Van Gerven v Fenton
[1990] TASSC 91
•30 April 1990
Serial No B14/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Van Gerven v Fenton [1990] TASSC 91; B14/1990
PARTIES: VAN GERVEN
v
FENTON
FILE NO/S: 790/1986
DELIVERED ON: 30 April 1990
JUDGMENT OF: Cox J
Judgment Number: B14/1990
Number of paragraphs: 38
Serial No B14/1990
List "B"
File No 790/1986
VAN GERVEN v FENTON
REASONS FOR JUDGMENT COX J
30 April 1990
This is an assessment of damages for injuries sustained by the plaintiff in a motor vehicle accident near his home at Huonville on 7 September 1984.
The plaintiff was born in Holland in 1925 and came to Australia soon after the War. At the time of the German occupation of his country he was, accordingly, in his adolescence. It appears that although he was not himself interned during the War, he worked in a prison camp and was aware of the sufferings of the inmates thereof and that he was exposed to emotionally distressing experiences at this stage of his life. He married his first wife, also of Dutch origin, in Australia and by her had a son in about 1950. The marriage ended in divorce in 1974 but the relationship had been an unhappy one for several years and, during this period of estrangement, the plaintiff's association with the lady who was to become his second wife led to the final break down of the marriage. Thereafter the plaintiff maintained little or no contact with his son and a brother who also lived in Tasmania. He and his present wife have lived on their own at Huonville since their marriage in 1976.
The plaintiff's employment history in Australia included a period of service as a prison warder at the old Hobart goal in Campbell Street, from which position he was dismissed in 1960 for an infraction of the rules relating to carrying messages for prisoners. From 1963 until he ceased employment in 1985, he was employed by Telecom Australia and its predecessor, the Post–Master General's Department, first as a labourer and then as a clerical assistant Gr1, and from 1979 as an assistant Gr2 in the drafting section at Derwent Park. There he was engaged in work which his immediate supervisor, Mr Elliott, said involved "printing negatives off a plain printing machine which required variable speeds with different types of prints. The position also had to maintain the machine, mix up developer for it, read orders for different amounts, different types of prints, then they also had to be trimmed and folded down to an A4 size format and bundled and put in numerical order". He was well liked by his fellow employees, who found him easy going and affable, and he was competent in his duties.
In his leisure pursuits, the plaintiff was a keen photographer, kept and showed Boxer dogs, played lawn bowls regularly and effected a large number of improvements and renovations to his home using a variety of power tools he kept in his workshop, and improving his woodworking skills with night school tuition where he showed considerable aptitude. He was a keen gardener and enjoyed outdoor activities including camping and fishing. He read magazines and novels and he and his wife attended popular music concerts and visited the Hobart Casino to play Keno fairly frequently.
On the day of the accident he was driving home alone from work when another vehicle struck his car head on, causing him to collide as well with a road side embankment. He was wearing a seat belt and the sash caused painful and obvious bruising across his body. His wife arrived on the scene soon after the accident and found him standing on the side of the road. He wept upon seeing her and she took him straight home, where he just sat as if in a daze. She helped him to have a bath and he then retired to bed. During the night, at about 3am he awoke screaming, "My head, my head, what did I do, my head, my head – I can't stand it". He complained of feeling sore all over and neither of them went back to bed.
His wife gave evidence that she saw a graze or mark on the right side of the plaintiff's face near the temple. She said it was not a deep cut, that there was no blood around it and it "wasn't really bad". She thought he had scratched himself on some glass. He also complained of pain in his neck and shoulders and of a headache. Later that day, she took him to his general practitioner, Dr Chau, who made these notes in his records,
"8.9.84 MVA painful left chest and between shoulder blades and base of neck. Slight reduction of movement and tender to left inframammary region. For x–ray of neck.
8.9.84 (annexed note) Last night MVA when another car hit him on right side while overtaking. Since then back pain and headache and inframmamary pain. Extension of neck – pain. Other movements – OK Tender C4 to 5. Superficial tenderness 5th intercostal space. Heart and chest sounds normal.
