Victorian WorkCover Authority v Asixa Pty Ltd
[2010] VSC 467
•21 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6028 of 2008
BETWEEN
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| And | |
| ASIXA PTY LTD (ACN 072 971 101) | First Defendant |
| And | |
| SIMON TRANSPORT PTY LTD (ACN 009 898 159) | Second Defendant |
| And | |
| CSR VIRIDIAN LIMITED (ACN 006 904 052) (FORMERLY KNOWN AS “PILKINGTON (AUSTRALIA) LIMITED”) | Third Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 23-27 August, 28-30 September, 1 October, 4-6 October 2010 | |
DATE OF JUDGMENT: | 21 October 2010 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Asixa Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 467 | |
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ACCIDENT COMPENSATION – Compensation paid by Authority to injured worker – Entitlement to indemnify from negligent third parties – Assessment of indemnity – Worker suffering major hypoxic brain injury – Assessment of life expectancy of injured worker – Griffiths v Kerkemeyer damages - Assessment of general damages – Whether injured worker has awareness of condition – Discount for vicissitudes applicable to claim for loss of future earnings during “lost years” – Whether notional claim for damages by injured worker takes into account costs of management of fund of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Noonan SC and Ms B Knoester | Wisewoulds Mahony |
| For the First Defendant | Mr J Ruskin QC and Mr A Clements | Minter Ellison |
| For the Second Defendant | Mr J Ruskin QC and Mr A Clements | DLA Phillips Fox |
| For the Third Defendant | Mr J Ruskin QC and Mr A Clements | Wotton Kearney |
HIS HONOUR:
On 14 July 2006, Wally Hidalgo suffered catastrophic injuries as a result of an accident in which he was involved in the course of his employment. As a consequence, the plaintiff, Victorian WorkCover Authority (“VWA”), pursuant to its obligations under the Accident Compensation Act 1985 (“the Act”), has made substantial payments of compensation to and on behalf of Mr Hidalgo. In these proceedings, the plaintiff claims indemnity from the three defendants, pursuant to s 138 of the Act, in respect of the compensation paid by it to and on behalf of Mr Hidalgo, and also indemnity for future payments of compensation, which the plaintiff may be required to make to or on behalf of Mr Hidalgo as a result of the accident.
Wally Hidalgo was born on 16 May 1985, and thus, at the time of the accident, was 21 years of age. He migrated to Australia from the Philippines with his parents and two older siblings in 1992. At the time of his accident, he was in the third, and final, year of a business commerce course at Victoria University, Footscray. He was also working part time with Black and White Recruitment Solutions Pty Ltd.
At the time of the accident, Wally Hidalgo was working at the premises of the first defendant, Asixa Pty Ltd, at Quantum Close, Dandenong South. On the day of the accident, a very large glass sheet, which was contained within a wooden crate, was delivered to the premises of the first defendant by the second defendant, Simon Transport Pty Ltd. The glass had been manufactured and packaged by the third defendant, CSR Viridian Limited. After the crate of glass was delivered to the first defendant’s premises, Wally Hidalgo was required to move it onto the first defendant’s premises by use of a forklift. In the course of moving the crate, he stopped the forklift and walked around to the front of it. The crate slipped off the tines of the forklift and crushed him. Unfortunately, the accident was not detected for at least ten minutes. During that time, Wally Hidalgo lay under the crate which had fallen onto him, unable to breathe. He suffered an asystolic cardiorespiratory arrest, and, as a result, he sustained a major hypoxic brain injury.
Immediately after the accident, Wally Hidalgo was conveyed to the Dandenong Hospital. In view of the nature and extent of his injuries, he was, on the same day, transferred to the Royal Melbourne Hospital Trauma Unit. On 27 July 2006, a tracheostomy was performed, and the tracheostomy has remained in place since. On the same day, he was transferred from the Intensive Care Unit to the ward, and on 31 July 2006 he was transferred from the Royal Melbourne Hospital to the Ivanhoe Private Rehabilitation Hospital. Ultimately, Wally Hidalgo was discharged home from the Ivanhoe Hospital on 3 September 2007.
As a result of his injuries, Wally Hidalgo has been, and permanently remains, totally dependent on full time care. Since being discharged home, he has received, and will continue to receive, 33 hours care each 24 hours. He has two carers in attendance from 9.30 am to 12.30 pm, from 2.30 pm to 3.30 pm, and from 4.30 pm to 9.30 pm. For the balance of the day, one carer remains in attendance. In August 2006, a PEG (percutaneous endoscopic gastrostomy) tube was inserted in the Ivanhoe Hospital, and he is fed through that tube. He is doubly incontinent. In August 2006, the indwelling catheter in his bladder was removed, and uridome drainage was instituted by the use of a condom drainage bag. He uses pads and nappies for management of his bowel actions. In addition to the professional carers, Wally Hidalgo’s two parents, Conrado and Olga Hidalgo, have been significantly involved in his ongoing care since he was transferred from the Royal Melbourne Hospital to the Ivanhoe Hospital.
The claim
As I stated, the claim by the plaintiff in this case is made under s 138 of the Act. That section, so far as it is relevant, provides:
“(1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority … was caused under circumstances creating a legal liability in a third party to pay damages or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority … is entitled to be indemnified by the third party in accordance with this section.
…
(3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority … under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.”
In this proceeding, the issue of liability (that is, factor X in the above formula) has been resolved, on the basis that the extent whereby each defendant’s act, default or negligence, caused or contributed to Wally Hidalgo injuries is as follows: the first defendant, 40 percent; the second defendant, 12.5 percent; the third defendant, 7.5 percent. In addition, the personal injury claim brought on behalf of Wally Hidalgo has been resolved. The three defendants have contributed to a settlement sum of $450,000 as follows: the first defendant $300,000; the second defendant, $93,750; the third defendant, $56,250.
As a result of the resolution of those issues, the primary issue which remains in dispute is the quantification of factor A in the equation specified in s 138(3)(b) of the Act, namely, the amount of damages which would have been payable to the plaintiff in respect of his injury at common law, unaffected by the limitations on common law recovery contained in the Act, the Transport Accident Act and the Wrongs Act.
In the course of the trial, a substantial number of the issues relating to the quantification of the damages, which would have been payable to Wally Hidalgo in respect of his injury at common law, were resolved between the parties. As a result, there are five principal issues, which I need to resolve, in order to enable the calculation of those hypothetical damages to take place. Those issues are:
(1)The probable life expectancy of Wally Hidalgo.
(2)The amount of damages, to which Wally Hidalgo would have been entitled at common law, for the gratuitous care provided, and to be provided, to him by his parents, pursuant to the principles stated by the High Court in Griffiths v Kerkemeyer[1].
(3)The amount of general damages, which would be awarded to Wally Hidalgo at common law, and, in particular, the issue as to whether Wally has any insight into, or awareness of, his circumstances.
(4)The appropriate discount for vicissitudes for the purposes of estimating future loss of earnings during the “lost years”.
(5)Whether, in performing the notional assessment of hypothetical damages for the purposes of s 138(3)(b), an allowance should be made for damages for fund management expenses.
[1](1977) 139 CLR 161.
Level of care provided to Wally Hidalgo
At the trial of the action, detailed evidence was adduced as to the nature and quality of the care which has been, and is being, provided to Wally. That evidence was relied on by the plaintiff as being relevant to the assessment of the probable life expectancy of Wally Hidalgo. It is also relevant to the second issue, namely, the gratuitous care provided to Wally by his parents.
As I have stated, since Wally was discharged from Ivanhoe Private Rehabilitation Hospital in September 2007, he has been provided with full time care by professional carers. In particular, he has been attended by one carer from 9.30 pm to 9.30 am, by two carers from 9.30 am to 12.30 pm by one carer from 12.30 pm to 2.30 pm, by two carers from 2.30 pm to 3.30 pm, by one carer from 3.30 pm to 4.30 pm, and by two carers from 4.30 pm to 9.30 pm. The carers are employed by “Care For You”. Currently, there are twelve members of the team, which is responsible for providing care to Wally. Two members of that team are qualified medical practitioners, eight are qualified nurses or student nurses, and two have certificates in disability. When a new carer joins the team, that carer receives training, including training by the physiotherapist (Ms Irene Wilkinson) and the speech therapist (Ms Tracy Littlejohn), who are each responsible for Wally’s care. In addition, the new carers undergo twenty hours’ active “shadow” shifts with an experienced carer, before they are accepted as carers into the team.
One of the carers, Dr Amjad Khan, gave evidence in the case. Dr Khan is a qualified medical practitioner in Pakistan, but not in Australia. He gave detailed evidence as to the daily care provided to Wally by the carers. That regime is highly organised, structured, and comprehensive. He described how after 9.30 am, when the second carer arrives, Wally’s vital signs are checked and recorded, and he is then dressed. He undergoes spinal stretching exercises, and his condom is checked. He is transferred to the exercise table using a ceiling hoist. The inner cannular of the tracheostomy is removed, and the trachea is corked, so that Wally breathes through his nose and mouth while he is awake during the day. Wally is then transferred to the living room of the Hidalgo house. One carer commences exercises on one half of his body, while the other tidies up the room and starts to do some domestic cleaning. When the first carer finishes with the exercises for half of the body, he commences preparing medication for Wally, and the second carer commences the exercises for the other half of the body. During that time, the first carer prepares the PEG food feeding, and commences to prepare the showering of Wally. Before his shower, it is necessary to ensure that items such as towels, soaps, clothing, creams and the like are ready. The shower area is then heated. Wally is usually shaved before he is showered. Thereafter, he is transferred from the exercise trolley with the aid of a sliding sheet. He is showered with a hose. Wally’s mother Olga assists the carers, and in particular she shampoos and conditions his hair, and protects the trachea site. It is important that water does not enter the trachea, otherwise Wally could choke. Showering is a lengthy process. It is necessary to move Wally slowly, because if he is moved quickly, he may go into spasm.
After Wally is showered, he is dried by the two carers, and cream is put into his groins. During the showering process, the carers have the opportunity to inspect Wally’s skin, to ensure that there are no lesions or pressure sores.
After Wally has been dressed, the shower trolley is moved to the bedroom, and then, by the use of a hoist, he is moved into his wheelchair. By this stage, it is usually time to feed and medicate Wally, which is scheduled to occur at 12 noon. In addition, Wally’s vital signs are checked.
Dr Khan stated that Wally is fed at particular times, namely 8.00 am, 12 noon, 3.00 pm, 6.00 pm and 9.30 pm. In addition, at 1.30 pm he is fed juice and water, which acts as an aperient to facilitate his bowel movements. Between 12 noon and 12.30 pm, Wally is fed and given his medication. His hand and foot splints are placed on. When that task has been completed, one carer washes the feeding and medicine bottles, and the other carer cleans the trachea and PEG site.
