Still v Bowler - [2000] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STILL -v- BOWLER [2000] WADC 165

CORAM: COMMISSIONER CHANEY

HEARD: 1-4, 7-11, 16, 18 FEBRUARY 2000

DELIVERED : 28 JUNE 2000

FILE NO/S: CIV 1751 of 1996

BETWEEN: SYMON KIMBERLEY STILL
Plaintiff
AND
ALLAN GEORGE BOWLER
Defendant

Catchwords:

Damages - Assessment - Personal injuries - 24 year old teacher - Complete paraplegia below T3 level - Risk of further neurological problems affecting power in arms - Partial return to work - Entitlement to $1,640,133 - 85 per cent of a most extreme case for purpose of s 3C of Motor Vehicle (Third Party Insurance) Act 1943

Legislation:

A New Tax System (Personal Income Tax Cuts) Act 1999

Motor Vehicle (Third Party Insurance) Act 1943, ss 3C(2), 3D, 3D(2), 3D(3)

Result:

Plaintiff awarded $1,640,133.90 together with the plaintiff's liability to the Health Insurance Commission

Representation:

Counsel:

Plaintiff: Mr R I Viner QC and Mr G Droppert
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Slater & Gordon
Defendant: K N Allan

Case(s) referred to in judgment(s):

Andjelic v Marsland (1996) 70 ALJR 435
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Chulcough v Holley (1968) 41 ALR 274
Farr v Schultz [1988] 1 WAR 94
Jongen v CSR Ltd (1992) A Tort Rep 81-192
Malec v Hutton Pty Ltd (1990) 169 CLR 638
Moss v Cook [1964] WAR 244
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo’Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

Case(s) also cited:

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Gibson v Smith, unreported; DCt of WA; Library No 970317C; 19 June 1997
Griffiths v Kerkemeyer (1977) 139 CLR 161
National Insurance Co of NZ Ltd v Espange (1961) 105 CLR 569
Newman v Nugent (1992) 12 WAR 119
Redding v Lee (1982-1983) 151 CLR 117
Rosecrance v Rosecrance 105 NTR 1
Sharman v Evans (1977) 138 CLR 563
State Government Insurance Commission v Hitchcock, unreported; FCt of SCt; Library No 970089A; 11 March 1997
Van Gervan v Fenton (1992) 175 CLR 327

COMMISSIONER CHANEY: This is an assessment of damages for personal injuries suffered by the plaintiff as a result of an accident which occurred on 27 January 1994.
On that day, the plaintiff was riding his bicycle to the Mandurah Catholic College where he worked. As he was riding along Mary Street, Mandurah, a four-wheel drive vehicle turned across his path. The plaintiff collided with the left wheel of the vehicle. The impact of the collision caused his head and chest to go through the rear window of the vehicle, and he was then thrown into the air. Mr Still was taken by ambulance to the Murray-Mandurah Health Service in Pinjarra but was subsequently taken from there by ambulance to Fremantle Hospital. Early in the morning of 28 January 1994 he was transferred to Royal Perth Hospital where he was admitted to the intensive care unit. On arrival at the emergency department of Royal Perth Hospital there was evidence of a closed head injury with a full thickness scalp laceration, laceration of the right cheek and laceration of the anterior chest wall. The plaintiff demonstrated a complete paraplegia below the T2 spinal cord level. He had bilateral fractures of the mandible and abrasions to both hands and knees.
Mr Still remained in the intensive care unit until his transfer to the Sir George Bedbrook Spinal Unit in Shenton Park on 2 February 1994.
Clinical examination on his admission to the Sir George Bedbrook Spinal Unit demonstrated the persisting presence of a complete paraplegia below the T3 spinal cord level. He has remained completely paraplegic below the level of his upper chest.
The liability of the defendant is not in issue.

The plaintiff's background

Mr Still was born on 26 February 1969, and was thus 24 years old at the time of the accident. He completed a Bachelor of Science Degree and Diploma of Education at the University of Western Australia in 1990. He commenced employment as a Physical Education Teacher at John Paul College in Kalgoorlie in 1991.
After two years in that position, the plaintiff accepted a job as a physical education teacher at Mandurah Catholic College and had been employed for 12 months in that position by the time of the accident.
Prior to the accident the plaintiff was an active and keen sportsman. He played hockey, tennis, basketball, squash, golf, frisbee and enjoyed weightlifting, running, swimming, cycling and triathalon. It was this last sport which Mr Still was heavily involved in at the time of the accident. Shortly prior to the accident he competed in the state triathalon trials where he was placed first in the trials for novices in all age groups. That was his second season of competition at that level. In evidence, he said that he had aspirations to compete at the international level, and although it is impossible to say whether that aspiration had any chance of being achieved, I accept that Mr Still is likely to have been prepared to work very hard to achieve success in his sport and that he had demonstrated skills which would have enabled him to compete at higher levels as the years progressed.

The plaintiff's progress and treatment since the accident

Whilst at the Royal Perth Hospital, the plaintiff underwent surgery to have his left mandible body plated by Dr D Eggleston and had his facial and chest lacerations treated by Mr M Lewandowski.
Following his transfer to the Sir George Bedbrook spinal unit on 1 February 1994, the plaintiff was allowed to mobilise and commence a rehabilitation programme.
The plaintiff said, and I accept, that following the accident he was particularly keen to get back to work and to lead a life which was as "normal as possible." To that end, whilst in Shenton Park Quadriplegic Centre to which he was transferred on 31 May 1994, and remained until 2 January 1995, Mr Still undertook a course in mathematics and religious studies at the Catholic Education Office. He undertook that course because he knew that he could no longer teach physical education, and was intent upon returning to work as a teacher hopefully within the Catholic education system within he had worked since his graduation from university.
On his discharge from the quadriplegic centre on 2 January 1995, Mr Still moved to a rented house in Mandurah where his mother came to live with him to look after him. In December 1994, the plaintiff had engaged a draughtsman and a builder to design a suitable house for him, a step which he undertook because he considered that a house which accommodated his needs would be necessary if he were to return to work.
On 30 January 1995 the plaintiff returned to his employment as a teacher at Mandurah Catholic College. He said in evidence, which I accept, that returning to work was very important for him in that it made him feel useful and helped in restoring his self confidence and independence. He returned as a mathematics and religious studies teacher at half the teaching hours of his previous full time position. This was subsequently increased to 70 per cent of his pre-accident teaching load from 1 January 1996.
In order to return to teaching, some special equipment such as an overhead projector, projector screen, lowered workbench and lap-top computer all had to be specially purchased because he could no longer reach the blackboard. These items were purchased jointly by the defendant’s insurer and school which employed him.
On 1 May 1995 Mr Still underwent scar excisions, scar revision and z-plasties performed by Mr A Turner at Fremantle Hospital.
Since his accident, the plaintiff has been beset by urological problems. These led to surgery on 10 May 1995 to insert a memokath to assist with his bladder function.
In August 1996, the plaintiff underwent a syringo-subarachnoid shunt operation at the hands of Mr R Vaughan. This was brought about because he had developed a syrinx in his spine which was creating pressure on the nerves which controlled his upper limbs. As a result he was suffering symptoms in both arms, but principally in his right arm which developed weakness and hypersensitivity. Initially after this surgery his ability to use his right arm was detrimentally affected, but it gradually improved although only to the point that it had been prior to the operation.
By March 1997, the function, coordination and strength of his right arm was deteriorating again. He was experiencing pain in his shoulders and right arm to an increasing degree. The plaintiff again sought the assistance of Mr Vaughan and a revision operation was eventually carried out in December, at the end of the 1997 school year. Mr Vaughn recommended that he not return to work at least for the first term of 1998. The revision operation involved draining the shunt into the pleural cavity.
At the end of 1997, the plaintiff took leave of absence from his employer initially for a period of 12 months. The reason for that appears to have been twofold. The first was to allow for a full recovery from the December 1997 surgery. After the previous surgery for the same problem, Mr Still considered that he had returned to work too quickly. He considered that a greater recuperation time was necessary than would allow him to resume work in 1998, and that it was unfair to his employer to take only one term of leave as suggested by Mr Vaughan, because of the staffing problems which that created at the school. The second reason was that the plaintiff had become concerned at his ability to continue to work at the same level and the same number of teaching hours per week as he had been doing, and he saw that gaining a counselling qualification may help him obtain a position involving pastoral care within the Catholic education system. He believed that such a position would "be his best chance to remain in the work force and give (him) enough flexibility to accommodate (his) needs." To that end, he enrolled in a part-time postgraduate counselling course at university which he pursued during 1998 and continued through 1999. The course is due to be completed in mid 2000.
During 1996, the plaintiff had continued to suffer urological problems, with frequent urinary tract infections causing him to become drained of energy and suffer muscle spasms. In order to endeavour to avoid these problems, Dr Low again operated again on 15 January 1997 to remove the memokath and perform a transurethal sphincterotomy. For a significant period of time that surgery succeeded in reducing the frequency of infections although at the time of trial the infections were again occurring with increasing frequency. In order to reduce the frequency, the plaintiff requires antibiotics which he now takes prophylactically.
By mid 1998, the plaintiff's right arm and shoulder symptoms began to deteriorate again. He had further MRI scans which showed that the shunt was once again failing. He was referred by Mr Vaughan to Mr Knuckey who recommended that he have a lower lumbar peritoneal shunt which was eventually performed by Mr Knuckey at St John of God Hospital on 8 October 1998. That operation improved his symptoms slightly and appears to have arrested the deterioration in his level of function, although Mr Knuckey describes the plaintiff's prognosis as "extremely guarded".
In July 1998 Mrs Gwen Still, the plaintiff's mother moved back to her home in Geraldton. Apart from approximately six months in the second half of 1994, she had remained in Perth and Mandurah to attend to her son's needs. She had lived in his house virtually continuously from January 1995 when he left the quadriplegic centre.
A further year of leave without pay was arranged in 1999 because of the plaintiff's belief that he could not successfully cope with his previous work commitments. The circumstances surrounding that leave will be dealt with more fully in the context of the claim for past loss of earnings.
During 1998, the plaintiff became the acting coordinator of the Mandurah Disabled Sport and Recreation Association which was a voluntary position. In the course of that work, he met Kim Hudson who was then the Mandurah City Council representative on that Committee, and in time they formed a personal relationship and were to marry in April 2000.
In evidence, the plaintiff spoke of feelings of inadequacy and loss of confidence resulting from his physical disability. He expressed uncertainty as to his future, both in relation to his relationship with his fiancée, his physical well being and his ability to continue to work effectively. Mr Still’s evidence, and the history of his efforts to rehabilitate himself and return to productive work make it clear that he has the character and capacity to face his adversity in a positive way. I have no doubt that the concerns which he expressed about his future are genuinely held. I found the plaintiff to be an impressive young man, determined to lead as full a life as his disability permits and to make a contribution to his work, his family and his community.
Against that background, it falls to determine the plaintiff’s proper entitlement to compensation.
The parties have, in very full and helpful submissions, both in writing and orally, dealt with the various heads of damage, and I propose to adopt the headings outlined in the plaintiff’s schedule of damages as a convenient way of dealing with each aspect of the claim.