8.9.84 MVA sore L chest and between shoulder blades and base of neck. Slightly tender L infra region."
The accident had occurred on Friday, 7 September, 1984. The plaintiff did not attend work the following Monday, but returned on Tuesday, 11 September. The following day he took one day's "flex" leave and on Thursday, 13 September came to work in the morning but left at 9.30 am because of a headache. He saw Dr Chau who recorded:
"13.9.84 Woke up with pain between shoulder blades and L inframammary region. Tender 5th intercostal space and tender romboids – given local injection of Xylocaine. Anxious and depressed, talking about war. Serapax 30 mg. half at morning one at night."
The plaintiff did not return to work until Tuesday, 18 September 1984. The previous day he saw Dr Chau, who noted:
"17.9.84 Much better. Lots of worries with car. Headache frontal relieved by resting 2 hours to–day. Tender neck but movement normal. Acupuncture given with relief."
The plaintiff's next absence from work was on Thursday, 11 October and Friday, 12 October, 1984. He returned to work between Monday, 15 October and Wednesday, 24 October, but was absent between 25 October and 2 November, 1984. Dr Chau's notes for 3 attendances in this period are as follows:
"26.10.84 Can't sleep, thinking about everything. Throbbing. Thinks he is a failure. Battling neck pain radiating to head. Tender C1 – 2. Decreased movement. Sensation normal. Acupuncture given. Serapax 30 mg. at night.
29.10.84 Feel that he is a failure. Still has pain neck – head bit better. Acupuncture Was quite upset.
1.11.84 Movement neck good Still headache Panadol Serapax half at night Try work on Monday."
Between 5th November 1984 and Christmas of that year, he was back at work, except for three days of "flex" leave, one day of recreational leave and one day of sick leave for bronchitis. In January 1985 he took recreational leave between 7 January and 24 January, in February took leave on four days, and in March 1985 had five days' absence to attend physiotherapy. His last day at work was on 27 March 1985.
A number of Telecom employees gave evidence of the plaintiff's condition between his initial return to work in September 1984 and late March 1985. The picture which emerged was of a man progressively deteriorating. At first he seemed obsessed about the accident, repeating the circumstances of it. Thereafter his colleagues noted a falling off in his work performance. He seemed unable to reproduce plans correctly. Many were either too light or too dark. He failed to produce the right numbers and to trim them properly. Both the quality and quantity of his work decreased from the beginning, but the severity increased as time passed. Prior to Christmas 1984, Mr Dermoudy, the officer in charge of the section, had a lengthy conversation with the plaintiff in which the latter spoke vividly of his wartime experiences. Mr Dermoudy described it thus:
"AHe seemed to be almost reliving the circumstances totally, part of his being, the fear of the Germans hiding under the bridge, the lack of food, foraging to survive the cold. It was quite terrifying just listening to him.
QAnd how much intent and emotion was he demonstrating during the course of that narration?
AWell, he was living it. He wasn't in tears but he was extremely intent."
As the plaintiff's performance deteriorated, so remaining staff members assumed the burden of correcting his mistakes and largely doing his work for him.
The picture painted by the plaintiff's wife of his condition prior to leaving work is of his short term memory becoming noticeably affected straight after the accident while his mood within the first few days became very agitated. She also said she noticed that in walking he was going to one side, that contrary to all past experience, he frequently spoke of distressing events related to the War, and that he woke up every night for the first two weeks or so complaining of severe headaches. In the garden, she noticed that his mowing was erratic and that he left large uncut patches of grass, in his woodwork, he was unable to complete a wooden box which required only the attachment of legs, and that he became clumsy and dangerous to himself when attempting to use power tools. Indeed, she began to hide them from him. In addition he had difficulty dressing himself and on his first day back at work had shaved only one side of his face. He drove himself by car to and from work, but on one occasion when she was a passenger, she found him to be very erratic, driving at times on the wrong side of the road. He continued to drive until after he stopped work. She gave numerous instances of the plaintiff's clumsiness, swings of mood, self–deprecation and complaints of headache and pain in the neck and shoulders.
