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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Damages - Assessment - Personal injury - Brain damage - Hemiparesis - Cognitive defects - Depression - Paranoid psychosis - Insight into extent of injuries - Need for attendant care - General damages - Loss of amenity - Future income earning capacity - Year 12 student - Superior ability - Possible career in law - Prospects of marriage - Superannuation benefits - Parents gratuitous services - Parents expenses - Interest on Griffiths v Kerkemeyer award - Future attendant care - Additional housing expense - Additional transport expense - Cost of future treatment - Additional holiday expenses - Present value of lump sums to be paid in the future - Method of calculation - Cost of fund management.Hirsch v Bennett (1969) SASR 493
GIO v Mackie (1990) Aust Torts Reports 81-053
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1970) 122 CLR 649 at 661, 662
Burnicle v Cutelli (1982) 2 NSWLR 26
Settree v Roberts (1982) 1 NSWLR 649
Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373
Richardson v Schultz (1980) 25 SASR 1
Masinovic v Motor Vehicle Insurance (1986) 42 SASR 161
Preston v Mercantile Mutual Insurance Co Ltd (1971) SASR 221
Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522
Government Insurance Office of NSW v Rosniak (1992) ATR 81-178
Van Gervan v Fenton (1992) Aust Torts Reports 81-188
Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523
Rozario v Fernandez (1977) 16 ALR 445
Torrent v Lancaster (1991) Aust Torts Reports 81-089
HEARING
CANBERRA, 30 November to 4 December 1992Counsel for the Plaintiff: D. Wheelahan QC and G Richardson
Instructing Solicitors: Gallens Crowley and Chamberlain
Counsel for the Defendant: R. E. Williams QC and R. L. Crowe
Instructing Solicitors: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:2. Liberty to apply with respect to interest on award for past
gratuitous services and to costs of administering fund.
3. Direct the parties within 14 days to bring in short minutes of
orders proposed to enable the action to proceed to judgment, and of
orders consequential on the judgment.
DECISION
MASTER HOGAN This is the assessment of damages for personal injury sustained by the plaintiff on 15 March 1987, when she fell while rock climbing as part of an outdoor education program organised by her school, for which the defendant was responsible. Liability in negligence has been admitted.2. The plaintiff was born on 1 December 1969. She had a relatively uneventful childhood, and grew up in a loving and closely knit family.
3. For her secondary schooling she attended first at Campbell High School, where she showed early promise of academic ability of a high order. For example, she twice achieved distinction in Australian competitions in chemistry and mathematics.
4. In 1986, for the final two years of secondary schooling, she attended Narrabundah High School. She continued to do well at her studies, but her interests were not restricted to them, and she participated in other activities, becoming particularly interested in bushwalking.
5. In 1987 she began Year 12. She undertook study at the advanced level in English, Mathematics and Science, at the A level in History, Japanese and Physical Education, and Drama at the B level.
6. It is abundantly clear that she had an engaging personality. Though of slight build she was very fit physically, and had an attractive appearance, with an open and welcoming smile. She made friends readily with her fellow students and her teachers, one of whom gave uncontested evidence about her practical competence, and her enthusiasm for any task that she undertook. She was able to set her own goals, and organise herself to achieve them. Shortly before the accident she had informed her mother that she had decided to restrict her outdoors activities for the rest of the year in order to concentrate on her studies.
7. She had given some thought to what she wanted to do in life, and she had thought that her interests in the environment and Japanese could be combined in a career in law. She had expressed a hope to become a barrister.
8. The accident happened before she sat for her final secondary school examinations, but the evidence of Mrs Jenkins satisfies me that she had the intellectual capacity to have gained entry to a law course and the other evidence of her abilities leads me to think that she would have succeeded in graduating in it, had she chosen to persist with that ambition.
THE ACCIDENT
9. There is little evidence about the accident that caused her injuries. On
15 March 1987 the plaintiff went on a weekend trip to
the Blue Mountains as
part of the school's outdoor recreational course. It was to have been her
last such expedition for the year,
as she intended to increase the time she
was to give to study, to secure good marks at the end of the year. They were
to undertake
a rock climbing exercise. She can not remember beginning the
climb. During the climb she fell. It is not clear how far, but another
student who heard of her fall found her lying on the ground in a twisted
position, unconscious. An ambulance was called, and naturally
it was some
time before the ambulance men arrived. The plaintiff was taken out of the
valley by helicopter, and then to Westmead
Hospital where she was admitted.
10. The hospital recorded the following injuries on admission:
1. Closed head injury. The CT scan showed a large right intracerebralartery
basal ganglia haemorrhage with intraventricular blood.
2. Fracture of the left anterior superior iliac spine.
3. Haemopneurothorax on the left side.
4. Intra-abdominal injuries comprising a bleeding wound, a bleeding
in the greater omentum, an oedematous right kidney, and a swollen secondTREATMENT
part of the duodenum.
12. She was taken to intensive care, where she was ventilated and intubated. She was initially paralysed and sedated. When she became clinically awake she was confused and had a hemiparesis. For her breathing a tracheostomy was performed on 2 April 1987. This was removed on 23 April 1987.
13. She now has no memory of her time at Westmead Hospital. Her mother came to live at the hospital, to help the nursing staff with information and to take part in the intensive process of caring for and stimulating her. When Sarah had recovered sufficiently to be taken to the ward, her mother stayed with a relative, but still attended to take part in her care. Sarah was restless, and needed to be restrained at times. Her father also took what time he could from work, and travelled constantly to Sydney to play his part in her intensive care. She is recorded as having been in coma for about five weeks. She underwent intensive physiotherapy and speech therapy.
14. On 1 May 1987 she was discharged from Westmead Hospital to Coorabel Rehabilitation Hospital at Ryde.
15. On admission she had a spastic quadriparesis, more marked on the left than on the right. She could not speak properly, she could not see on the left, and she was fully dependent in selfcare activities.
16. Over a period of several months of intensive therapy her condition
improved to a basic left hemiparesis. By November 1987 Dr
Renton was able to
describe her progress as follows:
"She is able to walk with the assistance of a cane. Left upper limbleft
remains spastic but there is good voluntary movement in all muscle groups
and further marginal improvement is anticipated. She has a spastic
dysarthria but speech intelligibility is quite good. There remains a
visuo-spatial neglect. Most significantly there remains major cognitiveleft
deficits. She is distractable and tends to fatigue quickly with her
concentration and attention. She experiences significant difficulties
with mental tracking, inability to organise material for efficient
learning and poor delayed recall was evident. There were no specific
visuoconstructive problems although she does not consistently use her
arm and there is a residual left neglect apparent."17. The neuropsychological assessment at about the same time demonstrated significant cognitive defects.
18. By December 1987 she presented to the neuropsychologist as co-operative and keen to return to her familiar home environment, and even spoke of returning to school. He thought her physical and intellectual condition made a successful return unlikely. She was physically still quite clumsy, and lacked both physical and mental stamina. She did not seem to be fully aware of her intellectual impairments. She was discharged from Coorabel on 18 December 1987, and went home to live with her parents at Burra.
19. In January 1988 she came under the care of Dr Farnbach and the rehabilitation team at Woden Valley Hospital.
20. He noted that by then her chest, abdominal and pelvic injuries had healed without any significant residual disabilities. She had a significant left hemiparesis, but had the physical ability to enable her to walk and be independent in basic self care activities. Her intellectual problems were still severe.
21. She was then involved in an intensive rehabilitation program. At home she was able to bathe and dress herself, and make her bed with difficulty. Her parents initially drove her to and from the hospital for therapy. Gradually she became able to use buses and do some basic shopping.
22. At the end of 1988 she participated with other people with disabilities in an Outward Bound camping trip organised by the department, which she enjoyed. There was a flash of her inherent charm and wit as she gave evidence about this excursion, when she was asked by her counsel, "You didn't go over any rapids, did you?" and with a smile she responded, "Well I'm still here, so I don't think so."
23. The psychologist who assessed her abilities in mid 1988 cautioned against her attempting any demanding educational courses at that stage of her recovery.
24. Dr Renton on review in October 1988 concluded that, as it was then 18 months after the trauma, major cognitive and functional improvement could not be expected.
25. The following year, 1989, was a frustrating one for her. Dr Farnbach
summarised it as follows:
"When she returned for ongoing treatment at the beginning of 1989 aPhillip
programme similar to the one that she had undertaken in 1988 was
instituted. The aim of the programme was to increase her level of
independence and assist her develop avocational and leisure skills. This
programme included contact with staff in the following areas:
. physiotherapy
. remedial gymnasium
. community rehabilitation programme
. occupational therapy
. home based training
. vocational rehabilitation
. remedial teachers in maths, computing and english
. neuropsychology
. social skills group
. craft group
. speech pathology
In addition she undertook activities outside the department at the
College and the TAFE. Unfortunately her attitude and behaviourtreatment
deterioriated during the year. This, combined with the design of our
facility and staffing constraints, made it impossible for us to provide a
programme that she was able to benefit from.
Her behaviour has been very disruptive. She has interfered with
programmes of other patients and interupted staff involved in treatmentprogramme
and other activities.
Our feeling is that she needs an appropriately designed behaviour
modification programme that could be implemented in a setting where her
environment could be controlled and manipulated. This is not possible in
Canberra as no such facility exists.
With her parents we have explored other options and have concluded that
probably Lidcombe Hospital in Sydney may be able to offer such a
and have had discussions with Lidcombe concerning Sarah. I visitedher
Lidcombe Hospital and had discussions with staff there about Sarah and
to see if she would be suitable for the types of programmes they have to26. The clinical psychologist, Amanda King, reported in August 1989 that as she gained insight into her problems she became depressed. She was developing behavioural problems, including inappropriate sexual advances to fellow patients and staff members.
offer."
