Timothy Blake Crossman by Next Friend Stella Crossman v Le Fevre and Port Adelaide Community Hospital Incorporated (in Provisional Liquidation) No. SCGRG 92/0833 Judgment No. 4899 Number of Pages 18 Damages

[1994] SASC 4899

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Damages - Plaintiff born in defendant's hospital on 16 June 1989 - very severe brain damage caused by oxygen deprivation during his mother's labour resulting in spastic quadriplegia and cerebral palsy - liability admitted - Plaintiff cared for at home by parents ever since - permanent inability to walk normally or to attend to his own needs - Permanent need for twenty-four hour care - permanent and severe mental retardation - ability to make noises to attract attention - some evidence of evolving insight - totally and permanently unemployable - total assessment S4,882,534 excluding interest and fund management fees.

Burford v Allen (unreported - on SCALE) Number 3627 24 September 1992 and on appeal 60 SASR 428; Paul and Anor v Rendell (1981) 34 ALR 561; Skelton v Collins (1966) 115 CLR 94; Hawkins and Anor v Lindsley (1974) 4 ALR 697; Campbell v Nangle (1985) 40 SASR 161; Pickett v British Rail Engineering Ltd
(1980) AC 136; Beasley v Marshall (1986) 40 SASR 544; Van Gervan v Fenton
(1991) 175 CLR 327 and Bacha v Pettersen Unrep Jt NSW Supreme Court 9 September 1994, applied.

HRNG ADELAIDE, 3-7 May 1993, 15 July 1993, 18 April, 11 May, 31 October, 1-3, 10 November, 19 December 1994 #DATE 22:12:1994

Counsel for plaintiff:     Mr R C Halliday

Solicitors for plaintiff: Clelands

Counsel for defendant:     Mr D E Clayton QC with him
   Ms J E Tracey

Solicitors for defendant: Fisher Jeffries

ORDER
Damages assessed.

JUDGE1 MATHESON J The plaintiff was born at the defendant's hospital on 16 June, 1989. Owing to the admitted negligence of the defendant's staff, he suffered very severe brain damage caused by oxygen deprivation during his mother's labour, and he now suffers from spastic quadriplegia and cerebral palsy, his spasticity predominantly involving the lower limbs. The plaintiff obtained an interlocutory judgment against the defendant on 3 July, 1992, and my task is to assess his damages. The defendant paid the sum of $300,000 to Public Trustee on behalf of the plaintiff and on account of damages on 28 August, 1992.

2. When the claim originally came on for hearing on 3 May 1993, I was informed by the plaintiff's counsel, Mr. Halliday, that he was seeking an interim assessment only. After a number of witnesses had been called, I was advised on 7 May, 1993 that the action was settled "in principle". However, apparently complications arose in relation to the proposed settlement, and it did not eventuate. The plaintiff's claim ultimately came on for final assessment on 31 October, 1994.

3. The plaintiff was initially cared for at The Queen Elizabeth Hospital, but because of persistent convulsions and apnoeic episodes, he was transferred to The Queen Victoria Hospital for assisted ventilation. He was allowed to go home when he was fifteen days old, and since then he has been cared for at home except for a period in September 1989 when he was admitted to the defendant's hospital to give his parents some respite, and recently when he was admitted to the Adelaide Children's Hospital with a persistent chest infection.

4. A large number of medical reports were admitted by consent, including one from a neonatal paediatrician, Dr. Robert Pollnitz, one from Dr. J. I. Manson, Director of Neurology at the Adelaide Children's Hospital, two from a paediatrics physician, Dr. C. Pearson, who examined the plaintiff on behalf of the solicitors for the defendant, six from Dr. P. J. Flett, Director of Paediatric Services at the Spastic Centres of S.A. Inc. and Consultant Paediatrician: Developmental and Rehabilitation Medicine, and two from Professor Donald Simpson AM, a neuro-surgeon. Drs. Pearson and Flett gave evidence before me in 1993, and Dr. Flett was recalled at the second hearing. The parents were also recalled, and several new witnesses gave evidence, including Professor Simpson.

5. The plaintiff is now five and half years old. He will never be able to walk normally, or to attend to his own washing, feeding and toileting. He can crawl, but can only sit up or stand with assistance. He will always need twenty-four hour care. He is most unlikely to marry or have children. Whilst there is still hope for some improvement, he will always be seriously mentally retarded. He is not able to speak and can only communicate by making loud noises to gain attention. I think it is unlikely that he will ever be able to communicate in a normal way. He has not yet learned to use any communicative device and consequently the extent of his mental retardation can not yet be measured. His brain is still growing, albeit at a rate that is less than normal. The natural termination of brain growth occurs between the ages of eighteen and twenty-one years. It is possible that he may develop some capacity to communicate his needs. Any such capacity, Professor Simpson thinks, will peak before he is eighteen.

6. In undertaking this very difficult assessment, I have tried to keep in mind the following principles. As I myself said in Burford v Allen (unreported judgment No 3627, available on SCALE) delivered on 24 September, 1992 at p2:
    "There cannot be 'complete' or 'perfect' compensation. My
    task is to make a moderate assessment that is fair to both
    sides, and that involves allowing for the plaintiff's
    reasonable requirements. I also caution myself against
    compensating twice over for the one detriment."

7. Next, Lord Diplock said in delivering the judgment of their Lordships' Board in Paul and Anor v Rendell (1981) 34 ALR 569, at p571:
    "The assessment of damages in actions for personal injuries
    is not a science. A judgment as to what constitutes proper
    compensation in money terms for pain, suffering or
    deprivation of amenities of life, can only be intuitive, and
    the assessment of future economic loss involves a double
    exercise in the art of prophesying not only what the future
    holds for the injured plaintiff but also what the future
    would have held for him if he had not been injured."

