Singh v Harika

[2005] NSWCA 157

CITATION:	SINGH v HARIKA [2005] NSWCA 157
HEARING DATE(S):	20/04/2005
JUDGMENT DATE:	12 May 2005
JUDGMENT OF:	Hodgson JA at 1; Bryson JA at 2; Campbell AJA at 30
DECISION:	Appeal allowed with costs.; See para [29]

CATCHWORDS:	NEGLIGENCE - Motor Accident - plaintiff, girl aged 14, accompanied woman 17 and man 19 by car from Lakemba, reached club at Parramatta, stayed from 12.30 am to 4 am, left to return to Lakemba, car driven by intoxicated man and collided with tree - severe injuries - liability admitted - Trial Judge found contributory negligence 12% - consideration of contributory negligence where passenger accepts lift from intoxicated driver, contributory negligence of young person - finding 12% affirmed. - DAMAGES - future economic loss - findings on limited future employment prospects even if not injured in view of plaintiff's other disabilities - Trial Judge assessed $100,000 - held, sum not consonant with findings on future employment prospects, $200,000 substituted, damages award increased by $88,000.
LEGISLATION CITED:	Evidence Act 1995; s.67
CASES CITED:	Joslyn v. Berryman & Anor (2003) 214 CLR 552 Norris v. Blake (by his Tutor Porter) [No. 2] (1997) 41 NSWLR 49 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413
PARTIES:	Roslyne Singh - Appellant Amardeep Singh Harika - Respondent
FILE NUMBER(S):	CA 40808/2004
COUNSEL:	Mr D. Cassidy QC & Ms M. Rollinson - Appellant Mr P.R. Garling SC - Respondent
SOLICITORS:	Newman & Associates - Appellant Sparke Helmore - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2159/2000
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ

40808 OF 2004

HODGSON JA
BRYSON JA
M. W. CAMPBELL AJA

THURSDAY 12 MAY 2005

ROSLYNE SINGH v. AMARDEEP SINGH HARIKA

Judgment

1 HODGSON JA: I agree with Bryson JA.

2 BRYSON JA: The appellant, plaintiff in the District Court, appeals against the quantum of damages awarded to her on 31 August 2004 by her Honour Judge Murrell SC in a reserved judgment after an extended hearing. With a minor and now unimportant variation after delivery of reasons, damages were assessed at $458,877 and after reduction of 12% for contributory negligence judgment was entered for $403,812 with costs. The appellant incurred very extensive personal injuries on 29 May 1999 when she was a passenger in a motor vehicle which ran off the road while driven by the respondent Mr Harika, defendant in the District Court. The respondent conceded his breach of duty of care, and the issues in contention were contributory negligence and damages.

3 On appeal the appellant challenged the Trial Judge’s findings that there was contributory negligence on the part of the appellant, and that it was just and equitable to reduce the damages recoverable by 12%. It was contended that there should not have been a finding of contributory negligence, or alternatively that the reduction of 12% was excessive.

4 The appellant was born on 28 January 1985, was 14 years of age when injured and 19 years of age at the time of the trial. The Trial Judge accepted the appellant’s evidence of amnesia – that she did not remember anything about the day of the accident. Two other passengers Ms Patterson and Mr Virk were, according to the appellant’s case, unable to be located and statements about the events which Ms Patterson and Mr Virk had given to the police were admitted in evidence under s.67 of the Evidence Act 1995. The appellant also tendered the record of an interview of the respondent with the police; although the document is incomplete, all significant passages were admitted.

