Thomas v Kula
[2001] WASCA 362
•16 NOVEMBER 2001
THOMAS -v- BOGUSLAWA KULA by her next friend MAREK KULA [2001] WASCA 362
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 362 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:142/2000 | 20 JUNE 2001 | |
| Coram: | WALLWORK J ROBERTS-SMITH J PIDGEON AUJ | 16/11/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Award for damages increased | ||
| B | |||
| PDF Version |
| Parties: | TERRENCE THOMAS BOGUSLAWA KULA by her next friend MAREK KULA |
Catchwords: | Damages Personal injuries Gratuitous services Respondent unable to properly care for herself or her husband Unable to use money or shop without assistance Permanently physically disabled as well Unable to speak English Whether award sufficient |
Legislation: | Nil |
Case References: | State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 Sullivan v Gordon (1999) 47 NSWLR 319 Vangervan v Fenton (1992) 175 CLR 327 Abalos v The Australian Postal Commission (1990) 171 CLR 167 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Gamser v The Nominal Defendant (1977) 136 CLR 145 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House (2000) 74 ALJR 1247 House v The King (1936) 55 CLR 499 Kars v Kars (1996) 187 CLR 354 Lloyd v Faraone [1989] WAR 154 Moran v McMahon (1985) 3 NSWLR 700 Morris v Zanki (1997) 18 WAR 260 Newman v Nugent (1992) 12 WAR 119 Nguyen & Anors v Nguyen (1990) 169 CLR 245 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Sturch v Willmott (1977) 2 Qd R 310 Warren v Coombes (1979) 142 CLR 531 Wilson v Peisley (1975) 50 ALJR 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : THOMAS -v- BOGUSLAWA KULA by her next friend MAREK KULA [2001] WASCA 362 CORAM : WALLWORK J
- ROBERTS-SMITH J
PIDGEON AUJ
- Appellant (Second Defendant)
AND
BOGUSLAWA KULA by her next friend MAREK KULA
Respondent (Plaintiff)
Catchwords:
Damages - Personal injuries - Gratuitous services - Respondent unable to properly care for herself or her husband - Unable to use money or shop without assistance - Permanently physically disabled as well - Unable to speak English - Whether award sufficient
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Award for damages increased
Category: B
Representation:
Counsel:
Appellant (Second Defendant) : Mr J A Chaney
Respondent (Plaintiff) : Mr M E Herron
Solicitors:
Appellant (Second Defendant) : Edwards Wallace
Respondent (Plaintiff) : Gibson & Gibson
Case(s) referred to in judgment(s):
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Sullivan v Gordon (1999) 47 NSWLR 319
Vangervan v Fenton (1992) 175 CLR 327
Case(s) also cited:
Abalos v The Australian Postal Commission (1990) 171 CLR 167
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Gamser v The Nominal Defendant (1977) 136 CLR 145
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House (2000) 74 ALJR 1247
House v The King (1936) 55 CLR 499
Kars v Kars (1996) 187 CLR 354
Lloyd v Faraone [1989] WAR 154
Moran v McMahon (1985) 3 NSWLR 700
Morris v Zanki (1997) 18 WAR 260
Newman v Nugent (1992) 12 WAR 119
(Page 3)
Nguyen & Anors v Nguyen (1990) 169 CLR 245
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Sturch v Willmott (1977) 2 Qd R 310
Warren v Coombes (1979) 142 CLR 531
Wilson v Peisley (1975) 50 ALJR 207
(Page 4)
1 WALLWORK J: These are reasons for judgment after a cross-appeal by the respondent (plaintiff) who, on 28 July 2000, in the District Court at Perth obtained judgment in the sum of $977,103.70 against the appellant. It was contended by the respondent that the sum awarded to her by the learned trial Judge with respect to past and future gratuitous services was insufficient and should be increased. The appeal by the appellant was abandoned.
2 The problem faced by the respondent after she had been discharged from hospital to her home was that she was unable to properly care for herself. That situation has remained to the present time.
