Sullivan v GIO - [2005] NSWSC 135

CITATION:
SULLIVAN v. GIO [2005] NSWSC 135

HEARING DATE(S): 24 to 28 November 2003; 1 to 5 December 2003; 9 December 2003; 11 December 2003; 9 February 2004; 27 February 2004; 16 March 2004

JUDGMENT DATE :

7 March 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Greg James J at 1

DECISION:
Verdict for the plaintiff. The parties are to calculate interest, etc., to provide for an up to date amount.

CATCHWORDS:
Damages - assessment - three year old infant now 21 - loss of earning capacity - whether relatives earnings are comparable - prospects in life speculative - appropriate basis for assessment when injuries of very high order - no residual earning capacity - blindness - brain damage - extensive further physical disabilities - a degree of insight - need for future attendant care, home alterations and pool, gym, physiotherapy and occupational therapy and other treatments, together with computer, Braille and travel assistance.

LEGISLATION CITED:
Motor Vehicles (Third Party Insurance) Act 1942
Motor Accidents Act 1988
Civil Liability Act 2002
Law Reform (Marital Consortium) Act 1984
Damages (Infants & Persons of Unsound Mind) Act 1929
Protected Estates Act 1983

CASES CITED:
Simpson v. Diamond [2001] NSWSC 1048
MBPCSA Pty. Limited v. Gogic (1991) 171 CLR 657
NSW Insurance Ministerial Corporation (formerly GIO) v. Willis & Anor (Court of Appeal, unreported 2 September 1994)
Norris v. Blake (No. 2) 41 NSWLR 49
Ren v. Mukerjee (ACTSC, unreported 12 December 1996)
Cowra Shire Council v. Trugett [2004] NSWCA 9
J.K. Kealy v. Jones (1979) 1 NSWLR 723

PARTIES:
SULLIVAN, Toby Daniel, by this next friend, SULLIVAN, Timothy v. GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

FILE NUMBER(S):
SC No. 20777 of 1986

COUNSEL:
Plaintiff: P. Semmler, QC./K. Nomchong
Defendant: K. Elkaim, SC./G. Graham

SOLICITORS:
Plaintiff: Carroll & O'Dea
Defendant: Bartier Perry

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

MONDAY 7 MARCH 2005

No. 20777 of 1986

TOBY DANIEL SULLIVAN, BY HIS NEXT FRIEND, TIMOTHY SULLIVAN v. GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:
The nature of the case

1 At about 3.20 pm on Saturday 19 July 1986, the plaintiff, Toby Daniel Sullivan, who was born on 6 June 1983, and thus was, as at that date, about three years of age, was severely injured in a motor vehicle accident. He brings the present proceedings for the assessment of damages in respect of the injuries he suffered. Liability is admitted.

2 The proceedings were commenced in 1986 and their resolution has been deferred from time to time pending his attaining sufficient maturity and his disabilities sufficiently stabilising, so as to enable damages to be properly assessed. The plaintiff is now 21 years old. He has been cared for by his family, substantially at their own expense, for 17 years. It is common ground that Part 3A of the Motor Vehicles (Third Party Insurance) Act 1942 applies and that the Motor Accidents Act 1988 and the Civil Liability Act 2002 do not apply.

3 The effect of that is that damages are to be assessed according to common law principles. But there is a cap on the amount that may be allowed for past gratuitous services and a restriction on awarding interest.

4 At the time of the accident, the plaintiff was a passenger in the rear passengers’ seat in a vehicle driven by his father. The vehicle was hit side on and rolled several times before coming to rest. The plaintiff’s brother, Alex, was also in the car but was uninjured. The plaintiff’s father received injuries from which he recovered.

5 The plaintiff was taken by ambulance to Hornsby Hospital and half an hour later was transferred to the Royal Alexandra Hospital for Children. There he was intubated and ventilated, suffered seizures and was treated with anti-convulsants. He was in a comatose state for some six weeks. He underwent surgery for drainage of bilateral frontal subdural haematomas in August 1986.

6 Prior to the accident, the plaintiff was a normally developing, healthy child, the second born of five boys. His parents were both university graduates, his mother in education, his father as a geo-technical engineer. His siblings are enjoying or would expect to enjoy university education and professional careers, should they wish. The family provides for its members a supporting stimulating environment with emphasis on professional achievement and social skills. He and they had every expectation he would enjoy a happy, healthy, comfortable and reasonably well-off life.

The injuries and disabilities

7 The accident has permanently grossly disabled him. He suffered severe brain injury. He is now completely blind in the left eye and with only limited light perception in the right eye; the brain damage causes an epileptic problem and dis-executive syndrome; he has a permanent intellectual disability which affects his ability to take any initiative and to reason logically. His disabilities affect his memory, word fluency and problem solving skills, as well as, his ability to convert thought into action. His speech has been affected. He also has a substantial impairment of hearing in his right ear.

8 His sight and hearing defects cause him to adopt a peculiar pose to attempt to discern and hear his surroundings. He suffers from a severe deficit on the right side of his body from right hemi-paresis. This has particularly and significantly affected his ability to use his right hand, nor can he use his right arm for functions of greater utility than stabilising objects while using his left hand to manipulate them. He was right handed but now is almost entirely dependent on his left hand. He has a significant loss of dexterity and control of his right leg. His right arm is approximately 10 centimetres shorter than his left. He wears a thermo-plastic splint on that arm. Although he has a normal life expectancy, the natural effects of age in his case will be accelerated so that he will require institutional care much earlier than the general population. Even though he may, with care and supervision, live apart from his family, he will be subject to greater risks and vicissitudes and both physical and emotional problems.

9 He has, particularly in the light of the sequence of treatment to which I will refer, over the years experienced severe pain and suffering and a substantial degree of emotional injury, that, notwithstanding the mitigation of what injury could have been expected to occur to him in the light of his dreadful physical injuries, as a result of the extremely effective and conscientious loving care furnished to him by his family. He is effectively permanently unemployable and unable to enjoy almost any social relations. He needs others to make his executive decisions for him. He will require considerable care for the rest of his life. He has substantial, although not complete insight, into his physical, emotional and social deficits. As he becomes older, he will become more and more depressed. Each disability compounds the problems created by the others and removes the prospect of using some remaining faculty to compensate for a lost ability.

10 Although liability for negligence has been admitted by the defendant, the amount of damages remains in issue. Generally, the physical injuries and incapacities of the plaintiff and their extent are not disputed nor is it really disputed that the plaintiff has fully lost earning capacity and the prospect of enjoying most normal social relations. It is accepted he will require a high degree of care, but issue is taken with the plaintiff’s submissions as to the proper level of that care.

11 The Part 33 Rule 8A particulars, at paragraph three, set out the particulars of hospitalisation and treatment up to April 1997 and the plaintiff’s education. They are as follows:-

(i) At the time of the accident, the plaintiff was a back seat passenger on the driver’s side when the defendant’s motor vehicle struck the driver’s side of his car directly where the plaintiff was seated. As a consequence, the plaintiff’s motor vehicle overturned three times and the plaintiff suffered very severe injuries.

(ii) Thereafter, the plaintiff was taken by ambulance to Hornsby Hospital and after half an hour he was transferred to the Children’s Hospital Camperdown.

(iii) Upon his arrival at the Children’s Hospital Camperdown, the plaintiff was showing signs manifesting decelebrate posture and pupillary reactions which indicated raised intracranial pressure or a brain stem abnormality. He was treated with intravenous Mannitol and intubated and ventilated. He was noted to have two brief left sided focal seizures and was treated with anti-convulsants.

(iv) The plaintiff was in a comatose state for six weeks after the accident.

(v) The plaintiff underwent an urgent CT scan and was thereafter muscle relaxed and ventilated mechanically and treated with intravenous fluids and morphine infusion. Ventilation continued until 21 July 1986 and he was discharged from the intensive care unit on 22 July 1986 but with problems of right hemi-paresis, reduced level of consciousness and microscopic haematuria. A repeat CT scan was carried out on 23 July 1986 which revealed oedema involving the left frontal and fronto-parietal regions.

(vi) The plaintiff continued to have convulsions which began on the right side and became generalised. He was treated with anti-convulsants to control these seizures however required re-admission to the intensive care unit on 23 July 1986. He was reintubated and ventilated and treated with intravenous Valium, Phenobarb and Dilantin. An EEG on 24 July 1986 revealed generalised excess slow wave activity bilaterally and the right hemiparesis persisted. A repeat Cat-Scan on 28 July 1986 revealed infarction and oedema of the left hemisphere with shift of the mid-line to the right.

(vii) Ventilation was continued until 29 July 1986 and he was discharged again from intensive care on 1 August 1986 with raised intracranial pressure with papilloedema and right sixth cranial nerve palsy. There was also persistent right hemiparesis and cortical blindness.

(viii) Thereafter, the plaintiff underwent a prolonged period of post-head injury recovery during which time he received occupational therapy and physiotherapy.

(ix) On 27 August 1986, he underwent draining of bilateral frontal subdural haematomas under a general anaesthesia. At the time of the requirement of burr holes to drain fluid, a cerebral shunt was performed. Visual evoke responses revealed markedly delayed responses in the right eye.

(x) In September 1986, the plaintiff was referred to the Royal Blind Society where he underwent assessment. This showed that visual functioning appeared to be limited to light perception in the left eye only with the right eye being unresponsive to light.

(xi) The plaintiff continued to undergo physiotherapy, occupational therapy and speech therapy until his discharge from hospital on 5 November 1986 with problems of right hemiparesis, blindness, aphasia and epilepsy as well as loss of speech.

(xii) After he was discharged from hospital, the plaintiff underwent severe blindness and behaviour problems. The latter consisted of hyperactivity, short attention spans, emotional lability and poor sleeping patterns. He suffered from epilepsy and this was controlled on Carbamazepine.

(xiii) In December 1992, the plaintiff was admitted to Westmead Hospital under the care of Dr. Chaseling to remove the cerebral shunt.

(xiv) Since his discharge from hospital, the plaintiff has undergone extensive speech therapy, physiotherapy, occupational therapy, psychiatric and psychological treatment.

(xv) The plaintiff has also undergone extensive blindness therapy with the Royal Blind Society. He has had continual assessment and treatment from a blindness therapist and has attended special blind schools. In 1987 he attended North Rocks School for two days a week attending to, inter alia, Braille lessons. In addition thereto, he attempted to attend West Epping Pre-School two days a week with normal children but this unfortunately did not resolve the plaintiff’s problems.

(xvi) In 1988, he attended the Deaf and Blind Pre-School and in 1989 he attended St. Lucy’s School for the Blind at Wahroonga. The plaintiff left St. Lucy’s in December 1995 at the age of 12.

(xvii) Thereafter, the plaintiff attended the Hills Grammar School at Dural but completed his 1996 schooling at the Beecroft Primary School to repeat Year 6. During that time the plaintiff underwent special Braille teaching at least two hours a week.

(xviii) At the present time, the plaintiff attends the Pacific Hills Christian School at Dural.

