Southern Regional Health Board v Grimsey, Megan Anne & Grimsey, Henry Charles
[1998] TASSC 139
•6 November 1998
139/1998
PARTIES: SOUTHERN REGIONAL HEALTH BOARD
v
GRIMSEY, Megan Anne
GRIMSEY, Henry Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 89/1997
DELIVERED: 6 November 1998
HEARING DATE/S: 10, 11, 12, 31 March, 1 April 1998
JUDGMENT OF: Cox CJ, Underwood J, Crawford J
CATCHWORDS:
Damages - Measure and remoteness of damages in actions for tort - Remoteness and causation - Proof of causation - Personal injuries - Necessity to prove causal connection between negligent act and injury.
Aust Dig Damages [22]
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Deductibility of specific benefits and amounts - Other specific benefits and amounts - Award for purpose built house for severely disabled infant plaintiff - Whether deduction should be made for any windfall that might thereby accrue to the plaintiff's estate.
George v Pinnock [1973] 1 WLR 118; Cunningham v Harrison [1973] QB 942, discussed.
Aust Dig Damages [53]
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Deductibility of specific benefits and amounts - Other specific benefits and amounts - Award for purpose built house for severely disabled infant plaintiff - Not necessary in every case to deduct a sum equal to the cost of a home that the plaintiff would have had to provide for herself in any event.
Marsland v Andjelic (1993) 31 NSWLR 162; Rosecrance v Rosecrance (1995) 129 FLR 310, discussed.
Aust Dig Damages [53]
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Method of assessment - Other matters - Abolition of awards for gratuitous services - Common Law (Miscellaneous Actions) Act 1986 (Tas), s5 - Future needs - Services for which the plaintiff "has not paid or is not liable to pay" - Not liable at the time the service is provided.
Common Law (Miscellaneous Actions) Act 1986 (Tas), s5.
Aust Dig Damages [37]
Damages - Particular awards of general damages - Tasmania - Severely disabled infant plaintiff - Pain, suffering and loss of amenities - Regard by court to prevailing standards - $300,000 set side as excessive and $175,000 substituted.
Planet Fisheries Pty Ltd v La Rosa (1969 - 1970) 119 CLR 118, applied.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Appellant: P W Tree, J F Gates
Respondent: A M Blow QC, R A S Baker
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Baker Tierney & Wilson
Judgment category classification:
Court Computer Code:
Judgment ID Number: 139/1998
Number of pages: 29
Serial No 139/1998
File No FCA 89/1997
SOUTHERN REGIONAL HEALTH BOARD
v
MEGAN ANNE GRIMSEY (AN INFANT)
BY HER NEXT FRIEND HENRY CHARLES GRIMSEY
REASONS FOR JUDGMENT FULL COURT
COX CJ
UNDERWOOD J
CRAWFORD J
6 November 1998
Orders of the Court
Appeal allowed.
Judgment dated and entered on 3 September 1997 is varied by substituting the sum of $3,746,989 for the sum of $4,109,460.
Order for the payment of the last mentioned sum to the Public Trustee for the State of Tasmania varied by substituting the sum of $3,746,989 for the sum of $4,109,460.
Serial No 139/1998
File No FCA 89/1997
SOUTHERN REGIONAL HEALTH BOARD
v
MEGAN ANNE GRIMSEY (AN INFANT)
BY HER NEXT FRIEND HENRY CHARLES GRIMSEY
REASONS FOR JUDGMENT FULL COURT
COX CJ
UNDERWOOD J
CRAWFORD J
6 November 1998
The respondent (hereinafter referred to as "Megan") is an eight-year-old girl who was born on 27 February 1990. She suffers from athetoid cerebral palsy. She commenced proceedings against the appellant by writ dated 28 September 1990 in which she alleged that her cerebral palsy was caused by the appellant's negligent injection of a drug called Syntometrine to her mother ("Heather"), twenty-two minutes prior to Megan's birth. Judgment in that action for damages to be assessed was entered on 18 August 1992. The learned trial judge held that causation of her cerebral palsy was still a live issue in the assessment of damages under the judgment. However, he ultimately held that as a matter of fact, it had been proved that the negligent injection of Syntometrine had caused Megan's athetoid cerebral palsy and proceeded to assess damages on that basis. This appeal challenges both the findings as to causation and some of the findings of fact and conclusions of law involved in the process of the assessment.
Causation (Ground 1)
Ground 1 is as follows:
"That his Honour erred in fact by finding that the respondent's cerebral palsy was caused by the defendant's negligence."
Heather's uncontradicted evidence was that she had had an uneventful pregnancy after Megan's conception. Prior to becoming pregnant with Megan, Heather had suffered from no significant gynaecological problems. She consulted a gynaecologist in private practice for periodic check-ups and at 23 weeks had an ultrasound scan and on the monitor screen had been able to see Megan moving in her womb. Neither before nor after the scan did her gynaecologist express any concern. She felt ill at one stage with a "winter bug", but took no drugs and recovered after about one week. She had no fall or accident resulting in physical injury during the pregnancy which continued to full term and when it was a few days overdue, she went into labour. The labour was no more difficult than it had been for her eldest child, Lesley, although in Lesley's case labour had been induced, whereas Megan's labour began and continued naturally without intervention. In the Labour Ward, she was having regular contractions which she described as "pretty painful". They became more regular and stronger and she asked for a Pethidine injection to alleviate the pain. An injection was prepared, but before it was administered she decided to continue for as long as she could without it. A little later, her pain became so unbearable that she asked for Pethidine again. At this stage, according to the evidence of her mother, who was present in the Labour Ward, the top of Megan's head was just visible in the vaginal canal. The injection was administered to Heather at 5.45am. Instead of Pethidine, however, the drug administered was Syntometrine, which is frequently administered after childbirth to assist in the expulsion of the placenta from the mother's body and to reduce post-partum bleeding. Upon it being administered to Heather, she had a massive continuous contraction which would not stop. It may have subsided with normal contractions again being resumed before the child's birth, but that it was a lengthy contraction is attested to not only by Heather, but also by her mother, and there seems little doubt of the fact. Megan was born at 6.07am, twenty-two minutes after the injection was administered. About twenty minutes after Megan's birth, the placenta was delivered. It was bluish in colour and there was not much blood.
Ten minutes after the injection, the foetal heart rate, which at 5.30am had been 132 - 140, had dropped to 105 - 117. The baby was severely asphyxiated at birth and the neonatal intensive care unit nurse was called. Approximately two minutes after her birth, Megan was cyanosed, her heart rate was less than 100 and large amounts of clear liquid were aspirated from her throat. She gradually improved, but regular respirations were not established for eighteen minutes.
The progress of a newly born infant is assessed by reference to an APGAR Score, a system devised by an American paediatrician, Virginia Apgar. The score is based on five factors ¾ heart rate, ability to breathe, colour, muscle tone and reflex irritability. Each factor is accorded a score of two if normal. The absence of any of the factors produces a score of zero for that factor, whilst specified deficiencies produce a score of one. If the baby is blue all over, for example, it would receive a score of one for colour. If the heart rate were less than 100, the score for that factor would be one. The APGAR Scores are recorded at one minute, five minutes and ten minutes respectively after the child's birth. In Megan's case, the score at one minute was only one, indicating that the only sign of life was a heart beat of less than 100. At five minutes, the score was three, colour having improved, gasping respirations being present and the heart beat remaining under 100. At ten minutes, the score had increased to five. The heart rate was now above 100 and colour was good, but respiration was still not established and the baby was flaccid and unresponsive. At 6.30am cerebral asphyxia was diagnosed. It is common ground that Megan has, since her birth, suffered from a severe form of cerebral palsy.
Dr Neville Newman was the principal witness called on behalf of Megan to establish the nexus between the admittedly negligent injection of Syntometrine and her condition. He said the effect of intravenous injection of the drug is to cause immediate spasm of the uterus and that spasm would have interrupted the flow of blood into the uterus itself. This, in turn, would prevent oxygen from crossing from the maternal circulation into the foetal circulation, thereby starving the baby's brain of oxygen. These links in the chain are not disputed by the respondent. What it does dispute are the remaining two links, namely that this would lead first to brain damage and then to cerebral palsy.
Dr Newman, at the time of the trial, was a retired paediatrician, but was still in practice when he first saw Megan in August 1990 when she was six months old. He described himself as a neonatal paediatrician, but later said that such practitioners are concerned not only with looking after children after their birth, but that they were "more perinatal paediatricians these days rather than purely neonatal". He claimed a knowledge of the pharmacology of drugs which are administered during labour, and of Syntometrine; but conceded that he had not conducted research into the latter drug. A general attack upon his expertise was mounted by the appellant, but the learned trial judge conducted a voir dire upon his expertise to express the opinions he did on the relationship between Syntometrine and cerebral palsy in Megan and concluded that his evidence thereon was admissible. That ruling is not the subject of challenge in this appeal and, in assessing whether or not the learned trial judge erred in relying upon Dr Newman's evidence to the extent that he did, it is quite inappropriate for this Court to treat his evidence as lacking in expertise.
The main thrust of the appellant's attack upon Dr Newman's conclusions is the contention that there was no evidence to support his view that the tetanic contraction of the mother's uterus, as a consequence of the administration of Syntometrine, was so severe as to cause Megan's brain damage. The evidence showed that ten minutes after the injection, the foetal heart rate was 105 - 117, itself a drop from 132 - 140 twenty-five minutes earlier at 5.30am. At one minute after the birth at 6.07am, the heart rate was below 100 and it remained below 100 at five minutes. It was submitted by counsel for the appellant that Dr Newman had conceded that a heart rate in excess of 60 or 80 was not a cause for concern, that there was no evidence that it was ever below either of those figures and that Dr Newman based his hypothesis upon the assumption that Megan's heart beat prior to birth had been at a dangerous level below 60 or 80 beats. No such concession was, however, made. The relevant passage is as follows:
"QOne of the indicators of the extent of how a child is coping with or how a foetus is coping with labour is the foetal heart rate?
AYes.
QIt is the best indicator of it?
AMm.
QAnd would you agree with me that the foetus in all mammals seem to be particularly adaptive to coping with the stresses of birth?
AThe labour, yes of course.
QAnd what seems to happen is the foetus' brain or some mechanism seems to control the heart rate and to concentrate the blood around the brain?
AYes.
QAnd the effect of that is that during contractions the foetal heart rate decreases?
AYes.
QAnd the extent to which the foetal heart rate decreases is an indication of the extent of the contraction?
AYes.
