident so that an assessment can be made of the plaintiff’s share in the responsibility for the damage caused.
It was argued in Barnard v Towill that the inquiry under s 35A(1)(i) is a different inquiry from the inquiry as to culpability under s 27A(3). The inquiry under s 35A(1)(i) is an inquiry into the extent to which the failure to wear a seat belt had impacted upon the severity of the injury. By contrast, (so it was said) an examination of contributory negligence involved an inquiry in relation to the claimant’s share in the responsibility for the damage. That argument was rejected.
The proper approach to the application of the two sections is set out in the following passage in the reasons for judgment of Lander J (at 43):
“In my opinion Parliament intended that proof of the matters in s 35(A)(1)(i) would give rise to a particular of contributory negligence, ie culpability which would then be examined in accordance with s 27(A)(3). There would be no contributory negligence apart from the statutory 15 per cent unless the defendant could first establish, however, that the proper use of the seat belt would have reduced or lessened the severity of the injury. Once that was determined, that would go in as a particular of contributory negligence with all other aspects of the plaintiff’s behaviour which would bear upon the appropriate reduction having regard to the plaintiff’s responsibility. Parliament intended that the process provided for by the law would continue after the enactment of s 35(A).”
In this case the trial Judge reached the conclusion that the failure to wear a seat belt did not contribute to the plaintiff’s injuries, or to use the words of the section, the trial Judge was not satisfied that “the proper use of a seat belt would have reduced or lessened the severity of the injury”. Had he reached a contrary conclusion a number of difficulties would have arisen in light of the prior agreement between the parties. First, it is difficult to see how effect could be given to the agreement bearing in mind the Court’s task under ss 35A(1)(i) and 27A(3). Secondly, a difficulty would have arisen on the facts of this case. The parties did not place before the trial Judge all the evidence they might have as to the circumstances surrounding the accident. This is probably explained by the fact that they took a certain view of the effect of the agreement. At all events, it would not have been possible for the trial Judge to carry out the inquiry required by s 27A(3) of the Wrongs Act had he been of the view that the proper use of a seat belt would have reduced or lessened the severity of the plaintiff’s injuries.
The trial Judge did not have to resolve these difficulties because he reached the conclusion that the defendant had not established that the proper use of a seat belt would have reduced or lessened the severity of the plaintiff’s injuries. In my opinion, that conclusion should not be disturbed.
At trial, the plaintiff accepted that her damages must be reduced by a further 15 per cent due to her failure to wear a seat belt, thereby making a total reduction of her damages of 55 per cent. At trial, her case was that the injuries to her eyes were caused by flying glass which resulted from the imploding of the windscreen. She thought that she hit her head on the steering wheel, not the windscreen.
At trial, the defendant’s case was that the plaintiff sustained the injuries to her eyes when her head hit the windscreen. Her head would not have hit the windscreen had she been wearing a seat belt. Accordingly, any award of damages should be reduced by a figure considerably in excess of 15 per cent.
There was no issue at trial about the fact that the plaintiff sustained the injuries to her eyes from glass from the windscreen.
The trial Judge said that the issue was whether “the plaintiff hit her head on the windscreen thus causing glass to be lodged in her eyes or did the windscreen ‘implode’ ”.
The trial Judge said (in my view, correctly) that the defendant bore the onus of proof on the issue of whether the proper use of a seat belt would have reduced or lessened the severity of the plaintiff’s injuries. That follows from the terms of s 35A(1)(i) and is supported by general principle that the defendant bears the onus of establishing contributory negligence.
The trial Judge said that it could be clearly inferred from the evidence given by the plaintiff that she hit her head on the steering wheel and not the windscreen. It could be clearly inferred that the windscreen shattered due to structural changes to the car caused by the collision. The shattering of the windscreen caused glass to be deposited inside the car and on the plaintiff’s lap. The expert evidence reconstructing what occurred which had been called by the defendant did not satisfy the trial Judge that the plaintiff’s account was wrong. The defendant had not established on the balance of probabilities that the plaintiff had sustained her injuries by hitting her head on the windscreen. In those circumstances, the trial Judge reduced her damages by a further 15 per cent on account of her failure to wear a seat belt.
The defendant argued that the trial Judge erred in relying on the plaintiff’s evidence that her head had hit the steering wheel rather than the windscreen. I think that this criticism of the trial Judge’s reasons is justified. Although the trial Judge’s conclusion might be justified by reference to the passage from the plaintiff’s evidence in chief which he sets out in his reasons, the plaintiff accepted in cross-examination that she could not in fact recall the incident and that she had convinced herself that she had “head butted” the steering wheel and that glass had flown at her.