27. Changes were made to her program, and behaviour management procedures
were devised, but were not successful, partly because the
facilities available
at Woden did not permit effective behaviour modification techniques. The
psychologist concluded:
"In summary, Sarah's current behavioural problems are well in excessago.
of that which would be explained by her organicity. She had made a good
recovery and was behaving in an acceptable manner up until six months
In addition, immediate control of inappropriate behaviour has been28. During 1989 she did attend a technical college at Reid, for English and Maths, which she enjoyed, in general, without making significant cognitive progress.
demonstrated given appropriate behaviour management.
Hence, the behaviour is obviously functional and appears to have resulted
from a combination of increasing insight and an inappropriate environment
in which strict behaviour modification is not possible."
29. Also early in 1989, Dr Taylor advised that although she had a classic hemiplegic stance, there would be no spinal consequence of note resulting from her injury.
30. In November 1989 she was admitted to Lidcombe Hospital Head Injury Unit, to enable her independent living skills to be assessed. She was then admitted to that hospital's Transitional Living Cottage from January 1990 to March 1990.
31. In January 1990 her solicitor referred her to Dr Tennant, psychiatrist, who saw her again at the end of March 1990. She was not then under direct care, and Dr Tennant became concerned for her treatment, as she perceived a number of acute problems needing immediate care. With her consent and that of her parents Dr Tennant undertook her care, and enlisted the help of Mrs Bermingham, a clinical psychologist.
32. Dr Tennant described the plaintiff as being extremely depressed when she first saw her. She had in no way come to terms with her loss. She was feeling deep sorrow and intense anger. The combination of organic brain damage and her unresolved grief was causing the behavioural problems. She had developed a complex delusional system, resulting in paranoid delusions.
33. Dr Tennant began treatment with Melleril, an antipsychotic type drug. Unfortunately, it is also a major tranquilliser, and can have side effects which would exaggerate some of her physical disabilities. It was therefore necessary to keep the dosage very low, which left her vulnerable to any increase in stress.
34. Mrs Bermingham embarked on a course of therapy, between March 1990 and January 1991. The plaintiff's initial presentation could be seen as socially poised and appropriate, but Mrs Bermingham found her poise to be masking a serious underlying depression and anxiety. She was incapable of functioning without the continuous support of her mother, and even at home was subject to sudden and disconcerting episodes of screaming and crying.
35. In addition to the intensive debriefing, voluntary work was arranged for her at ACT Red Cross Headquarters, which helped her to experience some sense of worth and of being a contributing member of society.
36. By July 1990 small signs of progress could be detected. Her confidence increased. She began swimming and exercise at a gymnasium to increase her stamina, strength and mobility.
37. Mrs Bermingham's description of her progress continued:
"By September her depression had reduced a little and the full extenther
of the underlying anxiety became more evident. It became evident that
introduced to a cognitive behavioural approach which involved attendanceoccasion
at an Agoraphobia Group. Sarah quickly started making progress eg. She
was able to walk down to the fowl yard at her home on her own. The fowl
yard was only a short distance away from the house.
She was encouraged to plan her 21st birthday party herself. This
became a symbol of her returning to society. One of her greatestthis
sadnesses was the loss of her peer group at Narrabundah College. She had
of course been unable to complete Year 12, and was suddenly parted from a
quite tightly knit cohort group. She missed the particularly significant
events of completing Year 12 and graduating. She knew that many of her
group had gone to University and she grieved the loss of contact with
group as well as the loss of similar opportunity. Sarah was set the taskof
of recontacting friends to invite to her party, which was successfully
celebrated.
Sarah had major concerns about returning to live in Sydney the location
her most traumatic memories. She resented the label of head-injured andpursuing
returning to a head injured environment.
She also appreciated there was no other viable alternative to supported
living and plans were carefully structured for her return to Sydney.
MOTIVATION
Sarah demonstrated exceptional commitment to helping herself, throughout
the entire intervention period. She never missed an appointment, was
invariably carefully prepared for the session, with issues she wanted to
address noted, and diary entries for the intervening period completed.
Sarah set very high standards for herself and spared no effort in
the goals set. Mrs Edwards supported Sarah unconditionally throughoutwere
this period on a daily basis.
OUTCOMES OF INTERVENTION
Sarah made gains over this period. These are difficult to quantify, and
were slow to emerge, but changes in her emotional state and behaviour
noticeable.38. In early 1991 the Lidcombe Head Injury Unit arranged for the plaintiff to move into a Department of Housing dwelling in Strathfield, where she lived with an older woman who also had suffered a head injury. Staffing support was provided by Wareemba Community Living. She began voluntary work two days a week with the Red Cross in Sydney, and was trained to enable her to use public transport to attend there independently.
Sarah reported a lessening of anxiety, better recall of some past
incidents, her mood was less despairing.
I observed:
1. Increased physical fitness and some reduction of tiredness.
2. Some reduction in anxiety and phobic reactions - ability to go out
alone, or be with people who were strangers, increase in range of
activities undertaken.
3. Increase in confidence.
4. Increase in emotional stability on a daily basis and fewer outburst
of rage and distress.
I believe this change to be primarily due to the medication and to a
lesser extent to the post traumatic stress debriefing and behavioural
re-training.
Psychological therapy probably helped Sarah to understand some of her
emotions, feelings and recognise psychological processes within her. She
became a little more accepting of her limitations and discovered that she
could still set herself challenges."
39. In July 1991 she was receiving about 4 hours individual attention per day from Wareemba care workers, helping her with planning and organising her affairs. She still had a low tolerance for frustration, which led sometimes to violent outbursts.
40. In March 1991 she came under the care of Dr Pettigrew, psychiatrist, who saw her then about once a month, and continued her medication on a low dosage of Melleril, which controlled her delusions to some extent.
41. A multidisciplinary assessment in September 1991 confirmed that she had no capacity for open employment, and that at best she might undertake employment in a sheltered workshop, although her behavioural disturbances would tell against her even there.
42. Lidcome Hospital referred her to the Commonwealth Rehabilitation Service, at first for assessment of her suitability for open employment. The CRS undertook some rehabilitation. It is clear also from the reports of the CRS that she will not be able to obtain open employment. With the plaintiff the service devised a series of plans setting out goals such as "looking at" her language, cooking and budgeting skills, and "buying more normal shoes or sandals". Her attendance at group sessions was not always consistent, and there were occasions of inappropriate behaviour, but some overall improvement.
43. During 1991 it became obvious that the housing arrangements at Strathfield were not satisfactory. Her fellow occupant was also injured, with her own problems, and the plaintiff did not always have the patience or the self control to deal with the conflicts that arose. They culminated in a violent attack by the plaintiff on her fellow occupant, after which she went home to Burra. She returned to the home in Strathfield for about 12 days in September 1991, but then returned to live with her parents.
PRESENT CONDITION
44. She wants to return to live in Sydney. Apart from her own wishes it
would probably be for her benefit to live as independently
as possible. She
would also have available the continuing assistance of Dr Pettigrew. The
degree of independence of which she is
capable is one of the areas of greatest
contention in these proceedings.
45. An order has been made for the management of her affairs in the Protective Division of the Supreme Court of New South Wales. The most succinct description of the plaintiff's present psychiatric state is contained in Dr Pettigrew's affidavit in support of that application.
46. Her diagnosis was:
1. Organic delusional syndrome.47. In her opinion the plaintiff is incapable of managing her own affairs.
2. Organic personality syndrome.
48. Dr Pettigrew's reasons for that opinion are:
"Sarah's delusions which are of a paranoid and erotic content have theand
potential to seriously affect her judgment.
She also experiences emotional lability with episodes of depression and
irritability which also affect her judgment.
She is at risk of sexual exploitation due to her distorted perceptions
lack of discrimination."49. The plaintiff continued from time to time to see Mrs Bermingham, who formally reviewed her in October 1991. Her report of 29-April 1992 summarised her present psychological condition as follows:
"REPORT SUMMARYI
This report covers the reason for Sarah's referral to me, initial
impressions of her condition and state of mind, the course and content of
the therapeutic program and its outcomes by the end of 1990 and at review
in October 1991.
Assessment and therapy specifically excluded formal psychometric testing.
The language of this report has ben deliberately chosen to convey some
sense of the human being in question. Sarah's greatest need at the time
met her was to rediscover her own self and a sense of worth. In fact towith
undergo a period of psychological healing following a prolonged period of
intensive physical rehabilitation.
Sarah was demonstrably a willing and enthusiastic worker in our sessions,
who impressed one with her determination to achieve and succeed, who
willingly took advice and used every strategy offered in order to make
herself better, in spite of the physical and emotional effort this took.
The organic brain damage and the physical and emotional sequelae of this
damage remain unchanged. Psychologically she is sturdier and has learnt
some ways to make coping with life easier. I have encouraged her to try
whatever she wants to achieve. This has included joining The Sydney
University Evening Extension Courses to discover whether she can study.
She has conquered her fears sufficiently to now enjoy greater contact
members of her family and she has recontacted some old school friends.required
I believe that Sarah has achieved her optimal level of function following
the injury and future gains of any significance are unlikely. She will
require extensive practical and emotional support to maintain the gains
she has made.
THE FUTURE
Sarah is quite unable to live independently at present. I cannot foresee
that living alone will be a viable option in the future because of her
poor memory function, emotional lability and cognitive difficulties in
planning, organising and initiating activities.
