Timothy Chris Hall bhnf LOIs Jean Hall v Sydney Robert Armellin [No 2]
[2010] ACTSC 164
•15 December 2010
TIMOTHY CHRIS HALL bhnf LOIS JEAN HALL v SYDNEY ROBERT ARMELLIN [No 2]
[2010] ACTSC 164 (15 December 2010)
LITIGATION AND PROCEDURE – orders made to pay settlement sum into court – settlement sum paid out to ACT Public Trustee in accordance with Public Trustee Act 1985 (ACT).
LITIGATION AND PROCEDURE – application made by the next friend for payment from settlement sum for gratuitous services of care provided to the plaintiff – payment from settlement sum ordered.
s 100 of the Civil Law (Wrongs) Act 2002 (ACT)
Hall by his next friendHall v Armellin [2010] ACTSC 135
EX TEMPORE JUDGMENT
No. SC 638 of 2003
Judge: Refshauge J
Supreme Court of the ACT
Date: 15 December 2010
IN THE SUPREME COURT OF THE )
) No. SC 638 of 2003
AUSTRALIAN CAPITAL TERRITORY )
TIMOTHY CHRIS HALL bhnf LOIS JEAN HALL
v
SYDNEY ROBERT ARMELLIN
ORDER
Judge: Refshauge J
Date: 15 December 2010
Place: Canberra
THE COURT ORDERS THAT:
The sum of $300,000 be paid by the ACT Public Trustee to Lois Jean Hall and Christopher Hall, in respect of domestic assistance and payment of expenses, both incurred in the past and in the future.
On 27 October 2010, I gave directions for the prosecution of an application of the matter now before me in which the next friend of the plaintiff seeks orders for payment out of the monies paid by the defendant under a compromise that I approved on 24 June 2010: see Hall by his next friendHall v Armellin [2010] ACTSC 135.
Those directions were made particularly to ensure that the Public Trustee, who now has control of the monies paid by the defendant, not only had notice of the application but also could object to the application if there were to be issues as to entitlement or the amount that needed to be considered.
The plaintiff’s next friend has complied with the directions and moves on the Application in Proceedings dated 9 December 2010 seeking payment out to her of the sum of $300,000 being for domestic assistance provided to the plaintiff, a proper component of any damages award under s 100 of the Civil Law (Wrongs) Act 2002 (ACT).
The application is supported by two affidavits, an affidavit of the next friend made on 25 October 2010 and an affidavit of the next friend’s lawyer made on 9 December 2010. It is clear from the first affidavit that the application is made on behalf of both the plaintiff’s parents jointly, that is, the next friend and her husband.
The plaintiff was severely injured at birth and is in need of ongoing continuous care. That was set out in detail in the reports of Occupational Therapists retained by both the plaintiff and the defendant. In particular, the reports of Ms Kathryn Clarkson and of Michelle French & Associates set out the circumstances of the assistance that they had considered. It is substantial.
In relation to Ms Clarkson, she made a comment that Timothy requires:
assistance with self-care tasks; assistance with meal preparation and cooking; exploring and assisting with avocational activities, home and community recreation options and assisting with community integration and shopping;
assistance with personal administration; supervision with health and safety; assistance with home management and maintenance; completion of equipment maintenance; accompanying Timothy to appointments as necessary; and, assisting with therapy programs.
She then commented:
Timothy’s expected needs by adult years will have changed when compared to his current needs if provided with therapeutic input recommended through this report, however in functional terms it is unlikely to be sufficient change to alter the level of care he will require.
She also noted:
Timothy’s mother reported that the early years of Timothy’s life were very difficult for her and Timothy’s father and they did not have counselling support at the time. She now reported feeling comfortable and realistic about Timothy’s disability and his future options although the lack of equipment and constant care requirements were a strain.
The assistance required by the plaintiff is substantial, significant and ongoing. Care was taken to tease out the needs caused by the actions said to be negligent as opposed to other disabilities not so caused. For example, as the plaintiff has grown, both his parents need to lift him, such as for bathing. He wakes at night and requires one of his parents to attend to him. There are other needs that they supply regularly.
I had a detailed advice from Mr Graham Segal, the plaintiff’s junior counsel. He made careful analysis of these two reports. He started with a discount applied to the amount claimed, as compared to the amount paid. This was further reduced by an amount to represent the care resulting from the disabilities not the subject of the claim in negligence.
He then comments,
The occupational therapist whose report was obtained on behalf of the plaintiff, namely, Michelle French, provided her analysis based upon, so I understand her report, Timothy’s needs that existed by reason of his brain damage. It was Michelle French’s report that was used to determine the amount claimed in this regard. The occupational therapist qualified on behalf of the defendant, namely, Ms Clarkson, analysed with more particularity the difference between the needs that Timothy may have had as a Down syndrome sufferer, compared to
his current needs. The analysis was essentially focused on future costs. However looking at the comparison in respect of the future, Ms Clarkson assessed current attendant care needs at $4,500 per week (approximately) compared with Timothy suffering only with Down syndrome in the sum of $780 per week.
It is no doubt correct that in the earlier years the demand upon the parents would have been greater than in the later years. Doing the best I can to extrapolate upon Ms Clarkson’s findings, it would seem to me that one should ascribe at least one-quarter of the amount claimed for past care to the care that would have been necessary if Timothy suffered only with Down syndrome. In the result, it seems to me that an appropriate figure is in the order of $300,000.
Under s 100 of the Civil Law (Wrongs) Act 2002 (ACT), the cost of these services are included in damages payable by a person responsible in law for the injuries which necessitate the provision of such services. Such is not in doubt.
In Hall by his next friend Hall v Armellin, I said at [9]:
There is no doubt that the court has power to make a payment, from a sum of damages awarded to a disabled person, the provider of gratuitous services in respect of the cost of the gratuitous services provided. I have addressed this issue in Singh and Another v Calvary Hospital ACT Inc and Another (2008) FLR 352.
Accordingly, I am satisfied that the sum of $300,000 is an appropriate amount to be paid for services of a domestic nature provided to the plaintiff and his next friend and her husband.
I note that this is an application made in respect of past and future domestic services of that nature and I note that it is made, although formally, on behalf of the next friend, it is in truth,, made by her and her husband.
I am also satisfied that the sum should be paid out to the next friend and her husband jointly and that they can deal with the money as paid out themselves.
Accordingly, I now order that the sum of $300,000 be paid by the ACT Public Trustee to Lois Jean Hall and Christopher Hall in respect of domestic assistance and payment of expenses, both incurred in the past and in the future.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 24 December 2010
Counsel for the applicant: Mr G Rees
Solicitor for the applicant: Slater & Gordon Lawyers
Date of hearing: 27 October and 15 December 2010
Date of judgment: 15 December 2010
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