The defendant further argued that the trial Judge had erred in failing to accept the expert evidence called by the defendant.
The defendant called Mr C Hall who has qualifications in mechanical engineering. Mr Hall has practised in that field, specialising in road accident reconstruction, for a period of over 20 years. He inspected the plaintiff’s motor vehicle some months after the accident. He prepared two reports which were tendered in evidence at the trial. In his first report, Mr Hall expressed the following view:
“Taking into account the severity of her facial injuries, I am of the opinion that Ms Wenham struck the windscreen during the collision. The injuries to her face and her chest combined with the observed damage to the vehicle and the location and distribution of glass are consistent with her being thrown forward and striking the windscreen. Her injuries are not consistent with her simply being struck by glass as a result of the windscreen ‘imploding’.”
In his second report, Mr Hall expressed the view that had the plaintiff been wearing a properly adjusted seat belt it is more likely than not that no head injury or facial contact would have occurred, or if it did, it would have been as a result of contact with the steering wheel. In addition, in oral evidence, Mr Hall said that he observed no structural deformity of the plaintiff’s vehicle which would have led to the windscreen shattering in the way in which it did.
I think Mr Hall’s evidence is subject to three important qualifications. First, his evidence was based on an assumption about what would have been necessary to cause the nature and type of injuries the plaintiff sustained. That is a matter which is strictly outside his area of expertise. Secondly, he made an assumption about how much glass was inside and outside the plaintiff’s motor vehicle immediately after the collision. There was evidence to the effect that there was a substantial amount of glass from the windscreen inside the vehicle immediately after the collision. There was no evidence called at the trial as to how much glass (if any) was outside the vehicle immediately after the collision. Although in re-examination Mr Hall said that this issue did not affect his opinions, in my opinion he clearly considered it to be a significant issue at the time he prepared his first report, and I think that having regard to the terms of that report and to the evidence as a whole, the trial Judge was entitled to conclude that the location of the glass from the windscreen was relevant to the question of whether he accepted Mr Hall’s opinions. There was no evidence in support of the assumption made by Mr Hall, namely, that there was a significant amount of glass outside the vehicle immediately after the collision. Mr Hall had relied on certain observations made by a Mr Paul Turner. The defendant did not call Mr Turner to give evidence. Thirdly, Mr Hall did accept as a possibility a temporary distortion of the plaintiff’s motor vehicle, and more particularly, the frame of the windscreen.
The defendant called Dr A McLean who has qualifications in mechanical engineering and very extensive experience in road accident research, especially crash investigation. He is the Director of the Road Accident Research Unit in Adelaide. Dr McLean expressed similar opinions to those expressed by Mr Hall.
Dr McLean did not examine the plaintiff’s motor vehicle. The trial Judge noted that Dr McLean accepted that other possible causes for the shattering of the windscreen were distortion of the frame of the windscreen due to an accident or impact by an object from outside the vehicle. Dr McLean said that if a vehicle is examined shortly after an accident you can determine what causes the windscreen to break. He gave the following evidence.
“A If broken by the distortion of the frame of the vehicle there is no fracture lines; if it is broken by the impact of a head, for example, striking the windscreen, the jagged edge glass remaining – the fracture lines can be extrapolated to indicate the point at which the head, for example, struck the windscreen. I attempted to see if there was sufficient evidence from the photographs to enable that procedure to be followed but, regrettably, it’s not.
Q I take it that you, yourself, haven’t examined the vehicle.
A No.
QSo, as a consequence, you haven’t had the opportunity of testing for cause, either by examining the vehicle or by examining what is seen in the photographs of the vehicle.
AIn examining what is available in the photographs, the bonnet of the vehicle is not displaced from the vehicle at the hinges; so the bonnet did not make contact with the windscreen and there appears to be no evident distortion of the frame of the body of the vehicle around the windscreen aperture.”
There can be no doubt that Dr McLean has extensive qualifications and experience. However, in my opinion the trial Judge was entitled to say that the evidence of Dr McLean (who did not inspect the vehicle) was not a sufficient basis for a finding that it was more likely than not that the plaintiff’s head hit the windscreen.
Even accepting that the trial Judge erred in relying on evidence of the plaintiff, I do not think that it has been shown that the trial Judge’s conclusion on this issue was wrong. The onus was on the defendant and the defendant did not establish on the balance of probabilities that the injuries sustained by the plaintiff were caused by her head hitting the windscreen.
I reject the ground of appeal challenging the trial Judge’s apportionment of liability.
Damages
Introduction
The plaintiff was born in England on 28 August 1952. She worked as a nurse after leaving school. She immigrated to Australia in 1979. For many years she worked as a nurse. In about 1988 she suffered a back injury and a neck injury and was unable to work for a period of about six months.
