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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Damages - Assessment - Personal Injury - Back injury - Existing spondylolisthesis - Asymptomatic - Exacerbation - Lumbar fusion - 2 operations - Need for domestic assistance - Basis of Calculation - Interest not awarded.
McKindley v MJ Campbell Nominees Pty Ltd (Supreme Court of the ACT, 5
December 1994, Miles CJ, unreported)
Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327unreported)
Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642
MBP(SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
Hallett v Schoevers (Supreme Court of the ACT, 5 March 1992, unreported)
Protonotarios v Zapasnik (Supreme Court of the ACT, 5 March 1992,
Marsland v Andjelic (1993) 32 NSWLR 649
Settree v Roberts (1982) 1 NSWLR 649
Burnicle v Cutelli (1982) 2 NSWLR 26
Law Reform (Miscellaneous Provisions) Act 1955
Motor Accidents Act 1988 (NSW)
HEARING
CANBERRA, 9 February 1995
Counsel for the Plaintiff: Mr G. Stretton
Instructing Solicitors: Sly and Weigall
Counsel for the Defendant: Mr B. Hull
Instructing Solicitors: Crossin Barker Gosling
ORDER
THE COURT ORDERS THAT:DECISION
MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 23 December 1988. Liability is admitted.
2. The plaintiff is a single man who was born on 17 August 1969. He went to school in Canberra, where he was educated to year 10. He then undertook an apprenticeship as a motor mechanic. He began that apprenticeship in January 1986, and would have expected to finish it in 1990. His father is a mechanic, and the plaintiff had a special interest in working with cars.
3. Although it was later to be discovered that he had a developmental defect in his spine, he was in good health, playing active sports and enjoying off road driving.
4. On 23 December 1988 he was driving to work in College Street, when the defendant's vehicle collided with the right hand side of his car at the intersection with Lathlain Drive. He was wearing a seat belt, and had braced himself against the steering wheel, but he was thrown about and struck his head on the side window. He did not lose consciousness, but felt shocked.
5. He went to the accident and emergency department of Calvary Hospital where complaints of pain on the right side of the head, neck and shoulder and of nausea were noted. There was tenderness over the cervical, thoracic and lumbar spine. X-Rays were taken which showed no fractures but there was demonstrated a 1st degree spondylolisthesis at L5. Panadeine and hot showers were prescribed and he was allowed home. He returned two days later for further X-Rays, which showed that the defect at L5 was of long standing and developmental.
6. His neck seemed to improve, but his back became worse. On 30 December the hospital prescribed Dolobid and Valium and gave him a certificate for absence from work until 14 January 1989. On 23 January he was given a further certificate until 31 January and a referral to Dr. Newcombe, neurosurgeon.
7. On 24 January 1989 he consulted a general practitioner, Dr. Brown, who arranged physiotherapy by Mrs. Dent. He received various types of treatment from her about twice a week for quite some time. Dr. Brown noted little improvement over the next month, so he arranged an appointment with Dr. Newcombe, who saw him first on 14 March 1989.
8. His neck pain had been somewhat improved by the physiotherapy, but low back pain and sciatica were continuous and becoming worse. Neck movements were still markedly restricted. A CT scan confirmed the forward slip of L5 on the sacrum. Dr. Newcombe advised an operation.
9. Shortly afterwards he slipped on a mat at home, which worried him in the light of what Dr. Newcombe had told him, so he went to hospital by ambulance. Nothing of further significance was noted, and he was sent home with some Valium.
10. On 3 May 1989 Dr. Newcombe performed a laminectomy and fusion at the L5 vertebra at Calvary Hospital. Bone grafts were taken from the right iliac crest. The plaintiff was discharged after 8 days, with his back in a lumbosacral brace. He was in considerable discomfort. He needed help with personal care, which was provided by his mother.
11. Dr. Newcombe thought his initial post-operative progress was good. However when he reviewed the plaintiff on 31 May 1989, there was continued sciatic pain. The plaintiff remained incapacitated for work, and on 23 June 1989 his apprenticeship was terminated. He was quite upset at not being able to pursue his chosen career.
12. On 4 July 1989 Dr. Newcombe reported that his condition was not yet stable, though he hoped for further improvement.
13. On 21 July 1989 Dr. Keiller examined him for the worker's compensation insurer. Despite his claim that his neck was really good, Dr. Keiller found significant local tenderness and limitation of neck movement. It was too soon after the operation to form a sound prognosis about the lower back, but Dr. Keiller doubted that the plaintiff would be able to return to work as a motor mechanic.