12 None of these are to any substantial degree disputed. I accept them. The case turns on what provisions need to be made for the future and what assessment of damages for his injury and disabilities, should be made in consequence.

13 To supplement what appeared in the Part 33 particulars, the plaintiff’s educational history was helpfully summarised by his senior counsel in his opening. That summary was not disputed. I accept the following:-

“The plaintiff, in 1987/88, attended the North Rocks School of Deaf and Blind Preschool for deaf and blind children, and in 1988 in addition to two days at that school, he spent two days at the West Epping Preschool; 1987 to 1988. Then from 1989 to 1995 he was at the St. Lucy for the Blind at Wahroonga in a special support class, and was given a large amount of assistance after school, particularly by his mother. He completed Year 6 at the end of 1995 at the age of 12 but then because of significant learning problems that he was having, and specially poor performance in maths and reading, comprehension, he repeated Year 6 in 1996. He did that at Beecroft Primary School. And he had support there from what is known as an ‘itinerant vision teacher’ – someone who goes with him and assists him in class – as well as many intensive tuition at home. Then for his senior school years, from 1997 through to 2002, he went to the Pacific Hills Christian School at Dural.

HIS HONOUR: We missed out the Hills Grammar School have we?

SEMMLER: What happened at Hills Grammar School, his parents’ understanding was that he would have a part-time assistant, but indeed the school required a full-time assistant, which I think was beyond their means at that stage, so he didn’t actually start there. He was transferred to the Beecroft Primary School.

And again with an itinerant support teacher from the Royal Institute for Deaf and Blind Children, and again with an enormous assistance outside of school, drawing on the assistance of the adaptive technology consultants of the Blind Society who assisted him to a large extent …”

14 The plaintiff completed his Higher School Certificate in a specially developed life skills course which required no testing, examination or marking. His HSC records no mark. He now attends TAFE at Hornsby undertaking a basic office skills course designed to teach students how to use a fax machine and telephone. In addition, he is learning a new software programme called JAWS. He has done work experience in switchboard work. He receives a blind pension which will cease when he receives his damages. I accept that there is no residual earning capacity as a practical proposition, notwithstanding a remote possibility that at most he might find switchboard work for up to 10 hours a week.

15 Absent the effects of the injuries arising from the accident, he has apparently been in excellent health. His family have not only been concerned to give him the maximum support and care, but have had sufficient financial capacity to provide excellent diet and health care.

16 The plaintiff has an agreed life expectancy of 60 years, the statutory prescribed discount rate is five percent, and the agreed applicable five percent multiplier is 1012.2.

Basis of damages assessment

17 Following some weeks of hearing, taking evidence particularly from the plaintiff and his family and various experts who had furnished numerous and voluminous reports, the parties provided extensive written submissions which were supplemented by additional shorter written material and which were addressed at some considerable length orally by senior counsel. Those submissions dealt with the issue of damages referring to various heads or components of the damages.

18 As the matter has proceeded, agreement has been reached that the finding of damages be with reference to specific components. The appropriate award on some of those components has been agreed.

19 The approach taken to assessing the damages beyond that point was to deal with each of the components and thus the total damages in accordance with a schedule prepared by the parties. They provided written submissions in which the various components of damages were discussed under relevant headings. It is convenient that I too, in this judgment, deal with the matter in that way. The parties also provided me with their statement of sums contended to be appropriate to each component head of damage.

20 The schedule of heads of damages as amended and the result of the agreements of the parties during the proceedings, is as follows. The order of the components has been re-arranged.

Amended Schedule of Issues

Issue Plaintiff Defendant

General damages $350,000.00 $280,000.00

Loss of support from marriage partner $83,778.24 Nil

Interest on past out of pocket expenses $102,291.64 Nil

(altered in the plaintiff’s written submissions to $546,259.17)

Future attendant care $3,732,460.68 $1,008,033.00

Future case management $526,344.00 Included in
future care

Gym attendant $133,056.00 $81,950.00

Transport costs $50,000.00 Nil

Transport training $133,814.75 $44,417.00

Home modifications $188,796.00 $22,221.00

Heated pool $93,286.00 Nil

Home automation $110,000.00 Nil

Additional maintenance and running $95,278.00 $31,247.00
costs of house

Additional maintenance and running $148,418.88 Nil
costs of hydrotherapy pool

superannuation and long service leave)

21 The following components were agreed:-

Future equipment/OT aids $14,026.28 $14,026.28

Future OT requirements $48,999.60 $48,999.60

Out of pocket expenses $93,023.00 $93,023.00

Past educational expenses $76,503.26 $76,503.26

Future educational expenses $5,000.00 $5,000.00

HIC payback $1,714.15 $1,714.15

Future treatment/medication $87,242.00 $87,242.00
(except future OT requirements)

Blind walking cane $275.40 $275.40

Button zip hook $51.00 $51.00

Personal alarm system $8,408.40 $8,408.40

Past recreational expenses (estimate) $5,000.00 $5,000.00

Future recreational expenses $18,451.43 $18,451.43
(except for gym attendant)

Computer and software for vision $45,000.00 $45,000.00
Impaired user (see amended Part 33s)

Total $9,162,969.39 $3,142,133.30

Funds administration (estimate) to be assessed to be assessed
in accordance in accordance
with Exhibit F with Exhibit F

22 In this judgment I will proceed to deal with each issue as is referred to in that schedule. Although the amounts shown merely set out the parties’ submitted damages figure, each such item as is so referred to has been discussed in detail in the oral and written submissions provided by each party.

General damages

23 It is submitted by the plaintiff that the combination of the plaintiff’s physical, cognitive, intellectual and emotional injuries and disabilities qualify him for general damages at the very upper end of the range. I accept that submission. I have already referred to the initial effect of the plaintiff’s injuries and to many of his disabilities.

24 The defendant does not dispute any of the matters to which I have referred nor that the plaintiff was seriously and permanently injured and disabled. The defendant submits that the figure assessed as appropriate for general damages should be significant. The defendant submits, however, that the plaintiff’s contended figure for general damages of $350,000 is outside the range of a sound discretionary judgment and that an appropriate award would be no greater than $280,000.

25 The plaintiff, in that regard, refers to six matters which it submits constitute particular categorisations of the harm the plaintiff has suffered and for which general damages should be available. They are:-

(1) Pain and suffering;

(2) Substantial loss of the amenities of life;

(3) Severe and significant ongoing disability;

(4) Body disfigurement and physical impairment;

(5) Intellectual and cognitive impairment;

26 In regard to those matters, I am particularly concerned to have regard to what provision is made in this award which might be referrable to the other components of damage since they are matters in respect of which the plaintiff will receive compensation under that heading. There is some overlap in concept, but I take care to avoid double counting. Thus, although under this heading, provision is made for the loss of amenities of life and for the limited value of expedients in mitigating the severe diminution of quality of life, I have regard to the awards I will make for future attendant care, holiday assistance, past care, loss of support from co-dependency relationship, transport costs and transport training, home modification, gym use and the provision of future equipment or occupational therapy aids, particular provision.

27 I apprehend by the use of the term “general damages” in the schedule of damages that what is intended is to refer to matters of general nature, in contrast to the various other specific items contained in the schedule; that what the parties intend to refer to under this heading is an amount of damages referrable to the loss of enjoyment of life, pain and suffering and such items as are conventionally unable to be estimated as distinct components of the award of damages unlike those otherwise specifically referred to in the schedule which are to be treated as discrete and capable of being particularly assessed

28 It was submitted that, were the general damages to be assessed under s.16 of the Civil Liability Act 2002 (which does not apply to this case) at the maximum, the plaintiff would be entitled to $384,500 and that that figure or the award of general damages in Simpson v. Diamond [2001] NSWSC 1048 of $390,000 which was not contested on appeal were useful guides. I do not regard either as of any particular relevance. Simpson (supra) was a case involving substantially different injuries and, indeed, injuries of an even more crippling kind than those suffered by this plaintiff. It is not permissible to compare different awards on such a basis.

29 It is notorious that it is impossible to equate different injuries and thereby derive some formula with which general damages can be calculated. The Civil Liability Act 2002 has no application here nor can some formula or formula derived from it, have application.

30 I turn to a description of the circumstances of the plaintiff additional to those I have already stated as might reflect on the matters referred to by the parties under this heading.

31 The plaintiff initially underwent great pain and suffering. The history of treatments afforded to him included prolonged periods of occupational therapy and physiotherapy, the necessity to re-learn essential human skills, including speech, toilet training and so forth, in a context where he was required to undergo the considerable ongoing training to deal with the significant disabilities. This included the necessity to acquire skills to deal with both the paresis and the limited visual perception, which amounts to effective blindness, to deal also with his aphasia and epilepsy. A shunt, which had been placed in his brain to drain the haematomas in 1986, was removed some six years later under general anaesthetic. He was again hospitalised for that purpose.

32 Although the plaintiff does have some visual perception in the left eye, his vision is less than 6/60. This limited amount of vision is exacerbated by abnormal eye movements and a constant right divergent squint and the plaintiff suffers bilateral optic atrophy.

33 His hemi-paresis involves a significantly lower muscle strength on his right side; in the right shoulder it is one fifth of normal. Flexion and extension of the fingers in the right hand are limited to two fifths of normal range and the weakness on the right side has resulted in a deformity of the right arm with deficient co-ordination as a result of the motor loss, that arm being shorter in length, he thus becomes susceptible to tripping, imbalance and instability which, taken in conjunction with his blindness, renders him highly at risk when getting about.

34 In addition, there is there is a slight facial weakness and loss of normal pain sensation in the right trunk and lower limbs. There is a fixed scoliosis concaved to the right in the lumbar region resulting in a decreased range of movement of side flexion and rotation to the left due to the decreased muscle strength in the right trunk. There is also decreased muscle strength in the right calf and hamstrings.

35 These deficits impact significantly on the plaintiff’s ability to perform almost all normal daily living tasks, even in a controlled and familiar environment.

36 There is overactivity in the muscle groups in the trunk, leading to muscle imbalance, a decreased calf length in the right leg and that overactivity in that context becomes more taxing, leading to a reduction in voluntary control over those muscle groups decreased strength. It is necessary for the plaintiff to wear a splint on his right arm to prevent muscle contracture and it is something about which the plaintiff needs constant reminders, he being reluctant to wear the splint, since he feels it sets him apart.

37 The plaintiff has problems with memory, his dis-executive syndrome, his impaired problem solving skills, impaired socialisation and impaired general cognitive abilities. He is unable to cope for his blindness and his other physical defects and his ability to retrieve learned information is seriously affected by the damage to his frontal lobes.

38 He thus, as was submitted by Mr. Semmler of Senior Counsel, in the light of the evidence from Dr. Jungfer, is left totally dependent on others to act as his frontal lobes and is hence, not only liable to exploitation, but to mis-interpret things to his danger and disadvantage including well meaning information that is not perfectly communicated or not accurate.