In June 1989 the plaintiff moved to the Adelaide hills. She commenced renting a house at Harrison Road, Woodside. She lived in those premises for about 10 years. She commenced living with Mr Rick Hearne in early 1990 and has continued to do so to the present time. In January 2000 the plaintiff and Mr Hearne moved into a house at Main Street, Charleston. They are leasing that property.
In 1989 the plaintiff commenced working as a stud and stable hand for a business in the Adelaide hills. She continued to work in that employment up until the date of the accident in November 1996. In the two years prior to the accident the plaintiff worked full time in her employment as a stud and stable hand.
The plaintiff lost her left eye and has severely impaired vision in her right eye as a result of the accident. She has no iris in her right eye. One function of the iris is to limit the amount of light including glare entering the eye.
There are risks of problems arising in relation to the right eye. There is a risk of sympathetic opthalmitis, namely, an attack on a healthy eye by antibodies. That risk is decreasing. There is a risk that a detached retina will develop. That risk is about 10%. Whether or not these risks develop, the expert evidence is that over the next twenty years the plaintiff’s ability to see out of her right eye is going to deteriorate.
The plaintiff’s vision in her right eye without aids is five per cent of normal vision. With appropriate contact lens and glass lens, her vision in the right eye is 90 per cent of normal vision. Taking into account the loss of the left eye, the plaintiff’s loss of vision overall is 89.25 per cent.
The plaintiff has a psychiatric condition as a result of the accident and the consequent injuries. She is anxious and depressed. She suffers from a post traumatic stress disorder.
Past Economic Loss (Ground 2)
The relevant period for the award of past economic loss is approximately five years and four months. The trial Judge found that the appropriate starting point having regard to this period was a figure in the order of $100,000. He reduced that figure because “for a period of 15 months to 2 years she would not have been able to work anyway because of what she described as a frozen shoulder”. He rejected an argument that there should be a further reduction for other contingencies and he awarded the sum of $75,000 for past economic loss.
The plaintiff accepted that although the trial Judge did not expressly say so, he in fact reduced his starting point by reference to a period of 15 months rather than a period of two years. That appears to be correct. The defendant submitted that the reduction should have been by reference to a period of two years. On my calculations, acceptance of that submission would result in a figure of approximately $62,500 for past economic loss.
The plaintiff’s evidence was that at about Christmas 1999 she awoke with a terrible pain in her right shoulder. She saw Dr Tomlinson who is a bone specialist. Dr Tomlinson told her that she had a frozen shoulder. The plaintiff said that the condition had taken something over a period of two years to resolve. The trial Judge found that the significance of the condition was that while she was suffering from the condition she could not perform her pre-accident work looking after horses.
The plaintiff was unable to be precise as to how long it was before her shoulder condition significantly improved. In evidence she gave various estimates ranging from two years, to eighteen months to fifteen months.
In an attempt to link the plaintiff’s shoulder condition to the accident and therefore to rebut the criticism relating to the amount deducted from the starting point for past economic loss, the plaintiff’s counsel submitted that the shoulder condition would have improved more rapidly had the plaintiff had the treatment recommended by Dr Tomlinson, namely shoulder manipulation. Dr Tomlinson did not give evidence. The plaintiff’s counsel submitted that the reason the plaintiff did not have this treatment was because of her attitude to the injuries to her eyes. The plaintiff did not give evidence to this effect and in the absence of evidence I would not be prepared to infer that the plaintiff acted in the way she did for the reason submitted by her counsel.
The plaintiff’s counsel also drew attention to the fact that the defendant’s counsel submitted to the trial Judge in his closing address that a period of fifteen months was appropriate. However, I note that he also said that the evidence from the plaintiff was that she still had not fully recovered from the shoulder condition.
The evidence on the length of the plaintiff’s disability due to her shoulder condition was imprecise and I think the trial Judge was entitled to approach the matter in a broad fashion. While the evidence was such that a deduction for a slightly longer period than 15 months might have been appropriate, I am not persuaded that the trial Judge was wrong.
I reject this ground of appeal.
Past and Future Care (Grounds 4 and 5)
The plaintiff’s injuries and the effects thereof have restricted, and will continue to restrict, the plaintiff in terms of what she is able to do to care for herself. Her spouse, Mr Hearne, has provided services to the plaintiff on a voluntary basis. There had been a dispute as to whether Mr Hearne was the plaintiff’s spouse. The trial Judge found that he was and that finding was not challenged on appeal. There was no dispute that to the date of trial Mr Hearne has provided voluntary services to the plaintiff.
The dispute at trial was in relation to the extent of the plaintiff’s need for services.
