Zampetides v State of New South Wales

[1999] NSWSC 1238

CITATION:	Zampetides v State of New South Wales [1999] NSWSC 1238
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20688/97
HEARING DATE(S):	13-17 September 1999 15-17 November 1999
JUDGMENT DATE:	16 December 1999
PARTIES :	Tassy Zampetides (Plaintiff) v The State of New South Wales (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr D J Higgs SC/Mr M J McAuley (Plaintiff) Mr P M Hall QC/Mr L V Gyles (Defendant)
SOLICITORS:	Paul A Curtis & Co (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	voluminous and/or novel heads of damages (including land acquisition costs, home modification costs and GST allowance).
ACTS CITED:	N/A
CASES CITED:	Nicholson v Nicholson (1994) 35 NSWLR 308. Sharman v Evans (1977-1978) 138 CLR 563. Weideck v Williams (1999) NSWCA 346.
DECISION:	See paragraphs 34-79.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 16 DECEMBER 1999

20688/97 TASSY ZAMPETIDES v STATE OF NEW SOUTH WALES

JUDGMENT


1   The plaintiff was born on 2 March 1952 (he is now 47 years of age). He left school in 1968. He obtained qualifications as a fitter/machinist.

2   I shall mention some of his pre-injury employment. Between about 1968 - 1979 and 1980 - 1982 he worked for BHP. He was involved in community work until 1988 (during this period he spent a year of study at Baptist Theological College). On 31 January 1989, he commenced employment with the Department of Corrective Services. Initially, he started as a prison officer. Later, he worked as an overseer and mainly with young offenders. Since 1 September 1994, he has not worked. On 21 July 1998, he was retired from his employment with the defendant on medical grounds.

3   On 5 July 1986, he was married. His wife has not been in employment. There are four children of the marriage. The children were born during the period between 1987 and 1994. The fourth child was born shortly after he suffered injury.

4   He suffered injury in an accident that took place on 1 September 1994 at Parklea Prison. He was overseeing two prisoners. There was an explosion and he suffered severe and extensive burning. There was burning to the face, neck, upper and lower limbs, lower abdomen, trunk and airways. The burning extended to 50 - 70% of his body. Much of the unaffected areas of his body have been used for skin grafting. There is extensive scarring.

5   Following the accident, he spent six months in Westmead Hospital and three months at Mt Wilga. There have been seven hospital admissions and twenty operations.

6   The accident injuries have left the plaintiff with a number of disabilities. I shall refer to some of them (a detailed description has been provided by Dr Buckley). He has recurring cellulitis and mild lymphodema. There are eating and breathing problems. He is susceptible to skin breakdown, the occurrence of which is unpredictable. It can be caused by trauma. Skin breakdown requires treatment (this is mainly provided by a nurse). There has been a loss of dexterity and mobility. This loss creates a need for services. He needs special equipment for his motor vehicle. He cannot crouch or squat. He is unable to access a bath. Skin problems require changes of bed linen. This saw a use of laundry services. He has to avoid exposure to sun. He needs an air conditioned environment (which is subject to his control). He suffers from back and leg pain. He also experiences hand pain. He has a reflux problem. There are sexual problems. There has been a deterioration in his hearing. He avoids crowds and public transport (because of the risk of injury). He restricts social activities (because of his dislike of people staring at him). His choice of clothing is restricted. There has been a need for pharmaceuticals (including a moisturiser). His matrimonial relationship and his relationship with his children has been adversely affected. He has had suicidal thoughts (he has found that doing some woodwork has been beneficial). He can be expected to undergo surgery, at regular intervals, during the remainder of his life. There is a continuing need for nursing care (about 50 attendances per annum plus additional care following surgery). He has had trauma counselling services.

7   He is mostly independent in self care. Prior to the accident he had assisted his wife with domestic matters and was a keen handyman. He is limited in his ability to perform domestic tasks (such as cooking and cleaning) and handyman activities.