Background
3 The respondent was born in Poland on 13 January 1956. She and her husband had arrived in Perth in September 1987. When the accident occurred on 25 March 1990 the respondent was 34 years of age.
4 The learned trial Judge found that the respondent had obviously been very severely disabled as a consequence of her condition and that her life had changed enormously since a stroke she had suffered. Her difficulties are permanent. She is not likely to get any worse in terms of her physical and intellectual problems but his Honour found that if the respondent's husband did not remain loyal to her, as he now is, her position would become most precarious. Further, that as the respondent ages she is more likely to suffer adverse consequences as a result of her disabilities than whilst she is relatively young.
5 His Honour said that in approaching the case he had had regard to the particularly difficult position in which the respondent finds herself. Apart from all the physical, emotional and mental problems she has, she speaks no English and is, in effect, isolated from all but Polish speaking people. In almost every way she has been deprived of the opportunity of enjoying life in the way she previously did.
6 His Honour awarded the respondent the sum of $225,000 for general damages for loss of amenities and pain and suffering. With respect to the sum for past gratuitous services to cover the period from when the respondent left the Royal Perth Rehabilitation Hospital at Shenton Park on 13 July 1990 until the date of the assessment on 28 July 2000, the Judge said that the respondent's case was that having regard to her disabilities and the needs created by the stroke, and having regard to her husband's evidence about the extent of his commitment to her and the assistance
(Page 5)
- provided by others, the calculation of the value of past gratuitous services provided to the respondent should be upon the basis that she has received full-time 24 hour services. On the other hand, the appellant's approach was that the respondent had required 9.5 hours per week care. His Honour commented: "In my view the plaintiff's claim is as inflated as the defendant's response is parsimonious".
7 His Honour came to the conclusion that he had no doubt that the respondent's husband, Mr Kula, attends to the respondent's every need and provides her with the services of a full-time personal live-in carer. He is no longer employed. The care of the respondent is his full-time occupation. However, the learned Judge noted that for significant periods since the stroke the respondent's husband has worked full-time. He worked from 1989 until 1994 for eight hours per day, from 8.30 am until 5 pm. During this period a Polish lady had visited the respondent occasionally and provided company for her for approximately three hours per week. That person had done some cooking and cleaning and had motivated the respondent with her exercises.
8 His Honour came to the conclusion that on the evidence there could be no doubt that for long periods of time during her husband's full-time employment the respondent "would have been alone, utterly isolated and in a sense neglected". "She spent long periods of time watching the one channel on the television. Simply because the respondent survived that period in the sense of not suffering significantly physically or mentally, does not lead to the conclusion necessarily, in my view, that her needs are minimal".
9 The respondent's husband had given evidence that the respondent had been left for long periods alone and "was able to do, what she was able to do". His Honour came to the view that the respondent would have had a very difficult time during that period and noted that it must not be forgotten that Mr Kula was available in the mornings and in the evenings after he arrived home from work.
10 His Honour found that from about 1994 when he ceased work, Mr Kula appeared to have been available on a full-time basis to render services to the respondent and appeared to have done so on a full-time basis. This had led to the situation where the respondent's dependency had been affected by the availability of her husband to care for her. His Honour said that witnesses had spoken of the problem that in assessing a person's need, dependency and need can increase because of the unlimited supply of care.
(Page 6)
11 Having read a considerable part of the evidence in this case, it is not my impression that the husband's care contributed to any decline in the respondent's ability to look after herself, but rather the contrary. The respondent prior to the accident was full of life. There was evidence at the trial that, whilst in hospital, she had been "pushing the envelope" and doing things to try and get herself mobile even against advice she had been given. From all reports she appears to have coped admirably with her difficulties.
12 His Honour found that it appeared that the respondent had adapted to her difficulties in many ways and is capable of doing many things in the course of every day living. However, she has only the ability of a one-handed person whose hand is not the dominant hand. She seems fairly independent in terms of mobility, seating and bedding. She is able to carry out most activities of personal hygiene and is independent in toileting. She has some difficulty in things like caring for her nails. In dressing the respondent has developed a one-handed technique. There are various devices which could be made available to enable her abilities to be extended. In terms of eating and drinking the respondent is able to use a standard fork and spoon in her left hand. She has difficulty in cutting food and uses a rocker knife.