Between 14 and 26 March 1985, Miss Karen Grimmer, a physiotherapist at Huonville, undertook a course of treatment for the plaintiff's headaches and stiff neck. Initially he was found to have a stiff neck in rotation, worse on the right than on the left, and stiff lateral flexion worse on the left than on the right and headaches. The course consisted of mobilising his neck and of electric therapy measures. His condition improved and physiotherapy ceased on 26 March 1985. He sought no further treatment. Miss Grimmer examined the plaintiff shortly prior to the trial, and noted that he had a very fixed forward flexed head with a restricted range of movement in all his ranges of neck movement which were about 50% of normal. She found he had a very stiff and tender upper and lower cervical spine, and a very stiff thoracic spine. She was doubtful that physiotherapy could help him at all.
On 31 March 1985, the plaintiff was examined by Dr I P Burges–Watson at the request of his solicitor. Since then Dr Burges–Watson has attended the plaintiff on many occasions at his rooms and at the Rokeby Psychiatric Clinic. He found the plaintiff to be severely depressed and ordered immediate hospitalisation at St. John's Hospital for the treatment of his condition and for neurological testing. His provisional diagnosis on admission thereafter to the Rokeby Clinic on 3 April 1985 was severe depressive illness, while upon the patient's discharge on 30 May 1985, it was of organic mental disorder with marked loss of memory and also affective change including emotional lability and also a prevailing mood of depression. In his opinion, the plaintiff's condition was caused by the motor vehicle accident six months before. He found the plaintiff's pre–occupation with his wartime experiences entirely consistent with his diagnosis, explaining that many veterans who have undergone particularly unpleasant experiences may be able to suppress them while they are reasonably healthy but that an injury to the brain may reduce their ability to control the feelings and memories. Dr Burges–Watson reached the conclusion, which is not in dispute, that the plaintiff had become totally unemployable and would continue to require constant care and attention. He said that the plaintiff was very aware of his limitations and "of the support he has from his wife, even though he gets irritated with her and expresses his guilt quite often about the way he behaves with her, and she reassures him and I think he would be devastated by being removed from her care". He considered the plaintiff's condition incurable, and that he would need annual hospitalisation for reassessment and monitoring of medication as well as respite for his wife.
The plaintiff was examined by Dr Poh Tec Yeo, a neurologist who gave the following diagnosis in this excerpt from the transcript:
"Now have you in fact formed a diagnosis as to what is responsible for his condition?..... Yes, I have.
What is that diagnosis?..... I believe Mr Van Gerven has got three main problems as the result of a motor vehicle accident and in respect of the headaches that was due to an extension injury to the neck and the most likely is a whiplash injury. And secondly, he had as a result of the accident suffered what we call post–concussive head syndrome and thirdly, he has since the accident developed variously a depression and some of the psychological sequelae of the accident.
Psychological sequelae?..... Yes.
Could you explain how the post–concussive head injury in your opinion has occurred at the time of the motor vehicle accident?..... I believe he had a minor concussion to the head and there was evidence that there was some bruising on the temporal part of the head and I believe that was responsible subsequently for his constellation of symptoms and signs.
And could you explain what part of the brain you believe has been damaged as the result of the motor vehicle accident?..... Well I believe more probably than not he had suffered a shearing force to the brain and that had, in a microscopic sense, damaged brain tissues and – which could not, however, be detected on present day technology. It has been well known for quite some time in post mortem studies that such injuries can and do occur.
And what part of the brain, Doctor?..... It is well known that the vulnerable parts of the brain include the frontal and temporal areas, and hippocampus and the medulla, which are deepseated regions, and they consist mainly of what we call petechial haemorrhages or microscopic dot haemorrhages of these area.
Now, the hippocampus, could you explain a little bit as to how that part of the brain is arranged, with respect to the layers of cells?..... We see, with a microscope one could pick up the hippocampus, and the medulla bodies – medulla areas arranged in layers, and I think at least about five layers, and they are – and they lie on one top of each other and it's well known that in any kind of concussive head injury that you can actually have line haemorrhages in the junction between these layers, and that could as a result lead on to, in particular, memory changes.
And what part do these – when you say shearing injury, what are you referring to so far as these layers are concerned in the hippocampus?..... It is usually thought to be around layer five or layer four, because that is thought to be where the immediately stores of memory are being laid down.