8   He had enjoyed his work. He had hopes of promotion to a middle-management level (either Assistant Superintendent of inter alia the metal shop or Senior Assistant Superintendent). Initially, he had hoped to be able to return to employment with the defendant. Some arrangements made with Workright did not come to fruition. There was an approach to WorkCase (a rehabilitation service provider). This threw up the suggestion that he may have a capacity for telemarketing work. This suggestion fell by the wayside. Ultimately, it was concluded that there were no suitable vocational options available for the plaintiff.

9   Prior to the accident he had played golf, squash, ten-pin bowling and backyard soccer with his son. He can no longer perform these activities. He did do a lot of fishing prior to his marriage. He says that as a consequence of the accident, he would not now contemplate fishing.

10   Initially, the hearing of the proceedings took place before Sperling J. After the hearing had proceeded for some days, settlement was reached on the question of liability. Judgment was entered for the plaintiff against the defendant for damages to be assessed. There was agreement reached between the parties that the assessed damages were to be reduced by 22% for contributory negligence. The assessment of damages was then referred to a Master.

11   The assessment of damages commenced on 13 September 1999 and initially proceeded over 5 days. The hearing resumed on 15 November 1999 and concluded on 17 November 1999. The actual hearing time well exceeded the original estimate of 5 days and ultimately occupied eight hearing days. The heads of damage are voluminous (a schedule of damages has been prepared - Exhibit N), with some novel features. Although the quantification of many of them has been reached by agreement, a formidable range of issues has been left for resolution by the court.

12   The task left to the court is a daunting one. It was the subject of both written and oral submissions.

13   Numerous witnesses have been called. A vast volume of documentation has been tendered (including many reports from experts).

14   On behalf of the plaintiff, oral evidence has been given by many witnesses (including both the plaintiff and his wife). It is now unnecessary to expressly refer to all of the witnesses called on his behalf. Accordingly, I shall in due course restrict reference to certain of those witnesses whose evidence has relevance to the issues left to the court.

15   On behalf of the defendant, in addition to documentary material, oral evidence has been given by various expert witnesses. Largely, this material was restricted to matters which remained in issue at the time of the commencement of the defendant’s case.

16   I did closely observe the demeanour of witnesses during the giving of evidence. Largely, the credibility of the plaintiff has not been in issue. He presented as an intelligent and articulate man. There has been conflicting evidence. Largely, it has come from expert witnesses and credibility has not been raised as an issue.

17   I now turn to the heads of damages that remain in issue. It has been agreed amongst the parties, that the court should proceed to make findings on these matters and then publish its reasons. The parties can then proceed to make such further submissions and/or final calculations as may be necessary for the assessment of the judgment sum.

18   The unresolved heads of damages have been described as follows:-
1. Non-economic loss;
2. Past loss of superannuation;

3. Future Medical Treatment Expenses;

(a) Psychology/psychiatric expenses;
(b) Occupational therapy expenses;
(c) Pharmaceutical;
(d) Hearing aid;
4. Future handyman/home maintenance assistance;
5. Pool maintenance/cleaning;
6. Avocational/diversional therapy claim;
7. Home modification costs;
8. Additional maintenance running costs building running costs and recurring expenses;
9. Laundry service costs;
10. Additional land acquisition;
11. Allowance for GST implication effective 1 July 2000 in respect of future goods and services; and
12. Interest.

19   Before setting to deal with the disputed heads of damage, I should digress to mention the matter of loss of earning capacity. Initially, this was a contentious matter. The case for the plaintiff was that he did not realistically have any earning capacity. The defendant was contending that he did have a residual earning capacity. This head of damage was resolved during the hearing. The court was told that it was resolved on the basis that the defendant would not be putting any submission to the effect that the plaintiff did have a residual earning capacity.