13 Expert evidence was given that the respondent will always require assistance with home management activity. She has some difficulties in the preparation of meals, in house cleaning, clothes washing and drying, and matters of that kind. The respondent requires assistance in home maintenance. Basically she is restricted by only having one hand available to perform any given task. She is not able to use her other hand at all, even as a support or prop. Evidence available to the Judge referred to the fact that the respondent has no right upper limb functional ability. The limb is not used as a stabiliser for activity. There is sensory loss in the limb.
14 The respondent is unable to read or write in Polish or English and has difficulty with basic calculation. She is unable to use money. An occupational therapist said that to assist the respondent in the management of household activities she would need transport to the shops and someone to push the trolley, collect items from the shelves and to manage the money. For personal and clothes shopping she might also require someone to assist in a similar manner.
15 The learned Judge, having heard the evidence, said:
(Page 7)
- "Three hours a week for meal assistance, for evening meals if the plaintiff was to live independently, seems to me to be the absolute 'bottom of the range'. For example, it does not even take account of travelling time for any person providing such assistance … the fact remains that Mr Kula has almost entirely filled the need the plaintiff demonstrably has had for services in the past and he has not had to travel."
16 His Honour discussed some of the evidence which had been called during the hearing and concluded:
"Dr Watson's evidence was to the effect that the plaintiff would need four or five hours of care over the period of a day. However he was unaware that the plaintiff had spent such a long time in the early years alone at home when her husband was at work. Dr Carroll's view was that the plaintiff would require two hours per day for domestic care, although that amount might need to be spread out over the day rather that in one period. … It seems to me that in the period immediately following the plaintiff's release from hospital on 13 July 1990, save for at least 12 months, that her needs would have been likely to have been greater than they were thereafter. As she adjusted to a new situation her ability to look after herself in all aspects of life would be likely to have improved. In my opinion, having regard to all the above materials, which really make any attempt at an arithmetic assessment most dubious, but being as fair and reasonable as I can, it would be appropriate for the plaintiff to be assessed as having had gratuitous services that she needed rendered to her by her husband, and by a Polish companion, averaging out per day over a week at about four hours per day for the first 12 months. Thereafter I am not persuaded that services that she needed could have been rendered in any greater amount than three hours per day and I propose to assess a claim under this head upon that basis."
Appeal
17 It can be seen from the abovementioned reasons that the learned Judge has not explicitly dealt with the fact that the respondent's husband has been and still is providing services to assist the respondent in the home which she would normally have provided to him and generally.
18 In Vangervan v Fenton (1992) 175 CLR 327 at 341, Brennan J said:
(Page 8)
- "… it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return, but some pecuniary allowance would be fair compensation to the care provider for the plaintiff's failure to do so, the plaintiff should recover as damages a capital sum representing that allowance - assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider. The allowance, if any, to be made in respect of this factor may not admit a precise calculation."
19 In Sullivan v Gordon (1999) 47 NSWLR 319 at 322, Mason P said:
"The accident caused need of a disabled plaintiff that is compensible should not be confined to self care."
- His Honour went on to say:
"For many women and some men their own needs extend to care for other members of the family as naturally as they extend the capacity to attend to their own personal functions. There is no distinction in point of principle: Burnicle at 35 per Glass JA."
"Acknowledgment that a mother's interrupted capacity to make her usual contributions to a household is compensible involves the laws' belated recognition of the economic value of such work. … But what exactly is the need that is recognised? And what are its limits? … The reasoning of the Queensland Court of Appeal in Sturch recognises that there are distinctions between the "traditional" Griffiths v Kerkemeyer need of the injured plaintiff for self care and the type of need recognised in that case and this. Fleming 'The Law of Torts', 9th ed (1998) 261 accepts that the needs are functionally analogous, while contending that the need recognised here cannot as readily be justified as representing a need of the plaintiff. To my
(Page 9)
- knowledge, the existing case law does not extend beyond compensating for the interrupted capacity to care for infant children in the household family or to do general housework for the benefit of a spouse or children in a household family …"
21 It seems to be a fair conclusion on all the evidence that if Mr Kula was not caring for the respondent in such an attentive manner, she would probably need a full-time carer. That is not to say that she is therefore entitled to be compensated on that basis because as counsel for the appellant put it to us, both the respondent and her husband have a very full and affectionate relationship. It is the fact that it is still existing.