39 I have referred already to the plaintiff’s educational difficulties. His physical and intellectual disabilities have dramatically disadvantaged him in almost all aspects of life and will do for the whole of his life. He is well aware of what he has lost and I find he could have expected a comfortable life as his siblings appear likely to enjoy.

40 There are extremely limited opportunities for the plaintiff to participate in social and recreational activities or to enjoy any normal life including any normal sex life, although, as to the latter, I accept the evidence that there is a reduced sexual drive.

41 I had the benefit of observing the plaintiff in the witness box. He appeared to be an entirely honest, extremely well cared for young man who is courteous and reasonable. It was also, however, clear that he was of some limited understanding; his word skills were much better than one would have expected, no doubt due to the amount of education he had received both at home and at school and, in particular, from his parents, but his problem solving abilities were plainly impaired. His ability to sign his name illustrated how he and his family had devised modes to attempt to allow him to cope, but his problems in using a template to be able to effect a signature plainly illustrated, not only his awareness of his deficits, but also the very great extent of deficit under which he will have to attempt in due course to care for himself. Under supervision and with continued training, he attends a gym and visits the shops. He can, under one on one supervision, use a swimming pool. He can attend the movies if taken by another. These, however, are very limited activities in the way he performs them and he must be continually re-trained, accompanied or supervised to be able to do them. Even though he can to a limited extent use a mobile phone, any disruption to the normal routine courts disaster. His limited ability to use, to a limited extent, public transport or even to leave his home for any purpose, requires repeated, frequent training on short or simple routine routes or that he be accompanied and supervised.

42 It is quite plain that the plaintiff has an awareness of and an insight into his disabilities. He is not at present subject to any psychiatric condition of depression. With the support he has enjoyed from his family and parents, the adverse psychological mechanisms which might normally operate, he having undergone such catastrophic injuries, seem, for the moment at least, to be held at bay. It cannot be expected that he would continue to receive that support as his parents grow older and as he is himself eager to try to live apart from them to avoid remaining a burden on them for the rest of their days. He seeks some degree of independence and has sufficient insight to wish to achieve that independence so as to cease constituting the 24 hour burden to his parents he has been for so long. In sum, his quality of life has been appallingly affected.

43 The plaintiff’s school friends and present friends and present friends are very limited, most of those friends being persons who themselves suffer disabilities so that he had limited contact, except through his family and particularly his siblings, with others.

44 He has attended courses at TAFE, but this cannot continue indefinitely. There he has some social contact. Otherwise his social activity is very limited and, in particular, turns upon his attendance at the gym, something he very much enjoys. His ability to get to and from TAFE and the gym, as I have said, turn substantially on his learning and re-learning of the particular routes and the use of access facilities and transport and the avoiding of disruptions to his learned routine. He is dependent on the use of a cane in unfamiliar areas. He does not like asking people for assistance because of the deficiency of hearing in his right ear. Notwithstanding the effect upon his muscular structure, he turns his head to ensure he gets the sound in the left ear. This in combination with the squint leads to fairly severe postural problems which I noted in the witness box. This all combines to make his circumstances, when unaccompanied outside his familiar home environment, entirely precarious and probably outright dangerous.

45 He is unable to use his right hand even for computer keyboard work, notwithstanding the exercises he attempts at the gym which include seeking to straighten the arm and lengthen it as it is presently shorter than his left arm. He needs continuous help from a personal trainer in the gym, not only to do the exercises but also for safety’s sake. He is able to swim and to walk, but has difficulty kicking a football.

46 His short term memory is sufficiently defective that he cannot remember from day to day what he did the day before. He is dependent on his parents and carers to remind him of what is to be done each day. His memory for appointments is defective.

47 He has been able to travel on holidays, including overseas, with his parents, enjoys music, particularly Irish music, attends organised groups available for disabled persons but finds difficulties communicating with some of the persons with more severe disabilities than he has.

48 He is functionally able to attend to simple household tasks, particularly in the kitchen, and his own hygiene, but would have difficulty caring for a guide dog.

49 The plaintiff is not a paraplegic or quadriplegic. He is mobile and able to participate to a limited extent, at least for some time, in activities which he enjoys.

50 He is, however, dependent on the provision of transport, provided by his family, for trumpet lessons, obtaining books from the library and for his attendance at blind cricket to which he is assisted. Otherwise these activities require quite a complex use of both route selection and public transport.

51 From time to time he does attend a movie or dinner or sees his friend, Ryan, who comes from Kellyville to the plaintiff’s home. He speaks to other friends over the phone and may meet for a cup of coffee when convenient at a local shopping centre.

52 Although he resides at home and is entirely dependent on the wonderful care provided by his family, he wishes to leave home and live independently, although he would not expect to do so immediately rather than within the next couple of years. He would like his parents, who have cared for him, almost without respite, particularly, in the case of his mother, to have assistance available and thereafter when he lives apart from them to step aside from the present undertaking of full time care. He accepts that he needs someone everyday to assist him get about and has obviously no ability or capacity to cope with the ordinary events of life occurring outside his learned routine.

53 Plainly, his cognitive deficits, memory problems and dis-executive syndrome, in particular, as well as the whole of his disabilities, render him incapable of attending to even the most minor financial and social matters without supervision and assistance. All his financial and social affairs will need to be managed for him by some one who can, as his parents (particularly his mother) have done for so long, substitute for his lack of a normal frontal lobe.

54 He is, of course, bound to the use of Braille, a Braille reader or having someone read to him from print. He is able to use a mobile phone. It is also clear that thanks to his cognitive and memory defects he is unable to budget for his use of the mobile phone and is unaware of the specific features it has.

55 I was most impressed with the plaintiff’s evidence and, in particular, with his attempts to persuade me that he can cope and the extent that evinced his willingness to cope, but this wish to live apart from his family would involve him living a life with which I find he could not cope without very great support care and assistance.

56 I was very impressed too with the evidence of his father, mother and brother concerning the family’s support to him and how he and they had attempted to cope with his deficits. I shall discuss aspects of the evidence of this mother and father shortly when referring to other components of the award. Their evidence was almost unchallenged and I accept it. I conclude that his parents have, both out of love for him and because of his necessities, afforded him immense care so that he now has, I find, the ability to live apart from them if under a high degree of supervision and care. It should be noted here that the family’s care of him at home has replaced what otherwise would have been full time intensive specialist institutional care involving almost constant monitoring and assistance. The mitigation provided by the family to the defendant is thus considerable.

57 The plaintiff’s brother, Alexander Sullivan, gave evidence. In particular his evidence was relevant, not only to the plaintiff’s prospects of academic success and to his loss of future earnings and earning capacity, but also to the nature of the family and the support its members gave to the plaintiff.

58 Alexander Sullivan had attained a UAI of 87.6 at his Higher School Certificate in 1999, having attended Knox Grammar where he had enjoyed school sports, although did not play them with any marked degree of prowess. Following his high school graduation, he enrolled in a combined Bachelor of Science/Bachelor of Business Course at the University of Technology, a four year course from which he changed in 2002 to a Bachelor of Science and Applied Chemistry, with a proposal to do Honours in Forensic Science at the University of Sydney embarking on a straight Bachelor of Science degree intending to major in psychology as of 2003. He had, by 2003, completed the first year of that three year course, having available the option of a further honours year. He received credit for the subjects he had completed at the University of Technology giving him a lessor work load. He has in view the prospect of private practice as a clinical psychologist or something of that kind.

59 He has been, as has his brother, afforded the support and assistance at home of Mrs. Sullivan, a teacher by profession, and Mr. Sullivan, a part-time university professor and the provision by his parents of an affluent home environment. This has no doubt contributed to his advancement as it could have been expected it would have, for the plaintiff, except for his injuries.

60 During the witness’ evidence, I expressed the view that he was a person of some considerable sense, and I confirm here, accurate appreciation of social difficulties. I was confirmed in that view by the whole of his testimony and the assessment I made of his parents and his family. He referred to his concern for fitness, a concern his brother shares to some extent, and reading including of such magazines as “New Scientist”. With reference to his fitness concerns, he attends weight training four to five times a week at the local gym, the place to which the plaintiff goes as well. He also referred to his expectation of travelling overseas, something to which he had been introduced by the family. These are options, of course, that are not available to the plaintiff except in the context of family or other support. He appeared to be happy with his life and its prospects. I infer that all the children, because of their innate abilities and their intelligent, concerned, affluent and devoted parents whose nurturing was exemplary, could have been expected to have been achieved equally successfully, speaking in a broad sense, so that I can derive from the example of Alexander a rough guide to the quality of life lost by the plaintiff.

61 He gave evidence that the plaintiff was able to cope with access to the flat, the use of which he enjoys at his parents’ home and that the plaintiff tried to exercise in the family pool with the family’s encouragement; that the plaintiff was accompanied in his use of the pool. His evidence of his own life illustrates how much the plaintiff has lost compensable under this and the other headings which I will consider.

62 There is a high probability that the plaintiff will increasingly find himself alone except for paid carers as his parents advance in years, even given his being housed in an institution, in due course. Notwithstanding that he is, in my view, entitled to live independently even if housed with a carer. This is a matter to which I will return when considering other components of the award. It is likely as he grows older in years and more likely the older he grows that he will require institutionalisation absent some technological advance which might provide assistance to him in remaining independent from full time care longer than I would at present expect.

63 He enjoys TAFE, swimming, the gym, holidays and leaving the house but effectively he must be supervised or closely monitored. The only unsupervised pleasure he appears to have available is listening to music or talking books and the evidence is that he must be roused and a change in activity initiated or he would simply continue to listen. He also enjoys using his computer to e-mail people over the internet and playing the trumpet.

64 Notwithstanding the agreed life expectancy of 60 and the strength of the loving and efficient support for him afforded by his parents and siblings, his present good health can be expected to progressively decline and the ability of his family to see to his welfare similarly to diminish. It can only be expected that his enjoyment of life will progressively diminish and thus the suffering from his disabilities will increase.

65 Particularly having regard to the plaintiff’s awareness of his defects and the increased effect on him of those defects as he grows older, his support mechanisms lessen and his abilities deteriorate, I have concluded that the damages awarded under this head, whilst not of the very highest order, should be of an order approaching that.

66 I have already referred to the plaintiff’s limited circle of friends whose direct society he enjoys occasionally to his association with his family and to the social activities including the gym he undertakes in person, as well as his telephone and computer contact with people. At school he was subjected to a life of limited social contact with some students ignoring him entirely.

67 There was evidence from Dr. Jungfer that he has a problem initiating social conversations and relationships as a consequence of his intellectual disabilities and that his injuries have affected his libido. The likelihood of his being able to enjoy a long term intimate relationship is very low, if at all existing. In addition, Dr. Jungfer gave evidence that I accept that people with intellectual disabilities have a higher rate of relationship breakdown than people without such disabilities. The evidence including of Dr. Jungfer and Mrs. Olymbios persuades me that it is extremely unlikely the plaintiff will ever form a relationship akin to that of a close friend or sexual nature.