8. Finally, I refer to the remarks of Windeyer J in Skelton v Collins (1966) l15 CLR 94. At p128, he said:
    "The one principle that is absolutely firm, and which must
    control all else, is that damages for the consequences of
    mere negligence are compensatory. They are not punitive.
    They are given to compensate the injured person for what he
    has suffered and will suffer in mind, body or estate. Only
    so far as they can do so is he entitled to have them."

9. There is actually not a great deal of dispute on the medical evidence except as to the plaintiff's expectation of life. My finding on that question is relevant to several items of damages, and I now proceed to consider it. According to the Australian Life Tables 1980-1982, the expectation of life of a five year old male is 67.24 years (See Luntz, "Assessment of Damages", 3rd Ed, p556). The least optimistic of the medical witnesses was Dr. Pearson, (who incidentally was not cross- examined on this topic). He said in his second report that there was a very strong likelihood that the plaintiff would live significantly into adult life and quite possibly into his thirties. He said it was conceivable that he would live beyond his thirties, but said that a large number of people with the plaintiff's degree of disability die in their early adult years. Both Dr. Flett and Professor Simpson considered that the plaintiff would live for from forty-five to sixty years from now, Professor Simpson stressing how very dramatically the management of severely disabled people had improved in the last forty years.

10. Caution is always required in estimating the expectation of life of a very gravely disabled plaintiff. This plaintiff has had a number of chest infections, although they do not appear to have been quite as serious as is often the case with injuries such as his. Chest infections can lead to pneumonia and to permanent damage to the lungs. There is apparently a risk of sudden death in children with severe cerebral palsy. The plaintiff's epilepsy appears to be under control at the moment, but if seizures recur they may affect his life expectancy. Kidney stones can be a problem because of immobility in later years, as well as the risk of deep vein thrombosis and pulmonary embolism. The plaintiff has scoliosis of the spine which has not progressed significantly yet, but which can cause compressive restriction of lung movement and further impair recovery from infections. The scoliosis can be expected to increase with age, and may well lead to surgery to prevent any increasing loss of pulmonary function in his chest. He also remains at risk of subluxation or even dislocation of the hips. On the other hand, I take into account Professor Simpson's statement that the plaintiff is partially protected from the some of the risks of life, for example, from being injured whilst driving a motor vehicle.

11. My finding is that the plaintiff's expectation of life from now is probably about fifty-five years, in other words, I think he will probably live until he is about sixty.

12. The virtually constant care of Timothy since his birth by his mother has been quite remarkable. Dr. Flett described it as "impeccable". She has had wonderful support from his father. I have the greatest admiration for both parents. To indicate the extent of Mrs. Crossman's care in particular, I will describe her present daily routine. Of course, that routine has varied over the years, depending on what outside visits, whether for therapeutic or for medical or for educational purposes, were required for the plaintiff at the time. She usually accompanied him on these visits. Initially, she would take Timothy to the Woodville Spastic Centre and then to Cherry House, these visits covering the period from about October 1989 to about August 1992. From January 1991 to about August 1992, she would take him, initially frequently, and then four times a month, and eventually once a month, to the Plympton Chiropractic Clinic where he had acupoint percussion therapy. From about February 1992, she would take him to Parkside where he had a structured conductive education programme in which she was actively involved, three mornings a week. From the time he reached three years, she would take him one morning and one afternoon a week to the Le Fevre Kindergarten. On 17 October, 1994, Timothy started attending the Kidman Park Primary School between 9 am and 3.15 pm, and she has been taking and collecting him five days a week.

13. Her daily routine at present is then as follows. After getting herself up and dressed, she gets Timothy out of bed. She then gives him his breakfast usually with him seated on her knee. When she has got herself and Timothy organised, she gets her other son Alex, who was born on 24 February, 1993, out of bed, washed, fed and dressed. She leaves home at 8.30 am and drives Timothy to school. She spends one whole day a week at school with him. She picks him up every day. Each day when they get home from school, she gives him something to eat and drink. He then stretches out on the floor with some toys. She says she gives him his bells which he can reach out and hit, and other toys. At 4.30 pm she puts him in his chair, and he watches some television. Then she gives him his tea. It takes about three-quarters of an hour to give it to him. Later she puts Timothy on his pot. He sits on the floor holding a ladder back. Since he has been going to school, she showers him at night. She carries him to the bathroom. He sits on a special chair. She showers him with a hand held shower and washes his hair. She then carries him back to the family room, and dries and dresses him. He watches more television or plays on the floor with his dog or his brother. Regularly she massages Timothy's limbs. He has a drink of milk about 7.30 with his medication before she puts him to bed. She usually gets up to him once a night, and turns him on to his other side, and he settles down again. He "sort of" yells out if he wants attention. He has got a big voice. In the weekends, the routine is much the same, but on Sundays they try to do something as a family. They go for a walk, or to the beach, or to visit friends.

14. In the summer, Mrs. Crossman gives Timothy a swim every day. She takes him out to the pool in his pusher. She lifts him into the pool and gets in to the pool with him. He uses floaties and rings. She does exercises with him in the water. At other times, she takes him to the Minda pool at Brighton or to the Adelaide Swimming Centre. In the winter he enjoys getting into the spa with his father.