20   It is probably best to first deal with the claims for land acquisition costs and home modification costs. The claims are related. Claims for home modification costs have been looked at in decided cases (both in Australia and overseas). The cases have seen an expression of diversity of opinion. There are cases in which the court has allowed the marginal cost of securing suitable accommodation (see inter alia Nicholson v Nicholson (1994) 35 NSWLR 308). At least generally speaking, the cases have taken the approach that each claim must be viewed in the light of its own particular circumstances (more recently Weideck v Williams (1999) NSWCA 346). The court takes into account the circumstances of the plaintiff prior to injury, what has happened since that time and what is likely to happen in the future. In the present case, this approach was embraced by both parties and there was limited reference to the decided cases. The relevant consideration was said to be that of reasonableness.

21   In Sharman v Evans (1977-1978) 138 CLR 563 at 573, emphasis was placed on the distinction between ideal and reasonable requirements. It was said that the touchstone of reasonableness involves the matching of costs against benefits.

22   The starting point is the material available to the court concerning the plaintiff’s circumstances. This material has its deficiencies. There is some uncertainty as to the relevant circumstances.

23   It would seem that the plaintiff has not been a home owner. He had lived at inter alia Pendle Hill, Quakers Hill and Toongabbie (in the Parklea area). At the time of the accident, the plaintiff and his family were residing in rented accommodation (a three bedroom average size brick house). After his discharge from Mt Wilga, they made a move to “larger accommodation”. In the five years since the accident, they have continued to reside in rented premises.

24   The present accommodation (a plan of which may be found in Exhibit C) is said to have disadvantages for a person with the plaintiff’s disabilities. I shall mention certain matters. It has a sloping driveway. It has a salt water swimming pool which is not heated (it had been a heated pool but the plaintiff said that the heating is broken and the agent refused to fix it). There is air conditioning (but the house is not fully air conditioned). It has a small en suite shower and narrow doorways. There is a lack of storage. The view has been taken that it cannot be altered to suit the disabilities because it is not owned by the plaintiff. Since the accident, the plaintiff has not had the means to enable him to purchase a home.

25   The transcript records various questions and answers concerning the matters of pre-accident intention. It would not be productive to repeat all of that material. I shall mention some matters. At some stage prior to the accident, the plaintiff took steps towards purchasing a property (a three bedroom brick house). Prior to the signing of the contract, he did not proceed with the proposed purchase (he felt uncomfortable about proceeding with the purchase and then the proposed financier went broke). Thereafter, he took steps to earn more money. There was a transfer which gave him a better wage. He said that the buying of a house with a pool was within his pre-accident financial capacity. He was looking towards an established house (because they had more space) within the reasonable vicinity of Parklea. The evidence of intention to buy a home was dependent on financial capacity and in one answer had the effect of being “in due course”. It appears that, at the time of the accident, he was not searching for a home to buy. He was facing the additional expense of a fourth child. It would seem that a purchase (if it was to happen) was not likely to happen for some time (at least not in the immediate future).

26   The plaintiff’s case is that because of his injuries he needs an architecturally designed home which because of its features will require the acquisition of a larger than normal block of land. The land is to be located in what has been described as the Hills area and having proximity to Westmead Hospital.

27   The plaintiff was asked a question relating to recommendations made by Dr Buckley. His answer was to the effect that, depending on the compensation awarded in these proceedings, the recommendations related to the type of home that he would attempt to have built for himself.

28   He said that he was familiar with the report and recommendations of Mr Mazaraki. He gave an answer to the effect that generally speaking that was the type of home he would like built if he were able to afford it. Further, he said that if he was going to build he would prefer a five bedroom home.

29   The claim contemplates a double brick four bedroom home. Costings have been provided for both an “Able-Bodied” and a “Disabled” home. The “Disabled” home was designed by the architect in the light of the criteria (or special requirements) made known to him by the plaintiff’s legal advisers (the material included expert reports). Broadly speaking, the plaintiff seeks to recover the difference.