Before turning to the facts, it is appropriate to set out some of the relevant legal principles. The assessment of damages in relation to past and future voluntary or gratuitous services is and was at the relevant time governed partly by certain provisions in the Wrongs Act and partly by the common law.
1. Section 35A relevantly provides:
“(1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
(g) no damages shall be awarded –
(i)to allow for the recompense of gratuitous services except services of a parent, spouse or child of the injured person;
or
(ii)to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred by a person rendering gratuitous services to the injured person;
(h) damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child shall not exceed four times State average weekly earnings; and
(2)Notwithstanding the limits fixed by subsection (1)(h), if the Court is satisfied that by rendering gratuitous services a parent, spouse or child has saved or will save the injured person the cost of engaging another person to provide those services (those services being reasonably required by the injured person), the Court may make an award of damages in excess of that limit but the damages awarded in that event must not reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
…
(6) In this section -
…
‘State average weekly earnings’ means the amount published by the Commonwealth Statistician as an estimate of Average Weekly Earnings for Ordinary Hours of Work for each Full-time Employed Male Unit in the State.’”
2. At common law, the right to claim damages with respect to care or services provided gratuitously to a person who had suffered personal injuries arose by reason of the need of that person for those services. The plaintiff’s damages are not assessed by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally speaking, by reference to the market cost of providing the services (Van Gervan v Fenton (1992) 175 CLR 327).
3. At common law, a defendant is not entitled to any allowance in his or her favour in relation to services now needed by the plaintiff but which were provided to the plaintiff on a voluntary basis before the accident, or for which the plaintiff paid before the accident. In Van Gervan v Fenton, Mason CJ, Toohey and McHugh JJ said (at 338):
“By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her.”
(See Gaudron J at 348 – 351)
4. At common law, in so far as an award for the provision of services to the plaintiff in the future was concerned, a finding sometimes needed to be made as to how long into the future those services would be provided on a voluntary basis. There are obvious difficulties associated with the making of that finding. In Van Gervan v Fenton, Mason CJ, Toohey and McHugh JJ said (at 336):
“The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the Courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen. The relationship between the parties may end for any of the myriad reasons which bring about the end of relationships. But the predictability of a relationship continuing in this class of case is made more difficult than usual by the effect that the plaintiff’s condition and needs have or may have on the emotional needs of those involved in caring for him and her. There is also the prospect that the care provider will not reveal to the Court his or her true feelings about continuing to provide the services even in cases where the provider is conscious of those feelings.”
5. The common law principles referred to in paragraphs 2 and 3 above apply to an award of damages governed by the relevant provisions of the Wrongs Act (Garland v Clifford (1996) 67 SASR 47 per Lander J at 60).
6. Furthermore because s 35A(2) provides a cap or limit on any award for gratuitous services, a finding of the type identified in paragraph 4 above will need to be made in order to determine if the cap or limit is relevant.
7. A plaintiff must establish two matters under s 35A(2). In Garland v Clifford, Lander J described these two matters in the following terms (at 59):
“The first matter requires no more than establishing, as the common law also requires, that by reason of the injuries suffered the injured person is in need of care and attention. The second matter requires that the injured person prove that, in respect of voluntary services rendered to the date of trial, the provision of those services has saved the injured person the cost of engaging someone else to provide those services. In respect of future voluntary services it must be established that the services to be provided by the parent, spouse or child will obviate the need for the cost of employing another person.”
8. The qualifying requirements under s 35A(2) are similar to the qualifying requirements at common law. For example, it is not necessary to establish that if the services were not provided voluntarily, somebody else would have been engaged to provide exactly the same care, attention or service at the same time and for the same length of service. In Garland v Clifford, Lander J said (at 59):
“Clearly the injured person must establish need. To then establish that the services were reasonably required means no more than to establish that the need was great enough to require the provision of care and attention or some other voluntary services. It does not mean that one has to establish that the care, attention or service was needed at precisely the same time and for precisely the same intervals of time as that which is voluntarily provided. Similarly, it is not necessary to establish that if the care, attention or service were not provided voluntarily, somebody else would have been engaged to provide exactly the same care, attention or service at the same time and for the same length of time. It is enough to establish that the provision of that service obviated the necessity of engaging some other person to provide a similar service. If the need for the provision of voluntary services has been established, ordinarily it would follow that the reasonable provision of those services has saved or will save the injured person the cost of engaging another person to provide the services. The assessment therefore in that respect is similar to a common law assessment.”
9. It is not appropriate to talk in terms of a presumption that once need is established it follows that the plaintiff has saved the cost of engaging someone else. However that will often be the proper inference to be drawn from evidence as to the plaintiff’s injuries and the nature of the services provided (Stewart & Ors v Jacobsen (2000) 209 LSJS 184).