15. Mr. and Mrs. Crossman gave evidence of certain responses of Timothy which they claim indicate that he has an evolving insight into his situation, and in that they are supported to some extent by Dr. Flett and Professor Simpson, but any insight is far from normal yet. For example, he smiles and giggles before and when he gets into the swimming pool, and often grizzles and wrinkles up his face or cries when the time comes for him to be taken out of the pool. He smiles and giggles when something apparently amuses him on television. He rejects some food, and clearly enjoys other food. For example, he hates strawberry flavoured things, but loves other sweet things, including ice cream. He especially likes Coca Cola, giggling and getting pleasure out of the sensation of the bubbles therein. He gets pleasure out of playing with his younger brother even when he sometimes sits on him. He laughs when his brother hurts himself or gets into trouble. He laughs and giggles with pleasure over his dog, and also when the pet cockatoo screeches. He seems to get pleasure from music. He paints after a fashion with human and other aids.

16. It is very difficult to ascertain with any precision just what pain and discomfort the plaintiff has suffered to date and will suffer in the future. Dr. Flett was asked to comment on the evidence of Timothy screaming day and night in his first eighteen months, and he said:
    "In the first instance it indicates that the child is
    suffering somewhere, and be that cerebral irritation or as a
    result of gastro oesophageal reintroduction which is very
    common at that age group, where the child with severe
    disability, so obviously there has to be pain that is being
    experienced, and the child is obviously intending to
    communicate that, and to seek consolation."

17. I accept that he feels pain when, for example, in the course of being massaged, his mother or other therapist overdoes the stretching or the pressure. I do not doubt that when, for example, he has chest infections, he suffers discomfort. He regularly suffers discomfort when he sits or lies too long in the same position. There are a number of orthopaedic remedies and treatments which possibly lie ahead of him, which will cause him pain and discomfort. Whilst accepting that the plaintiff's insight into his deprivations is developing, Dr. Flett did not think he would achieve the same insight "as you or I might have", as he put it. I do not think he yet has any insight into the differences that exist between him and other children of his age.

18. His counsel, Mr. Halliday, has referred me to an award in the New South Wales Supreme Court on 9 September, 1994 in the as yet unreported decision of Bacha v Pettersen, where $212,000 was awarded for non economic loss for very similar injuries and disabilities suffered by a twenty-one month old boy. That was the maximum amount that could be awarded under a relevant New South Wales statute, which stated that it could only be awarded "in a most extreme case". I am informed that the assessment in that case is under appeal, but as it was accepted by the defendant that the plaintiff's plight fell within the statutory description, I imagine that that part of the assessment at least will not be disturbed.

19. Mr. Halliday also reminded me that I awarded $320,000 to a thirteen year old girl whose quadriplegia was the most serious imaginable compatible with life in Burford v Allen (supra), and that that amount was not disturbed on appeal, see 60 SASR 428 at p432.

20. This is not a case like Skelton v Collins (1966) 116 CLR 94, where the plaintiff was rendered permanently unconscious by his injuries. It is a little more like Hawkins and Anor v Lindsley (1974) 4 ALR 697. There the learned trial Judge said:
    "Despite the very grave consequences flowing from the
    plaintiff's brain condition, my opinion is that she has some
    appreciation of her environment and is, to some extent a(t)
    least, conscious of her plight. She has endeavoured,
    sometimes successfully, to get away from the hospital and to
    go to the home of one of her sisters. I have formed this
    opinion despite the fact that there is evidence that
    normally she gives the impression of being happy."

21. On appeal to the High Court, the majority judges (Gibbs, Stephen and Mason JJ) increased the amount awarded for non economic loss from $10,000 to $20,000. That was twenty years ago. At p703-704, their Honours said:
    "... the assessment of damages for pain, suffering, and loss
    of amenities must take into account the awareness of the
    injured plaintiff of deprivation, so that if there be no
    awareness at all, nothing but a small and more or less
    arbitrary sum should be awarded on account of such
    consequences. In this case the learned trial judge found
    that the plaintiff is not suffering pain, that she normally
    gives the impression of being happy, but that she has some
    appreciation of her environment and is to some extent
    conscious of her plight.

It was in these circumstances that he came to the conclusion
    that in allowing for pain, suffering, and loss of amenities
    he 'should be moderate indeed' ...

We are nevertheless of the opinion that his Honour carried
    moderation too far and that, having regard to the large
    amount for the future support of the plaintiff, the award of
    $96,007 would leave too little to compensate the plaintiff
    for past and future pain, suffering, and loss of amenities,
    notwithstanding her limited awareness of her condition.

Because, for the reasons which we have already given, we
    cannot accept the assessment of the Court of Appeal, we must
    fix our own figure as the amount of damages which should
    have been awarded in all the circumstances of the case.
    That figure is $10,000 more than the sum awarded by the
    learned trial Judge."

22. In Campbell v Nangle (1985) 40 SASR 161, the trial Judge, (Zelling J), in assessing damages for a nineteen year old man who had suffered severe brain damage, said at p174, (the assessment being made in September, 1984):
    "I fix his damages for pain and suffering, loss of
    amenities, and loss of expectation of life at $200,000.00
    being $75,000.00 up until judgment and $125,000.00
    thereafter."