30   I shall now mention some of the particular features. There is said to be a requirement for larger than normal rooms, hallways, and doorways so as to reduce the possibility of risk of damage by bumping against surfaces. There is said to be a requirement that the house should have flat access. There is said to be a requirement for air conditioning throughout the house. There is said to be a need for a workshop (the plaintiff has given evidence of the benefit derived from performing limited woodwork activities). There is said to be a need for a special multi-purpose room (to locate a computer and exercise equipment and so that he can be alone and not under his wife’s feet). There is said to be a need for a heated swimming pool. There is said to be a need for other various special requirements located in the bathroom, kitchen, main bedroom and en suite. There was said to be a need for a larger than normal double garage.

31   The defendant stresses that there is no evidence from one of the plaintiff’s principal treating doctors (Dr Thompson). Largely, the expert material relied on by the plaintiff is provided by Dr Buckley (a specialist in rehabilitation medicine) and Miss Lukersmith (an occupational therapist) on the one hand and Mr Sorrenson (a valuer), Mr Mazaraki (an architect) and Mr Parkinson (a quantity surveyor) on the other hand. There is also the evidence from the plaintiff and his wife.

32   The defendant strongly challenges the assertion of a need for an architecturally designed home on a larger than normal block of land (expressions such as “exaggerated” and “over the top” were ventilated during submissions). The defendant contends that the evidence falls well short of demonstrating a need for most of the alleged special requirements and directs attention to what has actually been said by the medical experts and the occupational therapist. It is said that the needs of the plaintiff can be met by merely making such modifications (as may be necessary) to facilities in any home acquired by the plaintiff. As an alternative, it says that the needs can be met by modifications to a project home. Evidence was offered in relation to project homes (described as a “Greenway” and as a “Capricorn”). This evidence was provided by reports and oral evidence from Messrs Jackman and Byrne. The defendant further contends that the plaintiff may have never made the move from rented accommodation to a purchased home. As a further alternative it says that, he could be provided with a lump sum in the order of $125,120 to enable him to rent a slightly larger house.

33   At this stage, it is convenient to deal with the question of what are the plaintiff’s special requirements.

34   In the particular circumstances of this case, I am not satisfied that the plaintiff has a need for an architecturally designed home which has to be located on a larger than normal block of land. In my view, such an approach represents an extravagance lacking evidentiary support. It seems to me, that such special requirements as he does have can be reasonably met by suitable modifications. The extent of what would have to be done to meet those requirements involves a number of imponderables.

35   In many respects, it appears that inter alia the architect has proceeded on the basis of criteria which lacks justification when regard is had to relevant evidence. The evidence given by Dr Buckley is confined to such matters as the need for flat access, for air conditioning, for specially designed taps, light switches and door handles, a pool and a utility room. The evidence (including that from the plaintiff himself) does not support the contention that there is a reasonable requirement (or even a need as such) for larger rooms (including the double garage), doors and hallways. This is not a case where the plaintiff uses a wheelchair and wheelchair access is required in the house. Since the accident, for about five years, he has been living in rented accommodation which does not have these features. I am not satisfied that it would be reasonable, in the circumstances of this case, to impose a burden on the defendant of meeting the cost of larger than normal rooms and doorways.

36   The acquisition of a dwelling on a flat surface should not present any real problem. There is a need for air conditioning. Whilst it may be helpful (or go towards what may be described as the ideal state of affairs) if the plaintiff did have such facilities, I am not satisfied that there is a reasonable requirement for either a multi-purpose room or a workshop. I am not satisfied that it would be reasonable, in the circumstances of this case, to impose the cost burden of those facilities upon the defendant. Perhaps, some additional observations should be made in relation to the workshop. The plaintiff says that he has done a little bit of woodwork over the last 12 months. He is very slow and has to be careful. I should add that Dr Buckley had some real concern about the danger to the plaintiff posed by workshop activities. The plaintiff had injured himself a few times whilst engaged in such activities. It would be reasonable for provision to be made for facilities such as special taps, light switches and doorhandles and some additional storage space. His limited user of kitchen facilities inter alia does not justify the alleged requirement for a larger kitchen and substantial modifications. There may be a reasonable requirement for some other modifications (such as to inter alia the bathroom and kitchen). What may have to be done, will depend largely on what may be acquired.