QNow a dangerous level of foetal heart rate prior to birth would be somewhere below 60, perhaps below 80?
AYes.
QAbove that it is of concern but not great concern?
ANo, that's true.
QYes?
AYes.
QNow if you look again at the medical progress notes, page 4 of Exhibit P10 which I think you have before you - it shows that 0545 the injection?
AYes.
QIt records that the injection was given at 5.45. Ten minutes later at 5.55 it records a foetal heart rate of 105 - 117?
AYes, that's right.
QWhich suggests that the contraction is not severe?
AMm - it doesn't necessarily follow. The heart rate has dropped down from 130 - 140 to 105 - 117 but it does suggest that there is a - that it is a contraction and furthermore it doesn't say whether or not that was taken, at what stage it was taken. The important thing to see is whether the baby's heart rate recovers between contractions and apparently from Heather Megan's [sic] evidence she had one continuous contraction so therefore there was no opportunity for the heart rate to come back again to normal.
QPrecisely and I think in answering that question you have reflected the fact that you have been provided with a transcript of Heather and Megan's [sic] evidence.
AYes I have.
QAnd the effect of that is - sorry, Heather and Faye's evidence [Faye is the mother of Heather]?
AYes.
QAnd I think the effect of that is that almost immediately after the injection there was a long contraction?
AYes.
QWhich lasted, according to Faye, for the rest of the time. According to Heather, it may have let up in the last few minutes?
AMm. That's right.
QSo at 5.55 we are in the middle of this tetanic contraction?
AYes.
QAnd the foetal heart rate is 105 - 117 which is not a rate that would cause concern?
AWell, unfortunately we don't have a heart rate after that. All we know is that the baby's heart rate when it was born was less than a hundred, so it may well have been that after that the baby's heart rate was much lower.
QAlthough now I think you are speculating, aren’t you?
ANobody took her heart rate.
QI think you are now speculating?
AWell between - there was quite an interval between 555 hours and 615 when the baby was born - that was twenty minutes.
Q607 I think you'll find?
A607, I beg your pardon.
QNormal delivery?
A607 that was twelve minutes.
QYes?
ASo it may well have been that the heart rate dropped even lower.
QSo we now have a very good indication as to the extent or effect of the contraction ten minutes after or about ten minutes after it began?
AYes, but as I have said, if the heart rate was lower after that, it would have indicated that there was still severe hypoxia."
Doctor Newman did not accept that a heart rate of not less than 60 beats per minute was not a cause for concern. The question put to him acknowledged that it was of concern, but suggested that it was not of great concern. It was implicit in the question about the heart rate of 105 - 117 detected ten minutes after the injection that such a rate was not one which would cause concern, but the witness did not respond to that suggestion and merely stated that the actual heart rate thereafter was unknown, save that it was under 100 and that it may well have been much lower than 100. He did not assert that it had in fact fallen below 80 or 60 beats. There was no evidence that a foetal heart rate of 105 - 117 taken, or detected ten minutes after the injection, was inconsistent with his opinion.
In our opinion, the learned trial judge had ample material upon which to base the conclusion that the injection of Syntometrine had caused Megan's cerebral palsy. It was not necessary to prove that fact to a degree of scientific certainty. Doctor Newman's report prepared in August 1990 was tendered in evidence and covered the whole sequence of events, commencing with the start of Heather's labour, the injection, the birth and the observations made of the child in the following twenty-four hours. Doctor Newman noted that the child's head circumference in August 1990 was 40 centimetres, compared with 34 centimetres at birth, indicating that brain growth after birth had not proceeded as expected. This, too, was relied upon by Dr Collins, a paediatric neurologist called by the plaintiff, who expressed this opinion:
"We have a description that the baby was severely asphyxiated at birth. This is perhaps clarified later by saying that the baby was cyanosed and apparently not breathing and indeed was not breathing for eighteen minutes, and then, at one minute, only a heart beat was present. We don't actually know what else the baby was doing for eighteen minutes. I see that after being initially flaccid the baby had the onset of seizures which were difficult to control and I suppose the point I was making earlier was simply that being born flaccid, not breathing with a depressed heart rate, subsequently going on to have seizures in the first twenty four hours of life is a pattern neonatal paediatricians and others will identify as being consistent with what is sometimes called a hypoxia ischaemic encephalotrophy or the term asphyxial encephalotrophy might be used synonymously with that. I suppose I was making the general point that if we have a story of a baby who was born in this condition, who was born with a normal head circumference, and then over the first six months of life the head growth rate slows down it would be reasonable to see a casual link between those two circumstances."
Doctor Newman also drew attention to the APGAR Scores, saying that the score of one at one minute meant that the baby was severely asphyxiated and, as a result, that was about the only sign of life she then had. Her condition at five minutes, when her colour had improved and gasping respirations were present but her heart rate was less than 100, 140 being normal, indicated that the baby was still suffering from asphyxia; while the ten minute scores of a heart rate over 100, good colour, respiration still not established and the baby being flaccid and unresponsive, indicated that the baby was recovering slowly, but was still obviously affected by the asphyxia that it suffered while in utero. He summed up the significance of the APGAR Scores by saying:
"There are numerous studies which have indicated the relationship between APGAR scores and the subsequent incidents of severe mental retardation and associated with cerebral palsies. And the longer it takes for a child to attain an adequate APGAR score the greater the likelihood there is the child is going to sustain severe cerebral injury."
Given the uneventful pregnancy of the mother, the severe contraction caused by the Syntometrine, the baby's condition at and subsequent to birth and the absence of evidence suggestive of any other cause, Dr Newman, in our view, had sufficient material upon which to base a professional opinion that the injection of Syntometrine had caused Megan's brain damage which, in turn, had led to cerebral palsy. The appellant called no evidence to contradict it.
A paper published in the Medical Journal of Australia on 16 January 1995 entitled The Origins of Cerebral Palsy - a Consensus Statement was put to Dr Newman by counsel for the respondent. It lists known ante-natal causes of cerebral palsy under the headings "Developmental", "Vascular", "Infective", "Genetic", "Metabolic" and "Toxic". It was conceded by counsel for the appellant that there was no evidence of any other cause in the present case than vascular, ie, hypoxic ischaemic, or genetic. As to the latter, the only evidence was that a cousin of Megan's mother may have been the father of a child with cerebral palsy. There was no history of cerebral palsy in her immediate family. The learned trial judge observed that there was no expert evidence to suggest that the incidence of cerebral palsy in the child of the cousin would indicate a genetic predisposition on Heather's part to have a child with a similar condition.
Criticisms were levelled at Dr Newman over his evidence concerning the non-harmful administration of Syntometrine after the first of multiple births. He acknowledged that prior to the perfection of ultrasound techniques, the presence of a twin was sometimes not detected and Syntometrine had been injected to assist in the discharge of the placenta before the second delivery in ignorance of the presence of a second child. In such cases, the second twin had been born rapidly but without harmful effect. He explained that with the cervix fully dilated after the birth of the first twin, the passage of the second child had been much simpler. In the circumstances of twin births without incident, the injection of Syntometrine had not interrupted the uterine blood flow. We see nothing inconsistent between his evidence on this matter and his opinion as to the cause of Megan's cerebral palsy.
Much was made of statistics which emanated from the paper referred to above. A high proportion of cerebral palsy victims are born from uncomplicated pregnancies and are delivered without signs of foetal heart rate abnormalities. The paper ventured the opinion that less than 2 per cent of cerebral palsy could be attributed to "suboptimal intrapartum care". Such statistics are of limited assistance. The question in this case was whether there was evidence to justify the conclusion on the balance of probabilities that Megan was one of the unfortunate 2 per cent. In our opinion, there was sufficient evidence to enable the learned trial judge to draw the conclusion that the injection of Syntometrine had caused Megan's cerebral palsy. We agree with his comment:
"Whilst it cannot be denied that several differing mechanisms may be responsible for cerebral palsy in new-born infants it would be a truly remarkable coincidence to find that a foetus which had sustained brain damage at or shortly prior to birth from an unknown or unascertainable cause, was actually delivered in rare pharmacologically induced circumstances which were of themselves entirely likely and appropriate to produce foetal hypoxia and consequent brain damage."
The challenge in ground 1 is not made out.
Future Cost of Housing (Grounds 2 - 5)
The learned trial judge made an allowance of $450,000 in respect of the cost of providing a purpose-built residence for Megan. The grounds are as follows:
"2That his Honour erred in law in awarding the respondent the full capital cost of a purpose built home without discount reflecting the cost of construction of a home which would otherwise have been required to satisfy the respondent's needs, and without discount to reflect the benefit which the provision of such a capital sum afforded the balance of her immediate family.
3That his Honour erred in law in holding that it was appropriate to reflect the cost of ordinary provision of accommodation for the respondent during her adult life by reducing her award for lost earning capacity.
4That his Honour erred in fact by finding that the respondent required purpose built housing rather than modification of existing housing.
5That his Honour erred in fact by failing to discount the cost of provision of purpose built housing by a percentage representing the prospect that the respondent may, at any time in her life, live in share house accommodation or other institutional care."
Ground 2
Without going into detail, it suffices to say that Megan's disabilities are profound. Under the heading "Pain, Suffering and Loss of Amenities", the quantum of which is attacked by the appellant, but his characterisation of the extent of which is not, the learned trial judge said of the plaintiff:
"Her loss of life's amenities is almost total. She is devoid of the ability to perform any human function without assistance. She is impeded in all forms of communication. Her body writhes about almost incessantly unless she is asleep. She will never marry. She is incapable of meaningful sexual fulfilment. She will never have a husband to comfort and support her. She will never have children. She is virtually imprisoned in a world of her own. She has the faculties of vision and hearing but to what degree is not clear.
Never have I known a more gravely disabled plaintiff."
His Honour found that there were strong and compelling reasons for providing Megan with a home environment rather than placing her in institutional care. This finding is not disputed, nor is it disputed that the home provided must contain a variety of special features in order to meet her complex needs, as well as accommodating her carers. He rejected a submission that the appellant should not be held responsible to provide the capital cost of the kind recommended by an architect engaged to design appropriate facilities. The first part of ground 2 involved the proposition that the appellant should only be required to meet the cost of additions or alterations to a home which are additional to the expenditure which ordinarily would have satisfied Megan's needs for shelter had she not been disabled by the appellant's negligence and which additions and alterations are reasonably necessary to satisfy the needs created by her disability. It was submitted that if the appellant is required to pay for the total capital cost of a purpose-built house with appropriate and reasonable facilities, it will be required to compensate Megan for a need which its negligence did not create and will leave her estate with a capital asset upon her death which should be brought into account. It was further submitted that the fact that Megan does not have a home capable of adaptation to her needs is not a situation created by the appellant's negligence.