22 In my opinion, it should be borne in mind that for one reason or another, the present relationship might break down. There is Dr Watson's evidence that it is most unusual, particularly where a person is in a hospital with spinal injuries, that such a relationship persists.
23 The situation in this case is that whereas before her injury the respondent managed the household and the finances, and did the cooking and cleaning, most of that is now done by Mr Kula. There was evidence that if Mr Kula was not around to help her, the respondent could rapidly deteriorate and might require care in an institution. As stated above, his Honour noted that if Mr Kula were to leave, the respondent's position would become most precarious. His Honour also noted that as the respondent ages she is more likely to suffer adverse consequences as a result of her disabilities than whilst relatively young. His Honour's finding that "… I have no doubt that Mr Kula attends to the respondent's every need and provides her with the services of a full-time personal live-in carer" is relevant to this aspect of the matter.
24 The learned Judge said:
"I have already reached the conclusion that the plaintiff has a present need for services in whatever form, that would require the attendance and efforts of a person for about three hours per day seven days a week. There is no doubt that should the plaintiff's husband not be available then her needs will be greater than that. Furthermore, when she reaches the age of 60 and commences to suffer a decline in her abilities and a greater risk of other disabilities, her need for care will increase. On the other hand, if her husband returns to employment, then there might be greater pressure upon the plaintiff to cope and she may
(Page 10)
- therefore acquire independence and consequently a drop in the level of a need for services."
25 The respondent is physically and mentally disabled to a degree. She cannot use her right arm and hand. She has a disability in her right leg. All these disabilities are permanent. The respondent cannot speak English, she cannot count money and she cannot write. She can only, for example, copy a label off a soap packet if she runs out of soap.
26 In my opinion the allowance of three hours per day which his Honour allowed for the period after the first 12 months was not adequate on all the evidence. The allowance should have been for four hours per day to the time of judgment to make up for the extra time which Mr Kula spends performing household activities which the respondent would have performed in caring for him generally.
27 On my calculations and by increasing the figure 21 (for three hours per day) in his Honour's calculations in par 572 of his judgment to 28, the sum for past gratuitous services would be increased from $154,462 to $200,368. To that would be added interest at 3 per cent for 9.5 years, being $57,104.88 to total $257,472 instead of $198,483, a difference of $58,989.
28 With respect to the need for future gratuitous services, his Honour said:
"Again a stark difference between the opposing points of view. I have already reached the conclusion that the plaintiff has a present need for services in whatever form that would require the attendance and efforts of a person for about three hours per day seven days a week. There is no doubt that should the plaintiff's husband not be available then her needs will be greater than that. Furthermore when she reaches the age of 60 and commences to suffer a decline in her abilities and a greater risk of other disabilities, her need for care will increase. On the other hand if her husband returns to employment then there might be greater pressure on the plaintiff to cope and she may therefore acquire greater independence and consequently a drop in the level of her need for services. It could be arguable, I think, that an allowance of three hours per day is on the generous side when contemplating her need for future care. But I think it is balanced out by the matters to which I have referred. In my view on assessment of a need for future care can
(Page 11)
- reasonably be based upon the same assumption that I have already made for past care, that is, three hours per day."
29 In my opinion, there are problems in that reasoning. The first is that there does not appear to be sufficient allowance made for the decline which will probably occur in the respondent's abilities with an increased need for care. Secondly, in my view, there is no allowance made for the loss of the respondent's ability to contribute to the household activities, to include Mr Kula's needs. Thirdly, as stated above, there was not sufficient evidence to conclude that if Mr Kula returns to employment the respondent might acquire greater independence with a consequent drop in the level of her need for services. In my view the evidence was to the contrary.