68 With that in mind, and having regard to the matters to which I refer when discussing submissions on loss of a marriage partner, which I also take into account when quantifying the award for this component, I am of the view that he should receive the sum of $310,000 under this heading, whilst paying regard to the necessity, derived from dealing with other matters as distinct components of damage, of avoiding double compensation.

Loss of support from marriage partner

69 This item refers to an asserted loss arising from the loss of an opportunity to enjoy a financial relationship with a partner which it is asserted to be, at least to the plaintiff, of greater financial benefit than a solitary life. It is referred to in the plaintiff’s submissions as a claim for financial loss from a co-dependency relationship. It is to be distinguished from the loss of companionship and of a sexual life, compensation for which I have included under the heading general damages, as is the compensation for a significantly reduced capacity for making emotional and social relationships.

70 Whilst I accept these matters, they all sound within the award that has been made under the heading of general damages, including the fact that it could have been expected that, except for the accident, the plaintiff would have enjoyed ordinary romantic and long-term attachments, marriage and being part of a family.

71 I find that, absent the accident, there would have been a high probability that the plaintiff would have entered into a life time commitment with an earning partner such that, although there would have been a degree of probability that the relationship might break down, the award for general damages should include a component referrable to the plaintiff being denied that association. I accept that in that relationship both partners would contribute financially to the totality of the relationship and that there might be an expectation that by pooling their contributions they might have enjoyed overall a financially more stable and perhaps more benefited life than might otherwise have been the case had they remained solitary.

72 I accept that the claim is not for loss of consortium which would be barred by the Law Reform (Marital Consortium) Act 1984, s.3, at least considered as an item separate and additional to those matters comprehended under the heading general damages.

73 Of course, such a relationship may well have given rise to children who would need to have been supported out of that relationship financially for a very lengthy period of time. The relationship might have resulted in a financial devastating divorce or been affected by some imbalance in contributions. Thus the purely economic aspects of any such relationship would be likely to be so affected for many reasons. The plaintiff contends that the probable benefit to him from such a relationship would have been at least $200 per week net, that on the basis the plaintiff’s partner would have been about the same age, had a further 40 years of working life calculated on the expectation the partner will retire at the age of 65 years. Such a submission relies on many assumptions.

74 Of course, all the normal incidents and vicissitudes involved in such a proposition would have to be taken into account. It is contended that a discount should be made to that effect and that the prospect of financial gain should be offset to some extent by the chance of the relationship failing. It submitted the proper discount is 35% and that I should allow the plaintiff the benefit of a total of 30 years from the beginning of the relationship.

75 The defendant submits that the claim is too speculative. I accept that submission. So far as the general considerations are concerned, I have had regard to them when considering general damages. I am unable to see that it would be reasonable to allow in addition to those matters dealt with under general damages specific amounts said to represent such a speculative prospect under this heading.

Interest on past of out of pocket expenses

76 The Health Insurance Commission payback at $1,714.15 has been agreed between the parties. The defendant has paid some $72,439.99 out of pocket expenses. There remains outstanding expenses in favour of the Royal Blind Society of $30,234.75, the Spastic Centre of $4,370.75, Guide Dog Association of $41,897.76, a total of $76,503.26.

77 In addition, the amount paid directly by the plaintiff’s parents on his behalf for other such expenses is $93,023.00. The plaintiff claims interest on those monies. The defendant resists that claim, relying firstly on the provisions of s.35D of the Motor Vehicles (Third Party Insurance) Act 1942 but also contending that the out of pocket expenses were not incurred by the plaintiff but by the plaintiff’s parents and paid by them. It is argued that they as volunteers are not entitled to claim interest and he, as not having incurred loss, was not entitled to make any such claim for interest. This argument is put, albeit the payment of the monies was plainly enough not intended by the parents to be a gift either to him or the defendant but paid as a necessity so he could be provided with what he needed and in the expectation the eventual award of damages would make provision for these amounts so as to enable the plaintiff to repay the monies advanced on his behalf and they would bear the customary interest thereon. It is noteworthy that the award to the plaintiff of a component of damages to cover reimbursement of the monies spent by his parents on out of pocket expenses was agreed to by the defendant.

78 Section 35D provides as follows:-

“1. A court shall not, in relation to an award of damages to which this Part applies, order the payment of interest, and no interest shall be payable, on an amount of general damages, or damages under section 35C, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to the date of the award.

2. Except as provided by this section, nothing in this section affects any other law relating to the payment of interest on an amount of general damages.

3. Subsection (1), as amended by the Motor Accidents (Amendment) Act 1994, applies to claims for damages arising from the death of or bodily injury to a person caused by or arising out of the use, between 1 July 1984 and 30 June 1987 (both dates inclusive), of a motor vehicle that were not settled or finally determined as at the date of commencement of the amendment made by that Act to that subsection.”

79 The defendant submits that s.35D(1) on a proper construction bars the inclusion in any award of damages of any interest component. But the section does not say this. The damages component reflecting past paid out of pocket expenses is not conventionally regarded as general damages or as compensation for past services nor does it or interest on it attract a specific award.

80 The part of the Act to which s.35D applies is Part 3A. By s.35A, it is provided that Part 3A applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of the use of a motor vehicle and s.35A(b) which is payable out of the Transport Accidents Compensation Fund. Section 35B provides for the present value of future loss arising from deprivation or impairment of earning capacity, loss of the expectation of financial support or a liability to incur expenditure in the future by the adoption of particular prescribed percentages where the award of damages is to include compensation assessed as a lump sum in respect for damage for future loss. Section 35C deals with the fixing of a maximum amount of damages for provision of services of the kind I have referred to.

81 During the Second Reading Speech, the Parliament referred to the legislative intention of these provisions:-

“The overall aim of the legislation is to have claims made quickly, assessed quickly and paid quickly once injuries have stabilised and damages can be properly assessed. Claimants who provide full details of their injuries and losses to the insurer should be able to expect a full and thorough assessment of the claim, and a realistic offer of settlement. If the insurer does not respond in this manner, they face the prospect of an award of interest. This will protect the position of the claimant, and will provide the necessary incentive for the insurer to honour his obligation under the scheme.”

82 Damages under s.35C refers to compensation for the value of services of a domestic nature or services relating to nursing and attendance. Section 35D is limited to damages to which this part applies, damages under s.35C and general damages. Section 35D(2) exempts any other law relating to the payment of interest on an amount of general damages.

83 The plaintiff argues that damages such as those sought here are analogous to compensation for the provision of past services and hence for similar policy reasons should not be payable at the defendant’s account. I do not accept the section should be construed so widely nor do I accept that the parents having paid, the plaintiff is unable to claim. The claim is not for interest on general damages. The defendant could have paid each item as it was incurred. It left the plaintiff or his family to pay for necessities occasioned by the commission of the tort and did so aware he did not have the means himself to pay. If he had not been so young and notwithstanding his injuries, sufficiently financially able, it would have been open to him to pay for the services and claim or if not financially able because of the accident depriving him of the ability to earn, he could have been at least sufficiently financially able to borrow, in which case, interest would have been claimable as the cost of his borrowing to repay those who had advanced a necessary loan or provided necessities commercially, as representing part of the overall costs of obtaining the necessities. Similarly, the plaintiff’s damages (and the liability of the defendant) in my view extend to compensation for the value of the costs of the obtaining the monies even though they were gratuitously advanced, notwithstanding there was no binding agreement to repay with interest. They were provided by parents to obtain the necessities for their disabled child. The purpose of the award of interest is to compensate the plaintiff for the loss or detriment suffered by being out of compensation during the relevant period. Had the defendant paid or advanced the monies for necessities, the availability of these monies to the plaintiff would have enabled the provision of the necessary services without the incurring of at least a moral obligation to his parents. The parents have been out of the money which could otherwise have attracted interest ever since these amounts were paid.

84 I accept the submission that these monies were, in effect, a provision to the plaintiff giving rise to an obligation on his part to repay the monies foregone by his parents by the provision of them to his benefit. It is not to the point that he had no money and that as a child he would have had to have gone without the services unless they were provided. His parents were under both a legal and moral obligation to maintain him. They are entitled to be reimbursed by him. The services were provided by way of the parents from their own store of money seeking to achieve the goal that compensation by a just and early verdict would have attained, that is, as far as was reasonable, to put the plaintiff back in the position he would, but for the injuries, have been in. It is not to the point that he was not old enough to stipulate in an agreement with his parents for a loan at interest. His parents are just as entitled to look to him and he to look to the verdict to make good the costs of providing the services as they would have been had he been an injured adult who could so borrow the money from them at interest.

85 The award of interest in these circumstances accords with the purposes referred to by the High Court in MBPCSA Pty. Limited v. Gogic (1991) 171 CLR 657 and later cases. I do not accept that this component should be barred because the parents made the payments. What is sought here is something which is entirely different from interest on general damages. The construction that it is not caught by s.35D accords with the Second Reading Speech.

86 The plaintiff submits there is support for this construction in the reasoning in NSW Insurance Ministerial Corporation (formerly GIO) v. Willis & Anor (Court of Appeal, unreported 2 September 1994) of Meagher, JA. who held in paragraph 19:-

“Whichever rules of construction are to apply, the retrospective removal of the common law entitlement to interest requires clear words. The words of ss.35C and 35D simply do not accommodate the nature of the claim brought under Lord Campbell’s Act.”

87 The defendant has referred me to a number of single judge or master’s decisions going both ways none of which are binding upon me. It submits that the first clause of s.35D has the effect that no interest components are now to be included in a damages award. Such a construction would render, as the plaintiff submits, otiose, if not meaningless, the references to general damages and damages under s.35C in the following clause.

88 I reject the defendant’s submission. I agree that the section is not so clear as to bar the plaintiff recovering recompense for the payments and the interest.

89 My own reading of Part 3A is such that I am persuaded that neither the Part nor s.35D restricts or bars the inclusion in the award of damages of a claim for such interest as is sought. I do not see that the legislative intent as evinced by the Second Reading Speech indicates that such inclusion should not occur indeed so far as it assist to determine the purpose of s.35D and the Part in my view it adds weight to the plaintiff’s submission. In summary, the obligation is clear and in my view the entitlement, absent legislative restriction, is clear. I do not see the words of the legislation as disentitling nor that there is a legislative intent to disentitle.

90 I shall make an award of the amount claimed under this heading in favour of the plaintiff since, although liability was disputed, there was in the event that I should find in favour of the plaintiff under this heading, no dispute as to the quantum.

Past gratuitous care

91 The plaintiff claims for the cost of gratuitous services and care provided by his family, mainly his parents, from the date of the accident to date. The defendant does not dispute 40 hours per week gratuitous services for the first five years, but thereafter contends that no more should be allowed than 20 hours a week and in each case, the defendant disputes the rate at which the plaintiff seeks remuneration for those services.

92 I have regard to the caps, both as to the maximum hours and the compensable rate, are imposed by s.35C of the Motor Vehicles (Third Party Insurance) Act 1942.