10. As far as an award for past gratuitous services is concerned the first matter which a Court must determine is the extent of the plaintiff’s need for services in terms of the requirements of s 35A(2) and the voluntary services actually provided to her. The market value of those services on a weekly basis is then determined. If that figure does not exceed the figure for State average weekly earnings then an award may be made on the basis of the market value. If the figure does exceed the figure for State average weekly earnings then the award must be made on the basis of the latter figure.
11. The same exercise is undertaken in relation to an award for future gratuitous services subject to two qualifications. First, it is appropriate in my opinion to calculate the cap or limit as to the future by reference to the State average weekly earnings as at the date of trial. At that time movements in State average weekly earnings in the future will not be known. Secondly, it is important to remember that the cap or limit only applies to gratuitous or voluntary services. If, on the findings of the Court the cap or limit will never be exceeded then any finding as to how long into the future the services will be provided on a voluntary basis will not matter for present purposes. On the other hand if the findings are that the cap or limit will be exceeded for all or part of the future then such a finding must be made.
In essence, the defendant argues that the trial Judge assessed the plaintiff’s need for services both in the past and into the future at a much higher or greater level than was justified by the evidence. The defendant attacked the trial Judge’s findings as to the extent of the plaintiff’s vision in her right eye and her consequent need for services. The defendant also challenged the trial Judge’s reliance on certain expert evidence as to the plaintiff’s need for services.
It is convenient to consider the defendant’s submissions in light of the findings made by the trial Judge which are of particular relevance to the issue of past and future care.
For a time after the accident the plaintiff wore a hard lens in her right eye for a period of ten to twelve hours per day. When wearing the hard lens, the plaintiff’s vision was almost normal. However, the hard lens irritated her eye and she had difficulty putting it in and taking it out. She stopped wearing the hard lens.
The trial Judge said that it was not unreasonable for the plaintiff to stop wearing the hard lens. He found that the plaintiff was an impressive and honest witness. He accepted her evidence about the difficulties caused by the hard lens. The fact of these difficulties was supported by two opthalmologists, Doctors Crompton and Slade, called by the plaintiff. A challenge to that finding of the trial Judge must fail.
After discarding the hard lens, the plaintiff started wearing a soft lens with a painted iris. This resulted in a significant improvement in her vision outside. It was nowhere near as effective inside. The plaintiff said that she could not wear the soft lens all the time. The trial Judge found that the plaintiff was limited to wearing the soft lens four hours per day four days per week.
The plaintiff’s evidence was accepted by the trial Judge and it was supported by Doctors Crompton and Slade. Again, this challenge to the finding of the trial Judge must fail.
The defendant submitted that there was evidence before the trial Judge that the plaintiff could obtain a perforated soft lens which because of the perforation she could wear for much longer periods than the ordinary soft lens. It was submitted that the trial Judge placed insufficient weight on this factor in assessing the plaintiff’s likely future needs.
The trial Judge did find that the plaintiff’s vision is likely to be better inside if the perforated soft contact lens is developed and is purchased by her. It was a factor he took into account. The trial Judge said:
“53. There is almost normal vision when she is wearing a soft lens but I find that this can only be done for a maximum of 4 hours per day for 4 days a week. Both eye surgeons support that proposition. I also find that she has more difficulty while inside because of the less effectiveness of the soft lens but this could be improved if she wore glasses or if a perforated soft contact lens is developed and purchased by her.”
In my opinion, he was entitled to take the approach that it was no more than a factor to be taken into account. The evidence of Doctors Crompton and Slade was that the use of the perforated soft contact lens was something of an unknown quantity.
Finally, the defendant submitted that the trial Judge erred in failing to place sufficient weight on the fact that the plaintiff’s vision is improved by the use of glasses and on the possibility of a soft lens being developed specifically for use inside. The evidence as to the latter point was meagre. As to the former point, the trial Judge did take that matter into account (para 53). In any event, as I read the evidence of Doctors Crompton and Slade, the improved vision resulting from the use of glasses relates primarily to the plaintiff’s ability to read.
In my opinion none of the trial Judge’s findings as to the extent of the plaintiff’s impairment of vision in the right eye both in the past and in the future should be disturbed.
The trial Judge was then required to assess the plaintiff’s needs in light of her disabilities in the past and her likely disabilities in the future. The evidence relevant to that issue (in addition to some evidence from the medical experts) was evidence from the plaintiff, Mr Hearne, Ms K Trankalis, Ms Johnson and Mr Creedon. Ms Trankalis and Ms Johnson are occupational therapists who were called as witnesses by the plaintiff. Mr Creedon is a social worker who was called as a witness by the defendant.