Life in supported accommodation such as she is currently experiencing is
also uncertain. Few such programs are available for head injured persons
in Australia. There is little choice in location or living companions,
and the quality of programs fluctuates with changes in management and
support personnel.
The most appropriate outcome is for Sarah to have the financial capacity
to reside in her own domicile in the location of her choice and to
purchase companion/attendant care services, and other services as
and they are available. The supply of such support cannot be guaranteed.50. Her solicitors also referred the plaintiff for psychometric testing to Dr Langeluddeke, who saw her on 21 July 1992. Her description of the plaintiff's behaviour at assessment was consistent with my own observations of the plaintiff as she gave evidence:
Sarah's prospects of marriage to an (sic) non disabled person have been
significantly diminished. I cannot comment on her capacity to bear
children. Should she become a mother the extent of support she would
require would significantly increase.
Whilst I can envisage Sarah undertaking some part time employment, most
likely at routine tasks I cannot see her undertaking full time employment
unless her physical stamina improves significantly.
"Ms Edwards presented as a pleasant young lady who related in an openmanner.
and genuine manner. She demonstrated quite obvious motor, language,
cognitive problems suggestive of brain damage. Her speech was slow and
mildly dysarthric. She has a residual hemiplegia of her left (naturally
dominant) side. All drawing, writing, and visuoconstructional tasks were
performed solely with her right hand, in a rather slow and awkward
attention and working memory.deprecatory
Ms Edwards' affect was quite flat and she frequently made self
comments. She lacked confidence in her cognitive abilities and often51. Her summary and opinion were as follows:
sought reassurance regarding the adequacy of her test performances. She
demonstrated considerable insight regarding the cognitive, emotional, and
physical sequelae to her head injuries.
Ms Edwards was very co-operative with psychometric testing and there were
no errors or inconsistencies suggestive of deliberate attempts to
underestimate her cognitive abilities. She was familiar with most of the
more popular tests (e.g. the Rey Complex Figure, the Wechsler Scales, the
Austin Maze), having undergone repeated testing over the last five years.
Accordingly, practice effects were taken into account where appropriate
and alternative tasks were administered wherever possible."
Ms Sarah Edwards, who is currently aged 22 years, sustained a severecourse
closed head injury as a result of falling several metres during the
of a rock climbing expedition on the 15th March, 1987. Psychometricand
testing some five years post trauma reveals deficits in motivation,
cognition, personality, and behavioural control suggestive of diffuse
brain damage. This is a direct result of her head injuries.
Ms Edwards' general intellectual capacity has been reduced from a very
superior level (at or above the 98th percentile) to below low average
(around the 20th to 30th percentiles) as a result of her head injuries.
Her visuospatial abilities have been more severely affected than her
verbal skills. It is important to point out that her visuospatial
deficits cannot be explained purely in terms of her motor problems.
Rather, she has severe deficits in relation to the planning, analysis,
synthesis of visuospatial information. Her immediate short-term verbaland
memory is moderately impaired, and her immediate-short term visual memory
is quite severely impaired. Her capacity for new learning is severely
diminished, both in the verbal and visual spheres. Problems with
sustained attention, self monitoring, planning, and cognitive flexibility
detract from her ability to utilise her residual intellectual, memory,
learning skills. Furthermore, her motor deficits render her slow andinformation
awkward on writing, drawing, and visuoconstructional tasks. Her general
mental efficiency is severely diminished because of slowing in
processing.and
In addition to her cognitive deficits, the history provided by Ms Edwards
and contents of the medical reports which were available to me suggest a
number of personality and emotional changes consistent with brain damage
as a result of her head injuries. These include emotional lability,
heightened aggression, problems with impulse control, and diminution of
drive and initiative.
Given that it is over five years since Ms Edwards' head injuries, further
improvements in her cognitive, behavioural, and personality functioning
with the passage of time are unlikely.
Ms Edwards' educational achievements and vocational goals have been
severely compromised as a result of her head injuries. Academic reports
immediately pre-dating her accident suggest that she had the intellectual
capacity and sufficient application to her studies to secure entry to the
more competitive University faculties, such as law or medicine. The
severe cognitive deficits associated with her head injuries render her
incapable of furthering her formal education. Moreover, I doubt that she
will ever prove employable in the open labour market in view of her
deficits in attentional, intellectual, memory, learning and executive
functions.
It is improbable that Ms Edwards will prove capable of living a totally
autonomous existence. Supervision of her daily activities will be
necessary for the remainder of her life due to residual problems with
organisation, drive, concentration, impulse control, memory, planning,
reasoning. Of particular concern is her severely impaired short-termas
spatial memory, which detracts from her ability to adapt to new
environments or to travel independently in unfamiliar territory.
The quality of Ms Edwards' personal life has been seriously compromised
a result of her head injuries. She is no longer able to maintain a highrunning,
level of physical fitness or to engage in the sporting, leisure, and
social interests which she previously enjoyed (e.g. cross country
reading).52. Dr Tennant gave oral evidence and was cross-examined. The only area of real contention was the type of assistance that the plaintiff will need in order to live as independently as possible, an issue I address later in these reasons. In her re-examination there was the following succinct description of the improvement that took place during the plaintiff's treatment by her and Mrs Bermingham:
"MR WHEELAHAN: Has, in your view, her underlying condition improved atabout.
all?
DR TENNANT: The psychological elements we were able to do something
She had a post-traumatic stress disorder and bereavement problems, and wepsychological,
were able to help her with those, and to work through those
emotional problems, but obviously we couldn't do anything about the53. Mrs Bermingham gave evidence and was cross-examined. Again, her opinions and findings were not really challenged, except for her views about the extent of care required in the future.
organic brain damage. That is still there, unchanging and unchangeable.
And tied up with that is this paranoid psychotic condition she has, and
that we control with medication, but we did not cure.
MR WHEELAHAN: And, doctor, that paranoid psychotic condition is, in your
view, a consequence of the organic damage, is it not?
DR TENNANT: Yes.
MR WHEELAHAN: And hence improvement in that is unlikely - impossible?
DR TENNANT: I believe it will not happen; in fact, it is far more
likely to get worse than it is to get better."
54. Dr Langeluddecke gave oral evidence, but was not cross-examined.
NEED FOR ATTENDANT CARE
55. The question about the extent of attendant care that the plaintiff will
need is important in its bearing on general damages,
as well as being central
to the issue of financial compensation. It is an issue on which the views of
the rehabilitation specialists
are entitled to particular respect, but on
which it is necessary to keep in mind the relatively uncontested views about
the plaintiff's
psychiatric and psychological condition.
56. Dr Yeo saw the plaintiff on 2 February 1989 and 31 August 1992. He is a
rehabilitation specialist with many years of experience
in the treatment of
spinal and brain injuries. He reported that she required the following
attendant care:
1. A visiting house manager for 2 hours daily.57. He was called to give oral evidence for the plaintiff, mainly on the plaintiff's need for a swimming pool. He was not cross-examined, especially on this issue. The defendant submitted that his view was the one to be accepted, with minor modifications.
2. 8 hours of domestic assistance per week.
3. 2 hours of handyman's assistance per week.
58. Dr Oakeshott is also an eminent rehabilitation specialist, Vice President
of the College of Rehabilitation Medicine, Director
of Clinical Services of
the Royal Rehabilitation Centre, Visiting Consultant at Royal North Shore
Hospital and Chairman of the Wareemba
Community Live In Program. He did not
examine the plaintiff clinically, but based his opinion on the many reports
that were written
about her, especially during her time at Wareemba. In his
opinion she will require an attendant carer 8 hours a day for 7 days a
week.
He commented:
"This person need not have any professional training and acts mainlyfor
as a companion to assist her with organising household duties and buying
household necessities. This person will also assist with meal
preparations and organising other daily activities and will provide
companionship as Sarah is at risk of being socially isolated. This
support is currently being provided by residential care staff of Wareemba
Community Living.
I would suggest that Sarah will require a holiday each year and this will
allow her attendant carers to take leave. When on holidays, Sarah will
require full time support from an attendant carer/companion. She would
have extreme difficulty in coping in the unfamiliar environment of the
place where she was enjoying her holiday. There is therefore the need
this support to be full time for this holiday period which could be59. He gave oral evidence and was cross-examined. He thought that the extent of care that he had suggested was the bare minimum. One organisation through which it could be made available was Wareemba. His opinion about the time required was not really challenged in cross-examination.
estimated at 4 - 5 weeks each year for the rest of her life."
60. The report of the AAC Assessability Centre is a joint report of Dr
Bickley, a specialist in rehabilitation medicine, Corinne
Roberts, a
consultant clinical neuropsychologist, and Julie Wilson, an occupational
therapist. It was the occupational therapist
who concentrated on this aspect.
She analysed the activities in which the plaintiff would reasonably need
assistance. The times
required may be summarised as follows:
1. Laundry 2 - 4 hours per week61. The AAC report was commissioned by the plaintiff's solicitors. None of its authors were required for cross-examination. I note that there is a fair amount of room for variation in a number of the items, and that the totals are for 22.5 hours to 29.5 hours per week.
2. Personal administration 1 - 2 hours per week
3. Home maintenance 2 - 4 hours per week
4. Housework - light 3 - 4 hours per week
- heavy 1 hour per week
5. Cooking 10.5 hours per week
6. Shopping 3 - 4 hours per week
62. Dr Corry is an eminent consultant in rehabilitation medicine in Canberra.
He examined the plaintiff for the defendant in June
1989 and May 1992. His
reports are in evidence, but unfortunately he was ill at the time of the
hearing, and not available to give
oral evidence. At the time of his second
examination Sarah was living at Strathfield. Her determination impressed him.