And could you explain in just a little more detail what you mean by 'shearing'?..... When you had a sudden acceleration of deceleration on the body, the brain moves in relation to the skull which is a very tight hard box. A number of things could happen, you can either have a direct impact of brain tissue against the hard skull, and what we call a coup injury, or you could have a transmission of injury to the opposite – directly opposite to the impact point, and is a contrecoup injury. But within the brain tissue itself, what we call the porencemum you have movements of layers of brain tissue against each other because they are not completely tightly bound together and consequently if you like, the sliding movements will lead on to damage to the blood vessels and the brain cells, and this is what we mean by shearing forces in the brain.
Now, you are aware of the reports of Professor Tress?..... Yes.
He is an expert radiologist?..... Yes.
And you've seen his reports?..... Yes.
Showing a lesion?..... Yes.
In the pons area?..... Yes.
Is that consistent with your opinions?..... Yes, I believe it is."
Dr Yeo maintained that for the damage to the brain he predicated having occurred, it was not necessary that the plaintiff should have sustained a loss of consciousness in the accident, although he did regard it as significant that there had been an impact on the temporal part of the skull.
As these two matters are of importance, I pause to record my findings in respect of each. I note first that Dr Chau who saw the plaintiff on the day following the accident did not record any complaint of loss of consciousness or of a blow to the head, nor did he observe any trauma to the head. I have already noted the evidence of the plaintiff's wife as to the mark she saw. I accept her evidence in this respect and I find that the plaintiff did receive a blow in the general area of the right temple in the course of the accident. I am unable to say how it occurred nor can I estimate its force, but I am not persuaded that it caused a loss of consciousness. Indeed, I find that there was no loss of consciousness by the plaintiff in the accident.
Dr Yeo's opinion was in direct contrast to that of a Neurosurgeon, Mr Robert Southby, called by the defence. He had examined the plaintiff and had seen x–rays of the cervical spine CT Scans and multiple resonance imaging scans (MR scans) of him. The x–rays showed some slight degenerative changes and the CT brain scans revealed minor cerebral atrophy which he regarded as not being of significance having regard to the plaintiff's age. He did not relate the atrophy to the car accident on the premise (which I have found established) that for there to be any causal connection there would need to be a blow causing loss of consciousness at the time. On examination, Mr Southby could not find any clinical signs of a disturbance of the brain or the spinal cord which could be attributed to the accident, but accepted that the plaintiff had become severely depressed as a reaction to it.
The MR scan showed an abnormal signal in the pontine area of the brain stem. This area is a relatively primitive part of the brain not concerned with memory or intellect, feelings or emotions, but very important he said "because it does contain nerve fibres which are carrying the instructions for movement, voluntary movement, from the brain down to the spinal cord and then to the muscles and the same area would also contain the nerve fibres that bring feelings such as when we are touched or pricked or hurt in any way, carrying these feelings upwards to be appreciated by the brain". While the abnormal signal was consistent with a number of serious conditions covered by the term "central pontine myelinosis", Mr Southby said that if the finding was significant, it would be found in association with very obvious clinical findings which would be readily seen on examination, and it would normally be associated with one of a number of serious conditions such as chronic alcoholism, severe burns, kidney or liver failure. In his opinion, the absence of any clinical findings in the patient made the signal irrelevant for present purposes. He could give no explanation for the abnormal signal in the pons, nor could he detect any evidence of an organic brain disorder which would explain the plaintiff's symptoms and behaviour. He said it was not at all uncommon for a person to become psychologically disturbed as a result of an injury, even if that injury did not appear to be a particularly severe one physically. He said the plaintiff's slow gait, his memory problems and the decline in his ability to function at work could be explained on the basis of his depression.
Asked about the contention of Dr Yeo that a shearing injury to the hippocampus in the motor vehicle accident causing microscopic petechial haemorrhages was responsible for the plaintiff's condition, Mr Southby said that for hippocampal damage to be sufficient to produce significant recent memory problems, it would be necessary to cause damage to the hippocampus on each side of the brain (there being two) and that it was his understanding that radiologists would be able to detect abnormalities even of relatively small dimensions sufficient to affect memory. He had been unable to detect any damage to the hippocampi in the MR scan. Professor Tress, the radiologist who produced these scans, also gave evidence for the defence and said he had found no abnormal signal emanating from the hippocampus despite the taking of a second scan specifically designed to examine that part of the brain with a view to detecting abnormal signals within the hippocampus. He acknowledged, however, that petechial haemorrhages inflicted four to five years prior to the scan might not be detected.