Dr Khan stated that quite often the usual regime is delayed, because of issues such as Wally going into spasm, the condom drain coming off, or other such issues occurring. It is for this reason that Olga assists with the showering, in order to enable the daily routine to be completed on time. After the second carer departs at 12.30 pm, the remaining carer carries out Wally’s head exercises. His juice is then prepared. The laundry is cleaned, and the towels are hung outside. When the second carer returns at 2.30 pm, Wally is returned to his bed, where he remains until 4.30 pm. He then returns to his wheelchair.
Dr Khan stated that Wally normally opens his bowels in the evening between about 5.00 pm and 6.00 pm. Dr Khan described the steps which are taken to clean Wally in such an event. In particular, he has to be transferred to his bed. It is important that he is thoroughly cleaned. At 4.45 pm, his vital signs are taken and recorded. He is then transferred to the exercise table, and his exercise regime is undertaken. After the exercises are completed, Wally is transferred to his chair. One carer feeds him, and the other starts putting his splints on again. At 7.00 pm, one carer commences to massage Wally’s legs and feet, and the other carer prepares the food for the night. His teeth are brushed again. That process involves at least two people. Then the second carer massages the other half of Wally’s body. His mother (Olga) massages his face.
Wally is then returned to bed for the night. His tracheostomy is uncorked. A cannular is inserted into the tracheostomy, and a humidifier humidifies the air. The function of the cannular is to hold the secretions, which would otherwise pass into the lungs. When the cannular becomes full, it is changed during the night. Every half hour, the carer checks the humidifier, to ensure that it is working properly and with the right temperature. Condom drainage is removed between 11.30 pm and replaced at 5.00 am. The carer regularly checks Wally during the night for any wetness arising from urination. During the night time, Wally is turned three times by the carer.
Each day, a fluid balance sheet is maintained for Wally at 8.00 am, 12 noon, 3.00 pm, 6.00 pm and 9.00 pm. That chart, which was tendered in evidence, records each input, and outgoing, of fluid, to ensure that the former exceeds the latter. In addition, a document, entitled “Daily Checklist”, is filled out four times per day, at six hourly intervals, recording Wally’s pulse, temperature, and oxygen saturation levels. More recently, his blood pressure has also been monitored and recorded every morning and evening. If there are any abnormal readings, they are noted and monitored, and Wally’s parents are informed. If there is any cause for concern, the general practitioner is contacted. In addition, there is maintained in respect of Wally’s care a “Communication Book”. Each day the carers effectively keep a diary of Wally’s care, particularly noting any particular issue which might occur.
Wally’s care regime is supervised at a number of different levels. Ms Debra Curran, a division one nurse, attends the Hidalgo household for three hours once per week. She checks Wally physically. She also checks the fluid balance sheet, the communication book, and the daily checklist book to ensure that they are being appropriately recorded. Ms Wilkinson, the physiotherapist, visits Wally every four to six weeks. Her principal role is to supervise the training of carers, and to ensure that there are no changes in Wally’s pressure care areas. Since Wally’s discharge from hospital, he has also been supervised by Ms Wendy Chandler, an occupational therapist. Ms Chandler’s involvement largely relates to monitoring Wally’s equipment and his hand splinting. She has also been involved in consultations relating to proposed modifications to the Hidalgo house. Recently, she has noted an improvement in Wally’s level of alertness, to which I shall later refer. As a result, she intends to become more frequently involved in Wally’s care, to determine whether steps can be taken to improve communication with Wally.
Wally is also attended on four or five occasions per year by Ms Tracy Littlejohn, the speech therapist. Ms Littlejohn intends to increase the amount of her visits, to reflect some of his recent improvements. Wally’s carers are also supervised by the manager of Care For You, Ms Rosina Boyer. Each month she convenes a meeting attended by all the carers, herself, and Wally’s parents. At those meetings, any issues relating to Wally’s care and management are discussed. In addition, Wally is reviewed each four months by a respiratory physician, and he has a dental appointment every four months. He is also reviewed by a gastroenterologist approximately every six months.
As I have already stated, Wally’s two parents, Conrado and Olga, are also involved to a considerable degree in Wally’s care and management. I shall, later in these reasons, summarise the evidence in relation to that aspect of the plaintiff’s claim. However, it is clear that Conrado and Olga Hidalgo make an important contribution to the high quality of care given to Wally. For example, generally Wally is shaved by his father Conrado, unless that task is to be undertaken by an experienced and trusted carer. Similarly, usually, Wally’s teeth are brushed by his parents, to ensure that that task is carried out thoroughly, and that Wally does not aspirate water into his chest. As I have already stated, Olga assists with the showering process, and her presence is important in ensuring the water does not enter the trachea. In addition to the various tasks performed by the parents, to which I shall later refer, it is clear that both Olga, and to a lesser extent Conrado, play a most important role in supervising the activities of the carers. Both Olga and Conrado are committed to ensuring that their son should be given the highest level of care, and that he should be given every opportunity to survive as long as possible in good health and comfort.
The high level of care, afforded to Wally, is reflected by the fact that Wally has not suffered from any urinary tract infection since his discharge from the Ivanhoe Private Rehabilitation Hospital. He had one bout of that infection in hospital, before the catheter was removed. In addition, he has had only two bouts of chest infections since he returned home from Ivanhoe Private Rehabilitation Hospital. On each occasion, the infection has been quickly identified, and well managed with antibiotic therapy. He has not had any bout of ill health since early 2009. Wally has not had any pressure sores, or any skin lesions. His nutrition is managed and reviewed by an accredited dietician, Mr Haala.
It is clear from the evidence that the level of the care which is accorded to Wally is first class, and indeed quite exceptional. Dr Jean Tierney, a general practitioner, who specialises in the treatment of patients with acquired brain injury, described the standard of care, referred to in the evidence, as quite extraordinary. She said that Wally would not receive the same level of care if he were in a hospital, a nursing home or a supported care facility. Similarly, Professor Barry Rawicki, a specialist in rehabilitation medicine, stated that the level of care accorded to Wally is above and beyond anything which he has seen in a 25 year career of looking after people with severe brain injury. Professor Richard Stark, a neurologist who was called to give evidence on behalf of the defendant, described the level of care referred to in the evidence as excellent. Dr John King, a second neurologist called on behalf of the defendant, stated that the level of care being provided to Wally exceeds anything which he had seen in a 40 year career of looking after people with severe brain injury. Professor Stephen Davis, a third neurologist who gave evidence on behalf of the defendant, was perhaps more measured in his description of the care given to Wally. Nevertheless, he described it as excellent, but added the qualification that the standard of care which Wally was receiving would apply to any person with his type of devastating brain injury. Notwithstanding that qualification, it would seem that the overwhelming weight of the medical evidence is that the type of care, which is accorded to Wally, is of an excellent standard, which is substantially superior to the standard of care usually accorded to other patients, particularly in hospitals, nursing homes or care facilities.
Life expectancy
The evidence, which I have just summarised about Wally’s care, is a necessary backdrop to the evidence relating to the key issue in the case, namely, the assessment of Wally’s life expectancy. That issue gave rise to markedly differing views amongst the experts, who were called to give evidence in relation to it. The plaintiff relied on the evidence of three witnesses, namely, Dr Tierney, Professor Rawicki, and Professor Jane Hutton, who is a professor in medical statistics at the University of Warwick in the United Kingdom. Professor Rawicki estimated that Wally has a life expectancy of approximately 37 years from the present date (41 years from the time of injury). Dr Tierney expressed the view that Wally’s life expectancy is in the region of 16 to 21 years from the current date (20 to 25 years from the date of injury). Professor Hutton estimated that Wally’s life expectancy should be assessed as 22 to 31 years. On the other hand, the expert witnesses called on behalf of the defendant expressed markedly less optimistic views as to Wally’s prognosis. Professor Stark and Professor Davis each expressed the view that Wally’s life expectancy is about 15 years from the present date (19 years from the date of accident). Dr King considered that Wally’s life expectancy is about 12 years from the present date (16 years from the date of accident). Dr Robert Shavelle, an expert statistician specialising in life expectancy, computes Wally’s life expectancy to be 12 years, and his median survival time to be 10 years.
The differing conclusions expressed by Professor Hutton and Dr Shavelle were based on distinct approaches taken by them to statistics, which I shall later discuss. Each of the medical practitioners who gave evidence agreed, broadly, that Wally has been and will remain subject to a number of different risk factors, including aspiration pneumonia, urinary tract infection, infection from pressure sores, infection of the PEG feeding site, osteopaenia and pulmonary embolism resulting from deep vein thrombosis. However, the two medical experts called for the plaintiff were more sanguine about the capacity of the high level of care, afforded to Wally, to counter those risk factors, than the three medical experts called on behalf of the defendant. In addition, Dr Tierney and Professor Rawicki placed primary store on their empirical experience that patients such as Wally survive for substantially longer periods than those predicted by the statistics, provided that they are given a high level of care commensurate with that which is accorded to Wally. On the other hand, Professor Stark, Professor Davis and Dr King considered that the proper scientific starting point is to be found in the statistics, and in particular, those which have been the subject of a number of articles authored by Professor Shavelle. They considered that the high level of care accorded to Wally might ensure that he would attain the average, or the high end of the average, life expectancy referred to in Dr Shavelle’s statistics. Each of them considered that the anecdotal experience of Dr Tierney and Professor Rawicki should be given significantly less weight than the statistical evidence, in determining life expectancy.
In order to resolve the differences between the experts, it is necessary for me to summarise, in a little detail, the views expressed by each of them. I shall commence with the evidence of the medical experts.
Medical evidence relating to life expectancy
Professor Rawicki has practised as a physician in rehabilitation medicine since 1985. His curriculum vitae reveals that he has held a number of positions in rehabilitation hospitals for more than 20 years. He has a particular expertise in spasticity, spasticity management, and chronic pain and pain management. Professor Rawicki visited Wally at his home in January 2009. In his report, which was tendered in evidence, Professor Rawicki discussed each of the medical complications, to which Wally Hidalgo is susceptible, including respiratory infection, urinary tract infections, pressure areas, the development of osteopaenia (including osteoporosis), epilepsy, contractures, deep vein thrombosis, and other conditions. Professor Rawicki expressed the view that with the high level of care being provided to Wally, any possible such complication would be likely to be detected early, and treated appropriately. Accordingly, Professor Rawicki considered that the consequences of infection, morbidity and mortality associated with infection and the like could be adequately prevented.