Past medical and like expenses

The plaintiff’s claim under this head is set out in detail at pages 2 to 5 of the schedule of damages. The total claim is made up of three components. The first is the itemised costs which total $29,913.97. Those damages are agreed. The second component is a Health Insurance Commission payment which will be due from the plaintiff. In closing, the defendant’s counsel indicated that the defendant accepted liability in respect to whatever amount may be payable to the Health Insurance Commission, and because the precise amount may vary from the sum claimed, namely $2,707, it was suggested that that component ought not form part of the amount of the judgment for the plaintiff on the strength of the defendant’s undertaking to pay the appropriate amount. That approach was accepted by the plaintiff. The third component is described as an amount to be recovered by the quadriplegic centre, the amount being $28,714.50. As I understand it, that amount is also not in issue.
It follows that, leaving the Health Insurance Commission payment aside on the basis indicated, the amount of the plaintiff’s judgment under this head should, by agreement between the parties, be fixed at $58,628.47.

Past additional holiday expenditure

The plaintiff claimed an amount of $1,164.70 comprising additional holiday expenses incurred by him in respect to interstate holidays taken by him since the accident. Without prejudice to the defendant’s submissions in relation to the claim for future additional holiday expenses, this amount was conceded by the defendant, and is thus allowed in the sum claimed.

Past economic loss

The calculation of the plaintiff’s past economic loss depends upon two findings which I am required to make. The first is whether, on the balance of probabilities, the plaintiff would have continued to work in the position which he occupied at the time of the accident, or whether he would have been promoted to the position of head of faculty at some time between the date of the accident, and the date of trial. The second finding which is required is whether, during the periods of leave of absence from work during 1998 and 1999, the plaintiff is entitled to recover in full the salary which he did not receive. The defendant argues that, at least for those portions of that period which were not periods of medical treatment or recuperation, the plaintiff should be treated as having the earning capacity which he demonstrated that he had between 1995 and 1997.
At the time that the plaintiff joined the Mandurah Catholic College at the beginning of 1993, there were only seven teachers. It was a new regional school, and I accept that, in making his decision to move from John Paul College in Kalgoorlie, the plaintiff was in part motivated by the prospect of better career prospects at Mandurah Catholic College. He was undoubtedly also influenced by a preference to live closer to his then girlfriend and to live near the ocean.
Brother Terry Cant was the principal of John Paul College between 1988 and 1993. At the time that the plaintiff was considering the possibility of moving to Mandurah Catholic College, he was told by Brother Cant that there was a possibility that the position of head of department of physical education would become available at John Paul College, and if it did, Brother Cant wanted to offer it to him. He described the plaintiff as someone of outstanding ability, and was disappointed at Mr Still’s decision to leave the College. Brother Cant’s evidence supports the proposition that a position of head of department was a realistic expectation for the plaintiff in the relatively short term.
Matthew Ritikis is the present coordinator of physical education at Mandurah Catholic College. In essence, that position essentially replaced the previous position of head of physical and vocational studies. He commenced work at Mandurah Catholic College when the position previously occupied by the plaintiff became vacant because of the plaintiff’s accident. In July 1994, the school advertised the positions of heads of faculty, which, because of its size, had not previously existed. Mr Ritikis applied for and was appointed to that position in January 1995.
Ms Sue Baker is the current head of secondary school at Mandurah Catholic College. She was appointed as a head of faculty in response to advertising for those positions in 1994. Her evidence was that if there were teachers in the substantive positions at that time, they were given the head of faculty positions. The only exception to that was where there was a very inexperienced teacher or one who had proven not to be performing. She expressed the opinion, from her observations of Mr Still and his work at the college, that he was an excellent teacher with an incredible rapport with students.
On the basis of that evidence, I find that, but for the accident, Mr Still would have been appointed to the position of head of faculty as from January 1995. I accept Mr Still’s own evidence that progression through the Catholic education system was his employment goal, and that he would have sought to become the head of the physical education department as soon as an opportunity presented itself.
As mentioned above, at the end of 1997, the plaintiff took leave of absence for a period of 12 months. It became evident in late 1997 that the shunt which had been inserted in his spine in August 1996 was failing, giving rise to a deterioration in the coordination and strength of the plaintiff’s right arm. A subsequent operation was thus planned by Mr Vaughan who, in a letter to Mr John Ker the head of the department at the Sir George Bedbrook Spinal Unit dated 27 October 1997 said that he had explained to Mr Still his proposal for a revised operation, and “made arrangements for the operation at the end of his school year so that he is able to get his students through the exams”. In a subsequent letter to the plaintiff’s solicitors, Mr Vaughan expressed the view that the plaintiff should not “consider a return to work at least in the first term of next year as he recovers” from the procedure which is likely more complex than the original surgery.
I have outlined above Mr Still’s reasons for seeking a full 12 months leave of absence, rather than simply applying for leave for the first term of 1998 being the minimum amount of time indicated by Mr Vaughan as being necessary. I am satisfied that the decision to cease work for the whole of 1998 was a reasonable one for Mr Still to take in the circumstances with which he was faced. The concern which he expressed, about his capacity to return to work quickly, appears to have been justified by what transpired. His problems stemming from the syrinx did not resolve, and in late 1998 it was decided that yet another operation was going to be necessary. It was apparent as well that during 1998 the plaintiff continued to suffer from urinary tract infections from time to time. He saw his general practitioner Dr Brabazon on fairly regular occasions throughout 1998. Overall, the evidence leads to the conclusion that any attempt to return to work during 1998 would, in all probability, have been unsuccessful. I find that the plaintiff is entitled to be compensated in full for his loss of income during 1998.

The position in respect to the 12 months leave of absence taken in 1999 is a little more difficult. The second shunt operation in December 1997 having not proved successful in the longer term, a peritoneal shunt operation was performed by Mr Neville Knuckey on 16 October 1998. Just prior to the operation, on 12 October 1998, Mr Still wrote to his employer informing it of his need for further surgery and indicating that he expected that the new surgery would mean “more recovery time and unfortunately more frustration's of waiting and seeing what the result will be”. He sought “at least another 6 months” leave. The letter suggests that his surgeon and local general practitioner had suggested not returning to work at all in 1999. That proposition was not explored in evidence with any of the doctors concerned.
I note that in a report dated 23 February 1999, Mr Knuckey expressed the view that based on an examination of the plaintiff on 8 February 1999, he was then capable of returning to “his occupation prior to the surgery on 16 October 1998”. It would appear that the reason that Mr Still did not return to work during 1999 was substantially because of his study commitments at Curtin University. His evidence was that, given the difficulties which he had experienced in his return to teaching, he considered that this course may lead to a qualification which would enable him to obtain a counselling position within the Catholic education system, that being his “best chance to remain in the workforce and give (him) enough flexibility to accommodate (his) needs”. Apart from some evidence that positions for counsellors do exist within the Catholic education system, there was little evidence as to whether this apparent attempt to mitigate damage had any reasonable foundation.
I note that the course at Curtin University was commenced on 26 February 1998. That was not long after the December 1997 operation, and well within the period within which Mr Vaughan had suggested Mr Still should not return to work. The fact that Mr Still embarked upon that course at what would appear to be the earliest possible opportunity supports the proposition that he genuinely believed that he needed to broaden his options in order to ensure as far as possible that he could continue to be productively employed within the education system. It is entirely consistent with his attitude from very shortly after his accident, namely to positively endeavour to return to gainful employment and to ensure his self‑sufficiency, both financially and emotionally, in the long term. His evidence was that he considered he may have returned to work too quickly after the accident, and his more measured approach to a return to work following the series of spinal operations, when coupled with his efforts at retraining so as to give himself the best possible chance of continuing in employment, were, in all the circumstances reasonable. Notwithstanding, therefore, that I find that the plaintiff may have had the physical capacity to return to work at some time in 1999, and probably reasonably early in that year, I find that his decision not to do so until the beginning of 2000 was a step reasonably taken for the purpose of mitigating his damage, and he should receive full compensation for the income lost during 1999. There can be little doubt that, but for the accident, the plaintiff would have continued in full time employment throughout 1998 and 1999 and the fact that he did not work was entirely attributable to the accident.
Having reached those conclusions, the calculation as to past loss of earnings is agreed. Had the Plaintiff been promoted to head of faculty on 1 January 1995, then his total earnings from the date of the accident until 4 February 2000, the last full pay period to the date of trial, would have been $199,998.72. It is also agreed that the actual amount received by the plaintiff between those dates is $65,897.99. The balance payable to the plaintiff is $134,100.73.
The plaintiff has in fact been paid some moneys on account of past loss of income by the defendant's insurer, and it is agreed that the total of those payments should be deducted from the overall award of damages. Because the amount received by the Plaintiff substantially approximates his entitlement, no provision for interest on part loss of income is appropriate.
The loss of superannuation entitlements which flows from that loss of past income is dealt with below.