5 In dealing with the events and contributory negligence her Honour found as follows: (Red 20- 22)

[27] In a police interview (Exhibit 13), the defendant stated that, prior to the accident, he was speeding and lost control of the vehicle. He stated that, several kilometres before the scene of the accident, the plaintiff steered the car for a period. The defendant stated that the group was drinking and dancing at a club from about 12.30 am until 4 am. The defendant admitted that he had been drinking alcohol on the evening in question. In fact, at 7am on 29 May the defendant had a blood alcohol concentration of .093g/100ml blood.
[28] Donna Patterson's statement indicated that the group was at a party where alcohol was available from 10pm to 4.30am. She had three drinks of alcohol and did not observe whether or not the defendant was drinking. After they left the party, the defendant was driving at 100 - 110 kph. There was an exchange between the defendant and the plaintiff. The defendant began to drive more aggressively, prompting all passengers to urge the defendant to stop. He failed to do so and began to lose control of the car when speeding through corners. He then drove onto the incorrect side of the road, mounted a gutter and collided with a tree.
[29] Mr Virk's statement asserted that the group went to a club, leaving at about 3am. He said that, to his knowledge, the defendant had one beer, but when they drove away he noticed that the defendant was "a bit drunk". At one stage, the plaintiff, who was the front seat passenger, took the wheel and steered for a short time. After the defendant resumed control of the vehicle, he was speeding and then lost control of the car.
[30] By all accounts, the accident occurred because the defendant was speeding and lost control of the vehicle. There is no doubt that the defendant had consumed a considerable quantity of alcohol and it is likely that his drinking adversely affected his judgement when driving. He must have been well affected by alcohol at the time of the accident. The report of Professor Starmer establishes that alcohol significantly impaired the defendant's judgment and played a substantial part in the accident.
[31] Although at one stage the plaintiff steered the vehicle for some distance, the evidence does not establish any connection between this incident and the accident, nor did the defendant assert a connection.
[32] As the plaintiff’s counsel conceded, it can be inferred that the plaintiff had consumed alcohol. Because of the nature of the outing, the fact that her companions drank alcohol, the plaintiff’s high spirited conduct in taking the steering wheel (which is consistent with a degree of intoxication) and the account recorded by Dr Epps, I do infer that the plaintiff drank alcohol on the evening in question and was at least slightly intoxicated when she entered the vehicle and at the time of the accident.
Contributory Negligence
[33] The defendant contended that the plaintiff should have perceived the risk of being driven by the defendant when he was intoxicated. In fact, the defendant submitted that the plaintiff had feigned a lack of recall of events on the night in question, and that the plaintiff herself had probably been drinking alcohol and/or using illegal drugs. The defendant submitted that the plaintiff was probably experienced with alcohol and was "socially advanced" for her years.

[34] The plaintiff contends that she is not guilty of contributory negligence.

[35] Section 74(2)(b) of the [Motor Accident Act 1988] establishes a statutory test for contributory negligence in cases where the injured person is not a minor and the driver's ability to drive the vehicle was impaired as a consequence of the consumption of alcohol. As the plaintiff was a minor at the time of the accident, this provision does not apply and the common law is applicable. The issue is whether the plaintiff breached the standard of care to be expected of an ordinary child of the same age, i.e. whether an ordinary sober child of the same age would have foreseen that accepting a lift from the intoxicated driver was exposing him/herself to a risk of injury by reason of the driver's intoxication: Joslyn v Berryman (2003) HCA 34.

[36] In my view, ordinary 14 year-old children know that it is necessary to observe and/or inquire about the state of intoxication of a prospective driver who has been partying over a period of several hours. Ordinary 14 year-old children know that it is dangerous to drink and drive and that such conduct can lead to accidents. However, ordinary 14-year--old children do not appreciate the risk in the same qualitative way as do adults. The effect of alcohol/drugs on complex mental processes such as those involved in the assessment and response to driving risks cannot be appreciated by 14 year-old children, except in a relatively rudimentary way. Consequently, it is my view that it is just and equitable to reduce the damages recoverable by the plaintiff in this case by only 12%.