The trial Judge rejected the evidence of Mr Creedon. The defendant did not complain about that aspect of the trial Judge’s reasons.
The trial Judge accepted the evidence of Ms Trankalis. He said that when properly understood there was not much difference between her evidence and the evidence of Ms Johnson.
It was not in dispute that the plaintiff’s accommodation at Main Street, Charleston, and for that matter that her previous accommodation at Harrison Road, Woodside, was quite inappropriate for a person with a significant visual impairment. The plaintiff needed a well-lit house with a sensible layout, minimum changes of level and close proximity to relevant services.
Ms Trankalis prepared a table setting out her opinion as to the level of services required by the plaintiff and the cost thereof.
SERVICE
FREQUENCY ESTIMATED COST Household assistance for meal preparation, correspondence, transport /escort locally, checking clothes, looking for misplaced items 4 hours per day seven days per week $20.00 per hour Transport/assistance with recreation 8 hours per week $20.00 per hour Household assistance with cleaning, heavy laundry, ironing 8 hours per week $14.00 per hour Spring cleaning 8 hours twice per year $14.00 per hour Passive care at night 7 nights per week $90.00 per night (more if active assistance required. Gardening and household maintenance 1 hour per week $25.00 per hour Seasonal gardening/maintenance 8 hours twice per year $25.00 per hour
Ms Trankalis also provided an estimate of what the services were likely to cost in the future.
Ms Johnson also prepared a table setting out the services that she thought the plaintiff required and the cost thereof. Ms Johnson prepared her table on the basis that appropriate housing and equipment needs are met. If this did not occur Ms Johnson said that she agreed with the opinions of Ms Trankalis.
“3. Additional Support Needs
If housing and equipment needs are met, the following level of support will be required:
SERVICE FREQUENCY ESTIMATED COST Household assistance with heavy cleaning, laundry and ironing 4 hours per week $14.00 per hour Spring cleaning 10 hours per year $14.00 per hour Gardening (depending on garden size) 2 hours per week $20.00 per hour Seasonal gardening/ maintenance 16 hours per year $20.00 per hour Meals from meal service $10.00 per main meal per day (Able to get own breakfast and tea.) $70.00 per week Transport and Shopping Assistance 4 hours per week $16.00 per hour If suitable accommodation and equipment is not provided, Ms Wenham will require substantial additional support as per the support recommendations as outlined in Kathy Trankalis’ report.
Given suitable and stable accommodation and possibly orientation training, Ms Wenham should be able to independently mobilise to/from the toilet at night. A personal alarm would enable Ms Wenham to access assistance if and when required.”
The defendant challenged the trial Judge’s allowance for passive care. It is true, as the defendant pointed out, that the plaintiff said she was able to get up at night and go to the toilet without assistance. However, that is only one aspect of passive care and when one considers the very severe impairment of the plaintiff’s vision, the fact that she suffers anxiety and depression and the evidence of Ms Trankalis, I think an allowance for passive care is justified.
The trial Judge accepted the opinions of Ms Trankalis as to the plaintiff’s needs up until the time she moves into appropriate accommodation. In my opinion, he was entitled to do so. He accepted the evidence of the plaintiff and Mr Hearne. Although their evidence is not such that one can precisely quantify how long it took Mr Hearne to provide various services to the plaintiff it is clear that he spent substantial time providing services of the nature identified in Ms Trankalis’ table.
I do not accept the defendant’s submission that Ms Trankalis proceeded on an incorrect assumption as to the plaintiff’s level of vision in the right eye. The assumptions made by Ms Trankalis were based on what the plaintiff told her and on what she was able to observe of the plaintiff. In my opinion, the assumptions made by Ms Trankalis accord generally with the plaintiff’s evidence, the evidence of Mr Hearne and the evidence of the medical witnesses.
The defendant submitted that the trial Judge erred in not reducing the award for past care by reason of the fact that for at least 15 months the plaintiff was disabled by the condition of her right shoulder. In other words, she would have needed care anyway because of a condition unrelated to the motor vehicle accident. The trial Judge did not deal with this argument. The need for services which arose by reason of the shoulder condition was by no means as great as the need for services which arose by reason of the injuries sustained in the motor vehicle accident. Furthermore, the need for services in the former case was for a fairly limited period of time. I am not satisfied that any allowance for the need for services which arose by reason of the shoulder condition would reduce the weekly figure below the cap or limit in the case of past care.