Evidence was also given by Dr John Weatherly and Dr Russell Pargiter, both well–known psychiatrists. The former was of the view that the plaintiff's condition which included a degree of agitation which he described as "catastrophic reaction" was typical of an organic disorder due to a "flick injury" to the brain such as might have occurred in the motor vehicle accident. The latter took a history from the plaintiff's wife which indicated that most of the symptoms had occurred some time after the accident – a period "perhaps of some months". Dr Pargiter said he regarded this as being significant and "made quite certain that there was this gap between the onset of most of the symptoms and the accident". When he saw the plaintiff in March 1988, there were no complaints relating to the cervical vertebrae. He found him to be an emotionally labile, mainly agitated, depressed, intellectually impaired individual whose demeanour and behaviour was grossly inappropriate to the situation. Dr Pargiter concluded that the plaintiff was suffering from a pre–existing progressive disease of the brain which accident and post–accident factors accelerated. He considered that the decline in his intellectual functioning pre–accident had passed unnoticed in his mundane work and unintellectual leisure pursuits, and that his present condition was due to a mixture of causes which included his personality type, certain environmental factors, natural senescence, psychological stress and brain lesions of an indeterminate nature. He attributed the plaintiff's depression to two causes which interlocked and overlapped, one being a disease of the brain affecting those centres of the brain which control the experience and manifestation of feeling, a condition known as "organic affective disorder" while the second cause was reactive in that the plaintiff has an acute awareness of what is going on and an insight into his deterioration in personality, intellect, memory and ability to carry out hobbies and other physical tasks.
Dr Pargiter regarded the accident as causative of the plaintiff's condition. He said that prior to the accident there may well have been a precarious balance between his personality, environmental circumstances and the assumed slowly–progressing brain disease sufficient in normal circumstances for him to appear to be normal, but that the accident had shattered this balance and set in train an escalating course of events in which the self–realisation of his deterioration was no longer deniable and led to a depressive reaction with agitation which further weakened his already impaired intellectual capacity. He agreed in cross–examination that the pre–existing disease was very much in its infancy at the time of the accident, but that the accident considerably accelerated the process. He was unable to say when, if ever, but for the accident the plaintiff's pre–existing condition might have been made manifest.
It has been very difficult to reconcile the conflicting views of the various highly qualified specialists who have given evidence in this trial. In respect of the question whether or not there is organic brain damage due to the accident, I prefer, on the whole of the evidence, the view of Mr Southby to that of Dr Yeo The latter's opinion that there are undetectable microscopic haemorrhages in the hippocampi caused by a shearing injury is incapable of direct proof or disproof. However, the absence of both clinical and radiological signs lend support for Mr Southby's view, and I consider that the progressive nature of the plaintiff's manifestation of symptoms is more in accord with the theory that his problems stem from a depressive reaction to the life threatening and pain inflicting trauma of the accident itself than to a rapid, if not immediate, deterioration caused by a sudden invasion of the organs of the brain. I find little support in the evidence for Dr Pargiter's view that there was a pre–existing mental disease although it may well be that the disturbing experiences of his childhood and adolescence, his matrimonial difficulties and the estrangement with his son and some of his siblings may have made him more vulnerable to a depressive reaction than others. But whatever may have been the precise mechanics of it, I am satisfied that the plaintiff's present condition was substantially caused by the accident and that he is entitled to be compensated for it without discount for the possibility (which I consider too remote) that he might in any event have suffered from a similar though possibly milder form of mental disorder.
The other component of the plaintiff's injuries namely the soft tissue injury to the neck and shoulders can, I think, be described as substantially resolved after treatment from Miss Grimmer. Although his neck is stiff and he has occasional headaches, his failure to seek further treatment after March 1985 would indicate a significant amelioration of his symptoms. The soft tissue injury was initially very painful and led to the depressive reaction which is the plaintiff's principal complaint, but it is no longer a major cause of pain or discomfort to him. I think the evidence of the plaintiff's wife as to the frequency of his complaints of headache is unconsciously exaggerated by her.