He commented:
"Despite the severity of her impairment she has developed a highsituation.
degree of physical independence and her ability to develop and pursue
independent objectives has to be admired. It is this determination that
leads me to suspect that some of the evaluations that have been performed
may under-estimate her eventual achievement. Clearly, her employment
options for the future will be extremely limited. I do not believe that
she would emotionally accept employment in a sheltered workshop
Any employment would have to be supportive and structured. The reportfurther
from the Commonwealth Rehabilitation Service is the most useful in this
regard. She is commencing a clerical skills training course, and I must
assume that given her progress to date together with the reports from the
Red Cross, that at least reasonable prospects of success have been
considered. Whatever the final outcome of her retraining (I think
rehabilitation is required), Ms Edwards will always require at least somefor
support to maintain independent living. I have noted the requirements
attendant care contained in the AAC report from November 1991.recommendations
Considering the progress she has made since that time, the
are probably excessive. She appears now to be largely independent with63. Dr Corry had access to many of the reports in evidence, but they did not include that of Dr Oakeshott of 28 April 1993.
cooking, but continues to require assistance with budgeting, banking and
planning her shopping, although she now says that she can shop
independently. Four to six hours per week would probably sufficiently
cover these needs."
64. Dr Corry's report was submitted to Mrs Bermingham, who commented:
"I regard his estimate of 4-6 hours of attendant care a week to be a65. In evidence she expressed her preference for the second of these choices. The third suffered from the drawback that crisis support may sometimes need to be immediately available.
gross underestimate.
I agree that Sarah needs ".. assistance with budgeting, banking and
planning her shopping ..". To this list I would add all activities of
life that require planning and organising. It is these higher order
functions that have been impaired in addition to her memory and take time
to provide on a daily basis.
Sarah's competent social manner and pride in minimizing her disability
makes it is (sic) easy to underestimate the amount of help that Sarah has
been receiving in the period in question i.e. post 1991. This includes,
to my limited knowledge:
Headway program supervision and support on a regular and crisis ? basis.
Home visits from health worker 6/7 days a week.
Support from her mother and family in Canberra by telephone and visiting
whilst she was living in Sydney.
Support from her grandmother, grandfather and uncle in Sydney, on what I
would expect to be a frequent basis for: problem solving, reminding,
'helping to think things through' and companionship.
Support and companionship from Red Cross 5 days per week.
Mutual assistance from and to her house mate.
Hours of attendance care needed over a life time will clearly vary with
health, life circumstances and life stages.
The questions that would help guide the calculations of the number of
hours of care required per day are in my view as follows:
1. Can Sarah live alone?
2. Will she ever be able to live alone?
3. How many hours of support per day has she received from all sources
since 1991?
4. How will Sarah manage when her family in Burra and her extended
family in Sydney is no longer available?
5. How would Sarah manage in a location other than Sydney or her parents
home?
My views are that Sarah cannot live alone; she is most unlikely to ever
manage to live alone without extensive support; when her family is no
longer available or she chose to live in another place, she will need to
buy equivalent services.
Sarah's choices are:
To live in supported accommodation, if available;
or
To have a "live in" companion;
or
To have crisis support available on a 24 hours per day basis, in addition
to having an attendant carer being physically present for some hours each
day.
I would estimate this to be about 3 hours per day for Sarah's current
level of functioning."
66. Dr Langeluddecke also commented:
"I am of the opinion that Dr Corry's assessment of Sarah's need formade
attendant care in the future, of 4-6 hours per week, is unduly
conservative. I concur with the report prepared by AAC on attendant care
(dated 18th November 1991), that she will require two hours per week for
assistance with personal administration and ten hours per week for
assistance with cooking in view of her intellectual deficits, disorder of
drive and initiative, problems with organisation, poor memory, difficulty
in co-ordinating tasks, and mental slowness. The estimates which are
by the AAC in relation to laundry, home maintenance, housework, andplanning
shopping relate primarily to her physical disabilities, which I am not
qualified to comment on. Other areas in which Ms Edwards will require
assistance include: (1) annual holidays - she will need help in
appointments or social engagements). In view of her severely impaired67. The plaintiff's solicitors also sought a report from Susan Ernst, an occupational therapist, who visited the plaintiff at Strathfield in June 1992. She reported that it is easy to underestimate the problems faced by the plaintiff, as she presents well. She supported the conclusions of Mrs Bermingham and Dr Oakeshott, and their recommendation that the plaintiff live in her own home in a location of her choice and purchase companion/attendant care. She summarised the assistance and care that she would need if living independently in the community in a fully equipped and attended home of her own as follows:
spatial memory, she will need to take a taxi or be accompanied when
travelling in unfamiliar areas."
"3.2.1 A person or persons, accountable to whoever is managing heris
affairs, with the personal qualities, experience and training to be
responsible for the following:
3.2.1.1 Assistance in co-ordinating Miss Edwards' daily/weekly
programme.
3.2.1.2 Constant and unobtrusive day-to-day supervision of Miss Edwards,
companionship at night.
3.2.1.3 Assistance with household management including meal preparation,
shopping and supervision of casual domestic help.
3.2.1.4 Personal care when ill.
3.2.1.5 Companionship for recreational and social outings.
3.2.1.6 Assistance with personal shopping.
3.2.1.7 Driving to and from appointments and outings.
3.2.1.8 Assistance with day-to-day budgetting (sic).
3.2.2 Miss Edwards will also require:-
3.2.2.1 Home maintenance assistance.
3.2.2.2 Regular domestic help.
An agency such as "Dial-an-Angel" could advise on how this could best be
provided. It would seem that a live-in full-time companion/housekeeper
required with additional assistance for heavy house duties and home68. Mrs Ernst gave evidence and was cross-examined. She did not make any concessions about her opinion of what sort of assistance the plaintiff will need.
maintenance."
69. Mr Marshall, a registered general nurse who helped care for the plaintiff during her stay at Wareemba, also gave evidence. He had spent about four hours a day in contact with the plaintiff and her companion at their house in Strathfield. He was also on call by paging for 24 hours a day. In his opinion she needed to have the support of someone living with her. Another person with disabilities was obviously not suitable, a view with which there was no disagreement by any of the experts. On this issue his was not an expert opinion, but his description of what he did in fact and what a live in carer might do was of great assistance in understanding and weighing up the conflicting opinions of the experts.
70. The defendant sought an opinion from Associate Professor Jones, who is Director of the Department of Rehabilitation Medicine at Prince Henry Hospital and Associate Professor of Rehabilitation Medicine at the University of New South Wales. He has had experience for over a quarter of a century in rehabilitation medicine. He saw the plaintiff and her mother on 11 November 1992.
71. He was called to give evidence, in order to express his agreement with Dr Yeo's assessment of the plaintiff's needs for attendant care. He thought that a visiting house manager for 2 hours daily was reasonable, 8 hours a week of domestic assistance probably excessive, and 2 hours handyman's assistance a week not unreasonable. When confronted with the views of the occupational therapist, the nurse who cared for her at Wareemba, and the specialists who had treated her he declined to resile from that opinion.
72. This case is one where it seems to me that the extent to which the various experts have had contact with the plaintiff is of particular importance. Few of them would know her and her abilities better than Mrs Bermingham, of whom Dr Tennant commented generously "My major contribution was that I gave her Melleril ... Mrs Bermingham did the hard slogging work."
73. When Mrs Bermingham says that Sarah's competent social manner and pride in minimising her disability makes it easy to underestimate the amount of help that Sarah has been receiving, I accept what she says. Susan Ernst confirms it. It accords with what I wondered about as the plaintiff gave evidence.
74. Mr Marshall observed and helped her for hours a day over a period of about a year.
75. Dr Oakeshott supervised her care and took part in discussions with the Wareemba staff during her time there.
76. Dr Tennant expressed the view that her paranoia is more likely to get
worse than better. Dr Pettigrew outlined the difficulties
involved in
attempting to increase control by increasing the dosage of Melleril, and
suggests that account should be taken of the
possibility of the need for
inpatient treatment to deal with a crisis or severe exacerbation. Dr-Pettigrew
is now her treating psychiatrist.
When asked her prescription with regard to
the provision of care she responded:
"DR PETTIGREW: I think someone would need to be available around thethe
clock. I don't think someone needs to be constantly with her but that
availability is there. So if she needs to talk to someone at ten o'clocklike
in the evening to stop her going out to find somebody or do something
think a full time job, but not in terms of needing - someone to monitorby
absolutely everything she did.
MR WHEELAHAN: Doctor, if the full time job of a person that you describe,
was able to live in the plaintiff's home but in separate accommodation,
in fact separate, would that satisfy your prescription?is
DR PETTIGREW: Yes, I think that would be ...
MASTER: Would be what?
DR PETTIGREW: Well ideal.
MR WHEELAHAN: And, doctor, depending upon the plaintiff's performance
from a psychological or psychiatric point of view and assuming that she
monitored as you suggest, might it be necessary to increase the dosage of77. Dr Tennant, who had been her treating psychiatrist, gave the following answers in cross-examination:
her psychiatric medication?
DR PETTIGREW: Yes, whether she would take it or not is a different
matter. She intermittently stopped her medication and was always
bargaining to try to reduce it.
MR WHEELAHAN: I see, what does that suggest to you, if anything?
DR PETTIGREW: Continued problems."
"MR WILLIAMS: Well, I just want to get back to this question ofweekends,
what you're wanting in the house. You want someone there 24 hours a day?
DR TENNANT: I want a live-in companion.
MR WILLIAMS: Why, though?
DR TENNANT: Because I believe she needs it.