14. In August 1989 the plaintiff returned to work at Beasley and Bruce, to a position that his employer had created specially for him. He was attending to customer enquiries at the service counter, which enabled him to move about and avoid any lifting.
15. On 24 October 1989 Dr. Newcombe found his condition relatively stable, though there had been little improvement since July. The plaintiff was experiencing distressing headaches.
16. In December 1989 Mrs. Dent, who was still seeing him regularly, found that he had difficulties in day to day activities, and although treatment helped to alleviate his severe pain, with the load of a day's work his back symptoms were recurring.
17. Dr. Brown sought a second neurosurgical opinion from Dr. Dan, who reported in April 1990 marked restriction of lumbar function. He had reservations about further surgery and advised continuing conservative management. He felt that soft tissue and functional factors were playing the major part in the symptoms. He recommended retraining for work other than that of a mechanic.
18. The plaintiff could not endure the continuing pain, and Dr. Newcombe referred him to his colleague, Dr. Robson. He recommended operation. First he performed a myelogram on 30 May 1990. The plaintiff suffered a particularly severe reaction to this procedure. He did not know how long it would take to recover from the proposed operation, so he resigned from his job shortly before going to hospital.
19. On 28 December 1990 Dr. Robson operated on his lower back. He removed the discs at L5/S1 and L4/5, and replaced them by a large composite bone graft supported by plates and screws. The operation report confirms that he lost a lot of blood during the operation, and his recovery was most uncomfortable. He spent about 2 weeks in hospital. Again when he returned home it was necessary for him to be cared for by his mother.
20. After he recovered from the operation he found definite improvement. He still had pain in the back and leg, but it was not as severe as before the operation. By this time his neck discomfort had become intermittent.
21. His job at Beasley and Bruce was no longer available, and he obtained a job as a spare parts salesman for Canberra Mitsubishi. After only two months he was asked to return to Beasley and Bruce in a similar position.
22. In June 1992 Dr. Robson thought that his progress was satisfactory, but that it was too early for a confident prognosis for the distant future. In August Mrs. Dent was still treating him. He was still experiencing pain, and she expected that he would need an exercise regime for the rest of his life. Dr. Brown thought that his job was probably unsuitable because it involved a lot of driving.
23. His solicitors referred him to Dr. McGrath, rehabilitation specialist, who saw him on 25 August 1992. His complaints were principally of pain in the lower spine, but also in the middle of the thoracic spine and at the base of the neck. These last two regions had become painful during the previous 6 months. Pain was aggravated by driving, walking a long distance, changes in weather and work in general. Dr. McGrath found that movements of the lumbar spine were severely restricted. He agreed that a job which involved long driving was unsuitable. The only treatment that he could recommend was intelligent remedial exercise as a life long habit.
24. The worker's compensation insurer referred the plaintiff to Dr. Olsen, a consulting occupational physician, who saw him on 1 December 1992. In effect he agreed with Dr. McGrath.
25. The plaintiff undertook a supervised exercise regime with Mr. T. Robb, which by March 1993 had improved his muscular strength and mobility and reduced his level of pain.
26. On 16 February 1993 Dr. Vanderfield, consultant neurosurgeon, examined
him for the defendant. He told Dr. Vanderfield that he
had slowly but
steadily improved since the second operation. His residual complaints were:
1 Lower back pain, mainly in cold and wet weather;27. Dr. Vanderfield expected continuing improvement, but agreed that the permanent restriction of flexion of the lower spine would limit the type of work that he could do.
2 Pain and tingling in the right leg;
3 Difficulty in sitting or driving for more than an hour; and
4 Sleep disturbed by neck and head pain.
28. The defendant also arranged his examination by Dr. Tedder, rehabilitation consultant, on 23 April 1993. His complaints to her were consistent with what he had told Dr. Vanderfield. She reported that, in view of the fact that he could never work again as a motor mechanic, the possibility that he might be less able to cope with long periods of driving or static posture, and was already restricted in his ability to bend or lift, vocational retraining was advisable.
29. Dr. Cairns, orthopaedic surgeon, also examined him for the defendant, on 13 May 1993. His assessment was that the plaintiff's complaints were fair, and consistent with the history provided, and that he was permanently unfit for heavy work.