The plaintiff has suffered a serious injury to his mental health and his enjoyment of life. From a jocular, active person whose pursuits were largely physical he has become a depressed and emotionally labile person incapable of engaging in gainful employment, of following any of his former hobbies or of undertaking any purposeful or rewarding activities. He is totally reliant upon his wife and the few very loyal friends who live close to him. He has the misfortune to have insight into the deterioration in his condition and to experience the frustration such insight brings in its train. His condition has stabilised on a regime of heavy medication and he cannot look forward to any improvement in his condition. In respect of his injuries, both mental and physical, I award for general damages for pain and suffering and loss of amenities and of the enjoyment of life, the sum of $45,000.00
In terms of economic loss, the first question which arises is whether or not he would, but for the accident, have retired at age 65 on 6 May 1990 or at age 60 in 1985. The plaintiff himself gave evidence towards the end of his case, notwithstanding the views of some of his advisers as to the desirability from the view point of his mental health of doing so. His evidence does not assist me (nor did I expect it to do so) in gauging his pre-accident intentions as to retirement. His first wife gave evidence that when they lived together, he talked of retiring at the age of 60, but such conversations were held many years ago and his second marriage could have altered his plans. His present wife worked as a nursing aide and would have been nearly 50 years of age when he reached the age of 60. It is not improbable that she would have continued to work to the age of at least 55. If he had intended to retire in May 1985, it is surprising that he gave no indication of that fact to his fellow workers while still in good health prior to his accident in September 1984. Although his property was unencumbered, the accommodation was modest and there were still considerable renovations to be completed. Having regard to their origins, it could be expected that he and his wife would wish to save up for a trip to their native Holland. I see no reason not to accept the claim of the plaintiff's wife that he intended to retire at age 65. I find accordingly that that was his intention and that it was one which, but for the accident, was likely to have been attained. He should be compensated accordingly.
The plaintiff has been paid workers' compensation by Telecom since his accident totalling $56,261.58 to 21 November 1989. Payments have continued at the rate of $245.76 per week, giving a combined total of $62,159.82 as at 6 May 1990, the date of his probable retirement. The Commonwealth has a claim for recovery of this sum from the plaintiff pursuant to ss99 and 102 of the Compensation (Commonwealth Government Employees) Act, 1971 which provides that if before the recovery of damages by the Commonwealth employee from any person in respect of an injury to the employee, any compensation under that Act was paid to the employee in respect of the injury, the employee is liable to pay to the Commonwealth the amount of the compensation so paid to him or for his benefit, or if the amount of the damages recovered by him or for his benefit is less than the amount of that compensation the amount of those damages. The plaintiff, as between himself and the defendant, is entitled to recover only what loss he has suffered, namely the net amount of his wages, and is not entitled to judgment for any greater amount in respect of this head of damages. From the Commonwealth's point of view, this may be thought to be an unsatisfactory situation for notwithstanding the existence of fault in the defendant, the Commonwealth, as employer, is left having to pay the tax on its employee's weekly compensation payments. On the other hand, had the Commonwealth not paid compensation at all, it would not have collected the tax which he has paid upon it, so at the end of the day it is perhaps in no worse position for having made payments as the plaintiff's employer. In any event, the obligation to pay compensation at all is a creature of statute and it is for the framers of that statute to nominate the degree of indemnity against the tortfeasor the Commonwealth is to have. In my view, the statute does not give the Commonwealth the right to recover from the employee or the tortfeasor any more than the employee's own loss. (For an interesting discussion of the purpose of the recovery sections in the Act, see the decision of the Full Court of the Federal Court of Australia in Butler v Johnston & Or. (1984) 55 ALR 265 especially at p.269 and following). In addition, the Commonwealth as the plaintiff's employer has paid out travelling expenses to the plaintiff amounting to $1,463.58 and medical expenses of $60,855.32. These sums must be included in the plaintiff's overall award of damages together with the plaintiff's net wages after tax which amounted to $33,141.57 to 21 November 1989. I have not been provided with a net figure thereafter and will reserve liberty to speak to the minutes of the order.
In addition, it is agreed that if the plaintiff had continued to work after his retirement through invalidity on 3 September 1986, he would have earned a further net sum after tax of $9,446.10 as at 21 November 1989. On my calculations, this loss continues at a net rate of $45.33 per week which produces a total figure hereunder to the date of his probable retirement of $10,488.69.