93 The defendant asserts that the plaintiff required no care while he was asleep and that when he was at school he required no care from his parents, even if “Toby related” matters were attended to by his mother whilst he was at school. These latter matters it is said should be included in that ordinary substantial care including supervision any child and teenager would have received but for the accident. The defendant makes the point that the issue is what amount of extra care or supervision has been received by the plaintiff as a result of his injuries. It is pointed out that at weekends the parents’ time was devoted to others of their children as well and that Mr. Sullivan, Toby’s father, was often absent on work commitments and not able to contribute any care.

94 I accept that Mrs. Sullivan devoted considerable time to her general household duties, attention to her other children and her own personal interests. She said in evidence, as was noted in the submissions for the defendant, that she had provided up to 40 hours a week care to Toby. The defendants also drew attention to the allowance for past paid attendant care and for 2,364 hours of paid care. It was submitted that presumably no gratuitous care was being given at the same time as the paid care. That submission, having regard to the evidence of Mr. and Mrs. Sullivan, is one that I do not accept.

95 The plaintiff has provided a detailed schedule which was attached to the plaintiff’s written submissions. It was agreed during the conduct of the matter that regard should be had to that rather than to what appears in this regard in the amended Part 33 Rule 8A particulars.

96 Insofar as care may not have been occurring at the hands of the mother and father whilst the paid carer was particularly embarked upon some activity, the mere fact that a paid carer was employed during the period does not mean that care over and above that being provided by the paid carer or attendant was not being provided by the parents both to an extent and at an intensity well in excess of that which would have been provided to a normal child. Similarly, it is quite apparent from the extent of Toby Sullivan’s injuries and disabilities and the history given in the witness box of her attempts to cope with them by his mother; that notwithstanding the periods asleep at night and the time at school, the amount of care that had to be given to him over and above the care that would have been provided to a normal child of the same age by Mrs. Sullivan, a devoted and caring parent, was very great indeed. I accept that at least 40 hours per week from the accident until judgment should be allowed. Due to the cap under s.35C, it is not necessary for me to find as to how many further hours of gratuitous care might have been provided.

97 The plaintiff’s mother gave evidence of providing services to him over many years which she did not have to provide to her other children and which services would not have been provided to a child that was unaffected by the injuries the plaintiff had sustained. They included driving the plaintiff to school, medical appointments and particularly activities especially adapted or available to him because of his disabilities, attending the school with the plaintiff and assisting him at school, together with learning Braille with him, cutting up his food long after an age at which it might have been expected that he would have been able to cut up his food, assisting him with a swimming pool, assisting him with newspapers, internet sites and radio broadcasts to keep him interested and active, reading and translating mail for him, assisting him with his clothes well and beyond that which might have been expected to have been necessary for an unaffected child, supplying him with train timetables and assisting him with transport, particularly, locating him when he gets lost and arranging special recreational activities. Currently, in addition, he requires particular assistance with meal preparation, cleaning his room, making his bed, with his clothing, washing, his organising his daily activities, his correspondence, his transport, his administration and organisation of leisure activities, attempts to involve him in activities including TAFE and other course, shopping for food, clothes and other provisions and keeping him company. In addition, taking care through the house supervising him so as to avoid him becoming injured during his waking hours.

98 It is notable that Mrs. Sullivan has had only one holiday without the plaintiff in the 17 years since the plaintiff has suffered his disabilities, and even then, had to prepare a roster of detailed instructions as to the daily activities of the plaintiff and to deal with exigencies in her absence. She had never left the plaintiff alone at night for the 17 year period and when she did she had made arrangements for others to attend to offer the gratuitous services and assistance she would otherwise provide.

99 Mr. Sullivan estimated the provision of some 10 hours a week to his son in addition to the hours provided by his wife. It is clear that, to some extent, his elder brother and his other relatives have also assisted. There was no, or no substantial, challenge to the estimates put forward by Mr. and Mrs. Sullivan in evidence in cross-examination. I found the evidence of Mr. and Mrs. Sullivan in this regard entirely impressive, particularly when taken in conjunction with the voluminous evidence as to the extreme range of disabilities to which the plaintiff is subject.

100 Further, the defendant contests the rate for weekly remuneration for the first five years, asserting an average rate of $12 an hour and thereafter asserts that an allowance should be made at the rate.

101 It is common ground that s.35C(1)(c) provides that where the services that were provided were not less than 40 hours a week, the rate at which the value of the services should be allowed should be the rate prescribed from time to time by the Australian Statistician on a quarterly basis. Where the services are less than 40 hours a week (d), the amount calculated at an hourly rate of one fortieth of the amount so determined. The defendant’s submissions appear to have been calculated on an averaging basis and the argument is put that the amount of hours to be allowed should be reduced for the reasons that I have referred to.

102 The plaintiff’s material persuades me that it is entirely appropriate to allow as gratuitous services provided by, not only Mrs. Sullivan, though she was the principal carer, but all the members of his family to the plaintiff the 40 hours per week of care that it has been submitted on his behalf should be allowed. In addition, the hourly rate, which is not disputed, set out in the that schedule would be applicable. I would therefore allow under this item the sum of $546,259.17 continuing at $796.60 per week thereafter. It will be necessary for the parties to provide me with an up to date figure as at the date of judgment.

Future attendant care

103 The plaintiff is plainly in need of future care of an extensive kind. I do not accept that he is always and constantly required to be under supervision and care but he is presently, on all the evidence, simply unable to care for himself and supervise his own welfare. For much, indeed, the substantial portion of his time, he needs care. Accepting that he is entitled to live separately and apart from his parents and to have the benefit of care being provided to him commercially rather than by way of services provided by the parents, it has become necessary to determine the extent of the hours that might be appropriate for such care.

104 It is submitted on behalf of the defendant that the court should be concerned not to provide “Rolls Royce” care. It is submitted that the care provided by Mr. and Mrs. Sullivan to date could not be replicated and that an attempt to replicate that level of care in a monetary award would extend beyond the provision of a reasonable response to the plaintiff’s needs. I accept that Mrs. Sullivan, in particular, and the Sullivan family have provided to the plaintiff an extremely high level of care to the detriment of their own family and personal and professional lives. I accept that I should apply, in deciding the proper extent of both past and future care, the principle that all that should be allowed should be based upon a reasonable assessment of the plaintiff’s needs. I accept that in the process of, in particular, examining future care I should look to the type of care that might be provided and the place in which the care might be provided so as to avoid double compensation and that the limiting reasonableness principle should be borne in mind at all times. I accept that the plaintiff does not require a nurse maid full time, nor does he need to be cocooned within a nest of 24 hour care.

105 At the hearing in cross-examination and before me, it was raised that the Sullivans would continue to provide care to Toby and in that regard it is submitted by the defendant that I should find that it would be likely that the plaintiff would receive gratuitous care at home for the next 10 years at an average of 21 hours per week. This figure is interesting. It was submitted that only 20 hours a week was in fact being given to the plaintiff by way of “Rolls Royce” care by Mr. and Mrs. Sullivan at the moment. An additional hour per week, it was submitted, starting immediately might be appropriate for case management.

106 I am unable to ascertain why 10 years might have been nominated. I reject it. It is plainly the plaintiff’s desire to leave home and set up a separate establishment with close links to his family so that he is not imposing the burdens on his family of the sort of care he has been receiving. Mrs. Sullivan conceded the plaintiff would be unlikely to leave home until about the end of 2006. So far as I can tell, the suggestion is that because Mr. and Mrs. Sullivan have shown care and devotion, are relatively young and have good health, they would keep the plaintiff with them at least until his brother, Alexander, was likely to leave home at the end of 2006.

107 It is suggested that at least until the nest is empty of all the other children, the Sullivans are likely to keep Toby at home. I am unable to accept that proposition. Mrs. Sullivan wishes to relinquish the case manager role, not as a rejection of her son, but recognising his wish for his own independent life and his wish to minimise the burden on his family’s life. He will, no doubt, remain close to his family and from them will no doubt continue to receive emotional and social support, counsel and care whilst living apart from them.

108 But plainly, both Mr. and Mrs. Sullivan and Toby wish he should be able to leave home as soon as he is ready in both an emotional and training sense. In all the circumstances, I would expect him to remain until about the end of 2006. I accept that until then, Toby should receive an award reflecting 40 hours per week care at $19.24 per hour. That award should continue until 31 December 2006 and thereafter for five hours per week for life at that rate. I have allowed that additional figure since it is apparent to me that in the family’s further care of him there will always be a figure of gratuitous services provided which will be, bearing in mind his psychological, social and physical disabilities, entirely necessary and which will mitigate the services to be provided by paid carers. His relationship with his family is so close, they are so devoted and nurturing, that indeed the provision of services of that limited extent and at that limited rate is entirely reasonable and mitigates the costs for which the defendant might otherwise have been liable. It will certainly operate to avoid the aggravation and exacerbation of Toby’s psychological conditions for the future.

109 Whilst Toby remains at home, however, I do not accept that any practical use can be made of the flat, detached from the main house in which the family lives, currently occupied by Alexander. Not only is Alexander there and desirous of remaining there for the time being, but in my view, the plaintiff, having regard to his disabilities, requires fairly constant supervision during his waking hours at home and the ability for there to be some monitoring at night. The evidence does not show the flat would permit the necessary care.

110 As to the appropriate hours for which paid care should be provided, reference was made to an analysis conducted during the hearing by me at transcript 663.45 summarised in the defendant’s submissions:-

Total hours in a week 168

Less: Sleeping 56

Attendant carer 28

Structured activity 15

Family and recreational 20

Total 125

111 In submissions, the defendant increased the estimate it submitted was appropriate to allow for the time for an attendant carer to 42 hours per week. This would leave Toby alone, unsupervised and unmonitored for a total of 85 hours per week, of which he would be awake unsupervised and unmonitored for 29 hours per week. These figures are plainly not enough, rejecting, as I do, the limits on the hours of care proposed by Ms. O’Dwyer and Ms. Caukill which fail to fully recognise the extent and combination of disabilities putting him, if alone, in danger and the prospect of psychological damage if he is left in solitude. I accept the evidence of Dr. Buckley and Dr. Jungfer in this regard. In particular I accept the evidence of Dr. Jungfer which is to the effect that to leave Toby alone for hours would, in due course, produce depression and psychological damage and, in the short term, be dangerous.

112 Regard also has to be had to the psychiatric effect upon the plaintiff of being left at home for a good deal of time on his own without access to external companionship or activity. I do not accept that once the plaintiff is trained into a routine, he is capable of sticking to it and effectively self-starting without continuous reinforcement and planning. The provision of a commercially retained care service for Toby will allow his parents and, in particular, his mother to enjoy a normal relationship with him. That relationship has, to a great extent, been superseded by the teaching and caring relationship his mother has had to undertake by reason of his disabilities.

113 Mrs. Sullivan gave evidence that she would wish to have someone else, even if in her home, perform the role she has hitherto performed. With that proposition, Mr. Sullivan agreed.