MR WILLIAMS: But why, doctor?
DR TENNANT: Because she gets stressed, because she then gets panicky
and she needs reassurance and she needs it at all sorts of times in an
unpredictable way.
MR WILLIAMS: Allowing for the fact that the court accepted your
evidence, your recommendation that she be monitored regularly by a
psychiatrist, and assume for the moment that someone was coming in every
day to attend to her more physically based need, she doesn't need anyone
else?
DR TENNANT: That is not my opinion.
MR WILLIAMS: The reason why you say she needs someone else is for
companionship?
DR TENNANT: Yes.
MR WILLIAMS: Someone to talk to?
DR TENNANT: For security, to maintain a situation in which her anxiety
level doesn't escalate out of control.
MR WILLIAMS: She does have friends and family, doctor?
DR TENNANT: I don't believe you can count on friends and family to be
around at all times to give the sort of support that this particular
person needs in an ongoing way.
MR WILLIAMS: Well, what about when she's, as she has been, though not at
the moment, in the city during the day from 9 till 5?
DR TENNANT: In fairly sheltered situations with Red Cross workers who
are very kind and caring, with Headway workers who are very kind and
caring; that's in a fairly sheltered way where she gets in fact the sort
of thing I'm saying she needs.
MR WILLIAMS: And what would the companion do who is there during the day
and during the night?
DR TENNANT: Well, if Sarah's going to work during the day hopefully
that person may be able to do some sort of work too but be there
she does need someone.possible
MR WILLIAMS: What, some sort of installed friend in the house?
DR TENNANT: A carer, yes; some sort of inbuilt substitute for her
mother but a situation in which she doesn't feel that she's being
dependent like she does on her mother.
MR WILLIAMS: Well, in terms of dependency, according to the reports that
are before the court, Sarah's wish is to be as least dependent as
on everyone in the community?were
DR TENNANT: That's Sarah's wish, yes.
MR WILLIAMS: If this woman was provided, with appropriate supervisory
care each day in terms of someone visiting in the house to ensure that
both from a monetary and physical and psychological point of view she
okay and if she were receiving regular monitoring by a psychiatrist or a78. Although Dr Tennant has not been in touch with her in more recent times, Dr Pettigrew has been, and expresses much the same concerns.
psychologist, or both, that would be sufficient, would it not, to look
after her psychiatrically?
DR TENNANT: No, not in my opinion, no.
MR WILLIAMS: Not to look after her psychiatrically?
DR TENNANT: No, I don't believe that would be so. I believe she needs
a more intensive supervisory, caring role.
MR WILLIAMS: Well, you've just introduced the term "supervisory",
doctor. It's the first time you've used that term in describing the
companionship. What is the companion to do that is supervisory?
DR TENNANT: She does need, realistically, counselling at times about
things. She does get things mixed up, she does misread things, she does
need someone to check things out a bit with her.
MR WILLIAMS: If someone were coming in every day to check on her that
would be an opportunity for her to be counselled and supervised, would it
not?
DR TENNANT: I don't believe that that would be sufficient.
MR WILLIAMS: What not, doctor?
DR TENNANT: Because that's my opinion."
79. Dr Saboisky, psychiatrist, examined the plaintiff for the defendant on 2
March 1992. His report is in evidence. He does not
really controvert what Dr
Tennant or Dr Pettigrew say. He was not called to give oral evidence. On
this issue his only comment
was:
"It is very difficult to be precise about psychiatric sequelae of headvigorously
injury.
It is entirely possible that at some future point, she will suffer from
more florid paranoid psychoses or depression, but I believe that the best
chance to maximise her psychiatric outcome is to maintain her in the
current semi-independent living situation that she is in and to
explore all her rehabilitation options. Eventual placement in an80. The plaintiff's actual experience to date is also relevant. When she was living at Strathfield, there was someone with her all the time, in addition to the regular visits by Mr Marshall, and his availability on call 24 hours a day. That person was not, it turned out, a suitable choice. When the arrangement broke down as a result, she returned home to Burra.
interesting supervised work environment will, I believe, also assist her
in the long term."
81. There, as her parents describe it, she has their company at all times that she is at home, except when they are at work. They then keep in touch by phone. She is sometimes taken into town, where she is in a carer's company until she returns home. Her mother particularly has the insight to be sensitive to approaching crisis. Yet it is obvious that there have already been difficulties in that arrangement, and it can not continue on a long term basis. That was illustrated by a recent incident when she resented her grandmother's checking up on her, which brought on an attack of anger in which she tore the phone from the wall. Not too much harm was done on that occasion, but it illustrates the reality of the concerns that are expressed, for example, by Dr Tennant and Mrs Bermingham.
82. Her parents also have insights that no expert could have. They are
entitled to weight. Her mother's evidence was:
"I would hate to see Sarah live alone. She would try to do things andsome
not be able to and be completely frustrated all the time. If she has
subtle assistance, I would prefer to call it a sort of assistance whichit
she would have from having a sister in the house or something like that,
or a good friend, or it'd seem to Sarah like that, she can - a lot of
those little things can be removed from her day and she can get through
in a satisfactory way."83. Her father's evidence was:
"MR WHEELAHAN: Well, as her father, do you think she could livethe
alone?
MR EDWARDS: No, she is very vulnerable, I'm quite convinced, I mean,
she still retains some of her verbal skills and at times will be will
present very well but it's very facile and a fragile sort of front if you
like, not using words very clearly but - and the next day she'll try, if
she could do one thing on one day some other event will intervene and
change her concept of what's happening and she won't be able to repeat
process. Like for instance, she can catch public transport one day,84. Those are poignant illustrations of the concerns expressed by Dr Tennant and Mrs Bermingham.
depending on the mood and thing, but the next time she won't do it. I
mean, at one stage we were assuming we could put her on a bus and get her
back to Sydney, back to the 325 program, and we thought if we got her on
the bus - at this stage this was our perception that she was all
right - and then we'd put her on the bus and then a little down the
road, once it would work and the next time a little bit down the
road she'd stop the driver and get off, and we were left in this
awful position of Sarah wandering around Canberra and we didn't know
where she was at one stage. If anything, inconsistency, if you like
is the nuisance of it I think. At least that is my perception."
85. I am, of course, aware of the classic expressions of the relevant principles by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1970) 122 CLR 649 at 661, 662, applied by him in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 567, and by Gibbs and Stephen JJ in Sharman v Evans at 573. I note their application, for example, in GIO v Mackie [2004] NSWCA 32; (1990) Aust Torts Reports 81 053 at 68,217, 68,218.
86. But the combination of the views that I have set out above, based on such depth and width of contact with the plaintiff, and not without a fair degree of relevant expertise, leads me to a fairly confident view. It is that it would not merely be ideal for the plaintiff to have a live in carer. It would be dangerous for her to be without one. She would be undercompensated if this award did not provide the means of providing one. I think that the relevant expert prescription is that of Dr Oakeshott, namely that she requires an attendant carer 8 hours a day 7 days a week.
SCARS
87. The scar on her neck from the tracheostomy terrified her when she first
saw it. In the state she was in then it made her think
she was some sort of
Frankenstein monster. It is a transverse scar 4 centimetres long by 1
centimetre wide, with adjacent suture
marks.
88. The laparotomy scar is 17 centimetres long, from just below the xiphoid process, down and around the umbilicus to about 1 inch below the umbilicus.
89. There are small punctate scars over the left chest from the inter costal drains.
90. The only scar that concerns her now is the neck scar. She considers it unsightly and tries to keep it covered. Dr Williams, plastic surgeon, reports that the skin is slightly adherent to the underlying trachea, which produces a dimpling of the skin and discomfort when she swallows.
91. An operation is available to free the scar from the underlying tissues, and to reduce its visibility. The residual scar would be apparent, but of minimal significance. The plaintiff told Dr Williams that she intends to undergo the procedure, and I think it is reasonable for her to do so.
SUMMARY
92. In summary, therefore, as the result of the fall the plaintiff suffered
brain damage, internal abdominal injuries and a minor
pelvic fracture.
93. She was in coma for 5 weeks. There followed intensive physical rehabilitation, for about another month at Westmead Hospital and about 7 months at Coorabel. Then followed about 2 years of out patient rehabilitation at Woden Valley Hospital.
94. During this time her physical disabilities had stabilised, but her emotional condition worsened. She is left with a left hemiparesis, described in more detail in the reports, and scars on her neck and abdomen from the operations.
95. After a further year of intensive effort her emotional condition has been ameliorated, but is still fragile.
96. Her psychotic delusions are barely controlled by medication, which will always need constant monitoring. There is always the possibility that she will need admission to hospital for more intensive treatment in the event of a crisis or severe exacerbation.
97. She has great insight into the contrast between the life she could have expected had she not been injured, and the life that she now has to live. From having a general intellectual capacity well within the top 5 percent she is left within the lowest third. She will not be able to live independently. There will always be the intrusion of carers in her daily activities. She can not enjoy any high level of physical activity.
98. She has been deprived of the five years of emotional growth and social development, and the simple joys of being alive and well, that an attractive, vital and intelligent person could expect in the transition from a teenage girl in her last year of school to a young woman graduating from University.
99. Her intellectual capacity and personality were such that she could reasonably have expected to have had some sort of professional career, of which she has now been completely deprived.
100. Her control of her sexuality is affected, and she is at risk of exploitation. Her chances of making a successful marriage, or even entering into a relationship that would not harm her, are minimal.