To enable the plaintiff to earn income, he used his own car to travel between his home at Huonville and his place of work at Derwent Park. It is only reasonable that some allowance should be made for the fact that by not attending work, he has effected a daily saving of those travelling expenses of a round trip of some 90 km. While it has been agreed between the parties that other travelling expenses in respect of the medical treatment should be assessed at a rate of 25 cents per kilometre, it seems unrealistic to use the same rate for extended routine trips. Furthermore, while the plaintiff is paid compensation on the basis of a 52 week year of 5 days per week, having regard to the recreational and other leave entitlements and to the practice of allowing for "flexi–time", the actual number of days on which he would be likely to have attended work would be significantly reduced. I think a reasonable figure for the annual cost of travelling to work would be approximately $2,500.00. I propose to reduce the plaintiff's damages for travelling expenses saved during the five years approximately since he ceased to attend work by $12,500.00.
The parties agree that the plaintiff incurred additional travelling expenses in attending for medical treatment amounting to $2,500.00.
Future medical and hospital expenses are claimed. I accept that the plaintiff would probably need annual admissions to a hospital, clinic or hostel for approximately 14 days to enable his wife to have some respite, to assess his condition and to monitor his medication. The evidence is scant as to the desirable length of these admissions. It was put to Dr Burges–Watson that on average to date they had been of six weeks' duration, and he expressed some surprise that they had been that long. He also said that after one to two weeks the plaintiff tended to become more labile in his mood and more irritable, and that in his interests and those of the other patients it is usually better to try to get him home quickly. I have accordingly taken two weeks as an appropriate time.
Facilities are available at the Woodhouse Centre at a present daily cost of $52.35 or an annual cost to the plaintiff of about $750.00 for a fortnight's admission. As time goes on, the length or frequency of respite needs might well increase. I am not persuaded that the plaintiff should be hospitalised annually at the Rokeby Clinic rather than at the Woodhouse Centre. Throughout the remaining 13 years of the plaintiff's life expectancy, a present payment of $11,000.00 would provide an income of approximately $1,000.00 per annum to enable this need to be met. He also takes large quantities of drugs, presently some 13 tablets per day, and he will need annual assessment by his psychiatrist. The evidence does not enable me to quantify that expense with any detail, but a present payment of $9,000.00 would provide an annual income of over $800.00 to satisfy that need. I will award $20,000.00 in respect of future hospital, medical and pharmaceutical needs.
A claim is made pursuant to the principles set out in GriffithsvKerkemeyer (1977) 139 CLR 161 in respect of the nursing care given by the plaintiff's wife to him since the accident. As already noted, she had worked since 1976 as a nursing aide at the Huon District Hospital earning a net annual wage of approximately $12,000.00 in the year ending 30 June 1982 and 30 June 1983, of about $14,000.00 the following year and $15,000.00 for the year ending 30 June 1985. Thereafter, her earnings at the hospital fall off significantly as the plaintiff's needs required her to devote more and more time to him. For the year ending 30 June 1986 they had fallen to $8,400.00 and for the next two years were $143.00 and $1,367.00 respectively. In the financial years 1986 to 1988 however, she also procured work at Huon Eldercare and earned (net) $313.00, $2,250.00 and $2,333.00 respectively. Her earnings in the year ending 30 June 1989 were $966.00. Between 1 July 1985, by which time the plaintiff's condition had become stabilised, and 30 June 1989 she has earned a total net figure of approximately $15,772.00. Although the evidence is scant, it seems she would have earned at least $15,000.00 net per annum during that time had she remained working at the same level as before, and her loss of net wages due to the need to care for her husband is therefore $44,228.00. For the following 10 months to the date of judgment, her net wages would have been in the order of $12,500.00. As I understand her evidence, she has not worked in that period of time.
As with the plaintiff, his wife required transport to her place of employment at Franklin, a round trip in the order of 20 km, and some adjustment should be made for that cost. I infer that her annual transport costs would have been in the order of $600.00.
It is an agreed fact that the rates currently charged by an Agency which supplies home nursing care by a non–medically trained person is $40.00 per day wages with a 20% loading in lieu of annual leave, sick leave and public holidays, with time and a half rates for Saturday and double time on Sunday, together with an annual workers' compensation premium of $50.00.