The defendant also submitted that the trial Judge erred in not reducing the award for past and future care by reason of a need for services which arose and arises by reason of the fact that the plaintiff has an arthritic condition in her hands. On the evidence I am not satisfied that this condition has generated or is likely to generate any need for services and I would not reduce the award for past care or the award for future care on this account.
The trial Judge awarded a sum of $200,000 for past care. He said,
“I find, and there is no dispute, that Mr Hearne was and is the spouse of the plaintiff. I also find that without his gratuitous services the plaintiff would have had to engage another person to provide the care which he provided and that that care was for approximately 28 hours per week at $20.00 per hour. Therefore the plaintiff should be compensated for the state average weekly earnings from the date of the accident until the date of judgment. The plaintiff by presenting a schedule which was undisputed quantified that amount to be a total of $197,782.60 from the 11th November 1996 until the 3rd December 2001. An allowance of course also has to be made for that period between the 3rd December until the date of judgment. The care provided by Mr Hearne was constant and needed and I can see no room for the reduction of any gross figure because of any contingencies. I award the plaintiff the sum of $200,000.00 for past care.”
There is an error in this reasoning. Twenty eight hours per week multiplied by twenty dollars per hour gives a weekly figure of $560. In November 1996, the figure for State average weekly earnings was $669.60 gross. By August 2001 this figure had risen to $831.60. The figure for State average weekly earnings is a cap or limit, not a guaranteed figure.
However, I do not think this error means the trial Judge’s award for past care should be disturbed. In calculating the award for future care the trial Judge made allowances for other items including transport/assistance with recreation, household assistance with cleaning, heavy laundry, ironing, spring cleaning, passive care at night and gardening and household maintenance. I have no doubt that, had he not made the error identified, the trial Judge would have gone on to include these items in his calculations for past care. For example, the trial Judge had earlier said that he would make an allowance for passive overnight care for two years into the future. Applying the hourly rates appropriate to past care produces the following figures:
$ per week Household assistance for meal preparation etc 560.00 Transport assistance with recreation 160.00 Household assistance with cleaning, heavy laundry, ironing 112.00 Spring cleaning 4.30 Passive care at night 630.00 Gardening and household maintenance 25.00 $1,491.30
This is a total amount well in excess of the cap or limit. The trial Judge did not err in making an award based on the cap or limit.
I might also observe that even if the allowance for passive care is excluded, the figure is still in excess of the cap or limit. Therefore, even if the defendant is right and an allowance for passive care should not have been made, a weekly figure in excess of the figure for State average weekly earnings is left, and an award based on the cap or limit is justified.
I would not disturb the trial Judge’s allowance for past care.
I turn now to the part of award for future care which relates to the services which to date have been provided by Mr Hearne. The trial Judge found that the plaintiff’s needs would remain as they are today until she finds new and appropriate accommodation. He allowed a period of two years for that to occur. Thereafter he found that the plaintiff’s needs would be considerably less. I do not think that there is any error in the trial Judge’s approach. On one view an allowance for general household maintenance after two years of 14 hours per week is fairly generous, but it was within a range justified by the evidence and I do not think the trial Judge erred in his approach.
In terms of the calculations the trial Judge said:
“Part Four
The plaintiff claims various amounts for assistance in the future. Under this part of future care there are six discreet (sic) heads.
1. General household assistance
For this head of damage the plaintiff claims 28 hours a week care at $22.00 per hour with an actuarial multiplier for whole of life of $831.00. The gross amount claimed is for $511,896.00. The number of hours claimed is on the basis of the evidence of Ms Trankalis. I have already indicated that I accept her evidence on that topic up until the time the plaintiff finds a new house with the appropriate modifications. I have already indicated that an appropriate period of time to allow for such an event is in the vicinity of two years. In my view the 28 hours per week for general household assistance would be much less after a period of 2 years when the plaintiff is properly accommodated. In my view the amount of time per week needed would be in the vicinity of half that amount. However as I have indicated I would allow the full period of 28 hours per week for at least 2 years. Using that method and these figures as a guide I therefore set an amount of $350,000.00 for general household assistance for the future.
2. Transport Assistance with Recreation
The plaintiff has claimed 8 hours a week at $22.00 per hour and on an actuarial figure of $831.00 has claimed $146,256.00. I find that in the appropriate premises not in a remote area the need for transport would be much less. I set an amount of $70,000.00 for that head of damage.
3. Cleaning, Laundry and Ironing
The plaintiff has claimed 8 hours a week at $15.00 per hour and with the multiplier of $831.00 she claims a total of $99,720.00. I can see no reason why that should be reduced in anyway and I award that amount.
4. Spring Cleaning
The plaintiff has claimed .308 hours a week at $15.00 per hour and with the actuarial multiplier the total claim for that aspect of damage is $3,839.22. I award an amount of $3,000.00 for that aspect of future care.