Professor Rawicki stated that infection is the major cause of mortality of people, such as Wally, who suffer severe neurological impairment and immobility. In such a case, it is important to detect the infection early and treat it quickly. He stated that the tracheostomy is useful in this regard, as it enables ready access to the middle and lower airways to suction secretions and sputum, and thus it assists to prevent any blockage within the respiratory tract. He considered that the PEG feeding site does not have any significant impact on life expectancy. The PEG site is susceptible to infection in the early weeks after connection, but thereafter it is unlikely to be the source of any infection. Professor Rawicki further stated that although Wally has an increased risk of development of urinary tract infection, he does not have an intermittent or indwelling catheter, which is the main cause of urinary tract infection. He stated that the fact, that Wally has not had any infection since the removal of the catheter, would strongly suggest that he will not suffer from such infections.
Professor Rawicki also stated that Wally is at risk of pressure sores, which can develop quite quickly, if proper care in that regard is not undertaken. However, Wally’s prospects of developing pressure sores are low, because Wally is turned three times each night, he is moved during the day, and he is placed on pressure cushions. Professor Rawicki also stated that the risk of the development of deep vein thrombosis is quite low. In his experience, patients with significant mobility impairment do not contract deep vein thrombosis (which can lead to pulmonary embolism). Professor Rawicki further stated that the complication of osteopaenia, including osteoporosis, can be addressed by nutrition, but he remains at risk of suffering from such a condition.
In evidence, Professor Rawicki was referred to studies, undertaken by Dr Shavelle and others, of the life expectancy of patients in California who suffer cerebral palsy. He differentiated Wally Hidalgo from other patients, because he understood that they received significantly less care than that which is given to Wally.
Professor Rawicki considered that the attitude of Wally’s parents is critical to the issue of life expectancy. In his experience, if the parents of a patient, suffering acquired brain injury, are highly motivated to ensure that the patient receives the best available care, the patient has good prospects of survival. Professor Rawicki concluded by taking the statistical life expectancy for a 21 year old (58.8 years), and discounting it by 30 percent for the risk of complications, and, in particular, the risk of the various infections to which I have just referred. That computation produces a life expectancy of 41 years from the time of injury (37 years from the present date).
In cross-examination, Professor Rawicki agreed that if Wally has a weak delayed swallow, he is at risk of aspiration, which can result in pneumonia. He agreed that respiratory infection from aspiration would be the most likely cause of death to Wally. However, Wally has not had an episode of aspiration, because of the high quality of his care, and because of his own anatomy. Professor Rawicki agreed that aspiration can be large and sudden, and it can cause choking. However, he considered that it is unlikely to cause sudden death. He considered that Wally is only at risk of pulmonary embolism if he were to suffer a deep vein thrombosis, which is not identified and treated. He observed that paralysed patients do not continue on anticoagulant medication after the acute phase of their injury, but, nonetheless, it is very rare for them to suffer deep vein thrombosis. He stated that although Wally is subject to skin breakdown through pressure sores, generally that condition only causes local infection, which can be adequately treated.
Professor Rawicki considered that it is not relevant to compare Wally with adults with cerebral palsy, for the purpose of computing life expectancy. He considered that studies involving patients with “locked in syndrome” are more relevant to Wally’s case, but nonetheless they do not take into account the matters, to which he had already referred in his evidence. He concluded by accepting that predicting life expectancy is a guess, albeit one based on his learning over the last 25 years of experience. His estimate of the reduction of life expectancy of 30 percent is based on his experience, and on the type of patients for whom he has cared over the last 25 years. He stated that Professor Stark, Professor Davis and Dr King do not often look after patients who have chronic severe brain injury, who are part of the “bread and butter” of his (Professor Rawicki’s) practice.
Dr Joan Tierney was the second medical expert, who gave evidence on behalf of the plaintiff. She is a general practitioner, with a special interest in the area of acquired brain injury. She commenced practising in that area in 1984, and, since 1999, has practised exclusively in it. Dr Tierney reviewed Wally Hidalgo at his home on 22 January 2010. She expressed the view that the standard of care afforded to Wally is quite extraordinary, and well above that which he would receive in a hospital nursing home or supported care facility. She stated that the level of proactive management of Wally’s health issues has a significantly beneficial effect on his life expectancy.
Dr Tierney agreed that a respiratory infection is the condition, which is most likely to be the life threatening for Wally, particularly an aspiration of saliva. He could also aspirate reflux from PEG feeds, if he is fed too quickly, or if he is inadequately positioned during a feed. The fact that Wally has some ability to swallow his saliva puts him at a lower risk of aspirating it. His good dental hygiene is important, because of the potential risk of aspirating saliva. The fact that he has retained an ability to cough is also positive, because it assists him to protect his airways.
Dr Tierney expressed the view that since Wally does not have a catheter, he is unlikely to suffer from an urinary tract infection. Any such infection should not be life threatening, if it is diagnosed and treated early by antibiotics. Wally is also at risk of pressure sores. However, he is well nourished, he has excellent equipment, and he is well cared for and well positioned. Accordingly, the risk of developing pressure areas is quite small.
Dr Tierney also noted that because Wally has fixed equinovarous contractures of his ankles, it is not possible for him to stand on a tilt table. As a result, he is liable to suffer skin breakdown over the lateral aspect of his ankle. The fact that he has a full range of movement of his upper limbs minimises the risk of any contractures in that area, and thus reduces the risk of skin infections in the flexural creases. While the tracheostomy is a potential portal for infection, on the other hand, it makes it easier to deal with any significant secretions of sputum. If the carers are properly trained, the presence of the PEG feed should not have an impact on his life expectancy. Dr Tierney stated that it is very rare for a person with an acquired brain injury to develop deep vein thrombosis (and thus pulmonary embolism), except during the acute phase of the injury.
Dr Tierney expressed the view that Wally has a longer life expectancy than might be expected for someone who suffers from his condition, because the standard of care afforded to him is so high. The fact that Wally’s parents are highly motivated to ensure that he be treated properly for any potential infection is important in predicting his life expectancy.
Dr Tierney gave evidence as to the periods of survival of patients, who are in a similar condition as Wally, and who she has treated over the last 25 years. Based on her experience, and in light of the high level of care which is afforded to Wally, she expressed the view that Wally’s life expectancy is in the range of 20 years to 25 years from the date of injury (that is, 16 years to 21 years from the present).
In cross-examination, Dr Tierney agreed that the fact, that Wally’s ability to swallow is weak and delayed, means that it is not as effective as that of a normal person. Although Wally can cough, she doubted that he could generate an explosive strong cough. Consequently, he is at risk of secretions pooling at the bottom of his lungs. However, if that were to occur, the secretions could be suctioned through the tracheostomy. She agreed that the medical condition, which is most likely to threaten Wally’s life, is a respiratory infection. If he should contract such an infection, it would be more difficult for him to eliminate it. He is vulnerable to infection because of his immobility, his tracheostomy and his respiratory inhibition. In addition, he might become exposed to infection from persons entering his environment. She considered, however, that the risk of aspiration for Wally is low, because of the manner in which he is managed at home. Nevertheless, she accepted that aspiration can be large and, on occasions, fatal. She also accepted that, theoretically, Wally is at a moderate risk of deep vein thrombosis and pulmonary embolism. However, none of her patients have suffered from those conditions. Thus, she considered that that risk was low.
In cross-examination, Mr J Ruskin QC (who appeared with Mr A Clements for the defendant) referred Dr Tierney to statistics produced by Dr Shavelle and others[2]. Dr Tierney responded that those statistics (which indicated a life expectancy of approximately 10.5 years for a patient such as Wally) meant that her patients were statistical “outliers”. She stated that her patients are referred to her, because their family wish them to have a high level of care, and thus her practice has patients who have highly motivated primary carers. In comparing Wally with the statistics relating to patients with “locked in syndrome”, she stated that it is important to ascertain whether the patients, who were the subject of that statistical study, were well managed. In conclusion, she stated that the level of care afforded to Wally is particularly important, because it addresses adequately each of the risk factors to which Wally is otherwise susceptible.
[2]Shavelle, Strauss, Day and Odjana, “Life Expectancy”, contained in Chapter 17 of the publication “Brain Injury Medicine: Principles and Practice” (Exhibit 5).
As I have stated, three neurologists were called to give evidence on behalf of the defendant. They each expressed views on the issue of life expectancy. Professor Richard Stark was the first such witness called on behalf of the defendant. He has not examined Wally Hidalgo, but he has reviewed the relevant documents relating to his circumstances and condition.
Professor Stark expressed the view that even with the best nursing care and general care management, Wally’s life expectancy is substantially reduced, because he is subject to the risk of a number of complications. The first, and principal, risk is that he may contract pneumonia. That condition can result from the aspiration of saliva, from direct infection introduced through the open tracheostomy, or from secretions pooling in the lower part of the lungs. Although Wally may have retained some cough reflex, his cough would be reduced, and accordingly he would be at a greater risk that fluid would pool in his mouth and enter his respiratory system. In addition, Wally is at a higher risk of urinary tract infection, and of skin lesions resulting from pressure points. Wally is also at risk of pulmonary embolism developing from deep vein thrombosis, as a result of his immobility. He may also suffer from infection from the PEG feeding tube site. In addition, he will probably develop osteoporosis, which, while not life threatening, will increase the risk of bone fracture, which itself makes it more difficult to render him adequate nursing care.
Professor Stark stated that the risks, to which he referred, significantly increase the random chance of Wally suffering death at an earlier stage than a normal person. Referring to the statistics produced by Dr Shavelle and others[3], and factoring in the quality of care afforded to Wally, he considered that Wally probably would have a life expectancy of about 15 years from the present time.
[3]Footnote 2 above, Table 17.3.
In cross-examination, Mr J Noonan SC (who appeared with Ms B Knoester for the plaintiff) put to Professor Stark evidence given by Ms Littlejohn, and other witnesses, that Wally has retained some ability to swallow his saliva. In response, Professor Starke stated that Wally is better off than if he were completely unable to swallow, but he is at much greater risk than someone who can swallow normally. As a consequence, he is at risk of saliva aspiration, and thus pneumonia. He agreed that although a tracheostomy provides a portal for infection, it also has advantages by enabling secretions to be accessed and removed. He agreed that the major risk of infection from the PEG site is at the time it is established, and that thereafter it is not a high risk. He also agreed that it is uncommon for people with brain injuries to develop deep vein thrombosis. He accepted that if Wally develops deep vein thrombosis, there are clinical signs, which might alert the carer to the condition, and thus enable the risk of pulmonary embolism to be pre-empted. He also accepted that the level of care provided to Wally is of paramount importance to ensure that he does not suffer from pressure lesions, and he stated that it is very encouraging that Wally has not had any pressure lesions over the last four years. As a result of that history, he has less prospect of suffering from pressure lesions. Professor Stark agreed that by being well nourished, Wally’s prospects of avoiding pressure problems are improved.