23. On appeal, King CJ said at pp184-185:
    "The amount of $200,000 allowed by the Judge for
    non-economic factors is a very high figure. It is, to the best
    of my knowledge, the highest figure which has been allowed
    in this Court under that head of damages. That is not
    itself a reason for interference by an appellate court. It
    is necessary to adjust standards for the assessment of
    damages constantly in the light of the diminishing value of
    money. I would not regard $200,000 as necessarily excessive
    for the non-economic consequences of an injury. It was
    argued, however, that terrible as are this young man's
    disabilities and plight, there are factors which tend to
    moderate the damages. He does not suffer and will not
    suffer significant pain as a result of his disabilities.
    The case is therefore distinguished from that of a similarly
    disabled person who faces a lifetime of pain. Moreover his
    awareness of his predicament, although existing, is

    sufficiently blunted by his intellectual and memory deficit
    to diminish to some rather uncertain extent the mental
    anguish which he might otherwise experience from the
    contemplation of his condition and the lost opportunities of
his life: Hawkins v. Lindsley (1974) 4 ALR 697, per Gibbs,
    Stephen and Mason JJ. at p 703. It is difficult to judge
    the extent of his awareness. It exists, but it is limited
    to some degree. He presents, generally speaking, a cheerful
    exterior, but how far that exterior reflects his true inward
    feelings is impossible to say. I accept the Judge's finding
    that 'he is now and is going to be in the future troubled by
    his awareness of his own limitations, his awareness of
    others around him at the Julia Farr Centre, some of whom
    irritate him, and his awareness of the fact that his
    brothers and sisters are leading normal lives and he is
    not'. That finding undoubtedly takes into account the
    medical evidence that there is some limitation to the degree
    and depth of his awareness. The medical evidence is by no
    means unambiguous as to the extent of this limitation and
    this is not surprising in view of the difficulty of
    communication resulting from his disabilities. The learned
    trial Judge spent a considerable time with the respondent at
    the Julia Farr Centre and at the home of the respondent's
    parents. In assessing the degree of the respondent's
    awareness of his plight he had a great advantage derived
    from his personal contact with the respondent. It is clear
    that the Judge considered that the respondent's awareness of
    his predicament was an important factor in the assessment.
    It is to be remembered, moreover, that, although he suffers
    little pain, the respondent must live his life deprived of
    sight. He cannot read, watch television or be diverted by
    the sights of the world about him. He has been deprived of
    the intellectual capacity to learn Braille. His life is
    therefore deprived of all usefulness and he is condemned to
    a life of boredom, frustration, emptiness, sexual and
    emotional deprivation, physical dependence and physical
    discomfort without the capacity to divert himself by any
    interesting, useful or pleasurable activity worth speaking
    of.

The amount allowed for non-economic loss is to compensate
    the respondent for pain, suffering and loss of amenities
    during his somewhat reduced span of life and it must also
    include a moderate allowance for the loss of expectation of
life: Skelton v. Collins (1966) 115 CLR 94; Sharman v. Evans
(1977) 138 CLR 563. No amount can compensate this young man
    for what he has lost and there are ample warnings in the
    cases against attempting perfect compensation. The
    injunctions in the cases to fairness and moderation are no
    doubt particularly apt in a case such as the present. But
    the futile and frustrating life which the respondent faces
    clearly called for a high award for non-economic factors.
    This is an extreme case and I have reached the conclusion
    that the amount allowed is within the reasonable scope of
    the Judge's discretion."

24. Jacobs J (with whose judgment O'Loughlin J agreed) reduced the plaintiff's total award, but at p198 his Honour said:
    "... the plaintiff has been awarded $200,000 for loss of
    amenities and expectation of life, the greater part of which
    must be attributed to compensation for loss of amenities.
    This is, as the Chief Justice has said, a very high figure,
    particularly having regard to the plaintiff's limited
    awareness of his plight and the fact that he is not in
    physical pain, those being factors which would tend to
    reduce the award (Skelton v. Collins (l966) 115 CLR 94;
Hawkins v Lindsley (1974) 4 ALR 697). Again, however,
    standing alone, the amount, though high, does not on that
    account alone lead to the conclusion that it is unreasonably
    excessive."

25. I do not think the plaintiff's award for pain and suffering and loss of amenities and loss of expectation of life should be nearly as high as that in Burford v Allen. In the end, I have decided to award $220,000, which I apportion as to $40,000 for the past and $l80,000 for the future.

FUTURE LOSS OF EARNING CAPACITY
26. The defendant concedes that the plaintiff is totally and permanently incapacitated for work. The plaintiff's mother is a qualified hairdresser, and managed her own hairdressing business for five years or so. His father is an administrative officer in the Public Service responsible for general administration at a TAFE College. He has deferred studying for a diploma because of his need to assist in the care of the plaintiff. His net weekly salary is $605.70. The average weekly earnings for a male in South Australia as supplied by the Bureau of Statistics are $476 per week net.

27. In Skelton v Collins (supra), the High Court ruled that in an award for future loss of earning capacity regard must be had to the total period during which the plaintiff could have been expected to have earned income if his life span had not been curtailed by the accident. (See also Pickett v British Rail Engineering Ltd. (1980) AC 136).

28. I have also had regard to the observations of King CJ in Beasley v Marshall (1986) 40 SASR 544. At p577, his Honour said:
    "The assessment of the figure for the future impact of the
    totally destroyed earning capacity presents special problems
    in cases such as the present in which the injured plaintiff
    was a mere child at the time of the accident. Earning
    capacity depends upon acquired as well as natural talents;
    it depends not only upon the possession of talents but upon
    the desire and the will to use those talents for the
    production of income. Many children never enter the work
    force; others enter the work force but drop out for one
    reason or another. Many are victims of unemployment, injury
    or illness."