In Kemp and Kemp, The Quantum of Damages, 4 ed at 112 et seq, the authors outline the English position which seems to favour the appellant's contention. They say:
"Normally, the measure of damage will be the sum expended, but sometimes as the result of the expenditure the plaintiff will have a capital asset in his hands, for which he must give credit. In this type of case it may be difficult to assess the damages properly recoverable.
It may be of assistance to consider in some detail a situation which often arises in the case of very seriously disabled plaintiffs. The plaintiff's disability requires him to move to accommodation suitable for his particular disability. If the move is from one rented dwelling to another, and as the result the plaintiff has to pay higher rent and rates, there is no problem. The plaintiff is entitled to recover damages to compensate him for his additional expenditure. But, if the plaintiff buys the new accommodation, or a relative buys accommodation for him, the position is more difficult. It would clearly be wrong to award by way of damages the capital cost of the new accommodation."
They then refer to George v Pinnock [1973] 1 WLR 118, where Orr LJ said at 124 - 125:
"For the plaintiff it has been contended, in the first place, that she should receive as additional damages either the whole or some part of the capital cost of acquiring the bungalow, since it was acquired to meet the particular needs arising from the accident. But this argument, in any judgment, has no foundation. The plaintiff still has the capital in question in the form of the bungalow."
In that case, the plaintiff was not awarded the £14,500 capital cost of a suitable residence with features necessary for her needs as a paraplegic, but granted a sum of £3,000 calculated by reference to the increased annual cost of accommodating her.
So, too, in Cunningham v Harrison [1973] QB 942, the Court of Appeal ruled out a claim for £28,000 for the cost of a bungalow suitable to the plaintiff's special needs. Lord Denning MR said at 953:
"That would give the freehold available as capital for him and his successors ¾ when he is only expected to live for 12 years. That cannot be right. No doubt, as an alternative, it could be possible to award the yearly cost of any extra accommodation that he needed. That would be permissible, as Orr LJ said in George v Pinnock (supra). But no figures were put forward on that basis. So I would rule that out, too."
It is worth observing that there was evidence before the court in that case that the Social Services Department was building ground floor flats in the Borough specially designed for handicapped people and it was anticipated that one would be available to the plaintiff in about two years. The acquisition of a bungalow in these circumstances would not have been a reasonable response to the plaintiff's needs in any event.
The same approach was taken in Moriarty v McCarthy [1978] 2 All ER 213. In an ex tempore judgment, O'Connor J said at 219 - 220:
"The next matter which has to be dealt with is the alteration and provision of a bungalow. As I have said, the accommodation in which the plaintiff is living at the moment is wholly unsuitable. The cases show that the capital cost of a new house cannot be awarded by way of damages. There have been various methods of trying to calculate the diminution in income if part of the award of general damages is in fact put into a house, and the various calculations have been done in the cases. I do not propose to do them here. I prefer to deal with the matter in the way in which it is regularly dealt with, namely to consider the additional cost of providing a suitable bungalow, either to convert an existing one or the extra cost if one builds a new one. Again, a cursory glance through the relevant pages in Kemp and Kemp (supra) will show that this is regularly done, and you will find if you look in that book that sometimes there has been an agreed figure of £8,000, sometimes there has been a figure of £7,000, sometimes it is very much less; it all depends where you start from. In the present case the evidence is all one way. This plaintiff starts from scratch. She is not going to get a ready-made council house provided for her because her financial position after the award which I am making puts her outside the category of persons who are so assisted in Ireland. She will, however, have ample money to equip herself with either a new or an existing bungalow, but she is entitled, in my judgment, to the cost of altering it in order to make it fit for her purposes. I have already stated what that is. The evidence is all one way that the cost in Ireland of doing that is of the order of £8,000, and I see no reason to suppose, particularly as I find that that is a figure which has been used in more than one case in this country, to consider that that is too high, and I propose to award her £8,000 under that head."
The "ample money" his Lordship was referring to was an award which included general damages for pain and suffering and loss of the amenities of life amounting to £35,000, in addition to items of pecuniary loss such as future nursing and medical care and lost earning capacity totalling another £40,000 or so.
The learned trial judge referred to two cases in which he said the Supreme Court of Canada had occasion to consider the question whether or not the capital cost of providing a home with suitable facilities should be provided to a gravely injured plaintiff and seems to have concluded that it authorised awards of the total capital cost. The cases are Andrews v Grand and Toy Alberta Ltd [1978] 2 SCR 229 and Thornton v School District No 57 [1978] 2 SCR 267. While in the first case the award, reduced by an intermediate appeal court but restored by the Supreme Court, was for the monthly cost of home care rather than the capital cost of altered or specially constructed premises, and hence sheds little light on the issue, the second case did involve the restoration of an award of $45,000 for the capital cost of a home, once it was accepted that it was reasonable for the plaintiff to be maintained in a home environment rather than to be institutionalised. The question of any capital windfall was not addressed; but the judgment does record that the judge at first instance had made the sort of adjustment the learned trial judge did in this case by discounting the allowance to be made for lost earning capacity by the amount the plaintiff, but for the accident, would have spent on housing himself. The report does not indicate that the home acquired had needed significantly expensive alterations due to the plaintiff's quadriplegia.
In Australia there is a paucity of authority. In an unreported decision, Dutcher v Government Insurance Office of New South Wales delivered on 3 August 1988, Slattery CJ at CL said at 20:
"The cases seem to show that the capital costs of a new house cannot be awarded by way of damages in claims such as the present (see Cannuli v Di Matteo, Court of Appeal, 21 August 1979). The conventional way of dealing with this type of claim is to consider the additional cost of providing a suitable house, either an existing one or the extra cost if a new one is erected. The plaintiff has made a claim under the latter. I do not understand the defendant to be challenging this approach, but rather that the claims made are extravagant and excessive."
The case of Cannuli v Di Matteo, to which he referred, is mentioned by the learned trial judge in his reasons for judgment. His Honour noted:
"[This case] is also referred to in some of the texts as supporting this proposition, but in reality it does nothing of the kind. As noted by Mahoney JA at page 9 of his judgment, the award of the trial judge of $75,000 for the purchase of a home for the plaintiff was conceded by the plaintiff on appeal to be incapable of support. Such a concession provides no precedent. At page 9 of his judgment Hutley JA said 'Whether or not it is ever proper for an amount of this kind to be included in an award does not arise for consideration in this case'".
In the Supreme Court of the Northern Territory, Mildren J addressed the issue in Rosecrance v Rosecrance (1995) 129 FLR 310. The severely disabled plaintiff's pre-accident home was unsuitable for him and was sold for $300,000 while a more suitable home, in a better locality, was acquired at the cost of $660,000. He and his wife were joint tenants of each house. He claimed the difference. In addition, he sought $79,750, being the cost of alterations to the new home necessitated by his condition. Mildren J allowed the alterations without discount, as there was no evidence that this expenditure would enhance the value of the plaintiff's estate. This was in accordance with other decisions such as Francom v Woods (Court of Appeal, New South Wales, 1 October 1980, unreported) and Marsland v Andjelic (1993) 31 NSWLR 162, where it was held that the delay in realisation until the plaintiff's death and the fact that deterioration of the alterations would require maintenance and repair, were factors in that case justifying the proposition that no deduction ought to be made to account for any improvement in capital value occasioned by such modifications. Furthermore, as Mildren J pointed out, ramps and wide access entries may constitute liabilities in assessing the value of such a house. Mildren J declined to award the difference in the price of the two houses, but calculated a base figure by reference to the loss of income for the plaintiff's life from the additional capital expended or the annual mortgage interest payable if the additional capital had to be borrowed. He also reduced the nett figure by 50 per cent by reason of the joint tenancy. The plaintiff was in his late 50's at the time of the trial. At 332, Mildren J said:
"I accept the defendant's argument that the plaintiff is not entitled to recover a capital investment which will still be in existence at the time of his death (or at some earlier time when the property is realised) but is to be compensated for the fact that his money will be tied-up in that investment until the capital sum is realised. I consider that the plaintiff is entitled to recover that sum which represents the cost of the money at a rate of 3 per cent per annum, using 3 per cent compound interest tables, plus an allowance for any additional costs which will reasonably be incurred in the future as a direct consequence of the purchase of a larger and more expensive home, such as additional electricity and cleaning costs on an ongoing basis."
The learned trial judge, in this case, said in his reasons for judgment:
"With respect, I have difficulty in accepting this approach as that which is appropriate in cases such as the present. If facilities, equipment or structures are required for immediate use to ameliorate the plaintiff's condition, it must surely be unacceptable to deprive him or her of funds necessary to achieve that goal simply because such items may still have monetary value as an asset upon death. It may be quite fallacious to assume a substantial residual value for such a home at the time of death several decades hence.
Special features incorporated into the design may make the house hard to dispose of after many years' use. The potential market, even amongst other individuals with severe disability, may be limited, particularly if special equipment such as overhead tracks and hoists have deteriorated or become obsolete. As Mildren J pointed out, other features such as ramps and wide access entries may constitute liabilities and, in any event, an apparent capital gain may be offset by structural deterioration and increasing maintenance costs.
…
In the present case the evidence supports the view that existing homes, suitable for modification to accommodate the plaintiff's needs if living in a domestic environment, are few and far between, and the cost of alterations and additions necessary to cater for her inexpressibly grave disabilities will be high. It seems to me that a fairer and more appropriate method of approaching compensation is to allow the cost of a purpose designed new home and then to consider the likely expenditure which the plaintiff would have incurred, had she grown to be a normal adult earning an average income, in providing accommodation for herself and also, possibly, her family and then deducting that cost, discounted for present value from the sum allowed for lost earning capacity.
Into this rather imprecise equation must also be added the probability that she would have married or had a male partner who may well have contributed either the whole or a substantial part of these costs, notwithstanding that she was working and earning an income herself. There are, of course, other contingencies which may be taken into account, such as the possibility that through inheritance or the generosity of relatives or friends, she may never have had to find the cost of rent or mortgage payments on a house or unit. It seems to me that to adopt any other approach, and in particular, to adopt the approach which has found expression in some of the cases referred to above, may well have the effect of forcing a gravely injured person out of the security and comfort of a domestic environment into the unknown quality of institutional life.