Future loss of earning capacity

The assessment of the damages to which the plaintiff is entitled for future loss of earning capacity turns upon a number of considerations. They are:
(i)what position would the plaintiff have achieved if he had not had the accident,
(ii)given that the plaintiff will not ever return to full time work as a teacher, what is his retained earning capacity,
(iii)what is the possibility of the syringomyelia preventing him from working at all at some time in the future,
(iv)what retirement age should be assumed for the purpose of calculation of future loss of earning capacity, and
(v)what is the appropriate tax rate that should be applied to the calculation, given the foreshadowed changes in income tax rates because of the introduction of the Goods and Services Tax.
The first three of these questions cannot be answered with certainty, but the answers to them have a significant effect on the figures produced when one does the appropriate calculations. Counsel have helpfully provided me with numerous calculations which demonstrate the effects of different conclusions on the issues mentioned above. The indicative figures range from $580,450 on the assumption that the plaintiff has a 35 per cent retained earning capacity, but would have risen to the position of Principal and then Deputy Principal and that the new tax rate should be applied, and that retirement would have occurred at age 65, down to $301,712 on the assumption that the plaintiff would have remained a head of department, that he has a retained earning capacity of 0.56 per cent, that existing tax rates should be applied, and that the plaintiff would have retired at age 60. Neither of those figures brings to account the possibility of total disability prior to an expected retirement age because of the syringomyelia.
As to the issue of the position which the plaintiff would have attained, I have already found that it is highly likely that as of 1 January 1995, the plaintiff would have achieved the position of head of faculty. In his evidence, Mr Still said that his goal was to become head of the physical education department and then go on to become a deputy principal and perhaps a principal. That evidence was at odds with the way the plaintiff’s case was originally pleaded in the statement of claim which described his ambition as achieving head of department status.
Evidence on the subject was given by Mr Gregory Williams, a former principal of Mandurah Catholic College, and he was familiar with the process of appointments as deputy principal within the Catholic education system. He stated that he had no doubt that, after having spent a number of years as head of faculty, Simon Still could have successfully applied for a position as deputy principal. He described as a move from head of faculty to deputy as “a fairly normal pathway”. Mr Clive Choate also gave evidence. He is head of the health and physical education department at Pinjarra Senior High School. His children attend Mandurah Catholic College. He also described a career path as being “from a teacher of phys-ed you would aspire to head of department and then aspire to wherever”. His own personal experience was that he had moved from head of department to an acting deputy principal position, but then by choice reverted to head of department because he missed the interaction with students at that level.
On balance, I find that the plaintiff would have risen to the position of deputy principal approximately 10 years after achieving head of department status. The plaintiff was, and still is, a conscientious teacher, and all of the evidence suggests that he was well regarded by those with whom he worked, and the students whom he taught. His sporting background, and the way he has coped with his disability, all indicate a determination to succeed. I think it is unlikely that he would have been content not to seek promotion from the age of approximately 36 when he would have completed 10 years as head of department until his ultimate retirement.
On the other hand, I do not accept that, on the balance of probabilities, the plaintiff’s assessment of future loss of earnings should be based on the likelihood of his achieving the position of principal. The evidence suggests that those positions are much more limited and I am not satisfied that there is sufficient evidence to enable me to reliably assume that he would have achieved that position. The possibility would certainly appear to have existed, but that possibility should simply be weighed in the balance in assessing any contingencies which might affect the ultimate award.
The second area of dispute between the parties is as to whether the assessment should be based upon a retained earning capacity being 35 per cent of a normal workload, as contended for by the plaintiff, or not less than 56 per cent as contended for by the defendant. The figure of 35 per cent is based upon a report by Mr Vaughan dated 24 January 2000. What Mr Vaughan said was:
“I feel that he may not reach his 50 per cent teaching load as he hopes but with his drive and determination he may achieve that level, although I do have some reservations. There may be a limit to what may be achieved because of the seriousness of his cord damage.
What he anticipates is reasonable but I wonder whether it is attainable. I think more realistically it might be more like 35 per cent and regrettably I cannot say for how long into the future.”
Under cross-examination, Mr Vaughan readily accepted that Mr Ker’s evidence in respect to retained earning capacity “would probably be more accurate than mine because he is dealing with the problems more commonly than I am.”
The general thrust of Mr Ker’s evidence was that, once the plaintiff had managed his lengthy personal care routine necessary to get to his place of employment, managing to complete a half‑time workload was not significantly more difficult than 35 per cent workload. Mr Still’s experience since the accident is that he initially worked half time, and then increased it to approximately 70 per cent before taking his two years leave without pay. I am satisfied that working at 70 per cent of the normal load was difficult for the plaintiff, and he is unlikely to return to work at that level. I am, however, satisfied that, provided his neurological problems do not get worse, he is likely to be able to continue to handle a workload of 56 per cent which is the load to which he has returned in 2000. The assessment of future loss should be based upon that proposition.
The prognosis in relation to the plaintiff’s syringomyelia is uncertain. Since the last operation to drain the syrinx, it has not changed in its physical characteristics. The symptoms of the syringomyelia do, however, appear to have stabilised. Mr Neville Knuckey, the neurosurgeon who performed the peritoneal shunt said in his report of 23 February 1999 that the natural long term history of traumatic syringomyelia is for progression. He described the long-term prognosis as extremely guarded and said there was a high probability of further operative procedures. Mr Still has persistent ongoing paraesthesia and weakness of the upper limb. The uncertainty in prognosis expressed by Mr Knuckey was reinforced by the evidence of the other medical witnesses. The approach of the plaintiff’s advisers to this issue was to assume a diminishing retained earning capacity over the balance of Mr Still’s working life. However the figures upon which calculations were then made were somewhat arbitrary, and in my view, the future is so uncertain that that approach cannot be supported on the evidence. I find, however, that there is a real possibility that Mr Still will at least have some periods of total disability because of the need for future operative treatment on the syrinx, and a real possibility that the syrinx could progress in a way which substantially deprives Mr Still of the use of his upper limbs. The appropriate way to deal with that possibility is by way of an allowance of a sum in excess of the loss calculated by reference to an assumed 56 per cent retained capacity until retirement.
As to the appropriate retiring age in respect of which a calculation of future economic loss should be made, I am of the view that it is appropriate to calculate what Mr Still would have earned but for the accident up to an assumed retirement age of 65 years. There was a suggestion by Mr Still in his evidence that he may have retired at the age of 60. A comment of that nature, given that it amounts to a prediction as to what may have happened 30 years hence, is not of great weight. The assessment of future economic loss is based upon a loss of earning capacity. But for the accident, Mr Still could be expected to have had a working capacity through to the normal retirement age which is commonly accepted as being 65 years. He has lost that capacity, and the question becomes whether that loss of capacity is likely to be productive of economic loss. In my view it would not be appropriate to limit the calculations of Mr Still’s future economic loss on the basis that he may have retired from teaching at the age of 60. What other productive employment or activities that Mr Still may have undertaken beyond his teaching career are impossible to identify, but common experience suggests that income producing activity is often undertaken by able bodied persons following early retirement from a long career. That will not be possible in Mr Still’s case. The proper approach in my view is to assume a retiring age but for the accident of 65 years.
The evidence of Mr Ker was to the effect that it could not reasonably be expected that the plaintiff would work beyond 50 years. For the purposes of calculation of future economic loss, it is appropriate to take that as the age up until which the plaintiff will have a retained earning capacity of 56 per cent, and thereafter his retained capacity will be zero.
The final question is the tax rate which should be applied to the calculation of future economic loss. The tax cuts which are the subject of the legislation entitled A New Tax System (Personal Income Tax Cuts) Act 1999 represent the law which applies to tax rates as from 1 July 1999. I can see no reason in principle why those rates should not be applied, and to apply them represents a more accurate assessment of future economic loss than would occur having regard to tax rates which will have no application for all but the first few months of the future economic loss the subject of the plaintiff’s claim.
On the basis of those findings, the plaintiff’s entitlement in respect of future economic loss is as follows:
Calculation
(a)      Year 2000 (Multiplier (51))
          Net earnings Head of Faculty           $     785.19
          Less anticipated earnings (Step 11)    $     399.35
  $     385.84
Loss $385.84 x 51  $19,677.84
(b)      Year 2001 (Multiplier 98 ‑ 51 = 47)
          Net earnings Head of Faculty           $     785.19
          Less anticipated earnings (Step 12)    $     412.12
$     373.07
Loss $373.07 x 47  $17,534.29
(c)      2002‑2005 (Multiplier 226 ‑ 98 = 128)
          Net earnings Head of Faculty           $     785.19
Less anticipated earnings (Step 13)    $      425.66
$      359.53
Loss $359.53 x 128  $ 46,019.84
(d)      2005 (Deputy Principal) to age 50 years (ie 19 years)
(Multiplier 599 ‑ 226 = 373)
          Net earnings Deputy Principal          $      953.47
          Less anticipated earnings                 $      425.66
$      527.81
Loss $527.81 x 373  $196,873.13
(e)      Age 50 to retirement 65 (Multiplier 772 ‑ 599 =173)
          Net earnings Deputy Principal          $      953.47
          Loss $953.47 x 173  $164,940.31
Total  $445,055.41
The above calculations do not bring to account any allowance for the prospect that the plaintiff’s syringomyelia may worsen with the result that he becomes totally incapacitated for work. If that were to occur so that the plaintiff were rendered incapable of working after 2005, the plaintiff’s future loss would be calculated as follows:
Loss up until 2005 (as calculated above)   $ 83,232
Loss from 2005 to age 65
(Multiplier 34 years 772 – 5 years 226 = 546)
Loss after 2005 $953.47 x 546 =              $520,594
Total loss  $603,826
It can be seen that that eventuality would therefore increase the plaintiff’s future loss from the $445,055 calculated above, to $603,826, an increase of $158,771. Those figures demonstrate that occurrence of the contingency of a worsening of the syrinx would result in a 30 per cent increase in the plaintiff’s future economic loss. Mr Vaughan’s and Mr Knuckey’s evidence suggests that the possibility is very real. It would be reasonable to make an allowance of approximately one‑third of that increase to reflect the possibility of total incapacity eventuating as a result of worsening of the syrinx: see Malec v Hutton Pty Ltd (1990) 169 CLR 638. That would give a total future loss in the vicinity of $500,000.
Against that, it is normal to make some allowance for a discount to take account of the “normal vicissitudes” of life. That allowance must also take account of positive contingencies, such as the possibility that Mr Still may have one day achieved the level of principal – see Black v Motor Vehicle Insurance Trust [1986] WAR 32. The possibility that the plaintiff may have retired and earned less or no income after age 60 is a negative contingency in this case, to be added to the normal vicissitudes such as death, sickness, accident, unemployment and industrial disputes referred to in cases such as Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 497. Taking all those matters into account, I am of the view that a deduction of 5 per cent for contingencies is appropriate.
Taking all those matters into account, and accepting that, although the calculations above involve a degree of precision, the reality is that the process of estimating future loss involves many uncertainties. For the reasons outlined above however I am of the view that the final allowance for future economic loss should be fixed at $475,000.