30. In February 1994 he was promoted at work to the position of Assistant Parts Manager, which involved some lessening of the amount of driving that he needs to do. The position may not be permanent.
31. Dr. McGrath reviewed him on 19 April 1994. He was maintaining his exercise program and appeared optimistic and cheerful. The distribution of his pain had not changed since 1992. He continued to need the infrequent services of a physiotherapist for acute painful flareups. Dr. McGrath thought the prognosis continued to be good, if the plaintiff adheres to his exercise and pain management program. In answer to a specific question he reported that about two hours of driving a day would be the limit of his tolerance. The plaintiff in fact drives for longer periods even in his present position. A return to the job of salesman would involve even more driving.
32. Dr. Vanderfield reviewed him on 10 May 1994. He also noted the plaintiff's positive attitude and the improvement brought about by the exercise program. He expected some improvement in his recreational abilities.
33. Dr. Tedder's colleague, Dr. McEwin, examined him on 10 June 1994. Of all
the doctors, his is the report which discusses in most
detail the relationship
between the pre-existing state of his lumbar spine and the accident. He
reported as follows:
"Relationship to the Motor Accident of 23/12/88: The defect at L5 is34. He agreed that the conservative treatment that the plaintiff was receiving was appropriate, and that he would be better off in a job which did not involve so much driving.
a congenital defect and would have been present prior to this motor
accident. In the absence of x-ray films prior to the accident it is
difficult to know whether the spondylolisthesis was present before
the accident. It may be that films taken at the Calvary Hospital on
the day of the accident would demonstrate this, but I do not have
access to these films. These films would be important from the
point of view of attributability of the spondylolisthesis to the
motor accident.
By his history the motor accident aggravated his lower back. He has
needed subsequent treatment with a fusion to the back. If I was
asked to attribute the proportion of "blame" for the need for
operation to the accident, and to his congenital defects to the
lumbar vertebra L5 I would say that the "blame" was 70% due to the
congenital defects and 30% due to the motor accident. My reason for
saying this is that with these congenital defects, spondylolisthesis
nearly always follows and from the text books, is due usually not to
one injury to the back but to multiple injuries to the back over a
prolonged period. In this case his very active sports career would
have provided some of these strains to the back, helping to produce
this spondylolisthesis.
The soft tissue injuries to the neck and the thoracic spine appear
to be due to the accident by his history.
By his history the peptic ulcer resulted from treatment he received
following the accident with non-steroidal anti-inflammatory drugs
which are well known for their capacity to cause dyspepsia and
peptic ulcer.
His history is medically consistent. He presents as a person who
does not exaggerate his complaints. He has been treated for
hypertension, as mentioned above, but his blood pressure is now
normal. He is not treated for other medical conditions. He denies
prior or subsequent injuries to his back, but with such an active
sporting career it is likely that he may have had some injuries,
perhaps now forgotten."
35. The only doctor who was required to give evidence and be cross-examined was Dr. Robson. He said, of course, that it was not possible to give an analytical answer to the question of the number of people, aged 20, with a diagnosis of spondylolisthesis, who go through life without back pain or operations. His best guess was that 20% would have problems in later life. In cross-examination he agreed that the chances of problems were increased by an occupation which put stress upon the lower back. He disagreed with the statement by Dr. McEwin that spondylolisthesis usually follows from multiple trauma. In his opinion it was more likely to have been developmental. On this issue the subject matter is very much Dr. Robson's specialty, and I prefer his explanation.
36. The plaintiff has attempted to find other suitable work, but without success. He has enrolled at a course in basic computer studies in order to improve his employability.
37. He claimed that he still needs assistance for household chores, at which his mother spends between five and nine hours a week. That estimate was challenged in cross-examination. Indeed all the plaintiff's estimates of the times for which he needed assistance, even after his operations, were contested. Not only was the number of hours in issue but also the basis of calculation of a rate.