101. Her expectation of life has not been adversely affected. She has a statistical life expectancy of 57 years.
PAIN, SUFFERING and LOSS OF AMENITY
102. In assessing general damages in this action it is easy to heed the
warning against the formulation of any norm or standard of
compensation by
reference to other cases. I was grateful for the guidance I received from the
judgment in Hirsch v Bennett (1969)
SASR 493, to which counsel referred.
There is simply no other case remotely like this case in my experience, nor,
so far as my researches
and those of counsel could find, in the experience of
this Court.
103. There were some awards in other Courts to which I was referred by counsel, but it is obvious that they are each so different from this case that they are of little use in fixing upon a reasonable compensation, in any sense other than for some general statement such as that damages for pain and suffering in Australia tend to be higher than those in England and much lower than those in California, both jurisdictions which purport to apply the common law.
104. The statutory limit that has been imposed in New South Wales, and the method that the statute requires, of attempting to place the plaintiff's injuries at some point between nothing and a most serious case, are not really any guidance to me, either. No matter what list of injuries have been inflicted upon any particular plaintiff, it is easy for anyone experienced in accident compensation to compile a list of possible additional injuries that could have made them worse.
105. One case to which I was referred was GIO v Mackie [2004] NSWCA 32; (1990) Aust Torts Reports 81 053. It has at least this similarity with the present case that the plaintiff was a healthy attractive 18 year old girl with much to look forward to. She suffered a closed head injury resulting in bilateral hemiplegia. Physically she was damaged far more than the plaintiff, and had lost far more of her cognitive functions. The award included the sum of $175,000 for general damages, but it was said that that sum was significantly less than the sum which would have been awarded if the plaintiff had total awareness of her predicament.
106. The actual sum there awarded does not enable me to make any arithmetical computation, or any real comparison with this case. But it does illustrate to me by contrast a most significant feature of the injury received by this plaintiff.
107. Not only is it not shown that Sarah has any reduction in her capacity to be aware of her injuries and what she has lost, it is abundantly clear that she is keenly aware of them. In fact, it was that awareness itself which played a significant part in the depression and functional aspects of her illness, particularly during her second year at Woden Valley Hospital, and until those aspects of her injuries were brought under some degree of control by Dr Tennant and Mrs Bermingham. In addition to her physical, psychological and psychiatric deficits, she will have that awareness for the rest of her life, which, on a statistical basis, is likely to be more than 55 years.
108. In her case also, her qualities of mind and body, her personality and intelligence were such that the gap between what she will be and what she otherwise would probably have been is very great. The element of the award for loss of amenity in this case must be well out of the ordinary. This consideration is very important, I think, when making the attempt to apportion her award for general damages between past and future, for the purpose of awarding interest.
109. Ultimately, I simply ask myself, after reviewing her injuries, what is a reasonable sum of money to award to her, in order to compensate her as far as money can, being neither niggardly at her expense, or concerned at the size of the award, on the one hand, or overly generous with the defendant's monies, which are the community's moneys, on the other.
110. The sum at which I arrive after anxious consideration is $250,000. Doing the best I can to apportion that, I attribute one half of it to the future.
111. Despite what I have written about the test that I proposed to myself, I can not help but be concerned at the size of that award. How can I test its reasonableness? What does such a sum mean in today's money? Many lawyers, doctors and company executives earn more than that in a year. The total sum is the present value of an award of just under $174 a week, at 3 percent compound interest. The part that I attribute to the future is the present value of about $87.00 a week at that rate, both figures being calculated over the plaintiff's statistical life expectancy.
112. I should make it clear that I have not used those calculations as a means of arriving at the award for pain and suffering and loss of amenity, but only as a reflection to illustrate to myself what such a sum of money means in 1993.
113. I am aware that the award that Barwick CJ (at 568) and Gibbs and Stephen JJ (at 588) tested by similar arithmetical computations in Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 included elements of economic loss in addition to pain and suffering. But I also note that my illustrations are based upon the conventional rate of 3 percent, not current first interest mortgage rates, and result in there being no capital sums left at the end of her actuarial life expectancy of 57 years.
114. Upon further reflection I can find no reason to depart from my original impression that the amount is adequate but not excessive.
INTEREST
115. For reasons that will appear later, my findings will be published and
the final form of the judgment and consequential orders
will then be the
subject of further submissions, so that the date of judgment is not yet
certain.
116. For the purpose of calculating interest, and for ease of calculation, I have chosen 15 March 1993. The size of the various discretionary elements of this award means, I think, that there will not be any real injustice to either party if the actual date of judgment is some time before or after that day.
117. There is no reason suggested for departing from the conventional basis of awarding interest on the past component of general damages, which I award at $15,000.
OUT OF POCKET EXPENSES
118. The out of pocket expenses are agreed at $36,859. The additional
expenses of the parents are agreed at $30,000.
INTEREST ON PAID OUT OF POCKET EXPENSES
119. Interest on such part of those amounts as had been paid was not
contested, but there is not sufficient detail in the evidence
to enable it to
be calculated accurately. The claim made is based on the proposition, which
seems broadly correct, that they had
been incurred by the end of 1990, and
interest is claimed at the rate of 8 percent till that date and 10 percent
thereafter. In
lieu of interest on paid out of pocket expenses I award a lump
sum of $16,000.
120. Interest on the additional expenses of the parents I discuss later when dealing with the Griffiths v Kerkemeyer claim.
PAST LOSS OF INCOME EARNING CAPACITY
121. At the time of her accident the plaintiff was in her final year at high
school. She would probably have embarked on a five
year combined degree
course at the Australian National University. She would therefore not have
undertaken full time paid employment
until some time this year.
122. A claim is made on her behalf that she would have taken casual jobs during the vacations.
123. Indeed, she may well have done so. But it is by no means certain, nor does the evidence enable a conclusion to be drawn, that she would have sought it during each vacation, or that it would always have been available to her when she sought it.
124. In one year during three years of his university course her brother managed to earn just over $4,000. It does not follow that it would be correct to award the plaintiff an amount calculated by multiplying that sum by the five years that her course would have lasted. What she must be compensated for is not the exact earnings that the evidence shows she otherwise would have earned, but the loss of the opportunity, or capacity, to earn over that period, her brother's experience indicating the sort of money that it was possible to earn. It comes down to an exercise of judgment. I think that the sum of $15,000 would be fair as between the parties, on the basis that it includes an element for interest as well.
FUTURE LOSS OF INCOME EARNING CAPACITY
125. It is clear from what I have already written that I think it likely that
the plaintiff could and would have undertaken a career
in the law. At the
least, such a career is a fair indication of her income earning capacity.
126. It is also clear that in any practical sense, she now has no capacity to earn income for any sustained period in any significant amounts.
127. A series of calculations were in evidence, illustrating the loss by reference to careers as an employed solicitor in private practice, a legal officer with the Attorney General's Department, a graduate officer of some other government department, or an officer in the Department of Foreign Affairs and Trade.
128. On the one hand, it was on the cards that she might well have done better than being only an employed solicitor in private practice, in which case the figures in the actuary's report would be substantially too low.
129. On the other hand, she might have chosen some less strenuous career, failed to complete her studies for some reason, or been otherwise disabled. The numbers of graduates now coming on to the market are such that more than half will not get employment in the private practising profession. She would, I think, probably have married and had children, but that does not call for such a large deduction as it might have in previous times. It is becoming more and more common for professional women to be absent from following their careers for only relatively short periods when they have children. Computers and modern communications even make it possible for some of them to continue to work from home to some extent during that part of their professional careers. These factors seem to me to make it even more expedient, in this particular case, to largely disregard the prospect of marriage as a relevant factor in the assessment of her future economic loss, as suggested by Gibbs and Stephen JJ in Sharman v Evans (supra) at 583, 584.
130. The actuary's report, based on assumptions that are not inappropriate,
sets out present values of future earnings in the careers
referred to as
follows:
Solicitor in private practice $807,729131. The defendant submitted that a more appropriate calculation should be based upon the average weekly earnings of female professionals, as disclosed by the Australian Bureau of Statistics, which yielded present values of the order of $525,500 and $570,237. It was also submitted that the appropriate discount should take account, not only of the normal vicissitudes, but also of delays in obtaining employment, travel, time out of the workforce to have children, and possible unemployment, and that the appropriate discount lies between 25 and 35 percent.
Legal Officer, Attorney General's $687,026
Graduate Officer, Public Service $628,274
Foreign Affairs Officer $777,359
132. I would comment, firstly, that to award 65 percent of $570,000, which is $370,000, as the present value of this plaintiff's potential earnings would obviously be appellable.
133. Secondly, I agree that each of the contingencies listed is proper to be taken into account, and I give each of them what appears to me to be its proper weight, together with those considerations that I have already referred to.
134. If I were to attempt to arrive at a discounting figure when I weigh them all up together, I would certainly not arrive at a figure of 15 percent or more.
135. But, thirdly, because of the uncertainties involved, I do not think that to choose a career path and then discount the resultant figure is the appropriate method of assessing this item.
136. Those calculations are valuable in helping to mark out an appropriate area of discourse, so to speak, but ultimately assessment of this item also calls for the exercise of a discretionary judgment.
137. It seems to me that a proper sum, which does justice between the plaintiff and the defendant, is $750,000.
SUPERANNUATION BENEFITS
138. In following some of those possible careers, particularly in the public
service, she would have received a contribution by her
employer towards the
provision of superannuation. As a self employed person she would have been
entitled to taxation benefits had
she chosen to make provision for
superannuation out of her earnings. The bases on which such provisions have
been made in the community,
and on which taxation benefits have been allowed,
have changed rapidly and frequently in recent years, and there is little hope
of
expecting them to be stable in the future. Nevertheless, the loss of such
benefits must be allowed for in this award. The part
of them that she would
have obtained by payment out of her own earnings has, of course, already been
taken into account in assessing
her loss of future earning capacity. It is
only the employer financed benefit, or taxation benefit for a self employed
person, that
must be added. The actuary's calculations yield figures for
present value of such benefits ranging from $69,302, through $59,984
and
$50,452 to $64,456 for the four career paths used above. There are no
calculations for a self employed person's taxation benefits.