Loss of superannuation entitlements

The parties were agreed that the past loss of superannuation entitlements amounted to $15,789.59. Their point of difference was that the plaintiff contended that there should be a deduction from that amount to represent the tax which would have been payable on it at the rate of 15 per cent. The defendant contended that, in accordance with the decision in Jongen v CSR Ltd (1992) A Tort Rep 81-192 at 61706, a deduction of 30 per cent should be made to include allowances for tax and administration.
The essential basis upon which the plaintiff contended that Jongen should not be followed was that it involved a scheme involving a voluntary employer’s contribution, whereas this case involves the compulsory legislative requirement for superannuation to be paid by an employer. In my view the considerations which led to the learned judge in Jongen’s case concluding that it was appropriate to make a global deduction from the total benefit calculated at 30 per cent of the benefit apply equally in the case of compulsory superannuation. The calculation for past loss of superannuation is as follows:
Superannuation on projected
gross earnings 1994 - 1999  $15,789.59
Less 30 per cent  $ 4,736.87
  $11,052.71
Less superannuation received 1994–97
from Mandurah Catholic College             $ 4,589.30
Less 30 per cent  $ 3,212,56
$ 7,840.15

As to future loss of superannuation, the plaintiff claims at the rate of 8 per cent per annum on the gross loss of future income for the years 2000 and 2001, and at 9 per cent thereafter. The calculation of the loss of superannuation can be made by using the approach which I applied in par 58, par 59 and par 60 above dealing with future economic loss, but using figure for gross income instead of net income. The gross income figures can be extracted from the defendants written closing submissions. The calculation using that approach produces a future loss of superannuation benefits of $45,497.53. A 5 per cent reduction for contingencies reduces that figure to $43,222.65.
The total claim for past and future loss of superannuation entitlements amounts therefore to $51,062. Given the imprecise nature of the calculation, it is appropriate to fix the allowance for this item at $51,000.

Past gratuitous services

Whilst the plaintiff was in hospital, his mother came to Perth from Geraldton. She obviously spent a good deal of time with him, and was constantly available to run errands for him, take him to appointments with doctors outside the hospital, and assist in transporting him to and from the Catholic Education Centre whilst he undertook the courses in mathematics and religious studies in order to retrain for his return to work. That continued until approximately June 1994 when ill health kept Mrs Still in Geraldton at her home. In respect of that period of time, the plaintiff claims to recover for gratuitous services provided to him for 21 hours per week.
From 2 January 1995, when Mr Still was discharged from the quadriplegic centre, his mother lived with him through until July 1998. The first five months were spent at the plaintiff’s rented accommodation in Mandurah, and then subsequently in the house which the plaintiff built in Mandurah. During that period, Mrs Still gave evidence that she did all the plaintiff’s housework and cleaning which she estimated at approximately four hours per day, she cooked his meals which took her an estimated nine hours per week, she did five hours a week of gardening and 12 hours per week doing washing and ironing, the inference being that those tasks were not included in the four hours per day of “housework and cleaning”. In addition, Mrs Still said that she estimated she spent approximately eight hours per week assisting her son to maximise his mobility and minimise muscle spasm by providing him with massage to his legs and assistance in the use of his standing machine.
On the basis of that evidence, the plaintiff claims compensation for past gratuitous services of 45 hours per week between 2 January 1995 and July 1998.
From July 1998 the plaintiff claims 10 hours per week for housekeeping, washing, ironing, gardening and general home maintenance which has been provided variously by hired assistance and friends and family.
Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 provides certain restrictions on damages for the provision of home care services where they are gratuitous services of a domestic nature or relating to nursing and attendance that are provided by a member of the same household or family as the person claiming compensation. By subs (2), no damages are to be awarded for the value of services if the services would have been provided to the person even if the person had not suffered bodily injury. I am satisfied that, in this case, the services provided by Mrs Still to her son are not services that would have been provided had he not suffered the bodily injury. She moved from Geraldton initially to Perth, and then to Mandurah to provide assistance. Her husband remained in Geraldton and it is abundantly clear that she would not have been in a position to provide domestic assistance to her son had she remained in Geraldton. There is no reason to think other than that her only reason for moving from her own home was because of her son’s injuries, and his inability to care for himself.
In a report dated 2 June 1998, Mr Ker expressed the opinion that the provision of some six hours of domestic cleaning assistance per week, and three hours of outside household maintenance per week should prove sufficient in meeting Mr Still’s needs. Those figures he described in evidence as being a general figure that he had submitted on a number of occasions to the District Court. He said:
“I think probably that if you have somebody to come into your home for six hours a week and have somebody outside for three hours a week, hopefully the home should be clean, they should be able actually to do some shopping for you and hopefully there aren’t too many leaves in the gutters.”
Mr Ker acknowledged that it could be argued that a single person who did not have a partner in the home might exceed that time estimate and that undertaking a career would also make the maintenance of ordinary domestic tasks more difficult. In cross-examination however, Mr Ker made it clear that his estimate, although expressed in 1998, related to his opinion as from the time the plaintiff was discharged from the quadriplegic centre in 1994.
I readily accept that the services which Mrs Still said she provided to her son were provided to him, and consumed the time which she indicated. The question is whether, by reason of his injuries, Mr Still had a need for those services which should sound in compensation. The evidence of Mr Ker suggests otherwise. The defendant submits that, Mr Ker being the expert, his evidence should be accepted as representing the need which the plaintiff has, and has had since discharge from the quadriplegic centre, for domestic services. Anything beyond that, it is argued, goes beyond the plaintiff’s need and is not compensable. In my view, the matter is not quite so simple. The plaintiff said that following his discharge from the quadriplegic centre, his mother cooked his meals, did his housework, his laundry, drove him around to appointments, provided massage and assistance with his exercise and did everything else which was necessary. He expressed the view that if his mother had not stayed with him he would simply not have been able to return to work when he did. I have no difficulty in accepting that the physical and moral support which Mrs Still provided was likely to have been of great assistance in her son returning to an independent life, and the workforce. The general approach which Mr Ker has taken to the need for domestic assistance, while quite understandable, does not take account of the personal circumstances of this plaintiff, particularly in the 3½ years prior to when he expressed his opinion on the issue. Some allowance in excess of his estimate is appropriate.
On the other hand, whilst the full time undertaking by Mrs Still to assist her son make his return to the community, and to work, much easier, a requirement that the defendant compensate the plaintiff on the basis of a need for full time domestic services would be to over compensate the plaintiff.
With some difficulty, I have reached the conclusion that the appropriate course is to allow the plaintiff to recover for 20 hours per week for the period between January 1995 and July 1998. A claim for 21 hours of assistance provided by the plaintiff’s mother during the time that the plaintiff was in hospital was not seriously disputed by the defendant. It seems to me that to allow a similar period for the early years following the plaintiff’s return to the community is not, in circumstances where his mother in fact provided full time domestic services to him, inappropriate.
As from July 1998, by which time the plaintiff’s various medical problems had substantially stabilised, up until the date of trial, an allowance of nine hours per week in accordance with Mr Ker’s opinion is appropriate.
On the basis of those conclusions, and applying the requirements of s 3D(3) of the Motor Vehicle (Third Party Insurance) Act1943, the plaintiff’s entitlement under this head of damage is as follows:
(a)      27 January 1994 to 30 June 1994
          Average weekly earnings as at
          February 1994 = $503.70 ÷ 40 = $12.59.
          Allowing 21 hours per week for 22 weeks,
          The allowance is $5,816.50.
(b)      2 January 1995 to 1 July 1998
Taking an average of the weekly earnings
          as at August 1994 and May 1998 gives an
          average of $540.50 ÷ 40 = $13.52.
The allowance for 20 hours x 13.52 x 182 weeks = $49,212.80.
(c)      1 July 1998 to 28 June 2000
          Taking an average of the weekly earnings
          applicable as at May 1998 and August 1999
          gives an average weekly earnings of $574
          ÷ 40 hours = $14.35
          9 hours per week x $14.35 x 103 weeks =     $13,302.15
The allowance for past gratuitous services amounts to $68,331.45.
In my view it is appropriate that interest be allowed on the award for past gratuitous services. Given that the total entitlement accrued gradually, an allowance of half the current rate on judgments should be allowed from January 1994. Interest therefore amounts to:
$68,331.45 x 3% x 6 years, 5 months = $13,153.80
The total award for past gratuitous services including interest amounts to $81,485.25.