29. Some allowance must be made for expenditure which would have been incurred in producing the earnings (see Sharman v Evans (1977) l 38 CLR 563 at p577 and Luntz (op cit) p43-44). The defendant called a chartered accountant, Mr. A. S. McKenzie, who gave some useful evidence on this aspect and estimated that the total relevant expenditure was between $2,000 and $3,630 per annum. According to the actuarial certificate dated 19 December, 1994, the present value of a steady income of $1 per week commencing at the age of 16 and ceasing on the plaintiff attaining the age of sixty-five years or earlier death is $906. If I take a figure approximately midway between $476 and $605, which I think I am justified in doing, namely $540, and multiply that by 906, a figure of $489,240 is reached. Making some allowance for the expenditure in earning income, and for contingencies not allowed for in the actuarial certificate, I award $380,000 for future loss of earning capacity.

Past Care 30. Under the heading of compensation for services rendered gratuitously by Timothy's parents to the date of trial, I was referred by Mr. Clayton to Van Gervan v Fenton (1991) l75 CLR 327. In the judgment of Mason CJ, Toohey and McHugh JJ at p331, their Honours said:
    "... the wages forgone by a care provider are not an
    appropriate criterion for determining the value of services
    provided gratuitously to an injured person. As a general
    rule, the market cost or value of those services is the fair
    and reasonable value of such services."

31. At pp333-334, their Honours said:
    "Because the market cost of services is ordinarily the
    reasonable and objective value of the need for those
    services, the market cost, as a general rule, is the amount
    which the defendant must pay as damages (See Griffiths v
    Kerkemeyer (1977) 139 CLR at p193, per Mason J). But in
    some cases the market cost may be too high to be the
    reasonable value of the services. Where, for example, the
    cost of providing the services at a remote location is much
    greater than providing those services in a densely populated
    area, it might be necessary to discount the market cost or
    value of the services needed by the plaintiff on the ground
    that the market cost or value was unreasonable in the
    circumstances. In other cases, there may be so little
    competition to provide the services that, judged
    objectively, the market cost is not the reasonable value of
    the services. No doubt the circumstances of the particular
    plaintiffs may reveal other cases where the market cost of
    the services provided is not the reasonable value of the
    services reasonably needed. But the case will be rare
    indeed where the income forgone by the care provider is ever
    an appropriate guide to the fair value of the services
    required by the injured person. Whether the income foregone
    is below or above or equivalent to the market cost, the
    income forgone will usually be irrelevant, for the market
    cost will ordinarily represent the objective value of the
    services. Where there is no relevant market for the
    services or the market cost is objectively too high to be
    reasonable, the income forgone may be a starting point in
    cases where the nature and duration of the services provided
    and the previous work and hours of the care provider are
    roughly comparable, but such cases are likely to be rare."

32. Mr. Halliday submitted that I should quantify the plaintiff's damages for the first eighteen months and the three years thereafter separately on the basis that the first eighteen months of Timothy's life was the most difficult and demanding for his parents, with constant screaming and sleeplessness and difficult feeding. He argued that on the evidence the appropriate hourly allowance for active care should be $16.00, and that it should be $10 for passive care. For the first eighteen months, he submitted that the starting point for my assessment should be $206,664, being the sum reached by allowing $16 per hour for twenty-four hours per day, seven days a week for the period of seventy-eight weeks, that is, a weekly cost of $2,688. He submitted that a discount of between 50% and 331/3% would be appropriate for the undoubted fact that a normal baby requires intensive care from its parents, especially its mother, during its first eighteen months. For the last three years, Mr. Halliday submitted I should fix an amount based on eighteen hours per day at $16 per hour, and six hours per day at $10 per hour. That would make a total of $348 per day or $2,436 per week. For the period of 208 weeks at that weekly rate the sum of $506,688 is reached. He submitted that a discount of between 331/3% and 25% during that period would be appropriate to allow for the parental care that would normally be given to a child aged eighteen months to five and half years.

33. I do not consider that a reasonable assessment can be reached on the figures submitted by Mr. Halliday, even making the discounts he conceded. In Burford v Allen (supra), for a period of six and a quarter years, I awarded $100,000, including an amount for what are called Wilson v Macleay damages. Although there was no appeal or cross appeal on that item, I acknowledge that $100,000 may have been a low award. In Bacha v Pettersen (supra) the learned trial Judge said at p23:
    "... the dedication of the plaintiff's family to his welfare
    has been outstanding and it has been conceded quite
    appropriately by the defendant that the provision of nursing
    and caring of the plaintiff by his family exceed 46 hours
    per week so as to entitle the plaintiff to the maximum
    compensation for such services as provided by s72 of the
    Motor Accidents Act.

To 8 September, 1994 from 26 February 1989 that represents
    an entitlement of $148,037."

34. There is no comparable statutory provision in South Australia.

35. Mr. Clayton referred to the evidence of Brenda Neville, Manager, Accommodation Respite Services at Woodville Spastic Centre. She said that there were foster parents who were willing to foster children with incredibly severe disabilities. If it had been necessary to foster out Timothy during the last five and half years, the Family Community Services would have arranged a placement. They pay a flat rate of $70 per week. For the period of five and half years, 286 weeks, at $70 per week that would involve an assessment of $20,020. I do not consider that an award as low as that is appropriate, and I do not consider that the Van Gervan case requires such a result.

36. I see no alternative on this and many other heads of damage but to take a very broad brush approach indeed. I award $200,000.