37   In a report, Dr Buckley proposed that any residence have available a hydrotherapy pool with water heated to approximately 30. Further, he proposed that the pool should have automatic cleaning and disinfecting systems. Further, he expressed the view that because of the plaintiff’s susceptibility to sunburn the pool should have shading for summer and in order to make it useful during the winter it requires enclosure.

38   The purpose of a pool is for exercise. Dr Buckley was of the view that it was unreasonable for the plaintiff to have to use a public swimming pool. The plaintiff said that he used the pool a fair bit in summer. It was good for his legs and gave him an opportunity to socialise with his children.

39   There is evidence from the plaintiff concerning the question of the pool (inter alia, he intended to buy a house with a pool (or to install a pool) for the children’s use or family use). In the light of all of the material on this question, I am not satisfied that he would not have had a pool in any event. On behalf of the plaintiff, it was conceded that it may be open on the evidence to calculate damages on the basis that there would be a pool in any home acquired by him and that compensation should be for the extra facilities (inter alia such as costs of heating and covering).

40   Whilst I am not satisfied that it would be reasonable to impose the costs of a pool on the defendant, it seems to me to be reasonable that the calculation of damages should take into account the possibility of the need for heating and for providing of sun protection (but not the enclosure structure).

41   These heads of damage have seen a very large claim (the plaintiff has claimed $308,395 for home modification costs and $50,000 for additional land acquisition costs). As appears from what has been earlier said, I am not satisfied, in the circumstances of this case, that it would be reasonable to allow the claim for home modification costs as propounded by the plaintiff and any claim for additional land acquisition costs.

42   I now turn to the question of what would be reasonable in the circumstances of this case. I have already made mention of evidentiary deficiencies. Generally speaking the material is less than helpful. What may have happened, but for the injury, is far from clear. What may now happen in the future also has its uncertainty. The best that can be done, in the circumstances, is to conclude that there has been and may be in the future the possibility of a move to purchased premises.

43   I am of the view that it would be reasonable to make allowance for the possibilities of home acquisition and the need for some modification to make such a home suitable for his requirements. The task involves the valuation of chances. The amount to be allowed has to take into account a variety of contingencies. As has been said, there are many imponderables. It seems to me that assessment of amount is best done on a global basis. The parties accept that this is an approach which may have application in this case. Unavoidably, the exercise has an arbitrary element. It may be that in the light of my findings, the parties can reach a consensus as to the appropriate figure. If this cannot be done, I consider that I should hear further submissions on the question.

44   A claim is made for past loss of superannuation in the sum of $13,174.96. There is agreement as to mathematics. However, the defendant says that this is a deferred benefit and that the plaintiff is entitled only to the present value of the superannuation benefits. It is common ground that the plaintiff is not presently entitled to these benefits and no argument is advanced to justify the plaintiff’s quantification of this head of damage (despite the opportunity having been given to make additional submissions in writing on this question). Accordingly I allow the present value of the gross benefits ($5,480.78).

45   A claim is made for psychology/psychiatric costs in the sum of $39,596.80. This is calculated on the basis of an expenditure of $46 per week for the remainder of his life (which is 33.68 years).

46   There is evidence that psychiatric or psychological consultation would be of benefit for the plaintiff. The plaintiff has not had any psychiatric treatment. He has had counselling from a psychologist. The cost of that treatment has diminished over the years. There is potential for the seeking of treatment in the future. It may be better provided by a psychiatrist.

47   The defendant does not dispute that there is a need. But it says that the need is not ongoing. It says that a buffer should be provided. It has suggested that it be in the order of $7,500 or $5,000.