114 It was submitted that the plaintiff was safe at night and does not require overnight care. That may be the ordinary case but it is clear enough from the plaintiff’s disabilities and problems that such a regime would not adequately protect him against the risk of damage an ordinary person not suffering his disabilities could avoid. To some extent this problem will be mitigated by the provision I will make under another heading, that is, the allowance for the appropriate structural changes to a domestic environment in a house of his own. But nonetheless it is a real necessity for the plaintiff to be monitored and be able to have available, even if not immediately available, some form of access to instant advice and, if necessary, physical assistance. This can be provided, no doubt, by some on call facility and I have discounted the hours that I find a carer is required for that prospect.

115 In my view, Toby will require at least 16 hours per day full time care, six days per week to supplement training at the Royal Blind Society, accompanied social activities and accompanied gym sessions. This will be, not only, to recoup what he reasonably would have been expected to have, but also as a means of avoiding social isolation and depression and to provide for the continued reinforcement and training his mental condition plainly requires. That is a total of some 96 hours per week. I deduct from that 96 per week approximately 16 hours for supervised activities. His family should not have to provide this since he has reached adulthood. He is entitled to a shared social life with his family. It should not be expected that they would provide over and above the five hours to which I have referred the carer’s function they have performed until now.

116 I have allowed these figures over a six day basis to take into account family and friend activities and a quieter time for Toby on one day a week as a basis for calculation, not because I would not expect activities to be provided other than on a seven day week basis. I accept the plaintiff’s condition is such that if left alone he will simply do nothing and degenerate into depression, but I accept he needs some time to himself in which he can relax and listen to music, although he will need to be stimulated to stop or to change his activities.

117 The plaintiff submitted that an appropriate allowance would have been 105 hours per week. I accept the plaintiff’s submissions that the defendant’s submissions focussed primarily on domestic care and physical activities failing adequately to address the plaintiff’s psychological problems and taken in conjunction with his physical disabilities and blindness, which in my view, would leave him significantly at risk if one only had regard to the individual activities and the time to be taken for those activities that Ms. O’Dwyer and Ms. Caukill referred to. But I am of the view that some 20 hours a week can be provided for by some effective monitoring arrangement, particularly in the event that the plaintiff’s house is suitably adapted so that a security light system of back to base video kind can be put into operation. In my view that should be significantly less than the cost of a carer.

118 I accept, however, as far as the calculations go, the plaintiff’s amended schedule attached to its amended submissions, although it will require readjustment to take into account the 25 hours per week deduction from the submitted 105 hours I make.

119 I allow full attendant care for 80 hours per week for 48 weeks per year at the rate of $31 per hour, the rate the plaintiff submitted. That rate includes superannuation on carer’s gross wages at nine percent, an allowance of $38 per day public holiday loading for 10 days a year, provision for workers compensation insurance and agency placement fee of $1,320 per year, as those matters appear to be provided for in the contract quotations from the agencies which have been provided to me by the plaintiff. In so allowing, I have regard to the evidence which I accept that individual carers will only attend for a minimum number of hours, usually a nominated shift of three hours and that it is inappropriate to expect there to be stand-bys between shifts.

120 In addition, there will need to be provided attendant care for 24 hours per day for a four week holiday period per year at $2,100 per week. The final figure will need to be calculated from these findings and should reflect the necessary capitalisation on a five percent basis.

121 I have preferred to express the hourly carer need period in terms of hours per week so as to enable greater flexibility in accordance with proper case management.

Future case management

122 In addition to the attendant care, it is plain that the plaintiff will require future case management. To some very great extent, that has been supplied by his parents so far. However, the necessity to assist him with programming his life, his financial and other affairs can only be met by someone professionally skilled. It is a concomitant to the 20 hours a week deduction for monitoring rather than attendant care that the attendant or monitor could not be expected in that time to embark on any case management, nor to have the professional skills to do so. It is not to be expected that the carer provided for day to day care would have those professional skills.

123 I accept the evidence of Dr. Buckley that the case manager will need to assist the carers to plan their day to day role, in particular, to deal with the lack of initiation of activity by the plaintiff; to assist the planning, organising and problem solving; to supervise and monitor the carers; to ensure that the carers to do exploit the plaintiff and to mediate between plaintiff and carer when necessary.

124 Dr. Jungfer gave evidence to the same effect. She postulated some three to four hours a week was not an unusual level of case management assistance, given the extent of the plaintiff’s cognitive disabilities. I accept her evidence in that regard. It accords with the evidence of Dr. Buckley who particularly referred to the greater intensity necessary in managing shift work carers. I note that Ms. Caukill in oral evidence conceded that up to three or four per week could be appropriate. Ms. O’Dwyer appears to have reached the view that up to two hours was appropriate, but as submitted by the plaintiff, and particularly having regard to the time that I have held it is appropriate for the plaintiff to have carers, I consider that four hours per week should be allowed.

Gym attendant

125 The defendant accepts that the plaintiff has a reasonable need for a gym attendant. In additional to the carer time to which I have referred, the cost of an attendant whilst the plaintiff is engaged in the gym or whilst the plaintiff might be in a swimming pool, is entirely reasonable. It is likely that some of the time where I have referred to the family as providing gratuitous care for the future may be occupied in attending sporting or swimming pursuits with family members. It is not possible to ascertain how much. Some activities would no doubt not sound in damages as merely being normal social interaction. Some will require care due to the effects of the accident.

126 In the absence of his brothers, who I find are less and less likely to want to attend the local gym with him, in my view, both for his physical welfare and also for the sheer enjoyment he derives from it, I conclude that an allowance should be made for three gym sessions with a gym attendant per week. I accept the plaintiff’s submissions as to the cost of that attendance. This component will be allowed at $133,056. I have taken into account the prospect of three attendances per week, when having regard to the hours I have concluded it would be appropriate for the plaintiff to be under full supervised care as being time that should be spent at the gym in addition to the 80 hours per week to which I have referred. But I have regard to the fact that it may be there would be sessions of swimming or aquarobics or some similar pool activity in lieu of attendance solely at a gymnasium. The advantage of such a programme is that it will supplement, to some degree, the occupational therapy.

Transport costs

127 It could have been expected that had the plaintiff not suffered the accident he too, like the vast majority of the population, would have had the benefit of being able to drive a motor vehicle. Of course, going with that, he would have had to supply the cost of the motor vehicle. For the future, often, he will have to be driven in car transport, particularly taxis or car transport provided by carers. His parents have provided car transport as set out in the schedules, attachment B to the Part 33 particulars. There has been no real challenge to these. The variety of activities for which there are journeys in addition to attending on doctors and, in particular, to various of the activities the family has sought the plaintiff undertake to keep him interested and not depressed, being specialist recreational activities, indicate that if he is to still maintain such recreational activities as will offer him some sort of life out of his home, he might well be expected to be driven in the order of 5,000 kilometres per annum.

128 I do not accept the plaintiff’s submission that he will travel in the carer’s car for an average of 10,000 kilometres per annum for the rest of his life nor do I accept that he should purchase a car and have it available for a carer to drive. In particular, this could produce workers compensation and insurance difficulties. It does seem to me that it is reasonable to provide for transport, including taxi availability, which could be undertaken with the carer. I would have thought that the appropriate course to take was to provide a cushion in the sum of $50 per week. A capital sum which would generate such a cushion, ie., $50,000, as the plaintiff submitted, will be allowed.

Transport training

129 The parties accept that transport training is required. The defendant submits that Ms. O’Dwyer’s suggestion of 16 training sessions per annum together with one refresher course should be accepted. Reliance is placed upon a reference by Dr. Jungfer to the prospect that the plaintiff is unlikely to persist with structured activities to suggest that travelling would progressively taper off. That reference must be taken in the context of the plaintiff’s desire to persist with structured activities, notwithstanding his brain damage and mental condition, although he tends towards inactivity because of those matters. That inactivity is the reason for providing for the carer and for a life of some degree of stimulation, not merely stimulation provided by his family. Transport training will serve that purpose, to some extent, and also provide the facility so that the plaintiff will be able to persevere with activity and to persist with structured activities that he enjoys. I do not see that a provision for transport training should be discounted on the basis of Dr. Jungfer’s comment. I accept the plaintiff’s submission that until recently the plaintiff has been routinely following regular transport routes to, for example, school and TAFE; that in the future transport training may need to increase as the plaintiff attends other locations for more diverse purposes. Thus there will be a need for new destinations.

130 I accept as the plaintiff has submitted there has been no real challenge to the plaintiff’s primary submissions and the report of the Guide Dogs’ Association. I accept the figure claimed by the plaintiff at paragraph 80 of its submissions in reply under this head. I allow $133,814.75.

Housing

131 Under this heading, the plaintiff claims for a home with the following modified features:-

1. Ramped pathways/steps $12,697
2. Specialised storage with wire baskets and $3,000

Braille labels

3. Additional accommodation for live-in $109,451
carer

4. Modified bathroom $6,641

5. Modified kitchen $9,080

6. Modified laundry $1,699

7. Garage door $2,200

8. Improved lighting and electrical system $9,347

9. Internal painting to allow contrasting $7,247
colours for identification of switches etc.

10. Carpet to permit high contrast between $3,570
walls and floors

11. Telecom connection for additional $482
computer system

12. Fire extinguishers $599

13. Costs associated with building $562
application and construction work

14. GST on above work $17,163
Total $188,796

132 It follows from what I have already said concerning a back to base monitoring system, that I accept some provision should be made for home automation. I would not regard as reasonable, notwithstanding the plaintiff may well have earned a better than average income, that there should be provision for a substantial garden or a home requiring much handyman/ gardener care. But audiovisual programming, lighting and security control for safety together with monitoring I would regard as entirely appropriate.

133 I am entirely sceptical of the plaintiff being able to live with a carer in a home unit or home villa. I foresee grave difficulties in his residing in a block with other unit holders. I accept that appropriate accommodation would be provided in a small house involving one storey and good access. He should not be assessed on the basis he would have chosen to live in a unit or villa rather than a small house had the accident not occurred. It is probable he would have lived in a house.

134 I accepting that he would have supplied a house for himself except for the accident, but an allowance for modifications for his disabilities arising from the accident must be allowed.

Modifications

135 I consider that moving to a new environment will require the provision of railings and some degree of alternation, particularly on the outdoor paths. In my view, provision will have to be made for facilities for the carer together with a video monitoring system through from the carers separate facilities to enable carers to be able to spend the length of time necessary on shift with the plaintiff. This will enable the carer to embark on other tasks including food preparation, cleaning, washing, ironing etc. whilst at the same time monitoring the plaintiff.

136 The necessary housing will have to be modified to allow for this. A good deal, however, can be accomplished without full automation. In that regard I accept the home modifications as referred to in the report of Peter Hardiman dated 9 October 2003 which appear based on assumptions of the plaintiff’s condition which if anything understate the necessity to take precautions for his safety.