Professor Stark also considered that it is encouraging that Wally has not had any urinary tract infections since the removal of the catheter, and he said that that is a good prognostic sign. Nevertheless, he is at a higher risk than someone with a normal bladder function. Professor Stark agreed that if Wally did contract a urinary tract infection, the regular observations performed by the carers should enable it to be detected and appropriately treated. He also accepted that the fact that Wally has a full range of movement of his fingers and hands enables them to be kept clean more easily. Professor Stark also agreed with the general proposition that the quality of care given to Wally is a factor of significance in evaluating his life expectancy. Further, the attitude of his primary carers, his parents, is important to his ongoing medical condition.
Professor Stark conceded that his practice was involved, predominantly, in dealing with patients with acute brain injury. He accepted that Professor Rawicki deals with patients who are chronically brain injured, and therefore he is likely to see patients such as Wally on a more regular basis than himself. Nevertheless, Professor Stark did not consider that anecdotal evidence, and the experience of such a practitioner, is particularly helpful. He considered that there is a risk that a practitioner in the position of Professor Rawicki may be unduly influenced by their anecdotal experience, and thus ignore the statistical evidence. He agreed that the statistical approach is dependent on the published literature. He also agreed that there is no published literature on the effect of the quality of care of a patient’s life expectancy, but he would expect that it should improve the prognosis for life expectancy.
Professor Stephen Davis, who gave evidence on behalf of the defendant, is an experienced neurologist of some 35 years, with a most impressive curriculum vitae. Professor Davis first examined Wally in April 2007. He subsequently examined Wally again in January 2008. Professor Davis commenced his evidence by stating that the primary factors which affect Wally’s life expectancy are a product of the profound paralysis of his limbs and of his bulbar functions (that is, his ability to clear secretions from his throat). His greatest risk is a chest infection resulting from aspiration of secretions. Although he has a weak and delayed swallow, and some cough, and therefore he has retained some bulbar function, nevertheless pneumonia caused by aspiration is still a major ongoing risk for him. Wally is also at the risk of urinary infection. Because he is incontinent, he is liable to pool urine for long periods of time. As a result, bacteria may enter the urinary system, and thus cause urosepsis resulting in the failure of his vital organs. Wally is also at a major risk of deep vein thrombosis in the legs, with the passage of the clots to the lungs (pulmonary embolism). The fact that he is well maintained, exercised and turned does not eliminate the risk of pulmonary embolism.
Professor Davis stated that even with the best care, Wally is still at risk of skin breakdown resulting from pressure ulcers, which in turn allow bacteria to enter the bloodstream. He also has an increased risk of heart irregularity and primary cardiac death.
Professor Davis stated that although Wally receives excellent care and all the appropriate nursing management, nevertheless he is susceptible to the complications, to which he referred in his evidence. The risks of those complications are reduced by the excellent care which Wally receives, but they are not eliminated. Referring to the statistics developed by Dr Shavelle, he considered that Wally falls into the category of patients who have a life expectancy of 12.2 years (from the present date).
In cross-examination, Professor Davis accepted that the quality of care of a patient does reduce the risks of complications to which he had referred, but it does not eliminate them. He stated that with a patient like Wally, respiratory or urinary infection can rapidly develop without detection. Thus, Wally might deteriorate quite quickly from being in a stable condition to being at profound risk from sepsis, which is difficult to treat even with modern antibiotics. Similarly, even with the best management, Wally might develop a condition such as pulmonary embolism, which can be fatal within minutes.
Professor Davis accepted, from the evidence, that Wally may have retained some ability to swallow, but he said it would be profoundly impaired. He agreed that the cough reflex is more relevant than the ability to swallow, but he considered that Wally’s cough would also be compromised by his profound bulbar palsy. Professor Davis stated there is a background risk of peritonitis from the PEG feeding, but he conceded that that risk is small. He also agreed with Professor Rawicki that the risk of thrombosis reduces after the patient has emerged from the acute stage of injury. Thereafter, the risk is small, but significant. Professor Davis agreed that Wally’s susceptibility to pressure sores is highly dependent on the level of nursing care which he receives. However, minimal skin changes can lead to frank breakdown of the skin and ulceration, which can occur very rapidly, even with the best care. The fact that Wally has had no issues with his skin integrity for three years since his discharge is a good prognostic factor. Similarly, the fact that he has not had any urinary tract infection since the removal of the catheter, means that his level of care is good, but he does remain at some risk, albeit that the level of that risk is quite low.
Professor Davis further stated that in assessing life expectancy, anecdotal personal experience of a practitioner is important, but it is not as important as the type of statistics produced by Dr Shavelle in his report. He agreed that there is no specific study identifying the impact of quality of care on life expectancy of a chronically brain injured person such as Wally. However, he considered that the care received by Wally is not significantly different to that, which would apply to any patient with his type of devastating brain injury. The fact that Wally has survived for four years, free of overt complications, would put him at the higher end of the scale of those who were the subject of the statistical studies. Thus, Professor Davis accepted that Wally might achieve more than the average life expectancy for persons in his age group, and he might survive for about 15 years. In re-examination, Professor Davis disagreed with the approach made by Professor Rawicki, namely, taking normal life expectancy, and reducing it by 30 percent. Professor Davis stated that the proper approach is to use the best available information, which he considered to be the statistics developed by Dr Shavelle. He considered the statistics to be the most important factor, and that personal anecdotal experience to be of less importance.
Dr John King has practised as a neurologist for 40 years. Like Professor Davis, he has an impressive curriculum vitae. Dr King has not seen Wally, but he has read a substantial amount of documentation relating to him. He stated that because Wally has a weakened delayed swallowing mechanism, and reduced laryngeal elevation, he is likely to aspirate saliva into his lungs. As a result, he might contract pneumonia, which is one of the commonest causes of death for patients such as Wally. Dr King stated that he would not expect Wally to be able to generate a normal cough, nor would he be able to cough voluntarily, if he were asked to do so. The ability to cough is an important defence mechanism against infection caused by the aspiration of saliva.
Dr King also stated that although Wally’s risk of urinary tract infection has reduced since his catheter has been removed, nevertheless his urinary incontinence may cause him to retain urine in his bladder, which can result in an infection. Such an infection can cause septicaemia in the kidneys, which is a common cause of death in an immobilised patient. Dr King further stated that the PEG tube provides a route for bacteria entering into the peritoneum. He said that even with proper treatment and nutrition, Wally remains at risk of pressure areas. In addition, his resistance to infection is reduced, because he is immobilised. Even with the best care, he is not receiving the same nutrition as a mobile person on a normal diet. Wally is also at risk of being exposed to infections introduced into his environment by people such as his carers.
Dr King further stated that Wally is at a high risk of developing pulmonary embolism. In particular, if he has a deep vein thrombosis, which produces a large clot, it can block access of blood to his lungs and cause sudden death.
Referring to the literature, Dr King considered that Wally would have a life expectancy of some 12 years. He stated that the statistics are very important in predicting life expectancy. Dr King was impressed with the quality of Dr Shavelle’s research, and the articles he has written. He disagreed with the approach of Professor Rawicki, and considered that it was out of step with the statistical evidence produced in the literature. In particular, Dr King could not understand how the 30 percent reduction in life expectancy was arrived at by Professor Rawicki. Dr King stated that if he were a clinician providing advice as to Wally’s prognosis, he would rely primarily on the literature, and take into account, on the one hand, the fact that he had a hypoxic brain damage (which has a poorer prognosis than patients with traumatic brain damage), and, on the other hand, the fact that he has transitioned from a persistent vegetative state to a minimally conscious state (which is a positive). Based on those considerations, Dr King expressed the view that Wally has a life expectancy of about 12 years. In reaching that conclusion, he did not consider that the anecdotal experience of people like Dr Tierney is helpful, because such practitioners tend to give undue weight to their patients who survive longest. Furthermore, practitioners such as Dr Tierney tend to care only for patients who are long term survivors.
In cross-examination, Dr King agreed that Wally’s main risk of mortality is from infection. He accepted that it is important to identify any infection as soon as possible, and to take appropriate action. He agreed that the standard of care provided to Wally is a factor which will impact on the capacity to identify and treat any infection successfully. Thus, it is a relevant factor in the evaluation of Wally’s expected period of survival. Dr King accepted that Wally’s tracheostomy has some advantages, by enabling secretions or sputum to be suctioned and appropriately dealt with. He also accepted that the main risk of infection from the PEG tube is at the time of its replacement. Usually, the replacement of the PEG is carried out in a sterile environment by a surgeon or gastroenterologist, and therefore it should not cause a problem. He also agreed that the risk of deep vein thrombosis decreases after the acute stage. Dr King accepted that the level of Wally’s care and nutrition is of paramount importance in preventing problems arising from pressure sores. He stated that if Wally is well nourished and his health status is generally good, that is an important factor in assessing his capacity to overcome any infection. On the other hand, if Wally has an infection in the lungs, his lack of mobility is a critical negative factor. He agreed that it is encouraging that Wally has not had a history of urinary infections, and, in light of that history, he considered that the risk of such an infection is low.
Dr King accepted that it is appropriate to have regard to the anecdotal experience of a rehabilitation physician, such as Professor Rawicki. The fact that Wally has had good care is an important factor, but he considered that the group of patients, who were the subject of the statistical studies, included patients who had a similar level of care. Dr King acknowledged that the statistics of Dr Shavelle are the basis of his calculation of life expectancy. He agreed that it is logical to take the statistical figure, and to adjust it for the level of care. However, in re-examination he stated that, in reaching the view that Wally’s life expectancy is 12 years, he had taken into account his high level of care.
Thus, it is evident from the foregoing that the difference between the estimates of life expectancy given by the plaintiff’s medical experts on the one hand, and the defendant’s medical experts on the other hand, is substantially the product of the different approaches which they adopted in forming their views on that issue.
While the medical practitioners, who gave evidence in relation to life expectancy for the plaintiff, relied almost exclusively on their own anecdotal experience, the three practitioners, who gave evidence for the defendant, placed primary weight on the statistical conclusions of Dr Shavelle. In order to resolve that difference, it is necessary first to examine the evidence, which was given relating to the statistical assessment of the life expectancy of severely disabled persons such as Wally Hidalgo.
Statistical evidence
As I have previously stated, Professor Jane Hutton and Dr Robert Shavelle gave evidence on behalf of the plaintiff and the defendant, respectively, on this aspect of the case. Professor Hutton relied on two different bases in reaching her conclusion as to the probable life expectancy of Wally Hidalgo. First, she based her conclusions on a study, in which she participated, of the Mersey Cerebral Palsy Register. Secondly, she estimated Wally’s life expectancy by using a method referred to as the “Disability Rating Scale” model, which had been developed by Professor Cynthia Harrison-Felix and others in 2004. Using those two methods, Professor Hutton concluded that Wally Hidalgo’s probable life expectancy is a further 22 to 31 years from the present date. On the other hand, Dr Shavelle criticised both of the methods used by Professor Hutton to estimate Wally’s life expectancy. Dr Shavelle examined five studies, in the literature, of the life expectancy of severely disabled persons, and concluded, based on those studies, that Wally’s probable life expectancy is 12 years from the present date.