6 In Joslyn v. Berryman & Anor (2003) 214 CLR 552, to which the Trial Judge referred, McHugh J considered at 558 [16] judicial treatment of contributory negligence of passengers accepting lifts from intoxicated drivers:

[16] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed [Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; Jones v Livox Quarries Ltd [1952] 2 QB 608 at 615; Froom v Butcher [1976] QB 286 at 291.]. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered. For historical reasons associated with the consequences of a finding of contributory negligence, judges and juries in earlier times took a lenient view of what facts constituted contributory negligence. And some modern cases concerned with passengers accepting a lift from intoxicated drivers have also taken a lenient view of the passengers’ conduct. But in principle, any fact or circumstance which a reasonable person would know or ought to know and which tends to suggest a foreseeable risk of injury in accepting a lift from an intoxicated driver, is relevant in determining whether the passenger was guilty of contributory negligence in accepting the lift.

McHugh J went on to consider whether the defence of Volenti non fit injuria , in which there is no duty of care, no breach of duty and no question of contributory negligence or apportionment, continues to be available; see pp563-564 [29-31]. No such defence was relied on in the present case.

7 Senior Counsel for the appellant contended that in finding contributory negligence based on the appellant’s failing to observe or inquire about the state of intoxication of the respondent who had been partying at a club over a period of several hours, the Trial Judge failed to consider the dilemma the appellant was in at 4.30 am on a Saturday morning at Parramatta after the club had closed; the appellant’s home was at Lakemba. It was contended that the appellant had travelled to the club in the respondent’s car and the only obvious way to return home was to travel in his car, and that it was unsafe for her to leave on her own at that hour. It was further contended that it was readily understandable for the appellant to be thinking of how all three passengers were to get home, not merely of how she was to do so herself. Ms Patterson, who was then aged 17 and had accompanied her from Lakemba, and Mr Virk, who was also older than the appellant, were content to travel in the respondent’s car with him as the driver and thus it was understandable for the appellant to take the others’ lead and trust their judgment.

8 In developing this submission orally it was contended that the Trial Judge did not take into account two matters which were dealt with in submissions on behalf of the appellant at the trial. The first matter relates to the fact that the appellant, in the circumstances and at the time of night, had no alternative but to accept a ride home in the only vehicle which was available with the respondent who brought her to the club. The second matter relates to the fact that both the appellant and the two other passengers called on the respondent, during the course of the journey, to stop and let them out, and that he did not do so. Although the second matter was referred to in the Trial Judge’s reasons, it was not expressly brought under consideration when disposing of the issue of contributory negligence. Senior Counsel referred extensively to the terms of the submissions which had been put to the learned Trial Judge. However it is not the obligation of the Trial Judge to deal explicitly with every submission, and in my opinion the reasons given show quite sufficiently and comprehensively the grounds upon which the decision was based.

9 Senior Counsel for the respondent contended, as was altogether clear, that the evidence showed that the appellant was a voluntary passenger in the vehicle on the journey from the club at Parramatta and that there was no basis for any view that she was compelled by any exercise of parental or other like control to travel in the car, or otherwise compelled at all. Counsel contended that, given that the appellant was clearly a voluntary passenger, the appellant was under an evidentiary onus to demonstrate that in effect she had no other choice than to become a passenger in the car. Senior Counsel further contended that there was no basis in the evidence for finding that circumstances meant that the appellant had no choice but to accept a lift from the respondent, and went on to observe that there was no real evidence of the circumstances at all, such as evidence indicating where the club was, the length of the journey, the availability or unavailability of public transport, taxi transport, money to pay for them, telephone communication with her parents at Lakemba; or any other circumstances at all which might show that the apparently clear prima facie position that she was a voluntary passenger did not give a full understanding of her position, or show that she in fact had no other way to get home. Counsel contended that the submissions to the Trial Judge relating to circumstances of compulsion, to which the appellant’s counsel referred, were not based on any examination in the course of evidence of the supposed circumstances of compulsion.