137 As will appear, I accept that the plaintiff does not require 24 hour full time live in carers but he does require a carer for such a period of time per day that provision will have to be made in the house for specialised facilities for the carer. I accept Mr. Hardiman’s provisions for ramped pathways steps, specialised storage with Braille labels, the modified bathroom, the modified kitchen and modifications to the laundry. It is not to the point that much of the activity will be indulged in by the carer. The plaintiff is entitled to have the benefit of being able to, as far as he can, make use of his own home’s facilities. There was evidence from his mother that, indeed, he appeared to enjoy certain of the domestic tasks.

138 I accept the provision of the allowance made in Mr. Hardiman’s report for improved lighting and electrical system, internal painting to allow contrasting colours for identification of switches etc., carpet to permit high contrast, Telecom connection, costs associated with a building application and GST.

139 I do not accept that full residential time care is required nor the modification of the building necessary for that. I do accept some degree of modification will be required to permit for some facilities for the carer. In that regard I will allow a further $50,000 for provision for at least a break out room for the carer.

The pool

140 In addition, the plaintiff claims for home automation and a heated hydrotherapy pool. The plaintiff also claims for additional maintenance and running costs for the home and pool.

141 I do not see that it would be appropriate for the plaintiff’s interest in swimming to be met entirely by the use of a public pool with the assistance of a carer. Indeed, coupled with the allowance for gym activities, I have already said that it could be expected there will be some provision of assistance by his family. It could not be expected that the public pool will always be available or desirable.

142 It is reasonable, having regard to his physical disabilities, his blindness and also the necessity that he be supervised because of his mental condition, that the plaintiff should have the benefit of at least a small heated, even if solar heated, plunge hydrotherapy pool which will enable him to do some swimming and exercise at home under the supervision of a carer who would not otherwise require to be professionally trained in physical training within a pool. Thus the gym, the pool, the family, physiotherapy and occupational therapy will go hand in hand, in a programme which will include OT assistance and case management.

143 As will appear, I do not accept that the plaintiff is to be treated on the evidence before me as a higher income earner out of whose higher income provision would have been made for a pool and large garden. As the defendant submits, the plaintiff is only entitled to additional expenses created by his accident related needs and then only to a reasonable extent.

144 I accept, as I have already indicated, the reasonable necessity for a pool. With that should be coupled a pool enclosure, pool paving, pool cover, acoustic reduction housing for pool equipment and a solar pool heater together with GST.

145 I do not accept that the full cost sought by the plaintiff of $93,286 is reasonable. The defendant’s assessment of $85,000 in this regard is to be preferred.

Home automation

146 Not included in the house modification costs are the costs of home automation sought by the plaintiff over and above the provision that will need to be made for the monitoring facilities that I have already described. As I have said, I do not accept full automation is necessary, particularly having regard to the presence of the carer for the hours I think necessary and reasonable. Having regard to the matters in the Advanced Living Report, in addition to the monitoring system, I accept the alarm system recommended by Mr. McGowan should be provided ($30,000) and that there will need to be provided some degree of lighting and power control, although the necessity to have one as ornate and complex as Mr. McGowan advises is, in my view, to exceed that which is reasonable. I would allow $50,000.

147 I make no allowance for environmental control as I would envisage that the house itself would have air conditioning at least of a standard suitable for a small domestic home of two bedrooms and, but for the accident, the plaintiff’s earnings would have included that in his domestic arrangements. But I do accept that some degree of custom programming should be appropriate. I allow for that item $30,000 on the basis of Mr. Hardiman’s figures for the work he says should be done.

Additional maintenance and house running costs

148 Such modifications do create the prospect of some increased maintenance provision needing to be made. I accept Mr. Hardiman’s figures in that regard which it is to be noted particularly relate to increased electrical, gas and water costs involved in the running of air conditioning and proposed modified facilities to allow for a carer. In my view, these costs are not likely to be much less than Mr. Hardiman estimated because of the findings that I have made as to the degree of modification of the home and the hours to be worked by the carers. I would allow the plaintiff’s figures in that regard of $95,278. There will also need to be provision for maintenance and running costs of the pool. The plaintiff claims $148,418.88. No reason has been advanced for me not to allow this component at the rate determined, given my view the provision of a pool is reasonable. That sum should be allowed.

149 In addition, there should be allowed under this head special provision for telephone services including for an alarm service and a mobile phone service to enable the plaintiff to be in touch with alternatives to carers in an emergency and to be able to communicate when not in the house. The cost of this over and above the cost that might have been expected but for the accident I will factor in as the sum of $25 per week.

Lost earning capacity

150 I turn to future economic loss. It is the defendant’s position that the evidence as to the earnings, in particular, of the plaintiff’s father and other relatives, is such that one could not draw from that any reliable guide to enable the assessment of the future loss of earning capacity in the plaintiff’s case. It is prepared to allow future economic loss in the sum of $778,585 made up as:-

1. Future economic loss: average weekly earnings of $750 per week net for 45 years less 15% = $605,880.

2. Lost opportunity to work as a professional or in another tertiary based occupation $100,000.

3. Lost superannuation benefits of $72,705 based on nine percent of the plaintiff’s gross lost earnings.

151 It is submitted that the evidence does not allow me to conclude that this plaintiff, injured as he was at three, would, but for the accident, have successfully completed a university degree working in the workforce as a professional, nor would it allow me to say when the plaintiff might have commenced so working or for how long he would so have worked. In addition, reference is made to the breadth of material in evidence as to the range of incomes likely to be achieved by professionals. It is put that his father’s income is in no way comparable and indeed not even an indicator.

152 The defendant submits in reliance on what was said by Clarke, JA. in Norris v. Blake (No. 2) 41 NSWLR 49 at 72G that having regard to the many chance factors that come here into play, it is impossible to quantify the loss of the chance of having been a wealthy professional in these circumstances by using percentages and applying them to arbitrary levels of earnings spread over 20 years or more.

153 It is accepted by both parties that the task I here have to undertake is to value the loss of a chance to earn, ie., the loss of earning capacity. The defendant’s primary submission is that I should assess future economic loss from the present until age 65 at a figure based on average weekly earnings, alternatively, at that figure together with a lump sum for the loss of opportunity of being a higher than average income earner, discounting the total for vicissitudes.

154 It is submitted that following the approach taken by Miles, CJ. in the ACT Supreme Court in Ren v. Mukerjee (unreported 12 December 1996). I should allow average weekly earnings and apply a higher figure than the usual 15% for vicissitudes where, as here, it is much harder to be able to decide on a probability basis what might have occurred in the future, alternatively, if allowing 15%, settling on a lower base figure.

155 The plaintiff submits I should find the probability is that he would have become a high income earner and his earnings and other benefits derived from his work career would have been comparable to those received by his father or other high earning professionals. Reference was made to the performance of relatives and the prospects of his siblings.

156 I accept from a comparison with Alexander’s UAI and the ranking expected by Samuel, that the plaintiff was likely to have obtained a UAI in the mid 80s. I accept the defendant’s submissions that it is unlikely that the plaintiff, with that in mind, would be likely to have entered the medical or legal professions. I do not accept that that means that the plaintiff was unlikely to have earned high income. Indeed, his father’s career is illustrative of the fact that many professions (I cite bankers as well as geotechnical engineers) can earn well in excess of the figures that, on the evidence, were put to me as the average professional earnings.

157 I do not accept that merely because average professional earnings for teachers are quite low by comparison with other professions and Mrs. Sullivan was a teacher as was her sister, Fiona, I should conclude that the likelihood is that the plaintiff would have been a teacher and earned less. That is no more logical for me to accept than that he might follow the alternative lifestyle of Christopher Sullivan who has an arts degree.

158 I reject, however, the defendant’s suggestion that there is any retained earning capacity. There is no evidence to support it nor would the disabilities allow it. Although there was some evidence to show some activity the plaintiff could pursue, that is not activity, which founds any prospect of remunerative employment.

159 I find, however, that the wonderful support, care and education and nurturing which his family has extended to the plaintiff and to his brothers well indicate the prospect that, except for the accident, he would have enjoyed such educational and social opportunities as to enable him to make the most of his abilities to attain a successful and enjoyable life. In making this finding, I further accept the defendant’s submission that success is not necessarily measured in monetary terms and recognise that under this heading I am dealing with the prospect of monetary loss. I have already compensated the plaintiff under general damages for the loss of the general amenity of life.

160 I accept the cited passage from Cowra Shire Council v. Trugett [2004] NSWCA 9 (unreported 17 February 2004) set out in the defendant’s submissions applies here and, in particular, that passage taken from the observations of Moffitt, P. in J.K. Kealy v. Jones (1979) 1 NSWLR 723 at 734-735 that evidence of what other people in other careers are capable of earning creates not only a false, but a complex and confusing picture which, in the present case, tends to distract.

161 I accept that I am not called upon to make a finding as to whether the plaintiff was likely to become an engineer, teacher or private school principal – see Furzer Crestani’s report dated 9 October 2003, Exhibit B, tab 14, p.218 at 220 – scenarios four, five and six, but I am called on to estimate, having regard to all the probabilities, what the extent of his loss, whatever he might have done in life, would probably be if expressed in money terms.

162 I accept that given his UAI, given the family’s regard for education and particularly tertiary education and given the family’s having afforded education, nurturing and support to its children even placed as they were, having to afford that special care for the plaintiff, that it is, in my view, highly probable the plaintiff would have become an above average income earner, indeed, a well above average earner.

163 I do not see that I can assess his prospects much more particularly. In my view, it is entirely speculative to attempt direct comparisons between the plaintiff’s prospects, having regard to how he was at age three, and the proved circumstances of his father or relatives, 20 years later. This approach does not make it necessary for me to say much more concerning Mr. Sullivan’s income level although I note that an above average income earner is eminently likely to employ, if earning in private industry and particularly in a professional practice, accounting assistance and the efforts of employees which would yield further value to monies obtained from professional services. I will have regard to those matters.

164 For those reasons, also I am not prepared to conclude that the plaintiff would have become a high earner self-employed in a profession. In my view that is simply too speculative. However, I am prepared to conclude that it was probable that the plaintiff would if self-employed have obtained an earning capacity, if less than the highest earners, well in excess of the average weekly earnings and that in assessing the value of the loss of earning capacity, I should take into account that were he to have been self-employed, he would have been able to enjoy those advantages his father does, to add value to the receipts from professional services. I also find that were he not self-employed, he would have had many benefits collateral to mere monetary remuneration such as superannuation, long service leave, package benefits, eg., car, paid holidays and education, etc. (Indeed in the case of teachers it may well be that housing might be provided in some circumstances.)

165 I have regard, however, to the obvious recognition of Mr. Sullivan’s diligence and status as a geotechnical engineer by his family and I have regard to the conscientiousness of his mother and the effect both of those things would have had on the family values as showing an education and nurturing for a sound work ethic and I find from that that Toby would probably have shared those values and earned the more because of them. Since I find it is probable because of his family’s emphasis on education, particularly tertiary education and a sound work ethic, I would provide for the plaintiff’s career earnings to commence after a period which I allow for the attaining of a tertiary qualification of four years, that is to say, I would assume that the plaintiff would have commenced career earnings at about the end of 2006.