I reject the
submission by the defendant that this loss is speculative. Again, as an
exercise of discretionary judgment, I award
$50,000 for loss of superannuation
benefits over the potential income earning part of her life.
PAST GRATUITOUS SERVICES
139. The plaintiff's mother took up residence at the hospital for about 6
weeks, and later lived nearby, and she and her husband
took turns in helping
intensively in her treatment in Westmead Hospital. When Sarah transferred to
Coorabel on 1 May 1987 her mother
arranged a work transfer to Sydney, and used
to leave work early, travel to the hospital and help care for Sarah until
about 10 or
11 at night. That arrangement lasted until some time in June,
when Mrs Edwards returned home to Burra. She and her husband then
travelled
to Coorabel from Canberra on weekends to help in the rehabilitation process.
Sarah was discharged home in mid December
1987. Mr Edwards took long service
leave to be with her constantly at home. There then followed the two years of
outpatients rehabilitation
at Woden Valley, when they had to care for her at
home. During this period her ability to care for herself gradually increased.
In November 1989 the plaintiff spent about a month at Lidcombe Hospital and
then returned home, until from January 1990 till March
1990 she was at the
Transitional Living Cottage at Lidcombe. Then she returned home again, until
in December 1990 she was accepted
into the 325 Program. Her mother could then
return to full time work, and her parents' visits did not need to be as
frequent.
140. Then in September 1992 Sarah again returned home to Burra, where she is still living. Her mother helps her plan her day, then goes to work, sometimes taking Sarah in to the city, where she meets a nursing agency carer. There are a variety of arrangements that are made, to fit in with Sarah's appointments or activities. Her parents or grandmother keep in touch with her by phone. In the evenings and the weekends her parents are fairly intensively engaged in caring for her.
141. It is now clear from the decision of the High Court in Van Gervan v Fenton [2004] NSWCA 32; (1992) Aust Torts Reports 81 188 that the damages awarded under the principles of Griffiths v Kerkemeyer are in the nature of general rather than special damages. The income forgone by the parents is not the appropriate criterion for determining the value of the services. The proper measure would be the market cost or value of the services. Neither counsel contended to the contrary. What is in issue in the case is not the rate at which payment should be calculated, but the amount of time that the evidence showed had been spent by parents in providing the services.
142. It is obvious that in a case of this kind it would be impossible to calculate those hours accurately. Counsel for the plaintiff conceded that the claim for $176,202 set out in the Amended Statement of Particulars can not be sustained. I do not think either that the evidence supports the claim for $77,290 put forward in the plaintiff's written submissions. The defendant submitted calculations based on an arbitrary approach, but one which more closely reflected the evidence. The defendant's calculations yielded a figure of $47,493. I think the evidence justified a greater number of hours in the initial period than six hours a day from her mother and her father. In the end, it comes down again to being a matter of judgment. Bringing the allowance up to date I would award $60,000 for the value of past gratuitous services.
INTEREST
143. If I understood them correctly, interest on damages awarded under this
head, in addition to that on the out of pocket expenses
incurred by the
plaintiff's parents, was discussed by counsel in their submissions, the
defendant submitting that as part of general
damages it should attract
interest at 4 percent, the plaintiff arguing that since it was calculated by
reference to rates prevailing
at the relevant times it should be at commercial
rates.
144. I think that the expenses of the parents' attendance, just as much as the value of their services, are properly to be categorised as general damages. The decisions for example, of Taylor J in Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523 and Ward J in Rozario v Fernandez (1977) 16 ALR 445 are, if anything, reinforced by the reasoning of the majority of the High Court in Van Gervan v Fenton (above). What is being compensated for is the plaintiff's need for assistance, the total value of which is the value of the services and the cost of obtaining it in the most effective way possible. In this particular case, the services that the parents provided, particularly in the early intensive stages of treatment, could not have been provided by anyone else. Only they had the knowledge and the love that enabled them to provide the right sort of information, stimulation and care that was needed by the plaintiff.
145. However, I did not, nor did counsel, advert to the authorities in favour of the proposition that interest is not payable at all on the component calculated under this head of damages. See Burnicle v Cutelli (1982) 2 NSWLR 26, per Glass JA at 30; Settree v Roberts (1982) 1 NSWLR 649; Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 per Kirby J at 381, 382. Richardson v Schultz (1980) 25 SASR 1; Masinovic v Motor Vehicle Insurance (1986) 42 SASR 161 and Torrent v Lancaster (1991) Aust Tort Reports 81 089 are to the contrary, but I am inclined to consider myself bound by the Federal Court decision.
146. Unless persuaded to the contrary therefore I do not propose to award interest on these items. However, since counsel have not had the opportunity to argue the point that my chance researches turned up, I reserve liberty to apply in respect of it.
COST OF FUTURE ATTENDANT CARE
147. In assessing this item I rely particularly upon the evidence of Mrs
Blackman, in the context of the findings that I have already
made.
148. Among the possibilities that she discusses, the arrangement that seems to me the closest to what is reasonably required for the care of this plaintiff is that of a live in housekeeping and companion carer. Despite the attention to detail in her report and her evidence, it is not possible, again, to make an exact calculation.
149. There is no award rate for such a person. Payment is a matter of negotiation. The most recent rate that she had negotiated was $533.00 gross for a five day week, plus keep. Counsel's written submissions based on that figure with its associated expenses, gave a present value of $1,103,743. In one way that figure might be argued to be too low, because she will need care seven days a week. On the other hand the conditions under which a carer would live with this plaintiff may be such that a figure of that same order for a seven day week may be negotiated. There may be times when care will not be provided in that way or at that intensity. In some circumstances that might be when she is admitted to some institution for full time treatment. That is separately allowed for, and should not be doubly counted by being taken into account in this element.
150. An alternative calculation, based on live out care, gives a result of $1,050,559.
151. As an exercise of discretionary judgment, I think that the proper sum to award is $1,100,000.
GARDENING and HANDYMAN
152. I allow a further $54,000 for the cost of gardening and handyman
assistance, which is the cost of attendance for about 2 hours
a week, which
even Professor Jones did not consider unreasonable.
HOME ALTERATION
153. On the hypothesis that the plaintiff will need full time attendant care,
the defendant accepts that there must be some element
of the award to allow
for the extra costs involved in providing a home with suitable accommodation
for the carers.
154. If the plaintiff had been as successful in her career as I have held she was likely to be, it is probable that she, or she and her husband if she married, may well have obtained a substantial residence, paid for at least partly by the earnings for the loss of which she has already been compensated. It is only the additional cost of providing suitable housing that should be allowed.
155. The actual cost of alteration of the parents' home was not allowed as an item of special damage in Preston v Mercantile Mutual Insurance Co Ltd (1971) SASR 221, but Hogarth J suggested that an allowance should be made in the award of general damages for the fact that the plaintiff would need special accommodation.
156. The plaintiff called evidence of the cost of alterations and additions to a hypothetical house that might be suitable for her needs, as so altered, but I did not think that those costs are necessarily an accurate measure of the extra cost that is reasonably necessary for this plaintiff. For a start, such cost depends very much on the type of house that is actually obtained by the plaintiff. Something a bit better than the "Joe Cahill Cottage" referred to in the evidence may well have been purchased by her earnings had she not been injured. But then she would have had the capital value of that house. Whether the increase in capital value of the plaintiff's home after the alterations is proper to be taken into account is not clear to me from the authorities discussed in Assessment of Damages by Luntz, 3rd Ed at 4.1.6. There was no evidence about it in this case, and counsel for the defendant did not press his argument to that point, merely referring me to those authorities and submitting that the plaintiff's evidence did not give the true measure. The cases discussed in Luntz (Loc. cit.) do not give any clear guidance for this particular case.
157. Doing the best I can, I regard the costs of alterations discussed in the report and evidence of Mr Watts, the architect, as being some indication of the kind of expense to which the plaintiff will probably be put in providing for her special domestic needs. The costs referred to in his report were building costs $133,600, and professional fees $14,360.
158. I accept the point made by Mr Watts in evidence that, in order to attract and keep a suitable carer, it is necessary to provide much more than a bedroom and share of the facilities with the plaintiff. I am not convinced, however, that the addition of a completely self contained two bedroom flat is reasonably necessary. One bedroom, a living/dining room, kitchen, bathroom and toilet may be all that is needed. The evidence does not show whether that would cost very much less. And an existing house with a suitable flat already in existence may well be available, which would obviate the demolition costs and much of the professional costs involved in conversion of an existing house.
159. However, looking at that evidence as being no more than an indication of the sort of expense involved, I am satisfied that a sum of the order of $125,000 is an appropriate allowance for the additional costs of accommodation.
SWIMMING POOL
160. Counsel for the defendant did not, at the end of the case, contend that
the claim for the cost of a swimming pool was unjustified.
I am satisfied
that it is reasonably necessary for her, and I allow the cost claimed at
$58,200. I do, however, accept that there
should be some discounting of the
cost of maintenance of the pool. It is unlikely that she will require one for
the whole of the
rest of her actuarial life span. I would allow $60,000 for
the costs of pool maintenance.
FURNISHINGS
161. I think that an allowance of $5,000 is sufficient for the cost of
furnishing the carer's accommodation.