FUTURE CARE
37. I will say more on the issue of housing later, but the house in which the plaintiff and his parents and brother are living is registered in the name of Public Trustee as trustee for the plaintiff. I think the probabilities are that he will live there indefinitely, and that he will be cared for by his parents with some assistance at least until his schooling ends. I accept the evidence that he will probably attend school until the age of twenty. I think that the probabilities then are that he will either move into a community house, or convert his house into a community house and become involved in a community access programme.

38. It is convenient to mention here that counsel for the defendant has not argued in this case, as in many of the earlier cases where judges have had to assess damages for gravely disabled plaintiffs, that damages for future care should be assessed on the basis of institutionalised care. The trend against that sort of care has accelerated since the consideration of the question by me and by the Full Court in Burford v Allen (supra), and in any event most of the relevant institutions no longer exist. It was not even suggested here that the plaintiff's damages for future care, before or after attaining the age of twenty, should be assessed on the basis of the costs of living at the Julia Farr Centre. The medical evidence is overwhelmingly in favour of him being cared for by his parents at least until the age of twenty, and I think an assessment on such a basis is reasonable.

39. With a view to assisting me to assess damages for future care and for other reasons, the plaintiff has called three witnesses, Ms S C Priest, Senior Policy/Planning Officer for Community Access Services, Ms P A Wright, Manager of Client Services for Spastic Centres, including as I understand it, Community Accommodation and Respite Agency (CARA), and Mr. P O Schiller, the Sales and Marketing Co-ordinator of Professional Care Services of Australia Pty Ltd. Covering some of the same ground, the defence called Ms Brenda Neville to whom I have already referred. All these witnesses were well qualified and entirely reputable people, but I am bound to say that their evidence as a whole was confusing and to some extent contradictory.

40. The assessment for future care in these cases is - to take further something Mr. Halliday said - speculation on speculation on speculation, and I have no doubt that different judges would assess widely varying amounts. If I may be forgiven for adapting a Latin phrase, it would be a case of tot iudices tot sententiae] I propose to assess one figure for the period to the age of twenty and another figure for the plaintiff's future care thereafter.

41. As a rough guide for the first period, I will proceed on the basis of $16 per hour for active care for twelve hours per day, and on the basis of $10 per hour for passive care for twelve hours per day. I make some allowance for the 6.25 hours per day, five days per week, forty weeks per year, that Timothy will be at school. (I assume that very soon his mother will not spend a day a week at school with Timothy.) I allow for the cost of an access worker while he is at school. I allow for periods when his parents are in receipt of so-called respite services and for the fact that they pay no rent. For the period from now to the age of twenty, I allow $1,200,000.

42. From the age of twenty (when he will probably leave school), I think that he will continue to live at Hargrave Street. I think his parents and brother may then decide to move out to allow him to be independent. I think it likely that he or his trustee will allow their portion of the house to be used for community housing. He will continue to need care for twenty-four hours a day. Brenda Neville said in her evidence that access workers would be available to care for Timothy twenty-four hours a day, but that they would only be paid active care rates for ten hours. That seems to me to be a proper starting point for this part of the assessment. That amount of care would cost about $l,120 per week ($16 x 10 x 7). Using a multiplier of 703, the sum of $787,360 is reached. I do not overlook Dr. Flett's evidence that the cost of maintaining a person in a community house at the present time, including all services, is $50,000 per annum, but the evidence is by no means clear what the cost would be where the client owns his own house. This figure does not allow for the plaintiff's participation in community access activities. I think it is probable that he will make use of Community Access Services of South Australia, about which Ms. Priest gave evidence, but it is not possible to make a finding about the extent of such services. I must again use a very broad axe. I must allow for contingencies.

43. Doing the best I can in all the circumstances, I award $2,000,000 for the second period, making a total for future care of $3,200,000. That figure is less than that awarded in some comparable cases, but I point out that I have not found it necessary to include an amount for registered nursing services, an item that frequently increases such claims substantially.

Housing 44. The plaintiff's counsel submitted that the defendant was under a legal obligation to furnish the cost of reasonable housing for the plaintiff.

45. At the time of his birth, his parents were living in a house at 8 Christie Street, Largs Bay. There is no dispute that substantial work thereon was required to make it suitable for the plaintiff with his grave disabilities. There were difficulties with access to and from the premises generally, and to and from the kitchen and to and from the bathroom. There was no climate control. The driveway was awkward for wheelchair access. The block was not level. There were inadequate toileting facilities. There was no pool or spa. There were no separate plumbing lines to the bathroom. There was no real scope for much privacy for the plaintiff as he got older.

46. Mr. and Mrs. Crossman armed themselves with a publication entitled "Getting it Right" published by the Spastic Centres of South Australia dealing with housing design for people with severe and multiple disabilities, and with the Australian Standard "Design Rules for Access by the Disabled", and in July, 1990 they got quotes in the vicinity of $60 - $70,000 for necessary alterations and additions to the Christie Street house. Shortage of funds and anxiety about whether they were making the right decision seems to have caused them to hesitate, and then late in 1991 they saw most suitable premises approximately 400 metres away at 18 Hargrave Street, Semaphore, which they ultimately decided to buy. It was very close to Mrs. Crossman's mother and to several of their friends. They moved in early in March, 1992 and have lived there ever since. The purchase price was $265,000. Stamp duty and other costs thereon totalled $11,482.50. Mr. and Mrs. Crossman sold their Christie Street house for $126,500, and settlement thereon took place on 10 April, 1992. The proceeds of the sale of that house were paid to the mortgagee Hindmarsh Adelaide Building Society, now The Adelaide Bank, who had advanced $270,785.49 towards the purchase of the house at Hargrave Street. In August, 1992, Public Trustee paid out the mortgage from the payment of $300,000 received from the defendant. Mr. and Mrs. Crossman paid interest on the mortgage from early in March, 1992 until the payment by Public Trustee. Moreover, they are still owed approximately $76,000 which represented their equity in Christie Street.