I can accept neither the logic nor the justice in providing such a claimant only with the cost of modification of an existing dwelling. As I have already said, an appropriate dwelling may not exist, but a more fundamental objection is that the present plaintiff does not own a house and it cannot be assumed she will have free rein to modify a dwelling which she does not own. If such a plaintiff does not already own such a dwelling or have the wherewithal to purchase one, how can such a limited sum be utilised for the plaintiff's benefit?
It is also untenable, in my opinion, to suggest, as was suggested in Moriarty v McCarthy (supra), that the provision of a large award of damages, assessed by reference to other heads of loss and future expense, will be available to the plaintiff and that sum can therefore be utilised to purchase a home for the plaintiff. To do this is simply to defeat or nullify the purpose for which the damages have originally been assessed and awarded."
His Honour observed that if the sum of $450,000, which he allowed, were borrowed at 6 per cent over the life expectancy of a 7 year old child, the present value would be $397,554, or, if discounted by 20 per cent for contingencies, would be $318,044. If the borrowing rate were assumed to be 7 per cent, the nett award would be $371,357. He pointed out that he had reduced the plaintiff's claim for lost earning capacity by a sum which represented the estimated cost she would have incurred in providing accommodation for herself during her adult life, which, he said, would produce a result not greatly different from that which Mildren J's approach would have produced.
In our opinion, the cases do not inexorably lead to the conclusion that an award of this kind, where the plaintiff does not have an existing building to modify, must be reduced by the cost of a home which, but for the disability caused by the defendant's negligence, the plaintiff might be expected to have provided for himself or herself so that the award does not exceed the cost of modifying an existing building. A defendant is not obliged to provide the plaintiff's estate with a windfall of the capital value of a house before modification, but such windfalls are often illusory. As the plaintiff in this case has had a reduction made in the allowance calculated for her lost earning capacity from the time she would otherwise have reached an employable age, that, at least to some extent, off sets the prospect of her estate gaining such a windfall. This off set is not so apparent as in the Canadian case of Thornton (supra) where the plaintiff, at the time allowance was made for the capital cost of a house, was 18 years old and about to embark upon a lifetime of employment, whereas here, Megan was still only 7 years of age at the time of trial and no earnings could be expected for a further ten years. But adding that discounted figure to the present value of the cost of borrowing the necessary funds to obtain suitable accommodation at a cost of $450,000, the nett results, while not identical, are within a sufficient degree of tolerance to enable us to conclude that the learned trial judge was not in error in awarding $450,000 under this head without confining himself to calculations which took into account only the notional costs of modifying an existing structure. We agree that if proper accommodation for Megan could only be provided by eating into sums allowed for other needs or by way of solace, that would nullify the purpose for which the damages have originally been assessed and awarded.
The second part of ground 2 involves the proposition that some discount should have been made to take account of the benefit the purpose-built house afforded to Megan's mother and her elder sister, Lesley, who was born on 3 October 1984. It is a fundamental principle that a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him or her in the same position as if he or she had not sustained the injuries (Todorovic v Waller (1981) 150 CLR 402 at 412). If it is accepted, as here, that Megan should be accommodated in a home environment, she clearly needs to be placed in the company of her mother and sister for so long as that arrangement can be harmoniously sustained. The time will no doubt come when Lesley will leave the family residence and establish her own home. Equally, as Megan reaches adulthood, she may prefer to live on her own with her carer. Whether or not in the meantime Heather and Lesley, by living in the house which must be provided for Megan's welfare, obtain some financial benefit therefrom does not detract from the necessity of providing Megan with the accommodation she needs. We agree with the learned trial judge's assessment that it would be inappropriate to reduce the sum reasonably expended in building a family home by requiring Megan to meet the cost of accommodating her family out of her own pocket. We also agree with his comments that to omit such standard features as rooms which would accommodate these two members of her family would impact deleteriously upon the value of the house and that to provide a self-contained house of this kind will reduce the cost of outside respite care. Ground 2 is not made out.
Ground 3
Ground 3 was not argued separately, but has been touched on when considering ground 2. His Honour did not make a holding in the precise terms claimed in the ground. What he did was to discount the award Megan would otherwise have received for lost earning capacity by an amount which he considered reflected the cost of ordinary provision of accommodation for her and which, subject to the contingencies he mentioned, she would have met from her earnings if not disabled. This represented a partial set off against the award to her of the funds necessary to meet the capital cost of her special purpose accommodation, a cost any part of which her disabilities prevented her from meeting. For the reasons we have given in respect of ground 2, we do not consider that he erred.
Ground 4
Ground 4 challenges the learned trial judge's factual finding that the respondent required purpose-built housing rather than modification of existing housing. It does not in itself challenge the quantum of his allowance under this head, although the criticism of his finding that she required a purpose-built house of the kind the subject of the evidence of the architect who designed it, included claims that some components were unnecessary or extravagant and to that extent was indicative of error in that particular finding.
Given that Megan needs to be accommodated in a home environment rather than in a group home or other institution, it is obvious that the home she is to occupy must contain special features which do not exist in an ordinary house. The learned trial judge had evidence that among her special needs are the following:
"∙ a suitable relatively flat block of land;
·step free environment;
·a suitably sized bathroom;
·a spa bath;
·a wet area shower with a sloping floor;
·thermostatic mixing system for temperature control and shower hose extension;
·Megan will need to be transferred from a change table in the bathroom to the toilet or to her shower chair;
·at least 1500mm circulation space around areas and 1000mm wide doorways with sliding door access;
·an automatic door which is switch controlled;
·non-slip flooring in wet areas;
·a wheelchair accessible kitchen where Megan can be involved in observing cooking activities and tasting;
·a bedroom which has a double bed and sufficient circulation space, drive-in style wardrobes and ceiling capable of supporting a ceiling hoist system;
·a large storeroom next to the bedroom/bathroom;
·a therapy/rumpus room for therapy programmes;
·a carer's room;
·a living space which is central to her bedroom and the carer's wing;
·a computer room for technology equipment;
·a covered carport/garage with wheelchair accessible entry;
·a heating system such as underfloor or central heating."
(Jennifer Sammons, Occupational Therapist, who also spoke of the desirability of a hydrotherapy pool but deferred to the opinion of a physiotherapist with hydrotherapy experience.)
"Access to an appropriate, heated indoor hydrotherapy pool is recommended. Adequate heating, changing rooms and wheelchair access would be necessary. A small purpose-built indoor hydrotherapy pool may be indicated considering the isolated area in which Megan lives."
(Mary-Anne Xenitelis, a physiotherapist who works solely with children with disabilities, the majority of them being sufferers of cerebral palsy.)
In the light of reports from both the above witnesses as to Megan's needs, Mr John Cooper, an architect with experience in designing accommodation for disabled people, drew a plan for a house which would meet those needs and had it costed. It included an enclosed hydrotherapy pool and equipment therefor. He was asked to make the assumption that the house would be built on a block of land purchased for that purpose in or near Huonville. He thought that a 1,500 sq metre block would be necessary. His design takes account of the many special requirements that must exist to cater for Megan's disabilities, including increased door width and height and strengthened ceiling supports to take account of the stresses engendered by wheelchair movements and hoist use, wider than usual car parking adjacent to external doors to allow manoeuvrability of vehicles and wheelchair by hoist and ramp, internal protection of walls against wheelchair damage and so on. He regarded it as important that the heating consist primarily of heating from the floor by means of a concrete slab with integral electric elements. This recommendation stems from Ms Sammons' concern that Megan spends a lot of time on the floor and it is desirable that her environment be kept at an equable warmth year round ¾ as she said, when Megan is cold, she cannot just go to her room and get a jumper or even ask her carer to do so. The total cost of building such a structure, including installing the pool, was a little over $500,000.
There is no significance in establishing the error alleged in ground 4 unless the cost of modification was markedly lower than that of purpose-built accommodation. Mr Cooper examined two other houses in the Huonville area where Heather and her family live and where it seems to be common ground it is appropriate that she should be housed, if she is not institutionalised. He did so with a view to determining whether either could be modified to meet Megan's needs. One was unsuitable, but careful consideration was given to the second, a large house at Misty Hill Road, near Huonville, which was then on the market at a price of $256,000 and which had the potential for modification. However, he expressed the opinion that it would cost in excess of $250,000 to sufficiently modify and extend that house to suit Megan's purposes and he thought it unlikely that another property could be found and modified at a cost less than that of buying and modifying the Misty Hill Road property. The learned trial judge commented in respect of this exercise:
"Details of estimated cost were calculated but, when put alongside the original capital cost of the house, it is quite clear that it would be a marginal exercise to purchase and modify the home rather than building a new residence in accordance with Mr Cooper's concept plan."
We think this is unassailable.
Strong criticism was made of the fact that expensive heating was provided for in Mr Cooper's plan, which allowed for a controlled temperature throughout the year of 22 degrees, and double glazing of windows to assist in its maintenance. It was submitted that as Megan was not shown to be particularly susceptible to cold, this was an unnecessary extravagance. However, in Ms Xenitelis' report she noted:
"Heather Grimsey reported that Megan has a high pain threshold. This was demonstrated during the assessment when Megan did not react to a scratch on her finger, which bled. I was aware that Megan scratched her finger only when I saw her bleeding finger. She did not make any emotional or verbal signs that she was in pain. This indication is extremely important when considering regulation of water temperatures, the type of heating in the home, Megan's use of sharp instruments, etc."
In her evidence-in-chief she said this regarding the need for heating:
"QNow, can you say anything as to what form of home heating would be appropriate for Megan?
AWell, I would - considering the discussion on her sensation earlier and just to remind you that that was when she had scratched her finger and it bled and she gave no indication that it had hurt - I wouldn't suggest a heater that was exposed. If she was to roll onto it, she may get stuck and of course she may not be able to roll away or she might burn herself in the process. The other consideration is that she does take a long time in the bathroom. Children with cerebral palsy do because somebody has to dress them and undress them and it's not as quick as what it is for us to undress ourselves when somebody is trying to undress you while your arms and legs are moving about the place. It takes quite a long time and I suppose the court will have to decide whether it's, you know, right for Megan to have heating in some sections of the house and not others but I would suggest central heating would be the best option.
…
QFor therapeutic purposes, does the atmospheric temperature have any significance for a child like Megan or does the temperature of the place where she is have any significance for her?
AYes it does. As with the hydrotherapy pool, heat can relax a person and whether it's in water or whether it's the air and if you're in a cold situation you will - it's an automatic response but we curl up and we shiver and we do this to keep ourselves warm. Now if Megan was to do that, well, then her tone would increase and would increase her muscle spasticity.