10 Neither in the evidence in chief of the appellant nor in cross-examination of her was there any explanation or examination of the circumstances in which she was brought to the club at Parramatta, and she chose to travel in the vehicle driven by the respondent; nor was there any establishment of what in detail happened at the club and over what period of time were the respondent and the appellant in the club, or of circumstances which qualified the apparent voluntary nature of the appellant’s decision to leave the club as a passenger in the vehicle driven by the respondent. As it was the appellant’s clear and firm position, later accepted by the Trial Judge, that she had no relevant memory, the absence of exploration of these circumstances by counsel for either party was reasonable, and notwithstanding the legal onus of proof the respondent’s counsel was not under a duty to confront the appellant in cross-examination with contentions about facts with which it was her evidence that she was unable to deal.

11 Senior Counsel for the respondent contended to the effect that, on the state of the evidence, the question for decision before the Trial Judge had the dimension within which her Honour dealt with it, that is, that the appellant was a voluntary passenger in the vehicle driven by the respondent when he was intoxicated to such a degree that the risk associated with being driven by him should have been perceived; and that this is a perception within the knowledge and understanding of ordinary 14 year-old children. There is no challenge to her Honour’s view that the issue was whether the appellant breached the standard care to be expected of an ordinary child of the same age. In my opinion no error has been shown in the Trial Judge’s finding of contributory negligence, and the assessment of 12% is not open to criticism as excessive. This finding fell well within the wide range of reasonably available findings, and if anything, 12% is modest.

12 I now turn to deal with the findings by the Trial Judge in relation to the award for future economic loss. The approach now taken in New South Wales to the assessment of damages for loss of future earning capacity appears from the judgment of Clarke JA in Norris v. Blake (by his Tutor Porter) [No. 2] (1997) 41 NSWLR 49; I particularly refer to pages 63E-67C. It is clearly recognised that the nature of the subject defies precise calculation: see 66D; and see too in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 at 639 where Brennan and Dawson JJ stated to the effect that the Court must speculate to some extent.

13 In dealing with future economic loss, her Honour reviewed evidence dealing with the appellants’ employment prospects if she had not been injured. This review includes the following passages (Red 30):

[71] Associate Professor Athanasou, who was qualified for the defendant, stated the obvious proposition that, disregarding the accident, the plaintiff probably would not have completed her schooling and would have faced severe problems in relation to future employment. In his opinion, the best case scenario was that the plaintiff might ultimately have been able to secure some unskilled employment on a sporadic basis. However, she was at significant risk of long-term unemployment. He referred to the average earnings of full-time adult female laundry workers. I consider this view of the plaintiff’s pre accident employment prospects to be somewhat pessimistic given the many factors (e.g. financial pressures, social pressures, improvement in her conduct disorder and change in the availability of Social Security) which, but for the accident, may have impacted upon the plaintiff during her working lifetime so as to promote the prospects of the plaintiff obtaining and maintaining employment.

14 Her Honour’s conclusion is as follows: (RED 31-32)

[74] In my view, but for the accident, over her working lifetime the plaintiff would probably have worked in unskilled or semi skilled positions of a physical nature, although she would not have been constantly employed and there may have been long periods of unemployment. She may have gained work as a hairdresser's apprentice, although her conduct disorder may have been an impediment as far as dealing with the public was concerned. The plaintiff’s lack of educational achievement and conduct disorder would have precluded her from obtaining constant well paid employment. I reject the plaintiff’s submission that, but for the accident, she would have obtained for School Certificate. That was a possibility, but the plaintiff’s pre-existing conduct and absenteeism suggest that she probably would not have obtained her School Certificate.
[77] In assessing the plaintiff’s future economic loss, the court is constrained by the provisions of ss70 A and 71 of the Motor Accidents Act 1988. Having regard to the plaintiff’s age, the fact that her pre-existing conduct disorder was not totally disabling and the fact that there was and is a possibility of improvement in relation to that disorder, I am satisfied that the threshold set by s70A is met. Because of the plaintiff’s age of the date of the accident and to her conduct disorder, it is extremely difficult to assess the plaintiff’s loss, but it is substantial. I assess it at $100000.

