Whicker v Bosisto No. Scciv-98-550

WHICKER v BOSISTO
[2001] SASC 312
Civil

GRAY J This is a claim for damages following a collision between a motor vehicle driven by Ms Bosisto and the plaintiff, Ms Whicker.
During the course of the hearing it became apparent that Ms Wicker, by reason of her injuries, was suffering from mental impairment and was unable to manage her affairs. Her father Leigh Whicker was appointed as next friend.
On 25 August 2001, after several weeks of evidence, the hearing was adjourned to allow the parties to explore settlement possibilities. On 27 August 2001 the court was advised that the action had been settled.
The court’s approval to the settlement has now been sought. Rule 35.11 provides:
“Where in any proceedings a claim is made by or on behalf of a person under disability, no settlement, compromise, payment, or acceptance of money paid into Court, whenever entered into or made so far as it relates to that person’s claim, is binding without the approval of the Court. Nothing in this Rule prevents the payment, with the consent of the next friend, prior to the trial of an action, of the medical or hospital expenses or any other expenses necessary for the treatment or rehabilitation of the person under disability.”
The proposed order is as follows:
“-That the settlement arrived at between the parties whereby the defendant has agreed to pay and the plaintiff has agreed to accept the sum of $3,733,000.00 (which sum is inclusive of interest) plus party/party costs and disbursements in addition to amounts already paid by the defendant to or on behalf of the plaintiff.
-That Public Trustee be appointed manager to take possession of and control and manage that part of the estate of the protected person which is ordered to be paid to Public Trustee pursuant to this order and that Public Trustee have the powers and duties given and imposed by the Aged and Inform Persons Property Act 1940 and any Act amending the same or substituted therefor and the Rules of Court made thereunder.
-That the payment of the said sum of $3,733,000.00 and the accrual of any interest thereon be stayed until a period of 14 days from the receipt by the defendant of the latter of the following:-
-A written authorisation from Centrelink to the defendant providing for the payment of the balance of any monies after the deduction of monies owed to Centrelink;
-The service of a sealed copy of this order upon the defendant or her insurer the Motor Accident Commission by its solicitors.
-That within 14 days from the receipt of the latter of the matters referred to in paragraph 3 hereof, the defendant do pay the judgment sum in the manner following:
-To Duncan Basheer Hannon, solicitors, the sum of $50,000.00 on trust for Lynette Whicker by way of payment for past gratuitous services rendered by her to the plaintiff to the date hereof;
-To Public Trustee the sum of $3,309,700.00 on behalf of the plaintiff; and
-To Health Insurance Commission the sum of $373,300.00 pending the determination by Health Insurance Commission of any monies due by the plaintiff to the Health Insurance Commission.
-Any amounts payable by the Health Insurance Commission be paid to Public Trustee on behalf of the plaintiff.
-That Public Trustee be authorised and directed to make payment from the monies held on behalf of the plaintiff for the adequate care of the plaintiff.
-That Public Trustee pay to the plaintiff’s solicitor from the monies held on behalf of the plaintiff the difference between the solicitor and client costs and party/party costs either as may be agreed between Public Trustee and the plaintiff’s solicitors or as certified by the taxing officer.
-That the plaintiff and protected person do not hereafter make any will or testamentary disposition except with the consent and in the presence of Public Trustee.
-That this order be served on the protected person and Public Trustee within 7 days by forwarding an office copy of the same to each of them by pre-paid post and that such service be proved by affidavit filed herein within 7 days of service.
-That the costs of and incidental to this action and the trial thereof and all ancillary matters thereto be certified fit for two Counsel.
-That the parties and Public Trustee may apply for further orders and directions.”
The primary question arising on an application for approval is whether the settlement will be beneficial to the plaintiff.[1]
[1] InRe Wells (1903) 1 Ch 848 at 853; Clement v Basset (1987) 46 NTR 36
I have been informed that Ms Whicker and her parents approve of the settlement.
Ms Whicker was struck by a motor vehicle at about 1.35 am on 8 September 1996. Ms Bosisto had a blood alcohol reading of 0.134. She was observed at her home after the collision in an inebriated state. She failed to stop after the collision. Negligence on her part was admitted.
At the time of the collision Ms Whicker had a blood alcohol reading of between 0.157 and 0.184. She was standing on the roadway apparently waiting for a taxi. She was in the company of other pedestrians. There was dispute as to her exact position on the road and whether she was between the parked cars.
From the evidence led at trial a conclusion could be drawn that at the time of the collision Ms Bosisto swerved to her left and collided with the pedestrians.
In my view Ms Whicker was at risk of a finding being made against her of contributory negligence. In considering the proposed settlement I have had regard to that risk. I consider from the evidence presented that any reduction in damages would be no more than 10 percent.