QWhat sort of air temperature is appropriate for Megan?
AI would suggest something that's comfortable, that is usually about twenty one degrees."
As already noted, Ms Sammons stressed the desirability of Megan being kept in an equable temperature year round, as she could not communicate her need for extra clothing or satisfy it herself. This gravely disabled child should not be exposed to the risk of harm or discomfort by a parsimonious reduction in the cost of providing an appropriate heating system.
Finally, under this ground, it was submitted that as the evidence of Ms Young, the manager of the Resource Development Unit of Aged and Disability Support of the Department of Community and Health Services, indicates that her department expends an average of $50,000 in effecting modifications to properties purchased for approximately $150,000 for use as group homes, that is some indication of an appropriate allowance for modifications in this case, although counsel for the appellant, Mr Tree, seemed to concede that a further sum of $100,000 for the hydrotherapy pool should also be made. We see no reason for adopting such an approach. The amount spent by a government instrumentality on the acquisition of homes suitable for modification and use as group homes and on the necessary alterations is largely dictated by budgetary considerations and the nature of the modifications to meet its clients' needs may be totally different from that required for a child with Megan's gross disabilities.
We are unable to detect any error in the finding of the learned trial judge that Megan's needs were appropriately addressed by providing a purpose-built house. As he reduced the award from the estimated cost of $500,000 to $450,000, he has made some allowance for the possibility that some of the features were more generously provided for than was reasonably necessary.
Ground 5
The appellant submits that there was considerable evidence as to the availability and nature of share-house accommodation or other institutional care and that although the learned trial judge's decision to prefer home care is not the subject of appeal, there remained a significant prospect of share-house facilities being used at some time in the future at a considerable saving in cost. This likelihood, it was submitted, ought to have found expression in the judgment by way of reduction in the amount allowed for housing. The difficulty with this submission is that if such a discount were applied by virtue of a contingency which the evidence suggests is remote, Megan would not have available to her the funds necessary to have the purpose-built house constructed at all. As the appellant does not dispute her need for a house of her own, funds should be provided for the purpose. Should she ultimately choose to live in less expensive accommodation, that is not a concern of the Court, "The Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it" (Todorovic v Waller (supra) at 142). We do not consider that there is any substance in this ground.
Special Motor Vehicle Needs (Grounds 6 and 7)
The learned trial judge awarded Megan a sum of $131,751 for the future cost of providing a substantially modified motor vehicle for Megan's transport. The above grounds are as follows:
"6That his Honour erred in law in awarding the respondent the full capital cost of a purpose modified motor vehicle without discount reflecting the cost of the acquisition of a motor vehicle which would otherwise have been required to satisfy the respondent's needs.
7That his Honour erred in law in holding that it was appropriate to reflect the cost of ordinary provision of a motor vehicle for the respondent during her adult life by reducing her award for lost earning capacity."
His Honour held as follows when determining his approach to this award:
"Before Megan's birth, Heather did not own a motor vehicle, but since June 1991, one has been made available to her from Government sources. I infer that this was provided to ease the burden of commuting from Huonville to treatment centres in Hobart and to provide transport for Megan from home to school. No doubt it will be returned soon after the termination of these proceedings because it is quite plain that funds ought to be provided within the damages award to allow for the purchase of a specially modified and equipped vehicle to convey Megan from place to place. As with housing, I consider it inappropriate to allow only the cost of modifying an existing vehicle. In the first place, there is no suitable vehicle presently owned by, or available to, the plaintiff and to use funds earmarked for other purposes to purchase such a vehicle is inconsistent with the allowance of those items to meet other specific needs.
The appropriate way to strike a fair balance is to make a deduction from the sum assessed for lost earning capacity on the basis that some part of those notional earnings may have been utilised to purchase a motor vehicle. There are, of course, other factors which enter into the question. Megan may never have purchased or driven a motor vehicle. She may have utilised public transport or, if living in a small community, she may have simply walked from place to place. Had she married, her husband may have provided a family car. I have taken these factors into account in making my assessment of the sum to be allowed for Megan's lost earning capacity."
So far as ground 6 is concerned, it raises the same question of principle as that considered under ground 2 and for the reasons we have given, we are of the opinion that he did not err in declining to award only the cost of modifying such a vehicle, rather than the total capital cost of its acquisition and replacement.
Ground 7 complains that the contingency that Megan, but for her disability, would have provided herself with a motor vehicle from her earnings is inadequately taken into account by the learned trial judge's decision to reduce her award under the heading of lost earning capacity. Precisely how much he thereby discounted the latter award is not clear, for he did not differentiate the figures for the cost of housing, rates and insurance, and vehicle expenses. Some calculations prepared by Mr Blow QC, counsel for the respondent, postulated a figure of $6,693 which his Honour, in the process of reducing the lost earning capacity award, described as somewhat of an under-value and it seems likely he used a figure somewhat in excess of that.
There is no quarrel with the proposition that a suitable vehicle with appropriate modifications would be a new converted commercial van to be purchased at an initial cost of $58,874. Replacement costs of such a vehicle from time to time were calculated so as to produce a figure of $49,660, running costs of $45,192 and registration and insurance amounting to $10,962. The total amount claimed was, accordingly, $164,689 and although the appellant contends that the running costs are somewhat inflated, it was not submitted that the above figure was significantly over-valued. The appellant, however, submitted that from the above sum (subject to a discount of 20 per cent for contingencies which his Honour made and which produces the figure of $131,751 which he allowed) there should have been deducted the cost of an unmodified car, its replacement from time to time and its running costs, registration and the like. The figures, on the assumption that, but for her disability, Megan would have acquired a new car would require a reduction far in excess of whatever discount his Honour made for the lost earning capacity award. But the principal fallacy in the argument is the assumption that Megan would have acquired a new car. Mr Tree's starting point is that from the initial capital cost of $58,874 for a modified vehicle (a 1997 Mitsubishi L300 automatic van) there should be deducted the cost of a 1997 Mitsubishi Magna Altera Sedan, namely $37,038, leaving a difference of $21,836 which the appellant should bear. The reality is that Megan, if not disabled, would not have required any vehicle at all until she reached driving age and even assuming that she would soon thereafter have invested in a vehicle for her own transportation, the probabilities are that, like most other people in the community whether young or old, she would have purchased a second-hand car. At her age and in her circumstances as the daughter of a single mother (Heather is a divorcee) the figure she would be likely to expend on such a vehicle would be nowhere near $37,000 and even if her replacement of it from time to time reflected growing sophistication or prosperity on her part, the likelihood nevertheless remains that their cost would have been modest. Even on the assumption therefore that she should be confined to compensation for the difference between the cost of a new converted commercial van, together with its replacement and running costs, and that of a second-hand vehicle to be acquired in ten years' time or more, together with similar costs, the consequent appropriate reduction has not been shown to be so significantly higher than the reduction made by the learned trial judge in the lost earning capacity award to compensate for it that his Honour's approach has produced a wholly erroneous award. In our opinion the learned trial judge has not been shown to have erred in reducing the last-mentioned award in the way that he did.
Discount for Contingencies (Ground 8)
There was a paucity of evidence on the issue of the respondent's loss of life expectancy. It appears that Mr Collins, paediatric neurologist, referred to loss of life expectancy in a report he wrote, but that report did not find its way into the evidence. Mr Collins agreed in cross-examination that the life expectancy of a cerebral palsy person is "markedly less" than that of the average person, but added that there was not much evidence about cerebral palsy in persons over 40. He added that cerebral palsy victims who are not totally immobile (as is the case with the respondent) "have an 80% to 90% [chance] of living to the age of 30." The learned trial judge held that it was likely that "Megan will not live as long as most female children of her age" but said that he was unable to quantify the loss of life expectancy. His Honour said that in the circumstances he was unable to do anything other than include this aspect of the assessment "as a component in the general discount for contingencies to accommodate the potential saving on various costs which might otherwise have been necessitated in the autumn of her life." The appellant makes no attack on any of that, but ground 8 alleges error:
"… in law in holding, or alternatively in fact by finding, that the lack of certainty as to the respondent's life expectancy ought to be accommodated by adopting a general discount figure of 15%."
The respondent particularised her claim under thirty separate heads. The calculations under each head predicated a life expectancy of 74 years, normal for a female the same age as the respondent at the date of trial. Firstly, the learned trial judge considered each claim as particularised viz, for a period of 74 years. Secondly, with respect to each claim for damages that will be suffered only in the future, the learned trial judge set out the percentage by which the claim was to be discounted. The discount varied between 15 per cent and 25 per cent. Although he did not in each case expressly nominate the percentage discount for loss of life expectancy, nor the percentage discount for other contingencies, it is clear from the learned trial judge's reasons expressed at the time of applying the first discount that he considered that 15 per cent was the appropriate percentage to deduct for loss of life expectancy and he applied it to all appropriate claims.
On behalf of the appellant, Mr Tree submitted that the respondent carried an onus to establish that it was more likely than not that she would be alive in each of the years in respect of which it was claimed that a tortiously caused need would arise, and as the evidence only established at best that the respondent had an 80 per cent - 90 per cent chance of living to 20 - 30 years, she should not recover damages to satisfy any needs after she turned 30. We reject this submission. With respect to the assessment of damages for future loss, the respondent is not obliged to establish that it is more probable than not that the future loss will occur. With respect to such losses, the respondent is entitled to compensation for the risk that the loss will be suffered, provided that the risk cannot be described as speculative or remote. See Davies v Taylor [1974] AC 207 at 212, 220; Malec v Hutton (1990) 169 CLR 638. The quantum of such compensation will be adjusted to reflect the probability of the loss being incurred.
As part of the above submission, Mr Tree submitted that the learned trial judge erred by assessing damages under the several heads of claim, firstly, by assuming a normal life expectancy and, secondly, by discounting for loss of life expectancy. We reject this submission as well. In order to properly identify the nature and extent of each head of claim, detailed costings had to be set out. It is difficult to see how the learned trial judge could have approached his task other than by either:
calculating a sum appropriate for a normal life expectancy, applying the actuarial discount for early payment and then discounting for loss of life expectancy; or
calculating the present day cost of each head of loss, multiplying that cost by the number of years estimated to be the respondent's actual life expectancy and applying the actuarial discount for early payment.