Future attendant care

The plaintiff claims for the cost of future attendant care at the rate of 15 hours per week at a commercial rate of $15.50 per week for life. The evidence of Mr Ker was, as mentioned above, that his present assessment of the plaintiff’s need was for a total of nine hours for domestic and gardening services. He said that, provided the plaintiff’s neurological state did not deteriorate, that could be expected to remain his requirement until the age of 50 when, regardless of any deterioration of his syrinx, it can be expected that a need for personal care will arise. That likelihood is a consequence of a prolonged period of paraplegia. Mr Ker said that the need for personal care may be for two to two and a half hours per day, although that need may not exist every day of the week. He thought 10 hours per week for personal care after age 50 would be a fair estimate.
The plaintiff’s approach is to endeavour to take an average over the plaintiff’s life of the total time that may be required for domestic and personal care. He argued that, if there is a deterioration in neurological condition, and in any event after age 50, there may be as much as 17.5 hours per week (two and a half hours per day) required for personal care and nine hours per week for domestic assistance.
Accepting, as I do, Mr Ker’s evidence as to life expectancy, the plaintiff has a life expectancy from the date of trial of 40 years. He turns 50 in 19 years.
Predictions as to the future are always difficult and the complications in this case aggravate that difficulty. In my view, however, the broad approach to the assessment suggested by the defendant is to be preferred. That approach is to assess the loss on the basis of a need for nine hours domestic and gardening assistance to age 50 and then for an additional period of 10 hours per week for personal care after age 50. To that I would add an amount to represent the possibility, which is a real one, that the syrinx may deteriorate and the need for personal care may arise sooner than age 50.
In my view, the provisions of s 3D of the Motor Vehicle (Third Party Insurance) Act1943 do not apply to this aspect of the claim. That is because the award does not relate to “gratuitous services” that are to be provided “by a member of the same household or family as the person”. The plaintiff gave evidence that he did not want his future wife to assume the role of “carer” in the sense of one who attends to his personal hygiene needs, nor to be burdened with more than a normal share of domestic responsibility. His fiancée gave evidence to like effect. I accept their evidence which I find to be reasonable and based upon a genuine assessment of the needs of their future relationship. It follows that the award for future attendant care is to be based upon an actual expense in the future, the need for which has been demonstrated.
Evidence was adduced from a Ms Kristine Wilson, a director of an organisation called Welcare which provides care services for disabled people. She gave evidence as to the rates charged by her organisation for the provision of staff. The rates had risen markedly in recent years although the carers themselves had continued to receive $12 to $14 per hour. The hourly rate which would apply if s 3D applied is, according to the defendant, (and using a process of averaging, which I find to be sensible and appropriate), some $14.40 per hour. Although s 3D does not apply, I am of the view that the rate which it prescribes is the most appropriate rate to adopt for the purpose of assessing this head of loss.
On that basis, the plaintiff would be entitled to:
9 hours per week to age 50
(18.5 years – multiplier 591)
ie 9 hours x $14.40 x 591 =  $ 76,594
Allowance for possibility of deterioration
before age 50 (say 20% of an additional
10 hours per week)
20 per cent x 10 x $14.40 x 591               $ 17,021
From age 50 to age 71 (Multiplier 806 – 591)
19 hours x $14.40 x 214  $ 58,824
Total  $152,439
On that basis I allow the claim in the sum of $152,000.

Future medical and like expenses

The plaintiff’s claim for future medical expenses is set out in great detail in his schedule of damages. The costs of future treatment and requirements are broken down into “one off” costs and weekly costs. It is convenient if I deal with the various items in the order set out in the plaintiff’s schedule.
The first item deals with fertility treatment. The plaintiff’s claim in this regard was not, in the light of the evidence of Dr Jequier and Dr Cherry, disputed. The plaintiff plans to have three children. There is an initial cost of $1,200 for epididymal aspiration. The present cost per treatment is $3,365. The parties are agreed that the deferred costs of treatment in two, four and six years amounts to $2,994.85, $2,665.08, and $2,372.32. The total cost of the treatments therefore amounts to $9,232.25. An additional claim is made in respect to likely consultations with a general practitioner for ongoing prescriptions and review, but given that general practitioner visits can be anticipated in respect to other matters on a reasonably regular basis, I do not think that a separate allowance should be made for general practitioner visits by the plaintiff in relation to fertility matters.
The second future cost claim relates to pharmaceutical expenses. In closing, the parties were in agreement that a reasonable allowance, taking into account the availability of the safety net for the plaintiff’s requirements for Brufen, Diazepam, Noroxin, ammonium chloride and Hipprex would amount to $800 per annum or $15.38 per week. In addition, I accept the evidence of Dr Cherry to the effect that Viagra would be of considerable assistance to the plaintiff. An allowance of 26 packets per year over the plaintiff’s life expectancy is reasonable. Mr Anderson, the chemist who gave evidence, put the cost at $74 per packet. That gives an annual cost of $1,924, or $37 per week. The total allowance for pharmaceutical costs is therefore $52.38 per week.
The plaintiff claimed for treatment by a physiotherapist at the rate of one consultation per week. That claim was based upon the evidence of his current physiotherapist, Ms Diane Robertson, supported by the general practitioner, Dr Brabazon. Against that, the defendant relied upon the evidence of Mr Ker who did not specifically recommend regular attendance at a physical therapist, but commented that from time to time Mr Still may require physical therapy, consultation and treatment sessions for the management of his tendency to develop contractures, joint stiffness and associated inability. He estimated that a provision for eight to ten physical therapy treatment sessions per annum would be reasonable. Ms Robertson’s evidence showed that in fact the plaintiff had attended physiotherapy some 40 times in 1999. That was a substantial increase in the number of attendances in the previous years. In 1998 there were some 15 physiotherapy attendances.
When viewing the long term requirement for physiotherapy treatment, I have concluded that it would be an error to base the assessment on the number of attendances by Mr Still during the past year, and the opinion of the physiotherapist that that frequency is likely to be required indefinitely in the future. I prefer the evidence of Mr Ker and conclude that an appropriate allowance is 10 consultations per year at $42 per consultation. That results in a weekly cost of $8. Mr Ker did accept that if the plaintiff’s condition deteriorated as a result of the progression of his syrinx, then more frequent physical therapy services would be required, and he would consider a figure of once a fortnight more appropriate. Given that I have accepted that there is a reasonable possibility that that deterioration may occur, some allowance should be made for that eventuality. On that basis, an allowance of $10 per week instead of $8 is appropriate.
The next item of claim is for psychological treatments which are claimed at the rate of five consultations per year. The evidence as to Mr Still’s psychological condition was provided by Dr Bill Douglas, a clinical psychologist. He provided a report dated 7 January 2000, but it was almost two years since he had previously seen Mr Still. In a report dated 9 February 1998, Dr Douglas indicated that the treatment which Mr Still was then undergoing at his hands “should be ongoing over the next three to four months”. I see no basis in the evidence for concluding that ongoing psychological consultations will be necessary, and no allowance should be made in respect of this aspect of the claim.
The plaintiff claims for a potential revision of the spinal shunt. On all of the evidence, I find that there is a reasonable probability that the shunt will need to be revised at some time in the future. The costs of the operation, excluding hospitalisation costs were said by Mr Knuckey to amount to $2,988. A separate claim is made in relation to future hospitalisation, and in my view no separate allowance for hospitalisation should be made in the context of the claim for a potential shunt revision operation. In addition, the expense is not likely to be incurred immediately, and some discounting is appropriate. A discount of approximately one‑third would recognise the possibility of a shunt revision within seven years. I propose to allow $2,000 for this item on that basis.
An allowance should be made for a six monthly review by a spinal specialist at $78 per review, an expense of $3 per week for the balance of the plaintiff’s life.
Similarly, an allowance should be made for an MRI Scan to be provided annually for the next three years, and then every three to four years thereafter. I accept the defendant’s calculation as to the appropriate discounting of the expense of $950 per scan giving a total allowance in respect of this item of $6,701.82.
Claims are made in relation to visits to a general practitioner in relation to various aspects of the plaintiff’s problems. It is undoubtedly the case that the plaintiff will be required to attend his general practitioner by reason of symptoms which are a result of the injuries suffered from the accident. Dr Brabazon’s evidence in his report of 10 October 1999 was that Mr Still visits him approximately nine times per year. That is born out by the list of attendances contained in Dr Brabazon’s earlier reports where it is shown that he attended Mr Still on twelve occasions in 1997 and nine in 1998. A single allowance in respect to consultations for all potential problems set at nine visits per year seems to me appropriate. The current cost of a visit is $33 per consultation. An allowance of $6 per week for visits to the general practitioner is appropriate.