It is useful, first, to briefly define some of the concepts used by both experts in reaching their conclusions. In short, life expectancy is defined as the life expectancy of a group of people with similar disabilities and characteristics of the subject in question. It was common ground between Professor Hutton and Dr Shavelle that, for the purpose of assessing compensation for future care, it is preferable to determine the relevant life expectancy by reference to the arithmetic mean, and not the median, life expectancy of the relevant group of individuals. Life expectancy is determined by developing a life table using the appropriate data. A key input into the life table is the mortality rate of the particular group. Mortality rate is the number of deaths of the relevant group of persons in a particular year of their age, divided by the number of people who are still alive. Thus, the mortality rate is applied to the surviving members of the group each year according to their age. In constructing the life table, other concepts are relevant. They include the concept of relative risk, which is the increased risk of a particular group of individuals compared with the risk of the general population at the same age. The term “excess death rate” denotes the rate of deaths in a particular group minus the rate of deaths of the normal population of the same age.
Professor Hutton and Dr Shavelle each prepared detailed reports setting out the method by which they computed Wally’s life expectancy. The provision of those reports generated a substantial amount of correspondence between the parties relating to various aspects of the reports. At the conclusion of the evidence of the other witnesses in the case, the trial was adjourned, in order to enable Professor Hutton and Dr Shavelle to confer and produce a joint report. As a result, the two witnesses prepared a report which set out, in effect, the common ground, and the differences, between them. They each gave evidence before me, Professor Hutton coming to the jurisdiction from the Untied Kingdom, and Dr Shavelle from San Francisco. The joint report, and the evidence given by Professor Hutton and Dr Shavelle, reflected that each of them had carried out a lot of work in preparation for their testimony in the case. The joint report was particularly helpful in identifying the key issues, which I need to determine, in order to reach a decision in relation to the probable life expectancy of Wally Hidalgo.
Professor Hutton is the professor in Medical Statistics at the University of Warwick. Professor Hutton has a distinguished curriculum vitae. She has a Doctorate of Philosophy in Statistics, and has held a number of appointments in her discipline. Her principal theoretical interests are survival analysis and meta-analysis. Her current major medical collaborations are in the areas of cerebral palsy and epilepsy.
Dr Shavelle also holds a Doctorate of Philosophy in Applied Statistics. Since 1995, he has been the technical director of “The Life Expectancy Project”, which is a group of researchers around the world, with a core group in San Francisco, who conduct research in relation to life expectancy and related topics.
The cross-examination of both Professor Hutton and Dr Shavelle was principally based upon propositions made by the opposing expert witness in his or her evidence. Accordingly, it is convenient to consider the evidence of Professor Hutton, and Dr Shavelle’s response to it, and, then, to consider Dr Shavelle’s evidence, and Professor Hutton’s response.
As I have stated, Professor Hutton based her views on the probable life expectancy of Wally Hidalgo on two bases, namely, conclusions drawn from the Mersey Cerebral Palsy Register, and, secondly, by application of the disability rating scale formula. The use by Professor Hutton of that formula gave rise to a number of issues, which were the subject of competing evidence by Professor Hutton and Dr Shavelle at trial. There was a significant divergence, between the experts, as to the method by which the disability rating scale might be used to produce an estimate of life expectancy. Ultimately, in final address, Mr Noonan stated that I should not endeavour to reconcile the competing views of the experts. Accordingly, he submitted that I should not rely on the evidence of either expert relating to the computation by Professor Hutton of life expectancy based on a disability rating scale. Not surprisingly, Mr Ruskin agreed with that concession made by Mr Noonan. Accordingly, it is only necessary for me to consider the first basis upon which Professor Hutton formed a conclusion as to the probable life expectancy of Wally Hidalgo.
The Mersey Cerebral Palsy Register (the “MCPR”) was commenced in 1980 by Professor Pharoah, the professor of the FSID unit of Perinatal and Paediatric Epidemiology of the University of Liverpool. It researched the medical records of all children with cerebral palsy born in the Merseyside and Cheshire areas from 1966 to 1989. The characteristics of each child with cerebral palsy were categorised according to manual dexterity, ambulatory ability, mental ability, hearing ability and visual ability. For the purposes of that categorisation, the disabilities of those children were confirmed between 5 and 10 years of age. Ultimately, some 1,942 children, suffering from cerebral palsy, formed the cohort which is the subject of the study. Professor Hutton and Professor Pharoah published an article in 2002 entitled “Effects of Cognitive, Motor and Sensory Disabilities on Survival in Cerebral Palsy”. Based on a statistical analysis of the cohort, which were the subject of the study, the article concluded that visual disability was strongly associated with reduced life expectancy. That conclusion was illustrated by table 6 in the article, which was relied on to demonstrate a significantly reduced life expectancy for the members of the cohort who had visual disability as part of their impairment.
Professor Hutton explained that while blindness, per se, is not a cause of mortality, nevertheless it would appear that it is a marker for the degree of brain injury of the particular individual. Accordingly, Professor Hutton considered that the most severe group, defined in the register, which could be used for comparison with Wally Hidalgo, were the group, in the register, who were unable to use a wheelchair themselves, could not feed or dress themselves, had severe intellectual impairment and were blind. There were 308 people in the register with that level of severity. Of those persons, 62 survived to the age of 25.2 years, which was Mr Hidalgo’s age in July 2010. By reference to that group, Professor Hutton calculated that the annual mortality rates of persons, with that degree of disability, are in the range of 2.7 percent to 3.4 percent. Consequently, Professor Hutton applied an excess death rate of 3.4 percent to the mortality rates given by the Australian Bureau of Statistics Life Tables 2006 to 2008 (“the ABS tables”), and also applied a minimum relative risk of 3 percent. By that means, Professor Hutton constructed a life table, which demonstrated that, for persons with the disabilities identified by her, the mean residual life expectancy was 24.6 years from the age of 25 years. The table also demonstrates that the residual life expectancy for such a person, who is in the 75th percentile, is 37 years from the age of 25 years. Professor Hutton acknowledged that, as Mr Hidalgo’s disabilities place him at the severe end of the group of cerebral palsy patients who she identified in the register, the estimated life expectancy of 25 years might be optimistic for Mr Hidalgo. She considered that the overestimate was relatively minor, and that that estimate might be approximately adjusted to 22 years or 23 years.
The defendant submitted that I should not accept Professor Hutton’s conclusions, based on her analysis of the cohort derived by her from the MCPR, for two principal reasons. First, it was put that the cohort used by Professor Hutton was not sufficiently comparable to Wally Hidalgo. Secondly, it was put that Professor Hutton erred in using a constant excess death rate in compiling her life table.
Before analysing those two points, I note, first, that it was not contended by the defendant that a cohort of severely disabled cerebral palsy patients would not, per se, be sufficiently comparable to Wally Hidalgo. Professor Hutton and Dr Shavelle agreed that, in estimating life expectancy in a case such as this, the degree of disability is the determining factor, rather than the aetiology of the disability. Secondly, Dr Shavelle did not suggest that the size of the cohort used by Professor Hutton (62 persons) was too small for the purposes of a valid statistical analysis. Thirdly, apart from criticising Professor Hutton’s use of a constant excess death rate, Dr Shavelle did not otherwise criticise the methodology employed by Professor Hutton in constructing her life table.
The cross-examination of Professor Hutton, relating to her use of a cohort derived from the MCPR, was substantially based on two criticisms by Dr Shavelle in his evidence of the use of that register for estimating the probable life expectancy of Wally Hidalgo. The first criticism made by Dr Shavelle, and put to Professor Hutton in cross-examination, is that the MCPR does not contain any information as to the degree of disability of the particular persons, who were the subject of the register, after the age of 10 years. Dr Shavelle pointed to a study of children in California with cerebral palsy, in which he participated, by Dr Wu and others. The results of that study were published in 2004 in an article entitled “Prognosis for Ambulation in Cerebral Palsy: A Population Based Study” (“the Wu study”)[4]. That study involved a large number of children in California with cerebral palsy. Dr Shavelle relied on that study as indicating that, of children with cerebral palsy who could not walk at the age of 3, 40 percent developed that ability over the next ten years. The study also indicated improvements in other areas of disability for those children. In addition, Dr Shavelle pointed out that the statistics produced by Professor Wu did point to a small, but nonetheless significant, improvement in the disability of the more severe cases of cerebral palsy from the age of 7 to age 15. In particular, the graph, contained in figure 2 of the study, indicates that whereas 30 percent of the children who were the subject of the study could not walk at the age of 7 years, approximately 38 percent were able to do so by the age of 15 years.
[4]Wu Y, Day S M, Strauss D J, Shavelle R M (2004), Prognosis for Ambulation in Cerebral Palsy: A Population-Based Study. Pediatrics, 114:1264-1271 (Exhibit W tab 2).
In response, Professor Hutton stated that, generally, it is children who have less severe cerebral palsy, who have the longer period of improvement in their disabilities. By contrast, those who are more severely afflicted tend to stabilise earlier. In that connection, she pointed out that the Wu study was concerned with subsequent improvement of children aged 2 to 5 years, whereas the MCPR documented the level of impairment of children between ages 5 and 9.
Furthermore, the strength of the point made by Dr Shavelle is diminished by the fact that the Wu study did not differentiate between persons who were visually impaired and those were not visually impaired. Thus, in Professor Wu’s study, the category of those who did not walk at age 7 may not have included the most severe category of cerebral palsy sufferers, namely, those who also suffered visual impairment. Dr Shavelle, in his evidence, agreed with Professor Hutton that, generally, the most severely afflicted cerebral palsy cases are substantially less likely to improve, after an early age, than the less severe cases. Further, generally, any such improvement tends to plateau at an earlier age than in the severe cases.[5] He accepted that if any members of the cohort, used by Professor Hutton, were not able to operate an electric wheelchair by the age of eight years, their prospects of any substantial improvements in their motor function would be minimal. For those reasons, I do not accept that the fact, that the disabilities of Professor Hutton’s cohort were not assessed after the age of 10, would materially affect the validity of the use of that cohort as a comparative study for the life expectancy of Wally Hidalgo.
[5]Rosenbaum PL, Waller SD, Hanna SE, et al (2002) Prognosis for Gross Motor Function in Cerebral Palsy: Creation of Motor Development Curves JAMA 288:1357-1363, p 1360 (Exhibit AA).