As his Honour said, the evidence was such that it was impossible to make a finding with respect to the number of years that the respondent would be likely to live. The first method of assessment used by the learned trial judge markedly reduces the amount allowed for the later years because the discount for early payment substantially reduces the sum allowed to compensate for needs that will not arise until long into the future. The validity of this proposition is starkly demonstrated in this case. Resort to the 7 per cent discount tables (tendered in evidence) shows that the appropriate multiplier for 74 years is 766.1. Application of 15 per cent discount to this figure produces 651.2 which is the multiplier for 27.5 years. As the respondent was 7 at the relevant time, the application of a discount of 15 per cent for loss of life expectancy is equivalent to assessing damages for the respondent's future needs up until she reaches the age of approximately 34.5 years. In the light of the uncertainty of the evidence of the respondent's life expectancy, this is not an unreasonable period.
Further, in the case of ten heads of damage, the reduction for contingencies exceeded 15 per cent, notwithstanding the proposition expressed in the judgment of Gibbs J (as he then was) and Stephen J in Sharman v Evans (1976 - 1977) 138 CLR 563 at 587 to the effect that the vicissitudes of life "enter not at all" into the assessment of damages for future needs once a probable life expectancy has been determined.
It cannot be said that the application of a 15 per cent discount for loss of life expectancy in the assessment of the respondent's claim for damages to satisfy future needs resulted in an erroneous award of damages. Ground 8 is not made out.
Ground 9
"His Honour erred in law by holding, or alternatively in fact by finding, that the assessment of the respondent's lost earning capacity and lost superannuation entitlements ought be calculated by the use of the average wages of men and women, rather than women alone."
In her particulars of claim for lost earning capacity and lost superannuation benefits, the respondent claimed that the tortious conduct had destroyed her earning capacity. This was not disputed. The particulars set out the claim on two bases. The first was that the respondent would have gained tertiary qualifications and commenced earning $700 per week (nett) at the age of 22. On this basis the respondent's claim was calculated in the sum of $184,779, plus a further small amount for lost casual earnings while a student, to bring it up to $200,000. The second basis was that the respondent would have commenced work at the age of 17 earning $686.70 gross and $514.80 nett. (The judgment erroneously cites the former figure as $686.30 but the mistake is of no significance.) On this basis, the respondent's claim was calculated in the sum of $193,837 upon the assumption she would have worked continuously until aged 65. The provenance of the figure of $686.70 is a document published by the Australian Bureau of Statistics which was tendered into evidence and referred to by an actuary, Mr Bendzulla. This exhibit set out, amongst other things, the "trend" figures for the average weekly earnings in Tasmania of males, females and all adults employed full time during February 1997. For females, the figure was $588.50, for males the figure was $738.40 and for adults it was $686.70. Ground 9 complains that the learned trial judge should have based his calculations on the average female earnings and not the average adult earnings.
At the outset, it should be said that the learned trial judge was not obliged to base his calculation on any particular rate. His task was to do the best he could in the light of the available evidence to assess the loss that the respondent will suffer from her total inability to utilise her earning capacity to earn income. The learned trial judge did not expressly state that he was adopting as a starting point, the earnings of an adult in full time employment, but he did set out the respondent's particulars of this head of claim which included this figure. He made reference to the possibility that had the tort not been committed, the respondent's working life might have been foreshortened and spoke of the difficulty of assessing this head of damage. His Honour then referred to figures put to him on behalf of the respondent of the cost of providing her own housing and own motor vehicle during adult life. With respect to these figures he said that he thought that they were "somewhat undervalued" and referred to other matters which had to be taken into account. He then said that "on the basis of all these considerations I have concluded that it would be appropriate to allow the sum of $90,000 for lost earning capacity." Whether he deducted $110,000 from the claim based on the respondent gaining tertiary qualifications, or whether he deducted $103,000 from the claim based on the average earnings of an adult working full time, or whether he chose some other course is not clear from the reasons for judgment. However, in his reasons dealing with the claim for lost superannuation benefits, the learned trial judge made it clear that he did not consider the full time adult figure inappropriate. With respect to this claim, Mr Bendzulla gave evidence of calculations based on the trend earnings of an adult in full time employment. It appears that Mr Tree put to the learned trial judge the proposition encapsulated in ground 9. With respect to this submission, the learned trial judge said at 45:
"As to the first of these criticisms, it may be observed that although a comparison between male and female earnings at the present time reveals that there is a disparity between the two, it cannot be assumed that this disparity will exist in the future when Megan would be old enough to enter the work force. Considerable strides have already been made in eliminating what most people see as an unfair and unjustifiable discrimination between the value of a man's work and that of a woman. Furthermore, as society develops, one sees a considerable blurring of the boundaries which previously distinguished male and female workers. These days men become cake decorators, and women become underground miners. The world is changing and, in this respect at least, obviously for the better. I am of opinion that Mr Bendzulla's methodology was entirely appropriate."
Mr Tree submitted (inter alia) that his Honour's observation that men become cake decorators and women become underground miners is irrelevant because the difference between the average earnings of a female and that of a male was sex based and not occupation based. There is no reason for thinking that this is correct in the sense that it is more likely, we think, that the statistical average earnings of females is less than that of males because there is a higher percentage of females than males in the lower paid occupations. The move towards equal pay for the same job has been in motion for a long time now. Although we do not know the position with respect to cake decorators and miners, generally, these days, there is equal pay for equal work and we find ourselves in agreement with the first part of the learned trial judge's observations set out above. Quite apart from that, there is no reason why the learned trial judge was obliged to assume that, but for the tort, the respondent would have earned income from the pursuit of a relatively low paid occupation.
If the respondent's particulars of damages for lost earning capacity are recalculated on the basis of the average wage of a female in full time employment, the claimed figure of $193,837.44 is reduced to $184,612.46. ($588.50 less tax $98.20 = $490.30. $490.30 x 741.2 x .508.) The assessed figure was $90,000 which is $103,837.44 less than the particularised claim calculated on the basis of the average adult wage. Understandably, his Honour set out no calculations to show how he arrived at the figure of $90,000, for this aspect of the assessment is very much a matter of judgment. However, if the same deduction of $103,837.44 is made from $184,612.46, the resultant figure is $80,775.02 or about $9,000 less than the assessed figure. As there was no error of law or principle in the learned trial judge having regard to the average adult earnings instead of the average female earnings, it cannot be said that with all the unknowns in this case that an award for lost earning capacity in the sum of $90,000 constituted an error. The same observations apply to the assessment of $40,000 for loss of superannuation benefits. Ground 9 fails.
Is the Award for General Damages Excessive? (Ground 10)
Ground 10 reads:
"That his Honour erred in law in holding, or alternatively in fact by finding, that an award of $300,000 ought be made in respect of the respondent's pain, suffering and loss of amenity of life, which award was manifestly excessive."
The learned trial judge assessed the respondent's claim for damages for pain, suffering and loss of amenities of life in the sum of $300,000. The learned trial judge summarised the respondent's disabilities and observed, "never have I known a more gravely disabled plaintiff." No exception was nor could be taken to that observation. As the learned trial judge said, the respondent is "virtually imprisoned in a world of her own". The nature and extent of her insight into her appalling disablement is uncertain. The evidence that the respondent laughed and cried from time to time and appeared to show exasperation at her inability to communicate, seems to indicate some degree of insight into her condition but its extent is unknown. For the whole of her life, the respondent's body has been, and will be, in a state of continual uncontrolled movement, except when she is asleep. There is no doubt that the respondent is entitled to recover a very substantial sum for the virtual total loss of the amenities of life.
The assessment of an appropriate sum for general damages is always a difficult task for it is an exercise which requires the awarding of monetary compensation for that which cannot be measured in money. Notwithstanding this difficulty, the Court is required to have regard to the proportionality of the sum awarded to the injury and its consequences. See Planet Fisheries Pty Ltd v La Rosa (1969 - 1970) 119 CLR 118 at 124. The sum awarded must be fair and reasonable compensation for the respondent's injuries and their sequelae.
For the appellant, it was submitted that the sum of $300,000 is so unreasonably high that the exercise of the judicial discretion must have miscarried in some undefined manner. In considering this submission, we give weight to the current general ideas of fairness and moderation by being generally aware of awards of damages for pain, suffering and loss of amenities of life (Planet Fisheries at 125). We note that this award is something in the order of three times the highest amount previously award for general damages in this jurisdiction. The sums assessed under all other heads of damage have fully compensated the respondent for each of the losses she has sustained and care needs to be taken upon a review of the assessment for general damages to ensure that there has been no overlapping between the awards under other heads of damage and the award for general damages (see Griffiths v Kerkemeyer (1977 - 1978) 139 CLR 161 at 163.
On behalf of the respondent, Mr Blow QC submitted that the sum allowed for future medical expenses ($2,000) was on the low side and this should be taken into account upon a review of the amount awarded for general damages. Whilst the sum allowed for future medical expenses could not be described as generous, as perhaps could the amounts assessed under other heads, nonetheless it was appropriate, having regard to the unchallenged findings made by the learned trial judge.
In our opinion, the sum of $300,000 for pain, suffering and loss of amenities of life is, in the circumstances of this case and the awards made under other heads of damage, excessive and reflects an erroneous exercise of the judicial discretion. In our opinion, an appropriate sum to assess under this head is $175,000. The judgment sum should be reduced accordingly.
Attendant Care Costs (Grounds 11 – 13)
These grounds are:
"11That his Honour erred in fact by finding that the respondent required paid care on a 24 hour day basis for the balance of her life.
12That his Honour erred in fact by finding that there was no sound basis for concluding that the respondent's mother will provide significant care in respect of Megan's disabilities in the future.
13That his Honour erred in fact in finding that the quantification of the cost of provision of attendant care was in accordance with the figures contained in the evidence of Rosemary Vickers."
The largest component of the awarded damages was for attendant care costs. The learned trial judge awarded $2,156,061 under this heading, having arrived at a total of $2,695,076 and discounting that sum by 20 per cent for contingencies. Included in the sum of $2,695,076 were two amounts being $1,219,049.46, which had been claimed for attendant care from 30 June 1997 to 31 December 2008 (the year in which Megan will turn 18 years of age), and $1,170,206.30, which had been claimed for attendant care from 1 January 2009 for the rest of her life.