Ms Whicker sustained serious injuries. These included injuries to her head, right shoulder, right knee and buttocks. Her head injury was the most serious. It included brain injury with frontal lobe damage and associated brain stem trauma. This caused many disabling sequelae including a major impairment to her speech, a right sided partial paralysis affecting both upper and lower limbs, a loss of memory and a loss of cognitive function. These are undoubtedly grave injuries which have left Ms Whicker with permanent and significant impairments.
Ms Whicker has shown outstanding courage and commitment in her attempts to achieve a normal life. Her rehabilitation has, in many respects been remarkable. Significant recovery has been due to the skilled treatment she has received and the dedication of the qualified specialists who have provided medical and rehabilitation services. Her recovery can also be attributed to the commitment and love of her family, in particular her mother.
The evidence shows that Ms Whicker requires extensive attendant care but not nursing care. A combination of passive and active care is required. Ms Whicker requires assistance in daily living activities including communication, the undertaking of domestic chores, transportation and general supervision. Her safety and security are of concern. A combination of passive and active care is required. This will be so for the remainder of her life.
Ms Whicker has suffered a total loss of earning capacity. She had considerable potential for employment and career advancement in the fields of public relations, journalism and the fashion industry.
Ms Whicker’s injuries called for a substantial compensatory award. Counsel’s opinion provides the following justification for the settlement:
Pain and Suffering  $79,800.00
Past Loss of Earnings  150,000.00
Past Loss of Superannuation  10,500.00
Future Loss of Earnings  630,000.00
Future Loss of Superannuation  60,000.00
Past Special Damages  430,000.00
Past Gratuitous Care  185,000.00
Future Care  2,000,000.00
Care Needs if Plaintiff has two children  150,000.00
Extra Cost of Housing  100,000.00
Transport  35,000.00
Extra Cost of Holidays  50,000.00
Loss of Support from Husband  50,000.00
Extra Hairdressing, Leg Waxing and Nailcare  15,000.00
Speech Therapy  12,500.00
Neurophysiotherapy  12,500.00
Massage  2,500.00
Psychiatry  15,000.00
Ongoing Medical Expenses  35,000.00
Case Manager  80,000.00
Interest        60,000.00
  $4,162,800.00
Less Special Damages Paid      430,000.00
  $3,732,800.00
It is important to record that an assessment of damages is ultimately a matter of a judgment. As was said by Lord Diplock, sitting as a Privy Counsellor in Rendell v Paul[2]:
“The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured. What matters to the parties, however, to the plaintiff and to the insurer of the defendant alike, is the total sum awarded. Neither party is concerned how the assessor of the compensation has rationalized his intuitive assessment of the total amount that the plaintiff ought to recover by apportioning it between the various components, past and future, economic and non-economic loss, and interest on each class of loss, which he has taken into consideration before arriving at his final award.
So long as juries continued to be the assessors of damages they were not called upon to rationalize their hunches; but judges are, and this has given rise to a considerable body of case law in the various State Supreme Courts and in the High Court of Australia about the principles to be applied where the use of particular mathematical formulae form steps in the process by which the judge has sought to justify his choice of a particular figure for one of the components into which he has broken down his total award. This is particularly so with those components that represent future economic loss and interest on loss sustained before the date of judgment. But while it is possible to lay down principles for the choice of the formula and its parameters (in its accurate sense of constants in a mathematical equation) – the choice of figures for the variables is within the discretion of the assessing judge. By adjusting one or other of these factors he can make the formula work out at whatever figure he feels intuitively to be correct. ...”
[2] (1981) 55 ALJR 371 at (372-373)
These remarks were approved by the High Court in Todorovic v Waller[3] where Gibbs CJ and Wilson J said at (412-413):
“It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. ... In many cases this means that the court has to engage in ‘a double exercise in the art of prophesying’: Paul v Rendell (1981) 55 ALJR at p 372; 34 ALR , at p 571 ... For these reasons, damages for financial loss likely to result from personal injury ‘can only be an estimate, often a very rough estimate, of the present value of his prospective loss’. Ultimately the process must always be one of judgment rather than calculation.”
[3] (1981-82) 150 CLR 402
I do not necessarily agree with counsel’s “breakdown” of the components of the settlement. However when viewed overall, the settlement provides adequately for Ms Whicker. I consider that the settlement reached was within the range of damages likely to be awarded to Ms Whicker. I consider that the settlement is in Ms Whicker’s interests and will be beneficial. I approve the settlement.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 In Re Wells (1903) 1 Ch 848 at 853; Clement v Basset (1987) 46 NTR 36
2 (1981) 55 ALJR 371 at (372-373)
3 (1981-82) 150 CLR 402

[2001] SASC 312

29 August 2001