The second point made by Dr Shavelle, in respect of Professor Hutton’s use of the MCPR, is that the comparison group, chosen by Professor Hutton from the register, is less severely disabled, on average, than Wally Hidalgo, who has little or no gross motor function, and who has a swallowing dysfunction and requires a feeding tube. In support of that proposition, Dr Shavelle pointed to a study, of the Californian Disabilities database, in which he participated, of a group of 3,029 children, aged between 2 and 5 years, who met the criteria postulated by Professor Hutton. Of those children, 63 percent could lift their heads in prone, roll or sit, and 68 percent did not require a feeding tube. Dr Shavelle also pointed to a study of children and young adults in the British area by Dr Hemming and others[6], and to other researches, to support the proposition that, generally, there is little variation in the patterns of disabilities of cerebral palsy patients in different countries or locations.
[6]Hemming K, Hutton J L, Colver A, Platt M, (2005) Regional Variation in Survival of People with Cerebral Palsy in the United Kingdom, Pediatrics 116, 1383-1390 (Exhibit X tab 2).
In cross-examination, Professor Hutton stated that she did not know whether the cohort from the MCPR, from which she drew her conclusions, included individuals who might have sufficient gross motor function to be able to sit or roll. She also accepted that her cohort from the MCPR might include children who were able to take food orally. She said that the MCPR does not contain any information as to the number of children who had swallowing dysfunction. Nor was Professor Hutton able to indicate how many of the children in the cohort which she used required a feeding tube.
In re-examination, Professor Hutton stated that the cohort, which she used for comparison with Wally Hidalgo, consisted of persons who were most severely afflicted with cerebral palsy. In particular, she stated that such persons did not have sufficient gross motor function to be able to use their heads to control an electrically powered wheelchair, whether by means of a push stick, a switch, or the use of a light on the person’s head.
In final address, Mr Ruskin submitted that I should not accept Professor Hutton’s evidence, in re-examination, as establishing that the whole of the cohort, which she used from the MCPR, were disabled in that way. In particular, he pointed to the fact that Professor Hutton did not, in the joint report, state that all of her cohort were so disabled, as a response to the section in the joint report in which Dr Shavelle stated the results of his study of the cohort of 3,029 children taken from the Californian Disability database. Further, he submitted that Professor Hutton did not give such evidence in chief. In addition, Mr Ruskin pointed out, Professor Hutton’s evidence in re-examination is difficult to reconcile with her concession, in cross-examination, that she was unable to say whether the members of the cohort, which she used, lacked the capacity to sit, lift their heads in prone or roll. As Mr Ruskin pointed out, if all the members of Professor Hutton’s cohort were so disabled that they could not operate an electric wheelchair by use of their heads, it is surprising that, in cross-examination, she nevertheless accepted that she was unable to state whether the members of the cohort had sufficient gross motor function to be able to sit, lift their heads in prone or roll.
In response to Mr Ruskin’s submissions, Mr Noonan correctly pointed out that, in fact, Professor Hutton did give evidence in chief which, on a proper analysis, was to the effect that the cohort which she selected from the MCPR excluded any child who was able to operate an electric wheelchair in the manner described by her in re-examination. There was also argument by counsel as to whether the concession, made by Professor Hutton in cross-examination, concerning whether she could indicate whether the cohort lacked the capacity to sit, lift their heads in prone or roll, related to the cohort which she used for the purposes of comparison with Wally Hidalgo, or whether, in making that concession, she was referring to all the persons who were registered on the MCPR. I have re-read the transcript of the passage of cross-examination,[7] together with the relevant parts of the joint report, with which that section of the cross-examination was concerned. In my view, it is clear, both from the joint report and the cross-examination, that the concession made by Professor Hutton was specific to the cohort, which she used to compare with Wally Hidalgo. In other words, I accept the submission of Mr Ruskin that Professor Hutton, in cross-examination, did concede that the cohort of 62 cerebral palsy patients, which she used for her conclusions, might include children who had sufficient gross motor function to roll and sit.
[7]T 863 to 865.
Notwithstanding the force of the submissions made by Mr Ruskin, after giving this issue careful consideration, I accept Professor Hutton’s evidence that she selected the members of her cohort, on the basis that they were unable to operate an electric wheelchair in the manner described by her. The evidence to that effect by Professor Hutton, in re-examination, was clear and unambiguous. I considered Professor Hutton, and indeed also Dr Shavelle, to be conscientious witnesses who gave their evidence in a professional and careful manner. Furthermore, Professor Hutton’s definition of ambulatory disability, in re-examination, is consistent with the definition, which she used in articles published by her and Professor Pharoah[8].
[8]Hutton J L, Cook E T, Pharoah POD (1994) Life Expectancy in Children with Cerebral Palsy DMJ 309:431-5; J L Hutton, POD Pharoah (2005) Life Expectancy in Severe Cerebral Palsy (2006) Arch Dis Child 91:254-258, at page 255.
On the other hand, it is significant that there is no evidence whether the cohort, used by Professor Hutton, had the same level of bulbar dysfunction as Wally Hidalgo. Dr Shavelle stated that, in the cohort of 3,029 cerebral palsy patients derived from the Californian Disability database, only one third of those who, Dr Shavelle understood, fulfilled Professor Hutton’s most severe criteria, required a feeding tube. Dr Shavelle had understood that Professor Hutton’s criteria of ambulatory dysfunction applied to patients who could not manually propel their own wheelchairs. However, he stated that if in fact the cohort, examined by Professor Hutton, was not able to operate an electric wheelchair in the manner described by her in re-examination, then, statistically, it could be expected that no more than 50 percent of those persons required a feeding tube. As I stated, in cross-examination, Professor Hutton stated that she was unable to say how many of the children, in her cohort, required a feeding tube. The evidence[9] establishes that the risk ratio for those who are tube fed, in contrast to those who are not tube fed, is a factor of 2.46. Dr Shavelle pointed out that if the 3.4 percent excess death rate, derived by Professor Hutton from the Mersey cohort, were adjusted to accommodate the effect of a feeding tube (at the relative risk of 2.46), then the applicable excess death rate, by reason of that factor alone, would increase to 5.1 percent. The net effect of that one adjustment to Professor Hutton’s analysis would be to reduce Professor Hutton’s estimate of life expectancy by approximately five years.
[9]Strauss D J, Shavelle R M, Ashwal S (1999) Life Expectancy and Median Survival Time in the Permanent Vegetative State, Pediatric Neurology 26:626-631, p 628 (Exhibit 1).
An adjustment to Professor Hutton’s figures to allow for the fact that, unlike Wally Hidalgo, approximately one half of Professor Hutton’s cohort did not need a feeding tube, is supported by the medical evidence. As I have pointed out, there was substantial unanimity amongst the medical practitioners, who gave evidence, that a principal risk to Wally Hidalgo’s life derives from his bulbar dysfunction, both in terms of his swallowing and in terms of his weak cough reflex. The fact, that a significant proportion of the Mersey cohort, examined by Professor Hutton, had sufficient capacity to swallow as to not require tube feeding, is of itself an important point of differentiation between that cohort and Wally Hidalgo, for the purposes of the application of Professor Hutton’s conclusions to the issue of Wally’s life expectancy.
On the other hand, Professor Hutton stated that the fact, that not all members of her cohort were reliant on the feeding tube, does not affect the comparability of her cohort with Wally Hidalgo. She pointed out that each member of her cohort was blind. The evidence suggests that although Wally Hidalgo is visually impaired, he is not blind. Professor Hutton stated that studies undertaken by herself and Professor Pharoah pointed to a strong association between blindness and survival in cerebral palsy patients. In particular, the association between blindness and mortality, in that group, was indicated in research, which she and Professor Pharoah reported in 2002.[10] She stated that although blindness, per se, is not a cause of mortality, nevertheless it was a marker of severe neurological compromise, which is associated with mortality. She stated that she regarded feeding tube reliance and severe visual disability as comparable markers.
[10]Hutton J L, Pharoah POD (2002) Effects of Cognitive Motor and Sensory Disabilities on Survival in Cerebral Palsy. Arch Dis Child 86:84-90.
In response, Dr Shavelle pointed out that it was unclear from Professor Hutton’s evidence whether she was referring to total blindness of her cohort, or visual impairment. He referred, in that respect, to the published work by Professor Hutton and Professor Pharoah, which related to those who are visually impaired, without differentiating those who are blind. He also pointed out that the study by Professor Hutton and Professor Pharoah included a number of subjects, who were too disabled to test, and also included children with missing values.
The issue relating to the impact of the feeding tube, on Professor Hutton’s estimate of life expectancy, is not simple to resolve. However, it is clear from the medical evidence that there is a direct correlation between the risk of mortality and the need for a feeding tube, insofar as the need for a feeding tube is a direct consequence of significant bulbar dysfunction. It follows that, since Professor Hutton’s cohort included a proportion of subjects who did not have such a dysfunction, to that extent her cohort was not as significantly exposed to a principal risk of mortality as Wally Hidalgo. On the other hand, there are a number of qualifications, which must be applied to the evidence of Professor Hutton as to the interrelationship of blindness (or visual impairment) with increased mortality rate. I accept that the fact that her cohort consisted exclusively of subjects who were either blind or grossly visually impaired indicates that they all had severe neurological impairment. However, the fact remains that, on the evidence, a significant proportion (probably one half) of them did not have the same bulbar dysfunction as Wally Hidalgo. To that extent, an adjustment would need to be made to Professor Hutton’s estimates of life expectancy, in order to cater adequately for the point of differentiation between her cohort and Wally Hidalgo.
The second principal criticism by Dr Shavelle of Professor Hutton’s life table, derived from the MCPR, is based on her use of a constant excessive death rate of 3.4 percent. Professor Hutton, in cross-examination, stated that the use of a constant excess death rate, in persons with disabilities such as Wally Hidalgo, is justified, because the risks which arise from their disabilities, such as an inability to swallow and the consequences of incontinence, are additional risks which continue to apply, irrespective of age. In re-examination, she explained that, in her view, the excess death rate should be held constant, because the major causes in death for persons with such disabilities do not particularly change. Other causes of death may become more pertinent as people grow older, but the main causes of death, arising from the relative disability, remain constant.
In response, Dr Shavelle contended that the use of a constant excess death rate was incorrect, because it is recognised that excess death rates rise with age in almost every condition. He stated that a constant excess death rate would only be applicable in the most unusual of circumstances. In support of that proposition, Dr Shavelle pointed, inter alia, to a study which he and Dr David Strauss made of disabled persons by reference to the Californian Mental Retardation Database.[11] In that study[12], it is noted that for an essentially non-progressive condition, such as cerebral palsy, although the excess death rate is more stable, nonetheless it does increase substantially with age. For example, it was noted that the excess death rate for quadriplegics was 1.2 percent at the age of 30 years, and 2.5 percent at the age of 60 years.
[11]Strauss D J, Shavelle R M (1998) Life Expectancy of Persons with Chronic Disabilities. Journal of Insurance Medicine, 30:96-108 (Exhibit 19).