The parties were in agreement as to an allowance for future hospitalisation at an average of eight days per annum. The defendant accepts a daily rate of $541 and it is a little unclear on the evidence precisely how the plaintiff arrives at the figure which is claimed. I propose to allow this item at the rate of $541 per day, being an annual cost of $4,328, or $83.23 per week for life.
It is common ground that the plaintiff will require dental root canal treatment which will cost $1,500. The evidence is not that the treatment is immediately required, and it is appropriate to discount the amount to some degree. An allowance of $1,200 for this item is appropriate.
The plaintiff currently uses a condom draining system because of a loss of bladder function. There are a couple of alternatives which may present themselves in the future. One is described as a “clam” enterocystoplasty. That operation involves an enlargement of the bladder which increases its capacity and hopefully avoids incontinence. Another possibility of dealing with the plaintiff’s bladder problems is the use of an intravesical installation of resiniferatoxin, although Dr Low, the plaintiff’s urologist, described that option as experimental. The results of trials are said to be some 12 months away. There is a problem with proceeding with the clam operation because of the position of the spinal shunt draining the plaintiff’s syrinx. Considering all the evidence, there is considerable uncertainty as to the likely future mode of treatment of the plaintiff’s bladder difficulties. In the light of that, I am of the view that the appropriate method of assessing the plaintiff’s future costs of treatment in relation to his bladder is to assume the continuation of the present regime. That is described in the report of Mr Kelly, a nurse consultant who prepared a continence assessment on the plaintiff as “Option A”. It results an annual cost of $1,236, or $23.76 per week. In addition, the plaintiff will require a bridge urinal at an annual cost of $40, and sterilising solution at an annual cost of $447. That results in a weekly cost of $9.36.
A claim is made in relation to absorbent sheets and mattress, but these items are duplicated in the claim for additional equipment which was the subject of evidence from an occupational therapist, Ms Gail Sharp, and which I will deal with below, and should not be allowed twice.
The defendant accepts that the plaintiff will need to undergo a urodynamics study approximately every 18 months, a six monthly urological review and cystoscopy every one to two years. Those costs amount to $274 per year or $5.27 per week.
The recurrent costs of Mr Still’s bowel management requirements were identified by Mr Kelly and amount to $1,040 per annum or $20 per week.
Mr Kelly also identified Mr Still’s skin care requirements at a total cost of $101 per annum or $1.94 per week.
The plaintiff claims an amount of $7,000 for a bladder management diagnostic ultrasound, and for provision for replacement of that item every 10 years. Any allowance for that item was opposed by the defendant. The basis of that opposition was that Dr Low, the urologist, and clearly the most well qualified witness in relation to bladder management issues, expressed the view in his report of 19 January 2000 that “the use of a personal bladder scan to check his residual … would be an unnecessary expense in this case when he was not doing any catheters, and even if he were, then it would need to be done six hourly …which he certainly should be able to gauge satisfactorily.” I accept that, for the purposes of bladder management, allowing for the cost of a portable diagnostic ultrasound device would not be appropriate. The case for allowing that item arises, not as a bladder management issue, but rather in connection with issues of sexual function. Dr Cherry, who practices in the area of sexual function for patients at the Sir George Bedbrook Spinal Unit at Royal Perth Hospital expressed the view that there would be an advantage in the plaintiff having a bladder ultrasound device so as to avoid having to catheterise just prior to sexual intercourse, and said that his support for that item “in no way is related to any other aspect of his bladder management”. His recommendation was “simply trying to make the sexual encounter somewhat spontaneous and in a sense as romantic as possible”.
This item therefore falls into that area of balance between what is fair and reasonable compensation, as distinct from an attempt to provide perfect compensation, as discussed by the members of the High Court in Chulcough v Holley (1968) 41 ALR 274 per Barwick CJ at 337. In that case Windeyer J said (at 338):
“A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. What these are must depend upon all the circumstances of the case – including the particular plaintiff’s way of life, prospects in life, family circumstances and so forth. It does not follow that every expenditure which might be advantageous for a plaintiff as an alleviation of his or her situation or which could give him or her happiness or satisfaction must be provided for by the tortfeasor.”
There is authority for the proposition that the plaintiff must choose the alternative a reasonable man would choose if he had no claim for damages. (Moss v Cook [1964] WAR 244 at 248 cited with approval in Farr v Schultz [1988] 1 WAR 94 at 100)
Were the claim in relation to a portable bladder ultrasound simply related to bladder management issues from a health point of view, I would not allow this aspect of the claim even though the item may provide a convenience which is reasonably useful in the bladder management regime. In my view, however, it is reasonable to allow the claim in the context of the use to which the item can be put in connection with the plaintiff’s sexual function. The plaintiff is embarking upon married life. The relationship between the plaintiff and his new wife will be subjected to undoubted stresses brought about by the plaintiff’s condition. In their evidence, the parties to that relationship expressed some apprehension about the difficulties they will face, but were positive in their attitude towards having a lasting relationship. In my view, a reasonable person in the plaintiff’s condition but without a claim for damages, would be likely to purchase a portable bladder management ultrasound device so as to minimise the impediments to a fulfilling sexual relationship. I propose to allow an amount of $6,000 for the purchase of that equipment, which in Mr Kelly’s report he indicated involved an initial cost of $5,000 to $7,000. The evidence did not go to the expected life of such units, and in my view provision for replacement every 10 years, as claimed by the plaintiff, is not supported on the evidence.
A number of items of additional equipment and services were claimed by the plaintiff, on the basis of the evidence of Ms Gail Sharp, an occupational therapist.
A claim is made for a laptop computer and projector, for approximately $13,500. The evidence was that equipment was not immediately necessary, but the defendant conceded that some allowance should be made. I propose to make an allowance of $10,000 for computer equipment including a projector.
A claim is made for a nurse consultant-continence adviser. Dr Low suggested that the services of a nurse consultant may be necessary three to four times per year, and Mr Ker indicated that he would recommend the use of a community based nurse “on a demand basis”. Mr Kelly, the nurse consultant called to give evidence, suggested a requirement of an initial weekly call for four to six weeks then a monthly review. The plaintiff’s claim was made on the basis of Mr Kelly’s report, but given that the plaintiff already has in place a continence regime, I see no basis for the claim for an initial allowance, but rather I am of the view that allowance should only be made for ongoing treatment. In assessing the frequency of that ongoing requirement, the evidence of Dr Low is to be preferred, so at the rate of $75 per visit for four visits per year, an allowance of $300 per annum or $6 per week is appropriate.
I allow the cost of a body cooler vest to deal with problems of regulation of body temperature which the plaintiff claims at $180 with replacement every 10 years being a total allowance of $336.
The plaintiff claims for a Wispa ceiling mounted hoist, although it is common ground that it will not be required for some time. I accept the defendant’s calculation as to the appropriate allowance in respect to this item which assumes a requirement in 13 years time, and allows for maintenance thereafter on the basis of a life expectancy of 40 years. The total allowed is $3,279. Similarly, I accept the defendant’s calculations in relation to the sling associated with the hoist on the basis that it will be required in 13 years, and will then be replaced every three years. The discounted total cost of that item comes to $1,585.
The parties agree that a chair raising frame should be allowed for with replacement every 15 years, being a total of $143.
I allow for a mattress protector, sheepskin covers and bed pads a weekly sum of $2.14 for life. An allowance of $148 as a one off cost for a free standing gooseneck was agreed. A mobile shower commode required in 10 years and replaced after each 10 years thereafter was agreed to cost $1,133 when appropriately discounted. The recurrent cost of a cushion should be allowed at $1.50 per week.
I accept the defendant’s calculations in relation to an electric mobile hoist on the basis that it will not be required for some 13 years, and maintenance should be allowed thereafter at the rate of $75 per year. The total allowance in respect of this item including the deferred maintenance costs is $2,101.
The plaintiff should be allowed the Enduro mattress with cover as claimed on the basis of replacement every five years for the next 35 years. Based on a cost of $664, the allowance for that item is $2,371.
I allow the plaintiff’s claim in relation to a commode cushion, soap bag and hand held mirror which together will cost $1.64 per week on an ongoing basis.
The claim for a long handled dust pan, cordless vacuum cleaner, cordless telephone, cot and bath aid are all items which would have been required, or some equivalent item likely to have been of similar cost would have been required, regardless of the plaintiff’s injury. The plaintiff is not entitled to an allowance in relation to those items.
Ms Sharp’s report also itemised the cost of a steering wheel spinner, hand controls and a Braiden car top hoist, but these are items dealt with under a separate head of claim.
The plaintiff claims the cost of a disabled parking sticker and a weekly expense of 14 cents, and that is allowed.
Replacement pads for a power trainer and tilt table respectively amount to $5.51 per week.
A stabilising strap recommended by Ms Sharp will have a weekly cost of 12 cents.
A child harness deferred for 2 years be allowed at $26.70 as a one off cost. On the same basis, there should be an allowance for a safety bath seat of $17.80 and a toddler harness $8.90.
I will allow the claim for a stove guard and stove knob covers. The defendant contended that the stove guard would be required in any event, but the recommendation of Ms Sharp is based on the fact that the stove may need to be lowered beyond the normal height thus creating an extra danger for children, and it is reasonable to assume that a stove guard may not have been required in the ordinary course. The allowance for these two items is a one off cost of $57.
The damages to be awarded under this head of the plaintiff’s claim is therefore summarised as follows:

One Off Cost	Weekly
Fertility treatment	$9,232.25
Pharmaceutical costs	$52.38
Physiotherapy	$10.00
Shunt Revision	$2,000.00
Specialist Review	$3.00
MRI Scan	$6,701.82
Visits to the GP	$6.00
Future Hospitalisation	$83.23
Root Canal Treatment	$1,200.00
Bladder Treatment	$23.76
Additional Bladder Equipment	$9.36
Urologist, Urodynamics, Cystoscopy	$5.27
Bowel Management Requirements	$20.00
Skin Care Requirements	$1.94
Portable Ultrasound Bladder Unit	$6,000.00
Computer Equipment	$10,000.00
Nurse Consultant	$6.00
Body Cooler Vest	$336.00
Wispa Ceiling Mounted Hoist	$3,279.00
Sling	$1,585.00
Chair Raising Frame	$143.00
Mattress Protector Sheepskin, etc	$2.14
Free‑standing gooseneck	$148.00
Mobile Shower Commode	$1,133.00	$1.50
Mobile Hoist	$2,101.00
Enduro Mattress	$2,371.00
Commode Cushion etc	$1.64
Disabled Parking Sticker	$0.14
Replacement items for power trainer and tilt table	$5.51
Stabilising Strap	$0.12
Child harness	$26.70
Safety Bath Seat	$17.80
Toddler Harness	$8.90
Stove Guard & Knob Covers	$57.00
Total	$46,340.47	$231.99

The weekly sum of $231.99 should be allowed on the basis of a 40 year life expectancy which provides a multiplier of 808.4. The total in respect of the ongoing costs is therefore $187,540 together with the one off costs of $46,340 gives a total of $233,880.

Transport

Considerable evidence was adduced at trial as to the suitability of, and the cost of potential modifications to, various types of vehicle which the plaintiff may require in the future. The plaintiff’s claim, put at its highest, was that he should be entitled to the most expensive of the vehicles examined, namely the Chrysler Voyager, suitably modified. The evidence was to the effect that there is a specific modification kit which can be used on the Voyager with the result that it is eminently suitable for the use of wheelchair bound drivers. The evidence also makes it clear, however, that there are other vehicles which can be modified in a way which makes them suitable to cater for the needs of Mr Still, and in particular his needs if his neurological problems progress with the result that he can no longer lift his wheelchair into and out of his car, or, in the fullness of time, not lift himself from his wheelchair into a car. In that event, he will need to be able to wheel the chair into the vehicle and either drive from the wheelchair, or with reasonable ease, be able to move from the wheelchair to a swivelling driver’s seat.
There are subjective elements to the choice of a car which will undoubtedly attend a decision of any person, whether disabled or otherwise, when purchasing a particular vehicle. The plaintiff should be compensated only on the basis of reimbursing him for the costs of such modifications as are necessary to a vehicle which will suitably meet his needs, albeit that it may not be the very best option available.
Having heard the evidence, I am of the view that the plaintiff’s compensation under this head should be assessed by reference to the costs associated with the purchase and modification of a Volkswagon Transporter long-wheel base, four speed automatic van. I am satisfied on the evidence that that vehicle would satisfactorily meet the plaintiff’s needs in the event of further neurological deterioration, both as to the needs of the plaintiff in respect of meeting his physical disability, and adequately providing a means of transport for him and his family in reasonable comfort and safety. I accept the defendant’s assessment of the evidence as to cost in relation to the purchase and conversion of the Volkswagon, other than that I would allow for dual air-conditioning rather than single air‑conditioning given the anticipated use of the vehicle as a family vehicle. Accordingly, the costs are as follows:
Cost (exclusive of sales tax)  $33,721
Air-conditioning - dual system    $4,500
  $38,221
Add modifications  $35,743
Add 3 seats @ $680.00 each   $2,040
  $76,004
Less cost of Magna sedan  $35,090
Total  $40,914
The defendant contends, on the basis of the evidence of Mr Ker, that a vehicle of this nature will be required by the plaintiff because of his physical condition in 13 years, and that the purchase of the vehicle should be deferred for that period. That ignores the possibility of a deterioration in Mr Still’s neurological condition earlier, and also the fact that if, as is planned, Mr Still and his wife have children within the next say eight years, a suitable vehicle to cope with the difficulties of transporting children will be needed. It is difficult to predict these sorts of eventualities, but it seems to me appropriate that the allowance in respect to modifications to a vehicle be deferred for a period of six years, and allowance be made for a replacement vehicle, which will require similar modifications, to be obtained every 10 years thereafter. Accordingly, the allowance in respect to increased transportation costs is as follows:
Present value of $40,914
- in six years = $40,914 x .705        =      $28,844.37
- in 16 years = $40,914 x .394        =      $16,120.12
- in 26 years = $40,914 x .220        =      $ 9,001.08
- in 36 years = $40,914 x .123        =      $ 5,032.42
Total  $58,997.99

Wheelchairs - supply and service

The parties are agreed that the plaintiff will require a manual wheelchair to be replaced every five years. His current chair is due for replacement in three years. The discounted cost of a manual wheelchair in three years time and then every five years thereafter during Mr Still’s life expectancy amounts to $7,429.78. Maintenance for those chairs and for a spare manual wheelchair will together amount to $5.66 per week. Over the plaintiff’s life, that will amount to:
$5.66 x multiplier 808.4 = $4,575.54.
The parties also agree that at some point in the future the plaintiff is likely to require a Glyde series six electric wheelchair. The dispute between them is as to whether that should be assumed to be the case in 10 years or 13 years. On the basis of Mr Ker’s evidence, I take 13 years as the appropriate time to make the calculation. Adopting the defendant’s calculations on that basis, the plaintiff is entitled to $8,778.55 for the cost of an electric wheelchair in 13 years and every 5 years thereafter. Maintenance at the $500.00 per year estimated by Ms Sharp for an electric wheelchair commencing in 13 years time and lasting for the plaintiff’s life amounts to $3,281.96.
The plaintiff claimed two further types of wheelchair. The first was a four wheel drive motorised electric wheelchair which would enable him to access areas of rough terrain such as sand or grass or rocky ground. The plaintiff gave evidence that he currently cannot gain access to such areas unless somebody is available to carry his wheelchair over that terrain. This affects his ability to do things like going to the beach or on picnics. The other additional wheelchair for which compensation is sought is a sports-chair. These claims again raise the issue of balancing the plaintiff's claim to be compensated in relation to such matters with the obligation to be fair and reasonable to the tortfeasor. The need to strike that balance is discussed above in the context of the claim in relation to a portable ultrasound device. The plaintiff’s claim for an XLT hand-cycle costing $7,500 can be included in this category of claims. The defendant’s position in relation to all of these is that they are not reasonable items of claim, and the needs which they service are encompassed in the compensation for loss of enjoyment of life.
As Windeyer J said Chulcough v Holley (above), what constitutes reasonable expenses “must depend upon all the circumstances of the case – including the particular plaintiff’s way of life, prospects in life, family circumstances and so forth.” This plaintiff led a particularly active outdoor life prior to his accident. I accept that he continues to enjoy participation in outdoor activities to the extent that he is able. I have concluded that some allowance should be made to recognise that this plaintiff should be compensated in a way which enables him to reasonably enjoy outdoor activities without total dependence upon others to get him about. On the other hand, I think that to allow each of the three claims referred to above would be to go too far. No doubt the list of different appliances which could be useful to the plaintiff could be endless. It is necessary to ensure that the line is drawn at a point which is reasonable for the defendant. In my view, the balance is best struck by allowing the claim in relation to a four wheel drive rough terrain wheelchair, but disallowing the claim in relation to the sports-chair and the XLT hand-cycle. The result is that the plaintiff would have a reasonable method of access to terrain to undertake the sort of outdoor activities which he undoubtedly would like to pursue, but would be left to make his own choices as to what expenditure he wishes to make on particular appliances which may enable him to undertake particular activities.