I find that the plaintiff is in need of constant care. He is able to visit a nearby friend for a few hours each day, but there is a need for his wife to be present in the home, if not every hour of the day, certainly for a very large part of it. The plaintiff furnished the following particulars of his need:
"(i)The plaintiff has poor short term memory and is unable to manage his own affairs on a day to day or hour to hour basis.
(ii)He becomes severely depressed and cries often.
(iii)He becomes agitated when left alone for long periods and believes he cannot cope with every day tasks.
(iv)He is unable to cook for himself or to prepare simple meals.
(v)He is likely to turn on electrical appliances and leave them unattended causing dangerous situations.
(vi)He feels uncomfortable in the company of people other than his wife and is untrusting of them.
(vii)He has to be supervised with tools to prevent an injury to himself.
(viii)He is likely to cause damage to his house or its furniture if left.
(ix)He needs assistance to dress and to bathe.
(x)He requires constant companionship."
I find these particulars substantially made out.
It is no longer practicable for his wife to undertake outside employment, other than on a very spasmodic basis. It has been reasonable for her to gradually limit her employment and to ultimately retire from it. The cost to her thereby occasioned would be less than the cost of providing help from the Agency. Having regard to what has been said in Donnelly v Joyce [1973] 3 All ER 475, HousecroftvBurnett [1986] 1 All ER 332 and VeselinovicvThorley [1988] Qd R 191 (especially per Thomas J at p200), I am of the view that it is appropriate to award in respect of past gratuitous nursing care a sum approximating the net wages lost by the plaintiff's wife, which I estimate at $57,000.00 from which should be deducted $3,000.00 for travelling expenses.
As to the future, the plaintiff will continue to need the same level of assistance. While his wife is able to provide it, she should be furnished with a sum no less than that which she would have received had she continued to work, and when she reaches retiring age, ceasing in any event to earn wages, it is just that she suffer no reduction as she will continue to provide the same service. Should she die or be unable to look after the plaintiff, the proper measure of damages, in my view, would be the cost of providing the kind of care such an institution as the Woodhouse Centre offers. It is unrealistic, in my view, to postulate that it would be in the plaintiff's best interests to remain at his home at Huonville attended by a number of housekeepers at a cost greatly exceeding the cost of his accommodation in an institution. Nor do I think it reasonable to impose such a cost upon the defendant, merely because on the evidence, the plaintiff may have some difficulties in settling into such an establishment. I respectfully adopt the words of Lord Denning MR in Cunningham v. Harrison [1973] 3 All ER 463 p.469:
"It is often said that a wrongdoer must take his victim as he finds him. But I do not think that should be carried to the length he acclaimed. There should be moderation in all things, even in a claim for personal injuries."
The weekly cost of accommodating the plaintiff at the Woodhouse Centre (after taking into account the two to three week period of respite already allowed for) would be $347.00 as compared to $277.00, the amount of the lost weekly wages of the plaintiff's wife (after allowing for both tax and travelling expenses). A sum of approximately $178,000.00 would be needed to produce a weekly income of $277.00 for five years, followed by one of $347.00 for the ensuing eight years, while a sum of approximately $164,000.00 would produce the weekly sum of $277.00 for ten years, and that of $347.00 for three years thereafter. A sum within that range would meet the eventuality that somewhere in the next five to ten years Mrs Van Gerven would cease to be able to care for the plaintiff thereby precipitating his entry to such an establishment as the Woodhouse Clinic. Allowing for contingencies, I award $137,000.00 in respect of future nursing care.
The plaintiff is entitled to recover the following amounts:
General damages for pain
and suffering and loss of
amenities and enjoyment of life $45,000.00
Medical expenses paid by employer 60,855.32
Travelling expenses paid by employer 1,463.58
Past economic loss to 21.11.89 $43,630.26
Less travelling expenses 12,500.00 31,130.26
Agreed travelling expenses for
medical treatment 2,500.00
Future medical and pharmaceutical
and hospital expenses 20,000.00
Past nursing care 54,000.00
Future nursing care 137,000.00
GRAND TOTAL $351,949.16
In addition, the plaintiff is entitled to a sum equal to the net amount of workers' compensation payments received by him since 21 November 1989. There will be judgment for that sum.
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