[12]Ibid 99.
It is of course clear beyond argument that as a result of the accident of July 2006 Wally Hidalgo has suffered a permanent and almost total loss of his capacity to enjoy life. In determining the general damages, which would have been awarded to Wally at common law, the critical question, which has been the subject of evidence in this case, concerns the issue of whether Wally has any, and if so what, insight into, or awareness of, his circumstances and disabilities.
First, it is clear that Wally is aware of pain and discomfort. He is treated with Lyrica in order to control his nerve pain, and he is also medicated with Panamax for his general pain. He is susceptible to spasm. When that occurs, it is necessary for his mother to exercise a calming influence in order to alleviate the spasm. He has been demonstrated to respond to pain, particularly by facial expressions such as grimacing. In those circumstances, I am satisfied that Wally does have sufficient sensory awareness in order to feel pain and discomfort. The more substantial question concerns the extent to which Wally has sufficient alertness and consciousness, in order to enable him to have some insight into, and awareness of, his debilitated state.
During the last two or so years, Wally’s parents, and those who have been responsible for his care, have noted that there has been a small, but significant, improvement in Wally’s state of alertness, and in their ability to communicate with him. With the exception of Dr Josephine Ong, Wally’s general practitioner, the other medical experts who gave evidence in the case expressed the view that, based on those observations, it would seem that Wally has progressed from a persistent vegetative state to a minimally conscious state over that period. They have, however, expressed different views as to whether that change has had the result that Wally has any awareness of his condition.
Conrado Hidalgo stated in his evidence that if Wally is asked a simple question such as “Is your name Wally?”, he will blink his eyes, once for “yes” and two for “no”. He said that that response is more commonly observed at night. It began about two years ago, but the response is not consistent. He will also obey simple commands, such as being told to open his mouth when his teeth are being brushed, particularly at night, when he is more alert. Wally has a particularly good relationship with one of his carers, Shane Wheat, and he has displayed an ability to obey very simple commands given to him by Shane. On the other hand, when he has a new carer, he is uncooperative. Mr Hidalgo stated that when the family went on a trip to China (from October to November 2009), he twice called out “Mumma”. Wally has been observed crying, and having different facial expressions.
Dr Khan, the carer, stated that if you want Wally to respond (for example, to a request that he looks at the speaker), you need to ask him to do so on a number of occasions, and usually his response is quite slow. He tends to be inconsistent in his responses to such requests or commands. Dr Khan also stated that it is possible to detect from Wally’s facial expressions whether or not he is happy.
Both Ms Curran and Ms Littlejohn, the speech therapist, also stated that, in recent times, they have noticed an increase in Wally’s level of alertness, and an improvement in his ability to follow simple instructions. Ms Littlejohn has seen him do a double blink, when he is asked a question to which the answer is “yes”. His response is inconsistent and slow. In cross-examination, she stated that he is most responsive in the evening. Over the last few months, he has been able to demonstrate some sort of comprehension, or attempt to communicate, on approximately 70 percent to 80 percent of her visits.
More recently, Ms Chandler, the occupational therapist, visited Wally at home on 21 August. She said that, on that occasion, Wally manifested a high arousal level, and that he was responding to his mother’s close proximity. For example, when his mother asked him to give her a kiss, his mouth would change shape, as if he was attempting to respond to her request. One of the carers who worked with Wally for some time, Kushan, had informed Ms Chandler that he had noticed that during the night, Wally would attempt to attract his attention by a facial expression. Kushan, who has a good relationship with Wally, on reading that expression, had fitted the condom drainage on Wally, and Wally immediately urinated. Ms Chandler considered that based on her observations, and based on what she had been told, that Wally had advanced in his state of consciousness. Indeed, she wishes to visit Wally more frequently in order to optimise any potential improvement in his ability to function.
On the other hand, Wally’s general practitioner, Dr Ong stated that she has not observed Wally to have any consistent expressions of communication. She said that although Olga thinks that Wally blinks his eyes, Dr Ong does not believe that Wally is capable of recognising her. She expressed the view that Wally is in an unresponsive state, and that he will not improve. She considers that Wally has made very minimal improvement over the years.
As I have stated, apart from Dr Ong, the other medical practitioners, who gave evidence in the case, did consider that Wally has progressed from a persistent vegetative state to a minimally conscious state. Professor Rawicki saw Wally at his home on 19 January 2009, in company with his two parents. He stated that Wally was unresponsive to any verbal input, and that he had no communication other than moaning when he was in pain. He considered that Wally remained in a state of post-coma unresponsiveness (persistent vegetative state), and according to his parents there had not then been any discernible change in his level of unresponsiveness since he had returned home from Ivanhoe Hospital. In evidence, counsel put to Professor Rawicki the evidence of Ms Littlejohn and Ms Chandler concerning their observations of the recent improvements by Wally in his state of arousal, and in his communication skills. Professor Rawicki stated that when he had examined Wally in January 2009, none of the features, observed by the witnesses, had been evident. He expressed the view that those observations by the witnesses may indicate that Wally has made a modest gain in his cognitive awareness or function, and that he may be progressing from a persistent vegetative state to a minimally conscious state. In respect of the observations by Ms Littlejohn and Ms Chandler, that Wally had responded to simple verbal commands, Professor Rawicki stated that it is more likely that he is responding to the tone of voice and to non-specific environmental cues, rather than recognising and responding to the particular words spoken to him. Professor Rawicki stated that his experience is that patients like Wally do commonly undergo ongoing slow improvements in their cognitive function and responsiveness. He said that Wally will remain immobile and essentially unable to interact with his environment, but there may continue to be very minor improvements in his cognitive response over the ensuing years.
Dr Tierney saw Wally at his home on 13 January 2010. In her report, which formed part of her evidence, she noted that she had been informed by Wally’s parents of a number of responses by Wally to environmental stimuli when he is alert. Those responses included: voluntary motor responses, such as opening his mouth to verbal prompts, and an ability to generate and swallow; communication responses; and emotional responses. She formed the view that Wally had progressed from a vegetative state to a minimally conscious state. In the course of her evidence, counsel referred Dr Tierney to the evidence of Ms Littlejohn, to which I have referred. In response, Dr Tierney stated that that evidence confirmed the observations, which she had made in January this year, that Wally had progressed to a minimally conscious state, namely, a state in which the patient is responsive intermittently to environmental stimuli. She said that such a state does not necessarily remain permanent, and that Wally may ultimately transition from it into a severely disabled state, in which for most of the time he is alert and aroused and able to follow commands and communicate. However, in order to achieve that state, he will need to develop a hierarchy of skills.
Dr Tierney expressed the view that, at present, Wally is at the lower level of the minimally conscious state. As such, when he is alert, he is likely to be responsive to what is happening around him at the time. Dr Tierney considered that Wally may have moments when he is reflecting emotionally on what is happening. In particular, Dr Tierney referred to observations by Wally’s parents, that when they spoke in front of him about his condition he became agitated. Dr Tierney stated that such a response is common with the patient group to which Wally belongs. Dr Tierney was also referred by counsel to the evidence of Ms Chandler, that Wally differentiates between different people and different carers. She stated that that evidence indicated that Wally’s skill levels are increasing, and she considered that he does have a level of awareness about his environment.
Professor Stark did not examine Wally, but he wrote two reports based on the information provided to him, in July 2008 and June 2010 respectively. In his first report, he expressed the view that Wally was then suffering from a persistent vegetative state following his severe hypoxic brain injury. In his second report, based on the further information, and in particular the report of Dr Tierney, Professor Stark considered that it was reasonable to accept that Wally had probably improved to be in a minimally conscious state. In evidence, after being apprised of the evidence of Ms Chandler, Professor Stark stated that he now considers that Wally would be regarded as being in a minimally conscious state, rather than a persistent vegetative state. As such, he considered that Wally would have a degree of insight into his situation, but it would be very limited. He observed that it is a theoretical question, because people in such states do not sufficiently recover to be able to later recall and relate how they felt when they were in a minimally conscious state. However, with that qualification, Professor Stark stated that by having some awareness of his surroundings, Wally might at least have some awareness that he was not in such a good position as previously, but such an awareness would not be sophisticated.
Professor Davis initially visited Wally at the Ivanhoe Hospital in April 2007. Subsequently, he saw Wally at his parents’ home in January 2008. In his reports, he stated that he considered that Wally was, on each occasion, in a persistent vegetative state. In evidence before me, he was informed of the evidence of Ms Chandler as to the recent improvements in Wally’s alertness and responses. Based on that evidence, Professor Davis stated that Wally may well be now in a minimally conscious state, as he has an ability to have some environmental interaction. However, his awareness is probably quite blunted. He stated that, as such, it is impossible to know whether Wally has an awareness of his condition. If there was any such awareness, it would be quite blunted, and he would not have insight into his profoundly devastated state.
Finally, Dr King expressed similar views to those stated by Professor Davis. Dr King has not examined Wally, but he has received a large amount of material, from which he has drawn his conclusions about Wally’s state and prognosis. In his reports, Dr King stated that he considered that Wally was in a persistent vegetative state. Based on the evidence of Ms Chandler, he accepted that Wally is in a minimally conscious state. However, he considered that Wally would not be aware that he has suffered a severe injury and is disabled to the extent that he is. He stated that he did not consider that there would be much improvement in the future in Wally’s state. He also cautioned that some of the emotional responses of Wally, which have been observed by others, may be misinterpreted, as patients in Wally’s condition are prone to manifesting emotional responses, which may not be an accurate indication of how they are actually feeling.
Based on the foregoing evidence, it is clear that Wally has, in the last two years or so, progressed from a persistent vegetative state to a minimally conscious state. The more difficult question is whether Wally, in that state, has any, and if so, what, awareness of his disability. The difficulty, as Professor Stark pointed out, is that people in such a condition do not recover to such an extent as to enable them to later recall and communicate the degree to which they had any such awareness, while they were in a minimally conscious state.
By definition, the fact that Wally is in a minimally conscious state means that he has manifested the ability to interact with his environment, at least on an intermittent basis. Notwithstanding the reservations cogently expressed by Professor Davis and Dr King, I am nevertheless impressed with the evidence of the witnesses who have been responsible for the regular care of Wally over the last four years, and who have observed and experienced various responses and interactions by Wally, which have been valid and appropriate. The level of capacity, which he has either retained or he gained, includes an ability to differentiate between people who come into his environment. In addition, he has shown an ability, albeit inconsistent, to make simple responses to requests or directions given to him. Some of the responses may well be capable of being explained by coincidence, or as being the product of reflex reaction by Wally. However, the nature of them, and the observation by Ms Littlejohn that she has observed them on a majority of her recent visits, militates in favour of a conclusion that there is some level of awareness by Wally of his condition. The practitioners are unanimous that Wally’s condition has progressed to a condition in which he does interact, albeit on a minimal and inconsistent basis, with his environment. While the question is not susceptible of an absolute, or indeed confident, answer, I am persuaded, on the balance of probabilities, that Wally does have some, albeit limited and inconsistent, awareness of his condition. The limitation of his capacities is such that he would not have more than a broad, ill-defined awareness that he is not functioning, and is not capable of functioning, in the same manner as those who come into his environment, and that he is, in a general and somewhat vague sense, entirely dependent on others for his physical needs.