15 Senior Counsel for the appellant contended to the effect that the assessment of $100,000 was not within a reasonably available range of assessment of damages for future economic loss. The course of argument suggested to me that, as a means of testing whether the Trial Judge’s assessment is within a reasonably available range, I should calculate the discount which can be derived or calculated from the present value of the income which the appellant might have been expected to receive, in the course of her working life of 45 years from her next birthday at the time of trial (her twentieth), had she worked full time and earned $477.60 gross income per week which, as appears in the report of Associate Professor Athanasou at Black 109, was shown by Australian Bureau of Statistics Data of May 2000 to be the average weekly ordinary time earnings for full-time adult female laundry workers. This figure was chosen by Professor Athanasou to illustrate his statement “Taking a best case scenario it is possible that some of these social problems may have resolved with maturity and/or the effluxion of time so that she might ultimately have been able to secure some unskilled employment on a sporadic basis.” (Blue 109) We were told in submissions by the appellants’ counsel that the net amount receivable per week after taxation on the 2004/2005 tables was $399. We were also told by the appellant’s counsel that the 5% multiplier for a working life of 45 years from age 20 was 950.4. This produces an implied discount rate of 73.7% as follows:

To find the discount rate implied by a value of $100,000:-
$399 x 950.4 x D = $100,000
D = 100,000 ÷ 399 ÷ 950.4 = 0.263
ie. a discount of 73.7%

16 In another attempt at reducing to mathematical expression a piece of reasoning which is inherently incapable of precision, I observe that following the conventional method and using the conventional discount for vicissitudes of 15%, the present value of future economic loss, when calculated by taking net earnings of $399 per week and a multiplier of 950.4, is $322,328. The details of the calculation are as follows:

A discount rate of 15% expressed as a multiplier is 0.85.
If 15% is applied, loss of earning capacity of $399 per week net of tax is valued at
$399 x 950.4 x 0.85 = $322,328

$100,000 is about 31% of $322,328. To reach a valuation of $100,000 implies a discount of 73.7% in place of the conventional discount of 15%. The conventional discount rate of 15% recognized periods of unemployment among the ordinary vicissitudes of life.

17 It was contended that the assessment was far too low having regard to the primary findings. Some observations by senior counsel for the appellant were to the effect that the Trial Judge had failed to state the reasons for the assessment of $100,000. In relation to the nature of the exercise of assessment and the difficulties of any clear or cogent articulation of the grounds for an assessment, I do not think that this contention was correct; in my view the Trial Judge was not required to adduce a line of reasoning, purportedly mathematical but necessarily replete with hypothesis and uncertainty, to support the assessment.

18 A review of the mathematical demonstrations in the preceding paragraphs will immediately show their vulnerability. The average weekly ordinary time earnings for a full-time adult female laundry worker is drawn from statistics of May 2000; the deduction for taxation is based on the taxation rates of 2004/2005; income tax is subject to assessment according to circumstances personal to each taxpayer. The factor 950.4 is based on life expectancy statistics from which, of course, actual individual outcomes vary up and down in a wide range. Adoption of 5% in calculating the multiplier is arbitrary and debatable. The conventional 15% discount for vicissitudes derives its validity from its being conventional; its source is conventional judicial wisdom and not mathematical demonstration. I gave this account of the use of a 15% discount factor in FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 at [18]:

[18] The Trial Judge adopted the conventional 15% without discussion or articulation of reasons. This is the usual course. The range of contingencies and vicissitudes allowed for by the conventional allowance of 15% is very wide; it is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure. The allowance of a 15% discount for vicissitudes appears to have the approval, or to escape the disapproval, of the High Court in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; see Dawson, Toohey, Gaudron and Gummow JJ at 497 to 499, where their Honours, after noting some difficulties of assessing vicissitudes and referring to earlier authorities, said “Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff’s particular circumstances.” See also Sullivan v Gordon (1999) 47 NSWLR 319 at 338 (Beazley JA); State of New South Wales v Moss (2000) 54 NSWLR 536 at 544–545 [32, 33] (Mason P) and at 563 [100] Heydon JA; and Chung v Anderson [2004] NSWCA 321 at [80–81] (McColl JA) and particularly at [81] where McColl JA said: “An assessment of the allowance which should be made for vicissitudes is a quintessentially impressionistic exercise.”

19 The apparent precision of the calculations is spurious, and as means of assessing damages for future economic loss the calculations have few advantages over the method adopted by her Honour, who made an overall assessment, unsupported by explicit calculations, as an exercise of judicial wisdom and experience. However I attribute some value to the exercise, largely because it is a frequently used judicial method to carry out such exercises when assessing damages. Such an exercise can only produce an imprecise indication of the order within which assessment should be made.

20 I recognise that the Trial Judge’s assessment at $100,000 is as much a finding of fact and an expression of her Honour’s findings about the degree of risk of unemployment as the finding about probable unemployment in her Honour’s paragraph 74. The finding is entitled to respect as a well and carefully considered decision, and should not be set aside on appeal unless it is clear that it is wrong. A wide range of conclusions is reasonably available. Appellate intervention should not be made readily or lightly. The Trial Judge’s conclusion in para 74 shows that her Honour did not accept the full force of the opinion of Associate Professor Athanasou that the best case scenario was that the appellant might ultimately have been able to secure some unskilled employment on a sporadic basis but was at significant risk of long-term unemployment; her Honour regarded this view of the appellant’s pre-accident employment prospects as somewhat pessimistic, and found that she “would probably have worked in unskilled or semi skilled positions of a physical nature, although she would not have been constantly employed and there may have been long periods of unemployment.” The Trial Judge’s findings show that in her Honour’s view the appellant was likely to have periods of unemployment far longer than those which can be expected to arise from the ordinary vicissitudes of life. If impliedly adopting a discount rate of 73.7% and not the conventional discount rate of 15% is seen as an expression of the prospects that the appellant would not be constantly employed, and that there might have been long periods of unemployment, the discount appears to me to be altogether excessive to the degree of risk of unemployment indicated by the Trial Judge’s findings.

21 With extended consideration I have moved away from an initial impression against intervention because it appears to me that her Honour’s assessment of $100,000 does not fall within the range which can be regarded as consonant with the findings in her paragraph 74. I retain a clear view of the imprecision and vulnerability of my own assessment, but it is my view that the assessment of damages for future economic loss at $100,000 should be set aside and an assessment of $200,000 should be substituted.

22 Senior Counsel made other submissions to challenge the Trial Judge’s assessment of the appellant’s damages. Senior Counsel pointed to the Trial Judge’s assessment of the appellant’s disabilities overall as at 40% of a most extreme case and contended to the effect that in relation to such extensive disabilities it was anomalous that such a low assessment of future economic loss had been made. I did not regard this contrast as relevant; the significant matter is the evaluation of the appellant’s earning capacity if she had not been injured.

23 Senior Counsel also contended that in assessing future economic loss an allowance should have been made for loss of superannuation. In my view, having regard to the uncertainties overall of the process of assessment, superannuation has sufficiently been dealt with in the very broad approach which was taken by the Trial Judge and by myself in relation to future economic loss.

24 The learned Trial Judge made findings to the effect that the weight of expert opinion established that the appellant had suffered traumatic brain injury, but did not establish any resulting cognitive deficit. Senior Counsel for the appellant contended that these findings were not appropriately based or explained having regard to the evidence. This submission was not pressed strongly, and in my view the Trial Judge’s findings were well based upon medical evidence to which her Honour expressly referred, and are not open to criticism for want of reference to some other passages in the medical evidence which, if accepted to the full, would not conclusively establish otherwise.