For the period from 30 June 1997 to 31 December 2008, particulars of Megan's claim were based on the following calculations, which his Honour accepted were appropriate:
| · Every night Megan will need an attendant to "sleepover" at her home for eight hours per night at a cost of $60 per night for 365 days each year | $21,900.00 |
| · On Saturdays she will need attendant care for sixteen hours at $27.85 per hour for 52 weeks each year | $23,171.20 |
| · On Sundays she will need further attendant care for sixteen hours at $35.85 per hour for 52 weeks each year | $29,827.20 |
| · During 53 days of school holidays each year she will need further attendant care for sixteen hours a day at $21.50 per hour for day shifts and $24.85 per hour for afternoon shifts | $19,652.40 |
| · On seven public holidays she will need further attendant care for sixteen hours per day at a public holiday rate of $47.00 per hour | $5,264.00 |
| · On school days she will need further attendant care for ten hours a day for five days a week for 40 weeks | $48,360.00 |
| · On sick days she will need further attendant care for say ten days a year at six hours per day at $21.50 per hour | $1,290.00 |
| · When public holidays occur in school term time the extra cost per year will be | $2,551.00 |
| TOTAL | $152,015.80 |
| Average weekly cost | $2,923.38 |
| 7 per cent multiplier for 11.5 years (x 417) | $1,219,049.46 |
Those figures were calculated upon the basis of paid attendant care for twenty-four hours of every day of Megan's life until the end of 2008, being the year in which she will turn 18 years of age, except when she is attending school. The evidence established that Megan can be expected to attend school for part of each school day until she attains eighteen years of age. A major issue at the trial was the level of assistance she will need outside school hours. The appellant does not challenge that she will need attendant care whenever she is awake. However, under ground 12 it submitted that Megan's mother will be able to provide some of the services needed by her and under ground 11 it submitted in particular that during her childhood there will be no need for Megan to have a carer in attendance at night, when she can be expected to be asleep, apart from her mother's attendance in the home with Megan at that time as would have been expected of her mother if Megan was not suffering from athetoid cerebral palsy as a result of the negligence for which the appellant is liable.
Megan's mother, Heather, has found it impossible to provide most of the care needed by Megan. Most of the learned judge's findings of fact in this regard have not been challenged and they were plainly supported by the evidence. Very shortly after birth, Megan became a difficult caring problem. She was difficult to feed and her body and limbs were frequently in spasm. All normal baby care tasks were considerably prolonged as a consequence of her athetoid movements. By the time Megan was twelve months old, Heather's capacity to continue in her mothering role had deteriorated and respite care on alternate weekends was arranged. As Megan continued to grow, she became more of a handling problem for her mother. Always strong as a result of the increased tonicity of her muscles, she became stronger as her age increased. During her waking hours she required constant supervision or attention. As a consequence, despite her best endeavours, Heather found that her relationship with her daughter, Lesley, who is five years older than Megan, was under strain. Lesley started to become withdrawn and her relationship with her mother began to deteriorate. Heather was calling on her to provide supervision and care for her younger sister. By the time Megan was four years old, Heather's coping capacity was deteriorating significantly. Her evidence was that she was "becoming very slow, ¾ very tired, constantly tired, in a lot of pain, my lower back was suffering, just slipping badly". On some days she was "just not functioning". In 1995 Megan started at the Huonville Kindergarten two full days a week and she attends the school on a regular basis. Around Christmas 1995, Heather completely "dropped her bundle" following an attack of influenza. She simply felt unable to go on. As a consequence, Megan was admitted into long-term respite care at Quindalup and ceased living at her family's home at Huonville. Quindalup was a purpose built, publicly funded respite centre, then situated at New Town.
In 1996, Megan entered the preparatory class at the Huonville School on a full time basis. During the first half of the year she returned to live at home with Heather and Lesley. By this time she was being moved from place to place as necessary, either in a wheel chair or by car, but when indoors it was necessary for her mother to carry her from room to room, due to the narrowness of the passageways and entrances which made it virtually impossible to manoeuvre a wheel chair within the house. This was an arduous task, for Megan is unable to hold onto her mother and is in virtually constant writhing motion. Whilst indoors, Megan would be seated in a high chair or nursed on her mother's lap. If placed upon the floor, she had the ability to move about by wriggling on her stomach, lying on her back and using her arms and legs in a kind of crab-like motion, or rolling and levering herself against the furniture. Megan had a separate bedroom and could manoeuvre herself out of bed if she woke up before other members of the family. As a consequence, it was necessary to keep her room free from dangerous impediments and to put a spare mattress on the floor at the edge of the bed. In the lounge room, constant supervision was required because of the presence of a stereo system, heaters and the like. Megan had achieved a minimal degree of bowel and bladder control, but it was not complete, as she was still requiring about half a dozen nappy changes per day.
Megan's care demanded a great deal of physical exertion and strength. With no employed carers in the home, the task of supervising Megan after school fell to Lesley, while her mother prepared the evening meal and performed other domestic chores. Although Lesley performed this unrewarding task effectively, it was obviously a great imposition on an eleven year old child who would have preferred to be playing with her friends or following some other personal activity. Even watching television programs was dictated by Megan's wishes as she had her own obvious preferences and would tend to relax if watching something she liked, but could be noisy or disruptive if not. A social life for Heather and Lesley was substantially limited by Megan's condition of total dependency.
By mid-1996, Heather's health had deteriorated again and her emotions were at a low ebb. Megan was spending more and more time at Quindalup, while Heather was in a depressed state and unable to cope. As a result of a depressive illness from which Heather had been suffering for some time, Megan has been an almost full time resident at Quindalup since August 1996. At the time of the trial she was still attending the Huonville School, being ferried back and forth from Hobart to Huonville by taxi each school day. Heather was seeing her "a little". Heather said she was still emotionally and physically below par and the learned trial judge accepted that. It was significantly corroborated by the evidence of Dr Burges Watson.
Megan's development has been grossly abnormal. At the time of the trial she was unable to sit by herself, stand, crawl or walk. She was in constant motion due to the athetoid effect of her cerebral palsy, except when in bed asleep. She was unable to speak, except for a few monosyllabic and indistinct words. She was unable to wash, bathe or clean her teeth. She could not dress or feed herself. When performed for her, both these tasks were very prolonged and laborious. Toileting was either virtually uncontrolled or carried out with the assistance of others. For all activities she was totally dependant upon others. Unless physically restrained, she was in almost constant motion. She had a basic capacity to make some of her needs and preferences known if interrogated, by signifying a positive or negative choice of options by the use of a very limited vocabulary of poorly articulated words, facial expressions and bodily movements.
The learned trial judge found Heather to be in a difficult and unenviable position. She had no husband to share her burden. Her elder daughter was on the threshold of puberty and would no doubt have the same problems and conflicts which beset most teenagers. Her own health was indifferent and she was afflicted by the paralysing effects of chronic anxiety and depression. Concerning that last aspect and Heather's ability to care for Megan, and the likelihood that she will do so, the findings of the learned trial judge were as follows:
"There was a considerable body of evidence given at the trial which confirms that Heather is suffering chronic depression and other psychiatric disabilities and also a chronic back ailment which may be due to physical or psychosomatic causes. I accept these claims as genuine. They are such that they have effectively caused Heather to opt out of caring for Megan since June 1996. There is no reason to think that Heather's condition will improve significantly in the foreseeable future. She certainly wishes to provide motherly care for Megan in the future and I think that it is likely that she will do so but she also has a life of her own to live and there is no reason that I can see for me to conclude that she will continue with the soul destroying responsibilities which she attempted to discharge up until Megan was placed in Quindalup.
There is a world of difference between the mothering responsibilities which would be expected of a female parent to her young, physically and mentally competent offspring and the sort of responsibilities which Heather attempted to undertake during Megan's early life. The constant watchfulness, the grindingly repetitive tasks to clean and feed Megan and the physically demanding need to move her from place to place, whilst all the time overborne by a nagging guilt for her child's dreadful incapacity, are difficult to imagine. I can only say I am surprised that she endured as long as she did. Many single mothers may well have abandoned their grossly disabled child to institutional care and faded rapidly from the picture.
In my opinion, there is no sound basis for concluding that Heather will provide significant care in respect of Megan's disabilities in the future, nor can I conclude that she should, in effect, be obliged to do so by the provision of an inadequate award of damages."
The conclusion of the learned trial judge that there is no sound basis for concluding that Heather will provide significant care in respect of Megan's disabilities in the future, is attacked by ground 12 of the appeal. However, in our view it was a conclusion properly reached on the evidence, notwithstanding that his Honour also found that Heather had a genuine wish to resume her role as a loving mother of Megan as soon as her health and removal of existing financial constraints may cease.
Heather's evidence was that she wishes to return to the workforce when she is able to do so. It was also her evidence that she wishes to physically do for Megan what she does for Lesley. But it was clearly established by the evidence that Megan will need a far greater quality of attendant care than that at all times, apart from when she is asleep, and there is plainly a need for attendant care of much greater quality than might be expected of Heather in the course of a normal mothering role. An occupational therapist, Ms Sammons, gave evidence that Megan will need full time attendant care when not asleep at night, so that there is always help available for Heather in managing Megan. This was regarded by Ms Sammons as particularly important to ensure that Megan's care does not become the responsibility of her sister, who is now a high school student. Ms Sammons' evidence clearly demonstrated the need for constant attendant care for Megan, above what Heather is capable of providing or could be expected to provide. It was Ms Sammons' opinion that regardless of whether Heather suffers from any psychiatric or psychological difficulties, or any back problems, an attendant other than Heather will be required at all times during Megan's waking hours, except when she is at school, because she has such a severe disability.
Heather's chronic depression and other psychiatric disabilities have largely come about because of Megan's disabilities and the demands they have placed on Heather. A psychiatrist, Dr Burges Watson, was of the view that a total recovery in which Heather is symptom free, will require a life as near as normal as can be achieved and certainly caring for Megan on Heather's own cannot be regarded as normal.
However, Ms Sammons, who was called as a witness by Megan, was equally firm that when Megan is asleep at night there should be no need for attendant care above what Heather is capable of providing in her normal mothering role, because during each night Megan is not toileted and seldom gets out of bed. Such an attendant will, however, be needed each night until Megan goes to bed and again early in the morning as she gets out of bed. Ms Sammons accepted that although at present there is no requirement for overnight care, it is possible that a problem could arise in the future if Megan develops some other habits, like getting out of bed and being mischievous in the middle of the night or something like that, although Ms Sammons thought that such problems could be dealt with in terms of behaviour management. She also pointed out that there might be occasions when there would be a need for an attendant to be present in the house when Megan is asleep for the purpose of giving Heather respite, perhaps a holiday for her and Lesley free of responsibilities with regard to Megan.