47. I went on a view of the Hargrave Street house on 3 May, 1993. It is a fine old house with a spacious hallway, a separate bedroom for the plaintiff, with a store room next door thereto and connected to Timothy's bedroom by a walk-in wardrobe. It has a large family room, and a large bathroom to ensure the mobility of wheelchairs and other devices. It has a pleasant garden with wide shaded verandahs where Timothy may sit, and it had a pre-existing pool and spa, which eliminates the need for him to have hydro-therapy away from home at least during summer months. Access by car or wheelchair is facilitated by the location of the driveway, and by the level nature of the block. Although it is situated on a main road, it is clearly ideal accommodation for Timothy for the rest of his life, and ultimately for adaptation for use as a community house if required.

48. My task is to assess a reasonable amount under this heading for the plaintiff. The defendant submits that the plaintiff should only receive the cost of necessary alterations and additions to the house at Christie Street. They would now be in the vicinity of $90,000, excluding the cost of a pool and spa. In addition, if the defendant's approach to a proper assessment under this heading is correct, I would need to add the cost of rental of alternative accommodation for the period of three or four months at approximately $150 per week, whilst the renovations were carried out.

49. Mr. Halliday has submitted that at the least I should award $229,000 made up as follows:
    Sale Price of Christie Street     $126,000
    Renovations thereto                 90,000
    Rental and expenses attendant
    upon moving (twice) say                3,000
    Cost of pool   10,000
    Total   $229,000

50. Mr. Halliday also pointed out that if modifications had been carried out on the Christie Street house, it would have been very substantially over capitalised.

51. On the other hand, Mr. Clayton argued that Mr. and Mrs. Crossman and their other son Alex are deriving an advantage from the superior accommodation at Hargrave Street at no cost to them. Moreover, the plaintiff will have the chance of earning income from the house in later life, as and when he converts it to community housing.

52. In Burford v Allen (supra), I allowed "the reasonable cost of adapting the sort of house that the plaintiff would live in if she was not disabled, to meet her special requirements". The Full Court appear to have agreed with that approach, (p442), and did not interfere with my award of $150,000.

53. Balancing all these considerations as well as I can, some of them competing and some highly speculative, I award the plaintiff $150,000.

EQUIPMENT
54. The plaintiff's claim understandably includes a substantial sum for equipment, much of which the defendant does not dispute. For that reason, I set it out hereunder in the precise way it was formulated. The claim reads:
    (a) Manual wheelchair             $5,909.80
    Tricycle   295.00
    Big Red Switch   80.00
    Fallout Chair   980.00
    Electric Hoist (3,770 + $405 ramps) 4,175.00
    High Chair  880.00
    Standing Frame  738.00
    Prone Lying Wedge   480.00
    Bath Frame  483.00
    Shower Chair  1,000.00
    Toilet Chair/Potty  930.00
    Communication Device                5,910.00
    BBC Computer  2,000.00
    Yes/No Box  240.00
    Roho Cushion   750.00
    Little Room   800.00
   $25,650.00

(b) Continuing costs until aged 60 years:
    (i) Communication devices
    $10,000 every 5 years=38.46 per week.
     1319 x $38.46=                 $50,728.74
    (ii) Computers. Between $5,000
    and $13,000 say $8,000 every
    5 years - $30.76 per week.
    1319 x $30.76 per week=         $40,572.44
    (iii) Electric Wheelchair with
    carer controls at age 12
    $9,500 every years=$36.53 per week.
    Reduced by 3% deferral
    7 years deferral=0.813
    0.813 x $36.53=$29.70
    60 years - 12 years=48 years.
    Multiplier for 48 years=1338.1 $29.70 x
    1338.1=   $39,741.57
    (iv)(a) Every year until age 60
    (The formulation stated "age 55" but I think that
    was an error.)
    Shoes: 3 pairs per year at
    $200 each=$600=$11.53 per week
    Lambskins: 3 per year at $50 each=$150=$2.88 per week
    Arm guards and hand splints: $100=$1.92 per week
    TOTAL=$16.33 per week
    $16.33 x 1319=                 $21,499.70
    (b) Every year until age 15
    Polypropylene orthoses:
    $360 per pair x 2=$720=$13.84 per week
    Special toys: $500=$9.61 per week
    TOTAL=$23.45 per week
    Multiplier for 10 years=$451.7
    451.7 x $23.45=                 $10,592.36
    (v) Every 3 years
    Roho cushions at $750=$4.80 per week
    Fall out chair at $890=$5.70 per week
    TOTAL=$10.50 per week
    $10.50 x 1319=$13,849.50
    (vi) Every 5 years
    Shower chair=$1,000=$3.84 per week
    Commode chair=$930=$3.57 per week
    Bedding=$1,000=$3.84 per week
    TOTAL=$11.25 per week $11.25 x 1319=$14,838.75
    (c) Environmental Controls $10,000.00
    Equipment Total                 $227,473.06"

55. Mr. Halliday conceded that on the evidence the claim under (b)(iv)(a) for shoes should not be allowed, and I deduct $15,208.07 ($11.53 x 1309) on that account.