In reaching that conclusion, I have treated the evidence of Wally’s emotional reactions to verbal descriptions, in his presence, of his condition, with some degree of reservation. Nevertheless, I am satisfied that, to some extent, his awareness of his limited state may, at least in part, play some part in his overall emotional makeup. Certainly, the evidence of the carer, Dr Khan, and of those who are familiar with Wally, is that his emotional state does vary. Bearing in mind Professor Davis’ salutary warning as to the propensity of persons, such as Wally, to manifest emotions which they are not in fact feeling, nevertheless I accept, on the balance of probabilities, that Wally’s profound disabled state does, at times, play a role in producing feelings of a vague sense of loss in Wally connected with his disabled state. However, I hasten to add that, at the same time, Wally’s appreciation of his condition, and his emotional responses to it, are particularly limited and, as Professor Stark stated, blunted.
In Skelton v Collins[28], the High Court established, as a settled principle, that the degree of consciousness of a plaintiff is relevant, not only to the determination of general damages for pain and suffering, but also to the assessment of damages for loss of enjoyment of life and loss of amenities. Thus, in that case, it was held that where the infant plaintiff was and would remain permanently unconscious, he was only entitled to a moderate sum of damages for loss of enjoyment of life.[29] The court also held that, in such a case, an award of general damages should include a small allowance for any loss of expectation of life by the plaintiff.[30]
[28](1966) 115 CLR 94.
[29]See especially at 103 (Kitto J), 112 to 113 (Taylor J), 136 (Windeyer J), 139 (Owen J).
[30]Above 103 to 104 (Kitto J); Nguyen v Hiotis [2002] SASC 244, [27] (Bleby J).
Taking those principles into account, the conclusion that Wally has some, albeit limited, awareness of his disabled condition, has the effect that at common law Wally would not be restricted to a nominal, or small, award of damages for general damages.[31] On the other hand, his significant limitations in that respect have the effect that Wally’s general damages, at common law, would be assessed as being substantially less than those awarded to a plaintiff who, while suffering Wally’s gross physical limitations, has a more advanced insight into his condition.[32] Clearly, such a hypothetical plaintiff, with significant insight into his or her condition, would be entitled to particularly substantial damages at common law for non-economic loss.
[31]See also Hawkins & Anor v Lindsley (1974) 4 ALR 697, 703 to 704.
[32]Compare Manning v New South Wales [2005] NSWSC 958, [57] (Hoeben J).
Indeed, it was common ground, in final address, that such a hypothetical plaintiff would be entitled to general damages of at least $750,000. I would regard that amount, for such a hypothetical plaintiff, as relatively conservative.
Mr Noonan submitted that, taking into account the limited degree of Wally’s insight, an appropriate award of general damages for pain, suffering and loss of enjoyment of life (including a small allowance for loss of life expectancy) would be the sum of $400,000. On the other hand, Mr Ruskin submitted that the appropriate award of damages would be in the region of $250,000. In my view, giving full account for the severe limitation of Wally’s insight into his condition, and making a small allowance for damages for loss of life expectancy, I consider that the appropriate award of damages is that contended for by Mr Noonan, namely, $400,000.
Discount for Vicissitudes in Assessing Future Economic Loss
A number of issues, relating to the assessment of a notional claim by Wally for loss of future earnings, were agreed between the parties. In particular, the relevant rate of earnings was agreed. Further, it was agreed that the damages to be allowed in respect of Wally Hidalgo’s loss of income, both in the past and in the future, to the date of his death, should be discounted by 25 percent for the fact that he no longer has to pay for any living expenses out of his income, because damages awarded to him would otherwise fully compensate him for the cost of his care and maintenance.[33] It was also common ground between the plaintiff and the defendant that there should be a 10 percent discount for vicissitudes in respect of the calculation of loss of future income until the date of his death. However, there was some disagreement between the parties as to the appropriate discount for vicissitudes to be applied in respect of the assessment of Wally Hidalgo’s future loss of earnings during the “lost years”. The defendant submitted that there should be a 15 percent discount, and the plaintiff contended that there should be a 10 percent discount, for that period.
[33]Skelton v Collins (1966) 115 CLR 94, 105 to 106 (Taylor J); Sharman v Evans (1977) 138 CLR 563, 567 (Barwick CJ), 576 to 577 (Gibbs and Stephen JJ); Norris v Blake (No 2) (1997) 41 NSWLR 49, 80.
The resolution of that issue is necessarily to be found in the conclusion, which I have reached about Wally Hidalgo’s life expectancy. As a consequence of that conclusion, the “lost years” will, notionally, commence when Wally would be 45 years of age. If Wally had not been injured, the impact of life’s vicissitudes would have been greater during the ensuing period of his life (from 45 years), than when he was younger. Accordingly, in my view, a discount of 15 percent for vicissitudes should be applied, when determining the notional loss of future income during the “lost years”.
Costs of fund management
The final question, which I need to decide, is whether, in the notional assessment of damages for the purposes of s 138(3)(b) of the Act, an allowance should be made for the costs of managing a fund, comprising the damages which would have been awarded to Wally Hidalgo at common law. By reason of Wally’s disabilities, any damages, which would have been awarded to him, would have been paid into Court. In effect, the fund, constituted by those damages, would have been liable to a deduction for the costs of the management of the fund. The defendant accepts that if Wally Hidalgo had brought a common law proceeding for damages, he would have been entitled to make a claim in respect of that cost of funds management. Such a claim for damages was upheld by the High Court in Willett v Futcher[34].
[34](2005) 221 CLR 627, 631 [10].
Further, the defendant accepts that if Wally Hidalgo had instituted a common law proceeding, such damages would have been assessed in accordance with the methodology described by Mr Gregory Moran, an actuary who was called on behalf of the plaintiff in this case. In effect, Mr Moran stated that the preferred method of assessing such damages would be to reduce the 3 percent discount, which is applied to future expenses and future earnings, to a multiplier based on a discount of 2.66 percent.
Despite those concessions, the defendant nonetheless contends that, in assessing the common law damages, which would have been payable to Wally Hidalgo for the purposes of s 138(3)(b) of the Act, it is not appropriate to take into account an allowance for the costs of funds management.
In short, the defendant’s submission is based on the proposition that the claim to indemnity by the plaintiff in this case is not a claim in tort, but a cause of action created by statute.[35] Thus, it was submitted, because the present proceeding is not brought by the injured worker, Wally Hidalgo, but consists of a statutory action, it would distort the nature and extent of the right conferred by s 138, to award a sum for funds management. In particular, it was submitted that, because the assessment to be undertaken by me is a notional assessment of Wally Hidalgo’s damages, ultimately there will be no funds to be managed, and therefore Wally Hidalgo will never incur the cost of funds management. Since such a cost will not be incurred, it could not form part of any notional assessment of damages to be awarded to Wally Hidalgo.
[35]Esso Australia Ltd v Victorian WorkCover Authority & Anor (2000) 1 VR 246, 257 to 258 [29] (Winneke P).
In response, Mr Noonan argued that the submission by the defendant misconceives the assessment of damages, which I am required to undertake for the purposes of s 138(3)(b). In essence, Mr Noonan submitted that, as the Court is required to evaluate the notional common law damages, which would have been awarded to Wally Hidalgo, if he had brought a proceeding claiming damages, such an assessment must include the costs of funds management, since it is common ground that, if such a proceeding had been brought, Wally Hidalgo would have been entitled to such an allowance.
In my view, the submission made by Mr Noonan, in that respect, is correct. In Willett v Futcher[36], the High Court held that the costs of funds management, for a seriously disabled plaintiff, were recoverable, because the injured plaintiff’s need, to have others administer his or her financial affairs, was caused by the defendant’s negligence.[37] In the present case, it is, of course, beyond argument, that, as a consequence of the negligence of the defendants, Wally Hidalgo would be unable to administer his financial affairs. Accordingly, if an award of common law damages were made to him, there would have been incurred, on Wally Hidalgo’s behalf, a cost of managing the fund constituted by such damages. The assessment, which I am required to make under s 138(3)(b) is, essentially, a notional assessment of damages. As such, I am required to assess the damages, which would have been awarded to Wally Hidalgo, had he instituted proceedings at common law for damages. In other words, the assessment of damages, undertaken by me, is made on the hypothesis of a common law proceeding actually instituted on behalf of Wally Hidalgo. If such a hypothetical proceeding had been instituted on behalf of Wally Hidalgo, then, plainly, he would have been entitled to an allowance for the costs of funds management. Ex hypothesi, it is not to the point that Wally Hidalgo will never incur such a cost. Rather, the assessment is based on the hypothesis, postulated in s 138(3)(b), of a common law proceeding instituted on behalf of Wally Hidalgo. It therefore follows that, in making an assessment of common law damages for that purpose, it is appropriate to make an allowance for the costs of funds management.
[36]Above.
[37]Above, 631 [10].
For those reasons I conclude that, in assessing the notional common law damages to be awarded to the injured worker under s 138(3)(b), it is appropriate to make allowance for the costs of managing a fund of damages awarded to the injured worker.
Conclusions
For the reasons which I have set out above, the conclusions which I have reached, in relation to the five issues outlined in paragraph 9 of this judgment, are as follows:
(1)The probable life expectancy of Wally Hidalgo is 20 years from the present date.
(2)The damages, to which Wally Hidalgo would have been entitled at common law, for the gratuitous care provided, and to be provided, to him by his parents, are to be calculated on the basis:
(a)of 12 hours of weekly care provided by his parents during the period Wally was an inpatient at Ivanhoe Rehabilitation Hospital from 31 July 2006 to 3 September 2007;
(b)of 20 hours of weekly care provided by his parents from 3 September 2007 to the present date, and for the future.
(3)The general damages, for pain, suffering, loss of enjoyment of life and loss of life expectancy, to which Wally Hidalgo would have been entitled at common law, are assessed in the sum of $400,000.
(4)The appropriate discount for vicissitudes, for the purposes of estimating future loss of earnings of Wally Hidalgo during the “lost years”, is 15 percent.
(5)In performing the notional assessment of damages, which would have been awarded to Wally Hidalgo at common law, for the purposes of s 138(3)(b) of the Accident Compensation Act, an allowance should be made for damages for fund management expenses.
I shall hear counsel on the orders which should be made based on those conclusions, and on any question of costs.
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