48   It seems to me that this is not a claim that can be calculated with mathematical precision. Again, the calculation has an arbitrary element. It is also best dealt with on a global basis. I allow the sum of $15,000.

49   There is a claim for occupational therapy in the sum of $20,851. Largely, this claim depends on the evidence of Miss Lukersmith. She has seen him for the purpose of these proceedings. She says that there is a need for services. So far the plaintiff has not utilised such services. However, there is a potential for future use.

50   The defendant says that this claim can be met by allowing the sum of $5,000. In the circumstances of this case it seems to me that it is best dealt with also on a global basis. Doing the best I can in the circumstances, I allow the sum of $10,000.

51   The claim for pharmaceutical expenses falls into two categories. There was a claim for the costs of a moisturiser. This claim is calculated on the basis of the plaintiff incurring costs at the rate of $127 per week a total of $109,321 is claimed. The balance of the claim relates to other pharmaceutical items. These are claimed at the rate of $65 per week a total of $55,952 is claimed. The total of the claim for pharmaceutical expenses is $165,273.60. The defendant is prepared to allow $90,363.

52   Although it is not medically prescribed, there is indisputably a need for a moisturiser. The need may well persist for the rest of his life.

53   The plaintiff has used a number of products. For some time, he has used an Amway product known as Artistry. This product has proved to be satisfactory. Unfortunately, it is considerably more expensive than other products on the market. Until recently, the defendant has been meeting the cost of this product.

54   There are other products on the market which have not been the subject of trial use by the plaintiff. During the period between September and November this year, the plaintiff did trial another product suggested by the defendant. The trial was unsatisfactory.

55   An unsuccessful trial of a product may subject the plaintiff to considerable pain, suffering and expense. If it be so suggested by the defendant, I do not accept that he is obliged to trial all products suggested by the defendant.

56   The medical evidence suggests that the appropriate product for a patient is a matter of trial and error. What may be appropriate for one person, may not be appropriate for another. There are individual responses to each product.

57   In my view, it is reasonable to make an allowance for the cost of Artistry. I consider that some discount should be allowed for contingencies.

58   The dispute in respect of the claim for other pharmaceuticals in the future concerns its quantification. There is the possibility of some diminution of user over the years. I consider that some discount should be made to the claim made by the plaintiff.

59   For this head of damage I allow the global sum of $145,000.

60   There is a claim for a hearing aid in the sum of $12,770.78. This is a claim which is dealt with in written submissions. It did not receive much consideration in oral argument.

61   There is some conflicting evidence as to causation (Drs Scoppa and Seymour). The plaintiff has said that his hearing has deteriorated since the accident. He had hearing problems prior to the accident. There is evidence which relates some hearing loss to the accident. The plaintiff’s evidence which relates to this head of damage was not the subject of cross-examination. In the light of the material, I have come to the view that I should prefer the evidence offered on behalf of the plaintiff on the question of causation.

62   It has been observed that during the giving of his evidence the plaintiff did not appear to be suffering from any hearing problem. However, the circumstances in which evidence was given lacked the presence of background noise which might be experienced in other circumstances.

63   There is evidence that his hearing loss could be helped by a hearing aid. He says he has not worn one because he has not been able to afford it. He says that he would wear a hearing aid if he could afford it.

64   The defendant says that if such a claim is to be allowed, the quantification of it should be in a reduced sum. I am not satisfied that the claim can be allowed in full. The accident relates to only part of his problems. There are contingencies to be taken into account. The quantification also has an arbitrary element. Doing the best I can in the circumstances, I allow the sum of $8,000 for this head of damage.

65   The plaintiff claims the sum of $94,688 for future handyman/home maintenance assistance. This is calculated on an agreed rate of $22 per hour for five hours per week. It is a claim for the activity that he had carried out prior to the accident but does not do so now because of his injuries. The defendant has disputed the quantification of this claim.