On that basis, I would allow the plaintiff’s claim for a four wheel drive wheelchair renewable after 10, 20 and 30 years in the sum of $18,466.
The plaintiff should also be allowed the cost of purchasing and replacing from time to time bicycle gloves, a wheelchair rain-cape, a helping hand, stable table, slide board and anti foam cushions which together amount to a weekly expenditure of $4.77. Applying the appropriate multiplier for life, that results in an allowance of $3,856. The plaintiff should also be allowed the cost of an Ezi‑Access ramp to be replaced every 10 years for the plaintiff’s life. That amounts to $1,339.
In summary, the allowance to the plaintiff under this head is as follows:
Manual wheelchairs  $ 7,429.78
Maintenance of manual wheelchairs              $ 4,575.54
Electric wheelchair  $ 8,778.55
Maintenance of electric wheelchair                $ 3,281.96
4‑wheel drive wheelchair  $18,466.00
Gloves, cape etc  $ 3,856.00
Ezi‑Access ramp  $ 1,339.00
Total  $47,726.83

Holiday requirements

The plaintiff claims for additional holiday expenses on the basis that he would make one interstate trip per year in addition to an overseas holiday once every five years. The claim was formulated on the basis that he will require a fully refundable and fully flexible airfare, that he will require accommodation in deluxe rather than budget accommodation, and that he will need to hire a vehicle which will accommodate a wheelchair. The defendant opposes the claim in relation to additional holiday costs other than to concede that there should be an allowance for some additional cost of suitable accommodation with appropriate facilities. In my view the defendant’s objections to this claim have considerable merit. First, I am not persuaded that the plaintiff would necessarily require fully flexible airfares. The evidence was to the effect that some flexibility exists in relation to ordinary cheap fares and in my view that degree of flexibility would cater for any particular problems which the plaintiff might occur over and above a normal traveller. I am not persuaded that it would be reasonable to assume that the plaintiff would have taken an interstate holiday every year, and an international holiday every five years. Assuming the plaintiff had not been injured, he would have continued to work in the education field, and would presumably have started a family. He had not travelled interstate at all prior to his accident. The income which he would have had, and the financial commitments of several children, make it highly unlikely that he would have enjoyed the holiday regime which he contends for.
In the circumstances, all that can be done is to allow some global amount to recognise the undoubted fact that the range of choices available to the plaintiff in respect to travel and accommodation are limited in a way which will result in additional expense to him. In my view an allowance of $10,000 will appropriately compensate the plaintiff in this respect.

Accommodation needs

A great deal of time was spent at trial examining alternative proposals for the future accommodation of the plaintiff. It was not in dispute that the plaintiff’s current home, although built by him since his accident, is presently unsuitable and that he will incur significant additional expense in modifications to a home which is suitable to his condition.
The plaintiff’s case was put on the basis that he would need to construct a specifically designed home to meet his requirements. The evidence was to the effect that the construction of a specifically designed home designed by Mr Bott would result in expenditure of $186,080 more than would be the cost of an appropriate home were the plaintiff not injured. There was a considerable degree of cross-examination of various witnesses concerning the adequacy of the size of different rooms, their potential use and modification, and the costs associated with those modifications.
The defendant’s case was that it was possible to modify a standard project home in such a way as to meet Mr Still’s reasonable requirements. The evidence was that the additional cost of so doing would amount to $146,572. Putting aside a claim for additional cost of land which I will deal with in due course, the difference between the parties was not in fact particularly great.
In compensating the plaintiff in respect to this additional cost with which he will be faced, it is impossible to settle upon a particular design of a house as determining the question. Although various alternatives were extensively investigated at trial, the relevance of the particular alternatives is merely to give an indication of an appropriate allowance which might be made for additional accommodation costs.
Although he had not had much opportunity to consider the defendant’s plans at the time he was asked about them, the plaintiff in fact indicated in cross‑examination that he found that the defendant’s plan appeared to cater for his needs reasonably satisfactorily.
It is not necessary for me to canvas all of the evidence and all of the points made in relation to the various alternatives put forward. Overall, I have formed the view that the plaintiff’s proposal for a specifically designed house represented what might be thought to be the top of the range of potential modifications, and the preferable course is to allow a figure closer to the defendant’s assessment. Overall, I consider that an allowance of $150,000 for the additional costs of modification to be appropriate.
The plaintiff’s claim also included an item for additional cost of land. Evidence was adduced as to the cost of land with and without ocean views in the area in which the plaintiff lives. There is also evidence that the particular design of the modified house put forward by Mr Bott would require more land than the unmodified house to which comparison was made. On that basis, it was said that an allowance should be made for the cost of the extra land which would be required to accommodate all of the needs. In my view, the evidence does not lead to the conclusion that there is an inevitable requirement for a larger building lot to be purchased by Mr Still than would have been the case had he not been injured. There are simply too many variables to be considered to allow that conclusion to be drawn. I am not satisfied that any allowance should be made in relation to additional land costs.

The modifications to caravan

The plaintiff’s schedule of damages sets out an item of claim for modifications to a caravan, and claims on the basis that such modifications would be required every 10 years as a caravan was replaced. The schedule puts the claim on the basis that the plaintiff is unable to stay with friends due to restricted wheelchair access and requires a caravan to enable him to take weekend breaks and short holidays.
There was little evidence in relation to this aspect of the plaintiff’s claim, but I am of the view that it falls in the category of expenditure which might be advantageous for the plaintiff, but goes beyond anything which the defendant ought reasonably be called upon to pay for as compensation.
The benefit to the plaintiff in relation to this expenditure is not easily referable to any physical or emotional need which the plaintiff may have. In my view, no allowance should be made in respect to modifications to a caravan.

General damages for pain and suffering and loss of amenities of life

The award under this head of damages is governed by s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943. That subsection provides that the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. Relevantly to this case, the maximum amount that may be awarded is $219,000. The “non-pecuniary loss” to which this restriction applies includes pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
I accept the submission of the defendant that, in order to arrive at an award in accordance with that section, it is necessary in the first instance to determine what proportion the plaintiff’s claim bears to the maximum amount that may be awarded, and not to make an assessment of a pecuniary amount and consider that as a proportion of the maximum amount. (See Southgate v Waterford (1990) 21 NSWLR 427 at 441, Andjelic v Marsland (1996) 70 ALJR 435 at 442, and Wylde v Aristondo’Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997).
This accident obviously had a catastrophic effect on the plaintiff’s life. His disabilities and symptoms include:
(a)feelings of his stomach being bloated and suffering stomach pain, stomach cramps and constipation;
(b)frequent urinary tract infections which give him pain, lethargy, headaches and an increase in muscle spasm in his legs, neck and shoulders. He has had a number of surgical procedures to try to reduce the frequency of those infections and takes antibiotics constantly to avoid the infections.
(c)He has weakness and neurological disturbance in his right arm, shoulder and the right side of his face. He has undergone three spinal surgeries in an attempt to relieve the pressure caused by the syrinx in his spinal cord.
(d)He suffers frequent burning sensations in his feet and buttocks.
(e)He suffers daily muscle spasms in his legs, neck and shoulders.
(f)His right arm, chest and neck are in constant pain, some days worse than others.
(g)He has abhorrence to heat and cold and cannot regulate his own body temperature.
(h)His sex life is permanently affected with no spontaneous erection and an inability to reach orgasm.
(i)He suffers skin problems including pressure areas and acne on his back from being seated in his wheelchair for long periods of time.
(j) He suffers from headaches.
(k)His sleep is adversely affected by the need to wake himself on average six times per night to lift one leg out over the other and role his body over. He is kept awake from pain and takes Valium to avoid those symptoms.
(l)He suffers bowel and bladder accidents which cause him distress and embarrassment.
The plaintiff has significant scarring to his chest and back as a result of the operations he has undergone. There is also scarring to his face as a result of the original accident.
The plaintiff suffers frustration from the fact that he can no longer participate in the many sports in which he previously participated with a high level of success. His ability to engage in social activities such as going to the cinema has been curtailed.
As I have found above, his life expectancy was reduced by some 10 per cent by the accident.
Dr Ker assessed the level of the plaintiff’s disability as being 85 per cent of total personal function.
It is true that, notwithstanding his injury, Mr Still has been able to return to the workforce, and it may be assumed that a most extreme case would involve a plaintiff not able to work again. Having said that, however, in terms of the loss of his enjoyment of life, it is clear that Mr Still was well suited to and enjoyed teaching physical education. He can never undertake that particular work again which is no doubt a source of disappointment and frustration for him.
The plaintiff must undertake a daily regime of personal care which is time consuming, and undoubtedly tedious and frustrating. Although his positive attitude has enabled him to return to work, remain involved in the community in which he lives and works, and establish a relationship which has led to marriage, his amenities of life and enjoyment of life cannot help but to have been greatly affected by the serious physical disabilities from which he now suffers.
Taking all these matters into consideration, in my view the appropriate proportion of the plaintiff’s non pecuniary loss to a most extreme case is 85 per cent. That happens to be the same proportion as Dr Ker attributed to the impairment of the plaintiff’s personal function based on American Medical Association guidelines. Although that assessment is helpful, it is not the basis upon which I have settled upon the figure of 85 per cent as the appropriate proportion for the purposes of s 3C of the Act. Rather, I have settled on the proportion on the basis of an attempt to conceive of a most extreme case which might well involve a complete incapacity to participate in the community.
On that basis, the award for non-pecuniary loss should be allowed at $186,150.

Conclusion

In summary, the plaintiff’s award of damages should be as follows:
Past medical and like expenses                $ 58,628.47
Past additional holiday expenditure          $      1,164.70
Past economic loss  $   134,100.73
Future loss of earning capacity                 $   475,000.00
Loss of superannuation entitlements         $     51,000.00
Past gratuitous services  $     81,485.85
Future attendant care  $   152,000.00
Future medical expenses  $   233,880.00
Transport  $     58,998.00
Wheelchairs – supply and service             $     47,726.83
Holiday requirements  $     10,000.00
Accommodation needs  $   150,000.00
General damages for pain and suffering     $   186,150.00
Total  $1,640,133.90
In addition the defendant must pay to the plaintiff the amount of the plaintiff’s liability to the Health Insurance Commission.
Against that total there must set off the advances made by the Insurance Commission by way of payment for past loss of earnings, being $135,337.41.