56. Next, I agree with Mr. Clayton that bearing in mind the uncertainty in the plaintiff's ability to use communication devices and, even more so, computers, the claim for those items must be substantially discounted. I propose to deduct a further $50,000. The house is air-conditioned, and there is no evidence to justify the claim of $10,000 for environment controls. I therefore deduct $75,208.07 ($15,208.07 + $50,000 + $10,000) from the claim for equipment, and allow $152,265 under that heading.

THERAPY
57. This claim is based essentially on the evidence of Dr. Flett, which I accept. He says that to the age of twelve the plaintiff should have speech therapy ideally four times a week at $100 each session, physiotherapy twice a week at $40 per session and occupational therapy three times a week at $80 per session. Using the multiplier of 315, his claim to the age of twelve on this basis is $226,800.00. From the age of twelve to twenty-five, his claim is based on those three forms of therapy three times per year, costing $15 per week. Using the multiplier of 453, his claim for this period is a further $6,795.00. From the age of twenty-five to sixty, his claim is also based on those three forms of therapy three times a year, costing $15.00 per week. Using the multiplier of 551, his claim for this period totals $8,265.00. These three sums total $241,860. I award $150,000 under this heading.

Transportation 58. The plaintiff claims the sum of $2,615 for mileage for the period during which his mother drove him to the Woodville Spastic Centre, to Cherry House and to conductive education between October, 1989 and August, 1992. A total of 5,230 km was covered and the amount of 50 cents per kilometre is claimed.

59. In September, 1992, Public Trustee purchased a second hand Ford Falcon Station Wagon which up to now has been adequate for the plaintiff's needs. In view of his increasing weight Dr. Flett said that a van is now and for the future the plaintiff's appropriate means of transportation. He assesses the cost thereof at approximately $45,000, including hoist restraints and other necessary aids, and estimates a life span of eight to ten years. The plaintiff's father also gave evidence about the life spans and costs of such motor vehicles. He had clearly acquired such knowledge in the course of his employment. He agreed with Dr. Flett's estimate of running costs of approximately $4,000 per year, but pointed out that the State Government's Supply Board policy is to change over passenger vehicles every two years or at 40,000 kilometres, whichever comes first. Of course, different considerations apply to a government instrumentality which is exempt from sales tax and probably has the option of fleet purchases.

60. It is not possible to be any more precise under this head of damages than upon most of the others. By allowing $45,000 for an all up cost of an appropriate vehicle and a change over every five years (260 weeks), a weekly cost of $173 is reached. If one multiples that by 1319 one reaches the figure of $228,187.

61. As far as running costs are concerned and on the basis of $4,000 per annum, the cost would be $76.92 per week. To the age of sixty and using a multiplier of 1319, one gets a figure of $101,457.

62. Adding these three figures together, namely $2,615, $228,187 and $101,457 a total of $332,259 is reached. The figure used for the purchase of vans makes no allowance for depreciation or trade-in values. Again, I remind myself that the figure I fix must be reasonable between the parties, and in all the circumstances, I allow $200,000.

SPECIAL DAMAGES
63. Past special damages have been agreed in the sum of $25,269.40. The plaintiff claims a further sum to include an annual consultation with a physician ($150 per year or $3 per week), nappies at $20 per week, petrol at $40 per week, chemistry at $6 per week, those items totalling $69.00 per week. Mr. Halliday produced calculations which suggested that other medical fees and chemistry expenses in the past averaged $37.55 per week. These two weekly figures total about $106, and using the multiplier of 1319, the sum of $139,814 is reached. This figure does not allow for the possible scoliosis surgery costing $15,000, or for future dental and orthodontic treatment, but on the other hand it is unlikely that the plaintiff will need the same level of medical treatment and medication in the future as he has had hitherto. Moreover, I must not overlook that even if he had not been disabled, the plaintiff would ordinarily incur some of the expenses under consideration. I allow a lump sum of $100,000 for future special damages. That sum does not include an allowance for occupational or speech therapy, or for physiotherapy.

DOMESTIC ASSISTANCE
64. The plaintiff's mother has a back condition which is exacerbated by her necessary handling of Timothy, and there is a claim for domestic assistance in the order of four hours at $10 per hour until the plaintiff is twenty. The plaintiff also claims for his own loss of domestic capacity, his inability to attend to activities such as gardening, house maintenance, and so on, which he would normally attend to himself, namely $40 per week from the age of twenty to the age of sixty. There is merit, but, I think, exaggeration in both claims. I allow a total of $30,000 to compensate for both.

HOLIDAYS
65. There is no doubt that additional costs will be incurred by the plaintiff in relation to any period during which he is on holidays. His counsel has suggested an allowance for two fortnightly holidays per year costing $3,000 each or $115 per week. Using a multiplier of 1319, he gets a figure of $151,685. I notice that in Burford v Allen, supra, I awarded $40,000 and in Bacha v Patterson (supra) Hunter J awarded $120,000 for this item. I have no option here but again to use a very broad axe, and I award $75,000 under this head. I summarise my assessment as follows:
  Past     Future
    Pain and suffering and loss of amenities
    and loss of expectation of life     $40,000    $180,000
    Loss of earning capacity   380,000
    Past and future care                 200,000 3,200,000
    Housing costs  150,000
    Future equipment   152,265
    Future speech and occupational
    therapy, and physiotherap  150,000
    Transportation costs   200,000
    Domestic assistance   30,000
    Holiday costs   75,000
    Special Damages   25,269     100,000
   4,617,265
   265,269
   4,882,534
    Less paid  300,000
   $4,582,534

66. I will hear counsel on the questions of interest and fund management fees before entering judgment.