5. Passive Care
The plaintiff has claimed 7 nights at $100.00 per night and with the actuarial figure of $831.00 the claim for future passive care is $581,700.00. I have already found that an allowance should be made to remunerate the plaintiff while she is obtaining an appropriate house. I have set that period at about two years. After that period of time I found that there should be no need for overnight passive care. I therefore award a sum of $75,000.00 for passive overnight care.
6. Gardening, Household Maintenance
The plaintiff claims the sum of $24,930.00 based on the need of one hour a week at $30.00 an hour. That claim is related to the present living circumstances of the plaintiff. In upgraded accommodation it will obviously be less. However some allowance should be made for gardening and household maintenance and I set a figure of $20,000.00.
Total for Part Four - $617,720.00”
The trial Judge made an award for future care for the rest of the plaintiff’s life. He made no reference to the cap or limit in s 35A(2) in the course of his analysis in relation to future care. He made no specific finding as to whether the services would be provided on a voluntary basis, and if so, for what period. In my respectful opinion, he should have done so.
I think it is implicit in the trial Judge’s reasons that he has found Mr Hearne will continue to provide voluntary services to the plaintiff for a period of time into the future. For reasons I will give, the critical period in this case is two years. I think that in all the circumstances a finding that Mr Hearne would continue to provide the services on a voluntary basis for a period of at least two years is justified.
The trial Judge appears to have based his award for the first two years on a weekly allowance of about $1 646.
Service $ 1. General household assistance 616.00 2. Transport assistance with recreation 176.00 3. Cleaning laundry and ironing 120.00 4. Spring cleaning 4.60 5. Passive care 700.00 6. Gardening, household maintenance 30.00 $1,646.60
Such a weekly allowance is nearly double the State average weekly earnings as at the date of trial ($831.60). This approach is contrary to s 35A(2). Although it is not possible to be precise on the material before the Court, the award for the first two years could not exceed about $86,500 (ie, $831.60 x 104 months). It is also not possible to be precise as to the figure the trial Judge actually allowed for the first two years, but doing the best I can it appears to be a figure in the order of $171,000. To correct the error in calculating the loss for the first two years into the future, the figure for future care should be reduced by a figure of $84,500.
The defendant challenged the trial Judge’s allowance for passive care in the first two years. I do not think the trial Judge erred in making such an allowance. In my opinion the same reasons which justified an allowance for passive care in the past justify an allowance for passive care for two years in the future.
In any event, I note that even if I disallowed passive care it would not lead to a reduction of the weekly figure below the cap or limit. In other words it would not lead to any greater reduction than that which I have already said should be made.
In terms of the trial Judge’s allowance for future care after the first two years doing the best I can with the figures the trial Judge appears to have based his calculations on the following weekly allowance.
Service $ 1. General household assistance 308.00 2. Transport assistance with recreation- a figure less than 176.00 3. Cleaning laundry and ironing 120.00 4. Spring cleaning 4.60 6. Gardening, household maintenance (a figure less than) 30.00 $638.60
The figure allowed for future care after the first two years does not proceed on the basis of a rate of remuneration in excess of the cap or limit prescribed by the s 35A(2). In those circumstances, it matters not whether Mr Hearne will continue to provide the services on a voluntary basis after the first two years.
In the result, in relation to future care, the trial Judge has erred in proceeding on the basis of a rate for remuneration for future care for the first two years in excess of the maximum prescribed by s 35A(2). I have considered whether the matter should be referred back to the trial Judge for submissions (and possibly evidence) on the correct figures. I do not think this should be done for two reasons. First, it is desirable that there be an end to this litigation. Secondly, I am not confident the figure can be calculated with a great deal more precision than I have calculated it.
I would reduce the trial Judge’s award for future care by a sum of $84,500.
Conclusion
In the result, I would allow the appeal in relation to the award for future loss of superannuation. I would reduce the award for that item of $19,100 to $16,050. I would also allow the appeal in relation to the award for future care. I would reduce the award for that item of $685,249.95 to $600,749.95.
The appropriate awards having regard to my conclusions are as follows:
$ Non Economic Loss 53,200.00 Past Economic Loss 75,000.00 Past Loss of Superannuation 3,750.00 Future Economic Loss 175,000.00 Future Loss of Superannuation 16,050.00 Past Care 200,000.00 Future Care 600,749.95 Housing 50,000.00 Special Damages 20,463.91 1,194,213.80 Reduced by 55% 537,396.21 Less amount already paid by way of special damages 20,374.91 $517,021.30
The parties should be heard as to interest, costs and any other consequential orders.
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