Geoffrey Rowsell v Kyle Damien Anthony Mahoney [1995] ACTSC 149 (15 December 1995)

SUPREME COURT OF THE ACT

GEOFFREY ROWSELL v. KYLE DAMIEN ANTHONY MAHONEY
No. SC174 of 1994
Number of pages - 2
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Damages - Personal Injury - Assessment - Variation of Award - Future treatment expenses.

HEARING

CANBERRA, 8:12:1995
15:12:1995

Counsel for the Plaintiff: Mr K. Bradley

Instructing Solicitors: Clayton Utz

Counsel for the Defendant: Mr J.D. Harris

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $452,353.62.

DECISION

MASTER A HOGAN On 24 November 1995 I directed the entry of judgment in this action for the plaintiff in the sum of $443,353.62, and published my reasons. On perusal of those reasons, solicitors for the plaintiff brought to my attention two matters.

2. The first arises out of my statement that there was no separate claim made for loss of superannuation benefits that would have accrued if the plaintiff had worked until 65. It was correctly pointed out that such a claim had been made and particularised.

3. The second matter was that I had omitted to include as a head of damage an allowance for future treatment expenses, which had also been particularised.

4. I apologise to the parties and their legal advisers for my oversight.

5. Formal judgment has not been entered up, so that there was no hindrance to the further argument of these matters, without the necessity for any interlocutory application. The matters were further discussed on 8 December 1995.

6. So far as the first matter is concerned, the parties have accepted that the loss of superannuation benefits, although unquantified, was taken into account in assessing the loss of future income earning capacity. Because that assessment was so much a matter of discretionary judgment it is difficult to foretell whether a different result would be achieved either way by making a fresh assessment of separate items, and the parties have agreed, as I understand counsel, that there is no need to make any further or other findings with respect to those items.

7. So far as the claim for future treatment expenses is concerned, the defendant objected to any variation, and argued that in the light of my findings of fact any variation, if made, should be small.

8. I think that there must be an addition to the award for this head of damage, as it was by a simple, though inexplicable, oversight on my part that it was not included.

9. The plaintiff's evidence was that he is at present receiving physiotherapy twice a week, and expected that to continue. The amended particulars claim only one session a week at $60 a session. I am not persuaded that he will continue to have physiotherapy even at that frequency for the rest of his life. I think also that in assessing this item it is necessary to take into account Dr McEwin's comment that his neck might have become symptomatic even without the accident, by the process of degenerative change. I do not think it would have done so to the extent of affecting his capacity to work, but it might have done so to the extent of his needing occasional physiotherapy. I think that an indication of an appropriate award would be based on about 2 sessions a year, or an allowance of $2 a week. I allow $2,000 for this item.

10. I think that he will always need medication such as Panadol at a cost of about $2.50 a week, and allow $2,500 for it.

11. The plaintiff said he would try to avoid anti-depressant medication, relying instead on counselling and relaxation techniques. I accept that as probably accurate. But I think that he would be over-compensated by an award based on a finding that he will undergo psychological counselling for the rest of his life. I think that after a few years he will have derived as much benefit from that form of treatment as he can get from it. I allow $2,500 for that item.

12. He will need to see his general practitioner from time to time. For that I allow $2,000.

13. The total for cost of future treatment is therefore $9,000, which seems appropriate as an overall sum.

14. For those reasons I vary the order that I had made, and direct the entry of judgment for the plaintiff for $452,353.62.