38. The plaintiff's mother gave evidence. Between the date of the accident on 23 December 1988 and his first operation in May 1989 she estimated that she spent 10 or 12 hours a week in helping him. After the operation there was an increase in the level of care that was needed. Although she was a shift worker she took about a week off work, and then was spending up to 5 hours a day looking after him. After he went back to work the time reduced to 1 to 2 hours a day. After the second operation in December 1990 she again took time off work, and for 6 or 7 weeks was again spending up to 5 hours a day. The time then tapered off to between 8 and 12 hours a week. She continues to do things for him at home, however, for 6 to 10 hours a week. She insisted in cross- examination that she did those tasks for him because he needed to have them done, not simply from natural affection. I accept that part of her evidence, but I think that the cross-examination demonstrated that her estimates of time would not afford a sound basis for accurate calculation.
39. In the amended statement of particulars the plaintiff claimed over $47000 for the value of services provided in the past, interest on that amount, and the value of future services based upon 7 hours a week at $17.80 an hour.
40. Dr. McEwin did not agree with that claim. He commented as follows:
"In your letter of 23 March 1994 you ask about his inability to41. Dr. Vanderfield considered that this aspect of the claim should be drastically reduced. He thought that by the time of his examination in February 1993 there was no need for personal assistance. He did not consider that the claim for the future was justified.
attend to his usual personal care and household tasks. He would
have been unable to attend to his usual personal care in two
periods, firstly, during his first operation and then again during
the second operation. Within 3 or 4 weeks of these operations it is
my belief that he would have been able to manage his own personal
bathing, grooming, dressing, meals and other normal personal
activities. He does have an inability to lift and to sit for long
periods. I agree that he has some incapacity in regard to
maintaining a garden and a lawn, and doing house maintenance because
of his low back symptoms.
I do not agree that he needs another person to assist him with his
"usual personal care and household tasks" for seven hours a week for
the rest of his life. It would be reasonable for him to engage
someone to care for his garden and his lawn when he has his own
establishment. At present he is living with his family and does not
have this responsibility. When he has his own house this would
require help, but the number of hours per week might be two or
three, rather than the seven hours quoted in your letter.
I am unable to confirm that he needed the help of his mother during
the hours and times set out on page 1 of your letter. I agree he
would have needed some help in the immediate 2 or 3 weeks following
his discharge from hospital after his two operations, perhaps of one
or two hours a day. I do not have any information which allows me
to confirm that he required the extensive help set out in the table
on the first and second page of your letter of 23 March 1994."
42. Dr. Cairns, however, commented on this aspect of the claim as follows:
"An analysis of his history and the course of events which have43. The defendant called evidence from Mrs Dadge, the Director of Home Help Service, ACT Inc. It is customary in many accident compensation cases to tender a schedule of the rates that have been charged over the years by that organisation. Her evidence highlighted the difficulty of placing a value on domestic services. She was not completely prepared for all the questions that she was asked, and there was some confusion in her answers, but I understood the effect of her evidence to be as follows.
occurred since would lend support to the claim which he has entered
in respect of support which he has required to this point. Given
the fact that he has an established low back disability and some
ongoing restrictions, it would be reasonable to expect that he would
be incapable of carrying out the heavier aspects of housework such
as vacuuming, making beds, washing bathrooms and toilets, washing
clothes and hanging them out, and tasks such as dishwashing and
ironing. It could therefore reasonably be expected that he will
require some assistance with these matters for whatever period of
time he remains single, and needs to engage outside help to perform
these tasks. In the event that he were to find a partner who could
satisfactorily fulfil the function of his mother, you would have to
make your own interpretation as to whether the same dollar value
would need to be placed upon his future needs.
In respect of those future needs, I expect that some adjustment of
his household equipment, such as the use of dishwashers, washers and
dryers, more suitable models of vacuum cleaners and so on, could
further reduce his future needs to engage outside help. However,
following a discussion with my resident qualified expert advisers on
household duties and requirements, I am led to believe that he could
reasonably be expected to require such assistance for approximately
5 hours per week, and this requirement would continue indefinitely
until such time as any change in his circumstances eg. acquiring a
willing and co-operative partner, might alter the need for him to
engage outside support. It is also obvious that his mother will not
always be available to provide the assistance which he needs."
44. The organisation charges different rates, not according to the actual work done, but according to classifications of the persons to whom the services are provided. For example, the rate presently charged to victims of motor car accidents, called by her for obvious reasons the "third party rate", is $25 an hour. Pensioners on the other hand are charged a subsidised rate. The organisation pays its service providers the home help casual rate of $13.40 an hour, plus travelling time and a travelling allowance. On the other hand, she said that if a person needing help did not have access to any form of subsidy, the organisation would usually try to channel them to private organisations, where they would pay market rates. She said that the market rate varied very much, depending on whether tax was paid or not. On average she estimated between $10 and $14 an hour.