SPECIAL EQUIPMENT
162. Many of the items listed by Mrs Ernst would undoubtedly be useful or
desirable for the plaintiff to have. But some of them
are the sort of items
that she may well have purchased out of her earnings in any event, or are not
shown to be reasonably required
by her as the result of her injuries, over and
above what she might well have purchased.
163. The computer equipment and software, and a motor vehicle, seem to me to fall into one or other of those categories. I am also not persuaded that the computer equipment would even be very much use to her, considering her abilities.
164. The items that I would agree are reasonably required are those listed at
paragraph 3.4.3 of Mrs Ernst's report, in Exhibit W2.
The actuary's report
shows that the present values of the cost of providing those items over the
whole of the plaintiff's life total
$11,333. I can not identify any reason
for substantial discounting of that item. I allow it in full. ADDITIONAL
TRANSPORT EXPENSE
165. I do not think that the plaintiff will ever be able to drive a car safely herself. Mrs Ernst in her report at 3.4.2 suggests that she be provided with a vehicle to be driven by an attendant. I presume that would be her companion or carer. In her report at 3.3.1, however, she specified a home that is a short level distance from and has easy access to shops and community facilities and public transport. For other than short or very regular journeys from such a home the plaintiff will need to take a taxi and probably be accompanied. But it is not demonstrated that the resulting travel expenses will be greater than she would have incurred, uninjured.
166. Neither counsel asked Mrs Ernst any questions about this subject matter when she gave evidence. In the written outline of submissions on behalf of the plaintiff an amount of $65,741 is claimed, and it is said that the need for it is not in dispute. It was not an item conceded by counsel for the defendant at Gb.6 of his written outline. Frankly, I am not aware of any evidence that would justify a finding that her injuries will cause her any additional expenses in connection with transport. The actuary was asked to assume that there would be additional vehicle maintenance and running costs of $2,379 per annum. I was not referred to any evidence on which that assumption was based. I make no award for any additional cost of transport.
FUTURE MEDICAL AND HOSPITAL EXPENSE
(i) Routine Psychiatric Care
167. The plaintiff will require routine psychiatric care and monitoring of
her medication for the rest of her life. Dr Pettigrew
was seeing her
approximately monthly in 1991, at a cost of about $116.00 a consultation. By
September 1992 she expected that she
would need 4 to 6 consultations a year at
$120.00 a consultation. In October 1992 she reported her agreement with Dr
Oakeshott's
estimate of 2 hours a month for professional counselling and
medication review.
168. In her evidence she agreed that she did not mean that Sarah needed psychiatric assistance at that intensity, but merely regular counselling from professional people. The range of present values for 4 to 6 consultations is about $13,290 to $19,900. I allow $15,000 for the cost of routine psychiatric care, taking into account the possible need for crisis care dealt with in the next item.
(ii) Crisis Psychiatric Care
169. Dr Pettigrew and Dr Tennant both refer to the possibility of the
plaintiff's needing in patient treatment in the event of some
crisis. Dr
Pettigrew's best estimate was of three or four admissions over her lifetime,
each of three to four weeks. Costs of hospitalisation
exceed $470.00 a day.
170. I do not accept the submission of counsel for the plaintiff that allowance should be made on the basis of two crises in three years that might have required admission in other circumstances. I regard the calculations of counsel for the defendant, based on the present value of costs of admission at varying intervals over her lifetime as being a more accurate guide, but perhaps erring on the conservative side. The daily cost will be more than the $470.00 used in that calculation, and it was limited to three admissions. I would aware $20,000 for crisis psychiatric care.
(iii) Medication and General Practitioner
171. The cost of medication is not contested at $7,617, nor is the cost of
consultations with a general practitioner at $1,664.
(iv) Occupational Counselling
172. The plaintiff's submission was for one session each year at $84.00 over
the whole of her life, which averages out at $1.61 per
week, giving a present
value of $2,318.
173. The defendant submitted a calculation based on four sessions at $105.00 an hour giving $420.00 for a session, and allowing one session now and three more into the future, discounted for present payment. The result was $1,420. I think that more closely accords with the evidence.
174. I also prefer the approach of discounting payments to be made in the future to that of averaging weekly amounts over a period. As a matter of judgment I award $1,500 for the cost of occupational counselling referred to by Mrs Ernst.
(v) Rehabilitation Counselling
175. I have referred above to the estimate of 2 hours a month for counselling
given by Dr Oakeshott. He was not asked to explain
that in his oral evidence.
After hearing Dr Pettigrew's explanation in cross-examination, I am left
wondering what precise type of
counselling is being referred to. On the
evidence as I understand it I am simply not persuaded that there is a need for
any counselling
or oversight other than would be provided by her
companion/carer, general practitioner, psychiatrist and occupational
therapist,
for all of which provision has already been made by the amounts set
out above.
(vi) Scar Revision
176. The plaintiff told Dr Williams that she intended to have the scar on her
neck repaired. Having seen it, and observed her, I
think she will almost
certainly undergo the operation. The amount of $1,700 claimed in the
Statement of Particulars is not contested,
and I award that sum as being a
reasonable estimate of the cost, on the basis of Dr Williams's report.
ADDITIONAL HOLIDAY EXPENSES
177. The defendant properly did not contest the claim that the plaintiff will
need to be accompanied on holidays by a carer. It
is also clear on the
evidence that the type of holidays that the plaintiff will be able to enjoy
will be more restricted and probably
more expensive than those she would have
taken had she not been injured.
178. But I am not persuaded that the defendant's liability should be measured by the cost of the examples put forward in Mr Wheelahan's written submissions, namely, for an annual 4 weeks holiday in Cairns, Club Med, Bali, Tahiti, Noumea, Phuket or Malaysia.
179. There was nothing in the evidence to suggest that those were the sort of venues that would have, or would now, attract her anyway. Her tastes were more towards bushwalking and wilderness tours, which are now not accessible to her. It is also reasonable for allowance to be made for an occasional overseas trip, but not necessarily for 4 weeks every eighth year to Europe or United States of America.
180. The figure claimed in the Statement of Particulars was $221,852. That suggested in the written submissions was $200,000. Both were based on a type of arithmetical calculation which I do not think appropriate, namely of reducing total sums to be spent over many years in the future at discrete intervals to a weekly average and then calculating the present value of that. Neither counsel submitted any range of what is a more accurate indication, namely the present values of $X to be spent at a series of N years in the future. (Compare the calculations submitted by the defence for the cost of possible hospital admissions and rehabilitation counselling in the future, which illustrates what I think is a more correct approach.) A relevant table, making no allowance for mortality, is table 1 at page 543 of Luntz, 3rd Ed. The defendant did not submit any relevant calculations relating to this item at all.
181. But even if such calculations were available, they would do no more than mark out a possible area of discourse. There would still be a need for the exercise of a discretionary judgment. A large sum is obviously called for because of the plaintiff's youth. I note that the expenses of the carer who accompanied the plaintiff on the holiday to Hong Kong and Singapore for 17 days in January 1993 were of the order of $5,000. That would indicate the order of magnitude of the sums involved.
182. I would award $100,000 for the additional expenses of holidays. That sum includes the cost attributable to the holiday in January 1993.
FUND MANAGEMENT
183. The cost of the application to the Supreme Court of New South Wales for
the appointment of the Protective Commissioner to manage
her affairs was
conceded at $1,900.
184. It is clear that the plaintiff is not capable of managing her affairs, and that this fact results from the defendant's negligence. She will be obliged to pay to the Protective Commissioner the fees prescribed for managing her estate. Those fees could not be calculated, nor could meaningful submissions be made about them, until I had decided the many issues arising in the action.
185. Although the two decisions of the Court of Appeal in New South Wales in Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 and Government Insurance Office of NSW v Rosniak (1992) ATR 81 178 are in conflict about the method of calculating those fees, it is clear from principles common to both of them that the plaintiff in this case is entitled to an award for the costs of administration.
186. I note that among the various judgments in those two cases there is no single view that is binding upon me about the proper method of calculating those costs. I will obviously need to hear argument on the point, and it may or may not be useful or necessary to hear evidence relevant to it.
187. The findings I make on the elements that will go to make up the total
judgment are summarised as follows:
Pain, suffering and loss of amenity $ 250,000188. I reserve to both parties liberty to apply, and if necessary to call further evidence, on the question of the proper amount to award for the costs of administration of the funds to be awarded to her.
Interest thereon 15,000
Out of pocket expenses 36,859
Additional out of pocket expenses 30,000
Interest on paid out of pocket expenses 16,000
Past loss of income 15,000
Future loss of income 750,000
Superannuation loss 50,000
Past gratuitous services 60,000
Interest thereon liberty to apply
Cost of future attendant care 1,100,000
Gardening etc 54,000
Home alteration 125,000
Swimming pool 58,200
Pool maintenance 60,000
Furnishings 5,000
Special equipment 11,333
Additional transport - nil
Future medical and hospital expenses:
(i) Routine psychiatric care 15,000
(ii) Crisis psychiatric care 20,000
(iii) Medication and GP 9,281
(iv) Occupational counselling 1,500
(v) Rehabilitation counselling - nil
(vi) Scar revision 1,700
Additional holiday expenses 100,000
Appointment of Protective Commissioner 1,900
Cost of fund administrator to be determined
189. Credit must also be given for the amount already paid into Court and partly disbursed, and orders made for its disposition.
190. I therefore publish these findings and my reasons, and direct the parties within 14 days to bring in short minutes of the orders proposed to enable the action to proceed to judgment, and of any orders consequential upon the judgment.
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