25 Senior Counsel made further contentions in Grounds 3 and 6 of the Notice of Appeal, which are in these terms: (Red 39 and 40)

3. Her Honour erred in holding that a pathological relationship between the Appellant and her mother existed before the motor accident, when Dr. Bell's opinion was inadequately supported and contradicted by Dr. Baguley and Dr. Keshava (paragraphs 64-67).

…

6. Her Honour erred in awarding damages for domestic and personal assistance for only one hour per week since January 2000, and for the future, by disregarding the need for the Plaintiff to be rehabilitated out of any alleged relationship of dependence on her mother, and the fact that as her mother has been her only care giver it was certain that she would have to fend for herself for most of her remaining life (paragraphs. 78-84).

26 As presented in oral submission these grounds were closely related and were to the effect that the Trial Judge’s allowance for domestic assistance was insufficient and that domestic assistance which has actually been rendered by the appellant’s mother, on a much greater scale than that allowed, should have been brought into account.

27 The Trial Judge’s assessment of domestic assistance was based upon acceptance of the evidence of Dr Zeman, which included an estimate of the need for care based on his expert views of the appellant’s objective needs. Dr Zeman was of the view that the appellant’s objective needs were much less than the needs perceived by the appellant’s mother, and it would seem also by the appellant, in a situation of inordinate and abnormal dependency requiring 24 hour dependence described in the Trial Judge’s findings (Red 3-4, 29). The findings were:

[5] It is my view that, having regard to the statements made to Dr Epps, the plaintiff probably does have some recall of the accident. Further, she recalled but was reluctant to concede the fact and/or extent of her pre-accident antisocial behaviour. However, while there may have been some exaggeration of her disabilities, the plaintiff was not blatantly and deliberately lying about the existence of disabilities. Mrs Singh and the plaintiff are now absorbed in what Doctors Keshava and Bell have described as a pathological relationship. The plaintiffs perceived disabilities which have no organic basis are simply a reflection of that pathological relationship and the plaintiffs largely unconscious psychological need to place demands upon her mother, a need which has been unquestioningly accepted and reinforced by Mrs Singh.

…

[7] Clearly, that evidence stands in contradiction to the information obtained by Ms Saad in June 1998. Nevertheless, in my view Mrs Singh was not deliberately lying. Mrs Singh is kind and well motivated and endeavoured to be honest in her evidence. However, she is not an educated woman and, over many years, has been overwhelmed by the plaintiffs dysfunctional conduct. Mrs Singh lacks any real insight into the plaintiffs current condition. I find that Mrs Singh honestly recounted her perception of the plaintiffs current problems and was mistaken in her account of some of the plaintiffs pre-accident behaviour. I have no doubt that Mrs Singh genuinely believes that the plaintiff requires 24-hour supervision and that the plaintiff in fact suffers from all the ailments of which she complains.

…

[67] I accept the opinion of Dr Bell that the plaintiff and her mother were in a pathological relationship both before and after the accident. After the accident, the relationship was expressed in a different way and became dysfunctionally focused on the plaintiffs health problems, both real and imagined.

28 The reality of what objectively must be regarded as a need for domestic assistance is an important element in the allowance of damages. The Trial Judge made clear findings, which had a firm evidentiary base, about what those needs in reality were, and in my opinion no error has been shown.

29 In my opinion the decision of the District Court should be varied by increasing the award of damages by $88,000, i.e. $100,000 reduced by 12% for contributory negligence. The Court of Appeal should make the following orders:

(1) Appeal allowed with costs.

(2) Verdict and judgment of the District Court set aside; but the costs order is to stand.

(3) In lieu thereof direct that judgment be entered for the appellant for the sum of $491,812.

30 M W CAMPBELL AJA: I agree with Bryson JA.

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