45. Lastly the defendant called Ms Lock, the administrator for Rolfe Motor Corporation, the plaintiff's employer. The plaintiff is perceived as an excellent employee. She expected that the company would continue to employ him even if he found it necessary to stop driving in the course of his work. Of course she was not able to guarantee that the plaintiff would keep his position or that his salary might not be reduced.
46. On that evidence I find that the plaintiff, before the accident, was in good health, and had not experienced any problems with his back. But there was a developmental defect in his lumbar spine. That defect might have remained symptom free for the rest of his life. It might have deteriorated, either from natural wear and tear, or from some other trauma, even had the accident not happened. The chances that it would have deteriorated were increased by the nature of his chosen vocation, that of an automobile mechanic.
47. On 23 December 1988 he was involved in an accident for which the defendant is responsible. That initially caused pain in the head, neck, thoracic spine and lumbar spine. He underwent physiotherapy, which improved the neck and thoracic pain. The effects of the blow to the head did not last long at all. His lumbar spine deteriorated.
48. In May 1989 he underwent an operation by Dr Newcombe. His apprenticeship was terminated. He was unable to return to his former work. His employer found other work for him to do.
49. His back continued to deteriorate. He underwent a painful myelogram in May 1990, and major lumbar surgery in December 1990.
50. He was able to return to work as a Spare Parts Salesman, and then Assistant Manager. With appropriate exercise his back condition has improved. He will never be fit for heavy work. He will always suffer discomfort, and long periods of sitting or driving will always cause pain.
51. He has a cheerful and positive attitude, and does the best he can to overcome and live with his discomfort. He is only 26 years of age. His statistical life expectancy is about 47 years.
52. For his pain and suffering and loss of amenity I award $50,000, of which $15,000 relates to the future.
53. For interest on the past component, on the conventional basis, I award $4,500.
54. The out of pocket expenses are agreed at $39,336.45. Interest is not claimed on that sum.
55. Past wage loss, excluding weekend work, was claimed at $15,915. The arithmetic relating to that item was conceded, and there is no reason in the evidence why the sum claimed should not be allowed in full.
56. He received worker's compensation, and interest is claimed on $5,119, which is the difference between what he received in compensation and what he would have received in salary. Interest on that sum in accordance with the practice direction is $4,725. I award $2,363 for interest on the net past loss of income.
57. The Fox v Wood figure is agreed at $1,950.
58. The plaintiff also claimed a loss of the opportunity to earn income for working at weekends, at a rate of $40 net per week. That claim was contested, on the basis that he now earns more than he would have done as a motor mechanic, even with the weekend work taken into account. To earn that in his present position he does in fact work on weekends. He obtained his present position in February 1994. I do not think that this item can be calculated. It is an aspect of his loss of income earning capacity. I think that there has been a diminution in this respect, and that the diminution has caused economic loss to him in the past. I doubt that it will do so in the future. On the one hand, on any one weekend he obviously could have earned more than the $40 a week net referred to in the particulars, but on the other it is not probable that he would have worked each and every weekend. I assess the value of this aspect of his loss at $10,000, and interest on it at $4,500.
59. Looking to the future, I am satisfied that there is a substantial chance that his injuries will prevent him from occupying his present position, or any position that involves substantial driving, to the age of 65. His position with his present employer is relatively secure, and he is prepared to enhance his skills to make it more so. However, if for any reason his present employer ceased to employ him he would have difficulty in getting as good a job with anyone else. Again, I do not think the amount is calculable, but the figure of $80 a week suggested by Mr Stretton helped to mark out the approximate area. The present value of that sum for 39 years at 3% is $96,602. The pre-existing state of the plaintiff's spine must be taken into account. I allow $60,000 for loss of future income earning capacity in all its aspects.
60. For the rest of his life he will need occasional medication and visits to a general practitioner, and he ought for many years to keep up his membership of a gymnasium. These expenses average out at up to $34 a week at present, on the basis of the submissions by counsel for the plaintiff. The evidence does not enable a firm finding that the expenses are as much as that amount, but again the figure helps to give some indication of an appropriate award. He might have had to incur that type of expense even had the accident not happened. The present value of $34 a week for 47 years at 3% is $45,046. As a matter of discretionary judgment I award $30,000 for the cost of future expenses.