30 It should be remembered that Dr Watson said in his report dated 25 July 1996:
"Finally I would see the situation being reasonably stable for the next 10 to 15 years in the absence of any new development with her health. The use of physical aids and environmental modification as hinted at in Ms Lublich's report, would always influence how much support and care Mrs Kula will need. In the longer term, however, as her physical and intellectual capacities decline with age, her dependency will rise and quite quickly probably, beyond 20 years from now. Certainly if for some reason she did not have a husband, I would imagine her becoming totally dependent within a matter of months."
31 It was not suggested that that evidence should not be taken as correct.
32 Counsel said "Dr Watson's evidence on one view, was pretty much what his Honour awarded." Counsel then said that Dr Watson's evidence had put all the evidence concerning the need for health at its highest. That is what the learned Judge had done.
33 However, Dr Watson had not been commenting on the work which Mr Kula is now required to do which normally the respondent would have done within the house and which she has now lost the capacity to do. His Honour said:
"Of course there are two further factors to bear in mind. Her husband may not remain loyal to her. According to Dr Watson
(Page 12)
- it is a rare spouse that does so. If he were to leave, then her position would become most precarious."
34 If that situation arose the respondent would be unable to shop by herself, because she cannot count money or write. She has only one useful arm. She cannot speak English. The respondent has difficulty conveying her meaning in Polish. She cannot move heavy objects, having the use of only one arm and a damaged right leg.
35 The probabilities are that the respondent will always need the services she presently has. Should her husband, for one reason or another, be unable to carry on caring for her as he presently does, and that is always a possibility with aging, there is no provision in the award for those eventualities.
36 In my view a more appropriate allowance would be five hours per day for seven days a week. The calculation then would be 35 hours x $1550 by 803.2 = $435,736, instead of $261,441, a difference of $174,295.
37 If the above approaches were adopted for the damages for past and future gratuitous services, the award would be increased by the sum of $58,989 plus $174,295 = $233,284.
38 The principles concerning the approach of an appeal court to an appeal against the quantum of damages were discussed by Ipp J in State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997. In his reasons in that case, Ipp J said:
"In Wilson v Peisley (1975) 50 ALJR 207, Mason J said at 214:
'The settled rule then is, that an appellate court will not disturb the primary Judge's award of damages for personal injuries unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.'
In Gamser v The Nominal Defendant (1977) 136 CLR 145, Aickin J said, at 159 - 160:
(Page 13)
- 'In my opinion the proper approach to this case is to look at the total sum awarded as general damages and in all the circumstances, the plaintiff's suffering, past, present and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the award of $150,000 is "out of all reason" or "wholly disproportionate" to the circumstances.'
In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, Cooper J, at 346, said:
'Thus although an assessing Judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated. … It is the allocation of particular sums which disclose the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum. … The question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.' "
39 Ipp J added:
"These principles are particularly pertinent in a case such as the present, where the damages award is relatively high and is made up of several components, the majority of which are based on discretionary considerations. … In these circumstances there is considerable room for individual choice in regard to a multitude of factors. It may well be that in regard to certain particular components of the award, the appellate tribunal might consider that the trial Judge, without acting on a wrong principle of law or misapprehending the facts, has awarded too much or too little. Where errors falling into that category lead to relatively insignificant increases or reductions in the overall sum awarded, the appeal court will not normally interfere. In regard to issues of that kind the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not whether some portion of that total sum standing alone would call for the court's intervention. On the other hand, it may be
(Page 14)
- that a component of an award is held to be wrong, not because of discretionary matters, but because the trial Judge has acted upon some erroneous principle or upon some mistake or fact."
40 Applying the abovementioned principles to this case, in my opinion the cross-appeal should be allowed and the damages increased by the sum of $233,284.
41 ROBERTS-SMITH J: I have read the reasons to be published by Wallwork J. I agree with those reasons and have nothing further to add.
42 PIDGEON AUJ: I, too, agree with the reasons of Wallwork J and the order proposed.
6
21
1