We conclude, therefore, that ground 12 of the appeal has not been established, but ground 11 has, and that the learned trial judge was in error by finding that Megan required paid care on a twenty-four hour day basis for the rest of her life. We will turn to how that conclusion should affect the award of damages after dealing with ground 13. By that ground the appellant complains that the learned trial judge was in error in finding that the quantification of the cost of provision of attendant care was in accordance with the figures contained in the evidence of Rosemary Vickers. Ms Vickers is the executive director of Independent Health Care Service Pty Ltd, a company which is involved in the supply of registered nurses, personal carers, home help and handymen to individuals in the community. She provided detailed estimates of costs based upon the degree of care described by Ms Sammons and Ms Xenitelis and those estimates formed the basis of Megan's claim in respect of the need for attendant care. The learned trial judge found the figures and calculations of Ms Vickers to be non-controversial and completely acceptable. Counsel for the appellant conceded that to be so, stating that the appellant challenges the need for attendant care and not its costing. Subject to an adjustment to the award of damages consequent upon ground 11 succeeding, there is therefore no merit in ground 13.
We return then to consider what reduction should be made to the damages consequent upon ground 11 being successful. The opinion of Ms Sammons concerning the need for attendant care may be accepted. Referring to Ms Vickers' figures which were applied by his Honour, the result of that acceptance is that $21,900 should be deducted from the gross annual cost of attendant care over the period 20 June 1997 to 31 December 2008 with respect to eight hours each night. We would also deduct a further sum in the vicinity of $15,000 per annum with respect to the cost of further hours when attendant care will not be necessary, on the basis of Ms Sammons' opinion. She was of the view that an attendant, other than Heather in her normal mothering role, will not be needed when Megan is asleep for 71.5 hours a week between 1997 and 2000, 64.5 hours a week between 2000 and 2003 and 57.5 hours a week between 2003 and 2008, the reducing number of hours reflecting the reducing amount of sleep she will need as she gets older. Deducting Ms Vickers' sleepover calculation of $21,900 per annum only accounts for 56 hours each week and as a result the calculations which were accepted by the learned trial judge should be further reduced by a figure roughly equivalent to the difference, bearing in mind that the hourly rate used by Ms Vickers for night time attendant care outside her fixed eight hour sleepover periods, was $24.85 per hour on week days, $27.85 per hour on Saturdays and $35.85 per hour on Sundays. Account is taken of the possibility that an increased amount of attendant care may be required in the future as foreshadowed by Ms Sammons, either for the purpose of occasionally giving Heather respite or because some problem might arise if Megan's night-time habits or behaviour change.
Bearing in mind that assessment of claims of this nature cannot be precise and that a broad judgment must ultimately be made, we would reduce the assessment of the learned trial judge by reducing the calculated annual cost from 30 June 1997 until 31 December 2008 by approximately $37,000 from $152,015.80 to $115,000. Applying the same method of calculation and the same contingency rate as his Honour, we would accordingly reduce the assessment of attendant care costs by $237,471 from $2,156,061 to $1,918,590. The judgment sum should be reduced accordingly.
Has Griffiths v Kerkemeyer Survived? (Grounds 14 and 15)
These grounds are:
"14That his Honour erred in law holding that s5 of the Common Law (Miscellaneous Actions) Act 1986 meant that damages awards shall not include a sum of money which is equivalent to the commercial cost of domestic, nursing or other services which have been or will be provided free of charge to the respondent.
15That his Honour erred in law in holding that the respondent could recover damages in respect of future attendant care when she was not, at the time of the trial, liable to pay for such care."
Prior to Griffiths v Kerkemeyer (1977) 139 CLR 161, it was generally thought that legal liability on the part of an injured plaintiff to pay for services, such as domestic and nursing services, was necessary to enable the cost to be recovered by way of damages. As a result, it was common that a plaintiff was not entitled to damages in respect of services which had been or would be provided by relatives and friends. In Griffiths v Kerkemeyer the plaintiff sued for damages following a road accident as a result of which he became a quadriplegic. The trial judge included in the assessed damages amounts for the value of services which had been rendered gratuitously by the plaintiff's family and fiancee in caring for him, which services were rendered necessary by the disabilities caused by his injuries. The judge also included an amount for the value of such services in the future. On appeal, the High Court largely endorsed the approach of the Court of Appeal in Donnelly v Joyce [1974] QB 454, and held that the need for such services created by the injuries gave the plaintiff a prima facie right to recover damages in respect of the reasonable cost of meeting the need and that the defendant was not entitled to be credited with the fact that the need had been in the past, or would be in the future, met by a third party's voluntary provision of services. It was further held that the value of such services in general should be calculated by reference to their standard or market cost, and not by the loss suffered by the person who provides them.
It is well know that the amounts of damages recovered in many personal injury cases increased substantially as a consequence of Griffiths v Kerkemeyer. As a result and according to Professor Luntz in his Assessment of Damages for Personal Injury and Death, 3rd ed at 217, "as part of the blatantly cynical political exercise designed to reduce the insurance premiums of motorists at the expense of seriously injured victims and their families", most of the States enacted legislation to place limits on or to abolish completely damages for gratuitous services rendered to the victims. In this State, the Common Law (Miscellaneous Actions) Act 1986 was enacted. The preamble to that Act states that it is an Act to inter alia abolish awards for gratuitous damages and with a section heading "Abolition of awards for gratuitous services", s5 is in these terms:
"5 ¾ An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance ¾
(a)which have been or are to be provided by another person to the person in whose favour the award is made; and
(b)for which the person in whose favour the award is made has not paid or is not liable to pay."
The extent to which s5 was successful in its stated purpose was an issue at the trial, although much of what the learned trial judge said about it has not been contended by the appellant or Megan. His Honour concluded, and was clearly correct, that the section is limited in its scope to "services" of the kinds specified in the section and does not apply to the provision of facilities or goods, either in the past or future. His Honour thought that the phrase "services of a domestic nature" obviously relates to, and is intended to apply in respect of household chores such as washing, ironing, vacuum cleaning, cooking, bed-making and minor maintenance jobs, such as uncomplicated electrical or mechanical repairs to appliances, washing motor cars, gardening and the like. Greater difficulty arose in respect of the phrase "services relating to nursing and attendance" and in particular concerning what an "attendance" is within the meaning of the provision and what a service "relating" to "attendance" embraces. The learned trial judge referred to some of the items of damage claimed by Megan which conceivably might be affected by s5. Those items were:
The value of the attendances of Megan's mother, Heather, as a carer between the date of Megan's birth and when Megan became a resident at Quindalup in June 1996. This claim was quantified at $549,402.88.
The value of similar future care from the date of trial until the end of 2008 when Megan will be nearly 19 years of age, quantified at $1,219,049.46.
The value of further attendant care from 1 January 2009 for the balance of Megan's life, quantified at $1,170,206.30.
The value of the provision of attendant care by Mrs Gatenby while Megan has been attending school at Huonville since 1995. To the date of trial, that care had been provided free of charge to Megan by the Department of Education, Community and Cultural Development. There was no suggestion that a claim for the cost of providing that service would be made upon Megan by the Department following the resolution of the action.
The value of the continuation of that attendant care by Mrs Gatenby, or some other person in her position, until Megan leaves school. There was also no evidence suggesting that a claim would be made by the Department in respect of that, even if Megan's claim in respect of the value of those future services was allowed in full at the sum claimed, viz, $142,205.84. It was Megan's claim that she will require a school attendant or aide until she leaves school in December 2008.
The learned trial judge said that there were other items of claim which were of a similar kind. His Honour held that, whether or not Heather's attendances on her disabled daughter may properly be regarded as "services of a domestic nature" or as "services relating to attendance", clumsy though that phrase may be, they are caught within the prohibition of s5 insofar as they "have been" provided in the past and have not been paid for and are not the subject of an existing liability to pay. Based on that interpretation his Honour disallowed Megan's claim for $549,402.88 with respect to Heather's care of Megan from birth until approximately 30 June 1996. Similarly, his Honour disallowed the claim in respect of attendant care at school by Mrs Gatenby up to the time of trial in the sum of $35,841.60. On the appeal no issue was taken with those disallowances.
Grounds 14 and 15 attack the findings of the learned trial judge concerning future attendant services of a domestic, nursing or other nature. It was submitted by the appellant, both at the trial and on appeal, that the phrase "has not paid or is not liable to pay" in s5(b), has the effect of prohibiting an award in respect of future services of the relevant kind unless, at the time of trial, payment has been made in advance for such services as and when delivered. The learned trial judge rejected that submission upon the following basis:
"It is, however, a quantum leap to say that an injured party, particularly an infant plaintiff, should be deprived of the funds to pay for essential care which is likely to be required in the future from many different people over the balance of the plaintiff's life because some person or organisation has not been signed up to do this by the time the case reaches court. Such a proposition is plainly unjust and insupportable. Is this what the Tasmanian Parliament set out to do in 1986? I think not. In my opinion, s5, shorn of its clumsiness, is saying:
'Damages awards shall not include a sum of money which is equivalent to the commercial cost of domestic nursing or other services which have been or will be provided free of charge to the plaintiff.'
I do not accept Mr Tree's submission, and I would be appalled to think that our legislature intended that people like Megan, who have been massively injured by a clearly negligent act, must be forced into charitable or publicly funded institutions unless they have an enforceable contract with a particular person to provide care for the balance of the injured plaintiff's life."
With respect, we agree with his Honour's conclusions. We also consider that the interpretation urged upon the Court by the appellant, if it be the ordinary meaning of the words used, leads to a result that is manifestly absurd and unreasonable. See Acts Interpretation Act 1931, s8B(1)(b). A grievously injured infant, such as Megan, could not have been expected by Parliament to enter into contracts prior to trial for all the domestic, nursing and other attendant care she will need for the rest of her life, perhaps for the next fifty years or more, before she may be entitled to damages which include the costs of such care. Such an interpretation would not only lead to absurd and unreasonable results, but also unjust ones.
In the light of our conclusion about the absurdity and unreasonableness such an interpretation would cause, it is permitted by the Acts Interpretation Act, s8B, to consider extrinsic material such as the preamble to the Common Law (Miscellaneous Provisions) Act 1986 and the heading to s5, and to the debate which took place in the House of Assembly following the introduction of the Bill for the new Act. All of that extrinsic material makes it plain that it was the intention of Parliament to abolish the awarding of damages for domestic, nursing and other attendant care services, which have been or will be provided gratuitously. In our view the words in s5(b) "is not liable to pay" must be interpreted as a reference to there being no liability to pay at the time the services which are to be provided are in fact provided.
Grounds 14 and 15 must therefore fail.
Having regard to the appellant's success in respect of grounds 10 and 11, the appeal will be upheld and the judgment in favour of the respondent infant reduced by $362,471.
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