66   There is conflicting evidence as to the quantum of assistance that may be required per week. The plaintiff claims some capability for these activities. The extent of the handyman assistance required in the future has its imponderables. It will depend on his future living arrangements. There are other contingencies. In my view, doing the best I can in the circumstances, it would be reasonable to allow the sum of $64,000.

67   The claim for pool maintenance and cleaning is in the sum of $86,593. The written submissions for the plaintiff are unhelpful on this matter. The oral submissions were brief. There seems to be some overlapping with a claim made for “additional maintenance…….”. The dispute goes to the quantification of his claim. The evidence relied on has deficiencies. Contingencies need to be taken into account. On the present submissions (or lack of them), I am unable to assess this head of damage. If it cannot be resolved by consensus, I will require further submissions.

68   The claim for avocational/diversional therapy is in the sum of $113,172 (capital $14,677; recurring $98,495). It involves a claim for what might be described as special computer equipment (see evidence of Mr Smith). I am not satisfied that it would be reasonable to provide him with the equipment recommended by Mr Smith at the defendant’s cost. In my view, such special equipment is well in excess of the plaintiff’s need.

69   Prior to the accident, the plaintiff did not own a computer. Following his injury, the defendant provided him with a computer. The aim was to assist his return to work. There is a significant use of the current computer equipment by the plaintiff’s children. It was purchased for them. A computer is used mainly by him for correspondence. He is dependent upon it for written communication needs. His skills are largely self taught. He does not intend to upgrade his computer skills. He would like to use the computer for future educational purposes. It affords other benefits. I bear in mind that his damages are being assessed on the basis that he will not work again and that a computer is not required for income earning purposes. I consider that a reasonable allowance should be made for a computer facility. Again, there are contingencies to be taken into account.

70   The defendant’s basic position is that no allowance should be made in respect of this claim. As an alternative, it suggests a buffer in the sum of $10,000 (in the written submissions). For completeness, I notice that Exhibit N refers to a sum of $2,000 (this would appear to erroneously state the defendant’s position).

71   It seems to me that the task of quantification is best approached by awarding a lump sum which takes into account the imponderables of the future. I allow the total sum of $25,000.

72   There is the claim for additional maintenance, running costs, building running costs and recurring expenses in the sum of $194,640. Again, there is dispute as to quantification. In my view, the submissions presently made in relation to this head of damage are not sufficient to enable me to deal with it. Because of the multitude of claims made, it may have been another of the matters that have been somewhat overlooked. I need further submissions on this matter if it cannot be resolved by consensus.

73   The claim for laundry service is in the sum of $98,992. This claim is calculated on the basis that laundry costs will be incurred at the rate of $115 per week. The defendant does not dispute that some allowance should be made. It says that the claim is excessive and should be reduced to $25,824 being an allowance for 2 days per week ($30 per week).

74   Laundry is soiled by inter alia blood, leakage, skin and the moisturiser. There is conflict in the evidence. Apart from the oral evidence of the plaintiff and his wife, there is some conflicting documentation (comprising part of a statement of Prudence Martin and the plaintiff’s response thereto). The evidentiary position is less than satisfactory.

75   There is a possibility of improvement in the future. The sheets may not have to be sent to a laundry. Other circumstances may change. The future is largely imponderable.

76   In my view, doing the best that can be done in the circumstances, it would be reasonable to allow the global sum of $40,000 for this claim.

77   The claim made for a GST allowance is in the sum of $81,000. It is a novel claim and has been the subject of little argument. It has been suggested that the determination of this matter should be stood over pending giving to the parties the opportunity to consider the findings made in relation to other disputed claims. It seems to me that that is the best course to adopt in this case.

78   Finally, I turn to the claim for non-economic loss. The plaintiff says that he should be treated as a most extreme case. The defendant accepts a position of 80% of a most extreme case.

79   In my view, when regard is had to the particular circumstances of this case, non-economic loss should be assessed on the basis of 92% of a most extreme case.
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Last Modified: 12/22/1999