166 I have determined that if the appropriate way to approach the problem is either to accept the submissions of the defendant, then I should provide for average weekly earnings together with a substantial cushion to reflect my view that his prospects were well above average, discounting by the usual 15%, or alternatively, to find what the plaintiff would have probably earned with reference to average weekly earnings, again discounting the usual 15%. Indeed, it would seem to me that both of these approaches are equally valid and lead to the same conclusion. I would consider the plaintiff’s background to mitigate against his likely exposure to any more vicissitudes and I therefore allow only the usual 15%.

167 I accept, however, that in referring to the AWTEN average weekly total earnings of males in New South Wales as at August 2003, the weekly figure of $1,092.60 (which is apparently a gross figure) as submitted by the plaintiff, would appear to be the appropriate figure rather than the figure advanced by the defendant of $750 net per week. This means that appropriate regard will have to be had in calculating the final sum to be awarded for this component to taxation.

168 I accept that Australian Bureau of Statistics figure is based on certain assumptions or methodological impediments (as the plaintiff’s counsel referred to them) to which I should have regard. That is the that statistics are only collected in relation to employees and that they are skewed to some extent to the lower end of the scale because a larger proportion of the employed work force is engaged in lower earning occupations. The other matter, of course, is that those statistics exclude the earnings of self-employed persons or partners. I note, it does not follow, as a logical proposition that self-employed persons or partners earn more. However all of the material provided by the plaintiff, in particular the report of Mr. Jackson from the Australian Centre for Industrial Relations Research and Training, Exhibit A, tab 25, that of Mr. Katehos of Furzer Crestani Services, Exhibit A, tab 14, page 226-228 and 285, the 2003 Human Resources and Economics Mini Survey Report – Legal, Exhibit 1, tab 25, p.473 and the Jackson report relating to engineers as well as the report of Mr. Ron Lovatt of Drake Executives Career Management Services dealing with the possible salaries available to professionals in the finance industry and the utility sector shows that overall, they do. I must take that prospect into account.

169 When considering what cushion should be awarded or what sum should be awarded by reference to average weekly earnings, I accept the plaintiff’s submissions of the probability that the plaintiff would have been significantly more successful than an average weekly wager earner, but I do not accept the plaintiff’s submissions that I should conclude that the plaintiff was likely to have become significantly more successful than the average professional and I do not accept that the plaintiff’s loss of earning capacity should be valued as though he would have been as successful as his father.

170 I do, however, accept that having regard to all the evidence and all the activities of the plaintiff’s relatives, his family condition, particularly his brothers and his father, it is probable the plaintiff would have had an earning capacity well in excess of an average wage earner, so there should be provided either a sum well in excess of average weekly earnings or a very large cushion, to reflect the probability that the plaintiff would have attained an earning capacity approaching that of his father or more as well as the prospect his income would have been significantly lower. I accept that the size of that sum or the cushion that should be provided should be decided by reference to those matters to which I have drawn attention which indicate that the plaintiff would have earned, all things being equal and absent the accident, in my opinion considerably more than average weekly earnings. The sum awarded would have to include provision for long service leave, superannuation, etc. and, if he was employed, those additional benefits to which I have referred which might be expected to have been received, were the plaintiff to be self-employed, and which might be expected to have been provided for in some appropriate way in the remuneration taken from practice by a professional or contained in the overall remuneration to be received by a self-employed person.

171 Accepting that to a considerable degree, whatever one does in this field is speculative, I find, taking all these things into account including the ancillary benefits, that it is probable the plaintiff would have earned in the vicinity of double average weekly earnings or more.

172 I particularly do that, having regard to the data in Mr. Jackson’s report together with what was put by the plaintiff concerning the appropriate earnings of a geotechnical engineer and the prospect that the plaintiff might have been financially significantly more successful than the average professional - a middle to senior rank, executive in the finance industry, real industry, utilities sector or in business in which occupations earnings would have been available to him together with attendant opportunities for which provision should be made under this head such as would, in my view, enable him to have received an income the total benefit of which to him would be of the order of double average weekly earnings.

173 In all circumstances I assess the sum to be awarded here as a sum equivalent to double the average weekly earnings at the rate I have already determined appropriate to which tax and the 15% vicissitudes should be applied.

Claim for additional cost of holidays

174 The plaintiff could have been expected, had he not suffered the accident, to have taken holidays including overseas holidays for which he paid from his work remuneration. He is not entitled to any allowance under this head merely for that. He has, however, illustrated that, with appropriate assistance, he can travel. It is not beyond the bounds of reasonableness to grant him the facility to do so. I have already provided for the cost of a carer during four weeks a year holiday period.

175 The plaintiff sought under this head a once only three month overseas holiday; two weeks holiday within Australia but away from his home each year and a four week holiday overseas every three years. Travel was sought in business class seating and, whilst on holiday, accommodation sought at three or four star level. The plaintiff claims, appropriately in my view, that his physical disabilities necessitate that standard of travel and accommodation. He is entitled to the difference between tourist or backpacker accommodation and three to four star facilities and economy fares and business class fares. His disabilities make it obvious that if he is to have holidays they need to be provided for in that way. Additionally, there will need to be provision for the carer.

176 I do not accept, however, that the plaintiff is entitled to have a four week holiday overseas every three years. Whilst I accept that young persons comparable to the plaintiff and his siblings could have been expected to have a gap year at an overseas school or embark on foreign travel, so that I am prepared to allow the three months overseas holiday and, whilst I accept a two weeks a year away from home holiday might be appropriate, I regard an additional four week holiday overseas every three years as exceeding what would be reasonable but I accept a three week holiday overseas every five years. I accept the figures claimed by the plaintiff as derived from the report of Mr. B. Matthews of Twelfth Man Consulting Pty. Limited, Exhibit A, tab 28. Although, for the additional costs, the calculations will need to be re-done. I note that there was no evidentiary challenge to Mr. Matthew’s figures by the defendant.

Administration expenses

177 In addition, it will be necessary to engage administration services for the funds generated by reason of payment of the judgment sum. The parties have agreed that this figure is to be assessed in accordance with Exhibit F. That table refers to future fund management costs as charged by the Protective Commissioner using a five percent discount rate related to the total value of damages to be administered. Since the damages in total in this case will comprise the total of the figures referrable to the various components less the deduction for the interim payment of $72,439.99, and it will need to refer specifically to those sums properly payable out for the Royal Blind Society, the Spastic Centre and the Guide Dog Association, as well as for past gratuitous care to his parents, for interest on past expenses, for remaining unpaid out of pocket expenses and HIC payback and to the costs of an application which may need to be made immediately under the Protected Estates Act 1983 so that the damages might thereafter be properly administered. Thus, neither the total sum nor certain of the components can presently be expressed in dollar figures and I will need to put the matter over to enable the final ascertainment of the relevant figures. Regard should also be had to the need for the damages to be paid into court under the Damages (Infants and Persons of Unsound Mind) Act 1929.

178 The damages I allow are as set out in the following tables:-

Schedule of damages components awarded

Issue Amount

General damages $310,000.00

Loss of support from marriage partner Nil

Interest on past out of pocket expenses $102,291.64

Past gratuitous care $546.259.17

Future attendant care 80 hours per week for 48
weeks per year at $31 per
hour; 24 hours per day for 4 weeks at $2,100 per week at 5%

Future case management 4 hours per week at $138
per hour = $530,400.00

Gym attendant $133,056.00

Transport costs $50,000.00

Transport training $133,814.75

Home modifications $188,796.00

Heated pool $85,000.00

Home automation $80,000.00

Additional maintenance and running $95,278.00
costs of house

Additional maintenance and running $148,418.88
costs of hydrotherapy pool

Lost earning capacity (future economic $1,092.00 x 2 per week
loss, including superannuation and long less tax at 5% discounted
service leave etc. by 15% vicissitudes
Holiday assistance plaintiff to supply final

calculations in accordance with finding

Future equipment/OT aids $14,026.28

Future OT requirements $48,999.60

Out of pocket expenses $93,023.00

Past educational expenses $76,503.26

Future educational expenses $5,000.00

HIC payback $1,714.15

Future treatment/medication $87,242.00
(except future OT requirements)

Blind walking cane $275.40

Button zip hook $51.00

Personal alarm system $8,408.40

Past recreational expenses (estimate) $5,000.00

Future recreational expenses $18,451.43
(except for gym attendant)

Computer and software for vision $45,000.00
Impaired user (see amended Part 33s)
Funds administration (estimate) to be assessed in

accordance with Exhibit F

Less interim payments $72,439.99

179 It will be necessary for the parties to consider whether there is error in my figures, to do the relevant calculations and derivation of the final figure for each component of damages to be ascertained, to check the arithmetic, ascertain the appropriate administration expenses and to submit in draft the form of the final orders to be made consistent with these findings. I will therefore stand the matter over to a date to be fixed.

**********

CITATION:	SULLIVAN v. GIO [2005] NSWSC 135
HEARING DATE(S):	24 to 28 November 2003; 1 to 5 December 2003; 9 December 2003; 11 December 2003; 9 February 2004; 27 February 2004; 16 March 2004
JUDGMENT DATE :	7 March 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Greg James J at 1
DECISION:	Verdict for the plaintiff. The parties are to calculate interest, etc., to provide for an up to date amount.

CATCHWORDS:	Damages - assessment - three year old infant now 21 - loss of earning capacity - whether relatives earnings are comparable - prospects in life speculative - appropriate basis for assessment when injuries of very high order - no residual earning capacity - blindness - brain damage - extensive further physical disabilities - a degree of insight - need for future attendant care, home alterations and pool, gym, physiotherapy and occupational therapy and other treatments, together with computer, Braille and travel assistance.
LEGISLATION CITED:	Motor Vehicles (Third Party Insurance) Act 1942 Motor Accidents Act 1988 Civil Liability Act 2002 Law Reform (Marital Consortium) Act 1984 Damages (Infants & Persons of Unsound Mind) Act 1929 Protected Estates Act 1983
CASES CITED:	Simpson v. Diamond [2001] NSWSC 1048 MBPCSA Pty. Limited v. Gogic (1991) 171 CLR 657 NSW Insurance Ministerial Corporation (formerly GIO) v. Willis & Anor (Court of Appeal, unreported 2 September 1994) Norris v. Blake (No. 2) 41 NSWLR 49 Ren v. Mukerjee (ACTSC, unreported 12 December 1996) Cowra Shire Council v. Trugett [2004] NSWCA 9 J.K. Kealy v. Jones (1979) 1 NSWLR 723
PARTIES:	SULLIVAN, Toby Daniel, by this next friend, SULLIVAN, Timothy v. GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES
FILE NUMBER(S):	SC No. 20777 of 1986
COUNSEL:	Plaintiff: P. Semmler, QC./K. Nomchong Defendant: K. Elkaim, SC./G. Graham
SOLICITORS:	Plaintiff: Carroll & O'Dea Defendant: Bartier Perry