61. The amended Statement of Particulars claims damages pursuant to the principles in Griffiths v Kerkemeyer. The first element of the claim is calculated with reference to various periods from the date of the accident to 30 June 1994, at various numbers of hours per week during those periods, and at historical rates which progressed from $12.44 an hour in 1988 to $17,80 an hour in 1994. The total claimed for the period was $47,632. That claim is not made out on the evidence.
62. For the periods after the accident and after the two operations the plaintiff would certainly have needed considerable assistance. That need would then have tapered off. The plaintiff still has some restrictions. He could not do heavy work. But, as he conceded in cross examination, there is not much around the house that he can not do himself now. Dr Cairns seems to have relied on the opinions of others in making his assessment. I think that Dr McEwin's estimate that the present need is for something of the order of 2 or 3 hours a week rather than 7 is nearer the mark.
63. In dealing with this area of the law of damages there is need for some precision.
64. The plaintiff had, before the accident, performed some services for his household. He might have been expected to continue to do so in the future, whether he lived with his parents or not. Since the accident his ability to do so has been permanently restricted.
65. Section 33 of the Law Reform (Miscellaneous Provisions) Act 1955 does not apply to this action, since the cause of action arose before 6 December 1991. See s.30. But, as Miles CJ observed in McKindley v MJ Campbell Nominees Pty Ltd (Supreme Court of ACT, 5 December 1994, Miles CJ, unreported), that section does not alter the law as it was laid down for the Australian Capital Territory in Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373. That is, apart from what was said in that case about "mere arrangement of domestic chores", which limitation can probably not now be applied, following Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.
66. However, in this particular case, I have already consciously taken this aspect of the plaintiff's loss into account, as part of his loss of amenity of life, when assessing general damages for pain and suffering. When that has happened, there would obviously be double counting if an additional separate amount were awarded for it.
67. What is here in issue is his need for other people to do things for him.
As Van Gervan (supra) confirmed, the loss being compensated
is the plaintiff's
need for assistance, whether or not that need results in financial loss. What
must be determined is
(a) what are the services required to satisfy the plaintiff's need68. In this case the nature of the assistance given is not really in issue. It is the time taken to provide it which is.
resulting from the defendant's wrong? and
(b) what is the value of those services?
69. From the date of the accident to the date of the first operation was about 18 weeks. I accept that an average of 10 hours a week would be a reasonable estimate of time for that period.
70. After the operation, for about 6 weeks, I think that an average of 35 hours a week would be needed. Thereafter, until his return to work in mid-August 1989, the time would taper off. An average of 15 hours a week over that period may be a reasonable approximation. His condition did not improve after his return to work and before the second operation, and his mother's estimate of 1.5 to 2 hours a day, or, say, 10 hours a week, is an acceptable average for that period.
71. After the second operation there would again have been a period of 6 or 7 weeks at about 35 hours a week, and then a further tapering off over a period, giving an average of about 15 hours a week for about 12 weeks. Thereafter there has been further improvement, especially after he undertook the exercise program. Thereafter, and for the future, I think that any allowance beyond 2 hours a week would obviously overcompensate the plaintiff.
72. That approximation of the hours involved may be summarised as follows:
Period Weeks Hrs/wk Total Hours73. It is clear from Van Gervan and McKindley (supra) that, unless there are no comparable services available in the market, assessment is to be made objectively with reference to the market rate of comparable services at cost. I suspect that the "third party" rate charged by Home Help Service involves some cross-subsidisation of other rates, and that the amounts paid by that Service to its service providers, and Mrs Dadge's estimate of what she called the "market rates" are a more accurate indication of the market rates for the relevant services. I think that $14 an hour is justified on the basis of her evidence.
23/12/88 - 03/05/89 18 10 180
11/05/89 - 22/06/89 6 35 210
23/06/89 - 14/08/89 7 15 105
15/08/89 - 28/12/90 71 10 710
12/01/91 - 26/05/92 6 35 210
03/03/92 - 26/05/92 12 15 180
27/05/92 - 26/05/95 156 2 312
_____
1,907
74. This element of the claim is relevantly to be categorised as general damages: Van Gervan (supra). As such it is assessed in the money value at the time of judgment: Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642.
75. The award for the past is therefore 1,900 hours x $14 an hour or, in round figures, $26,600.
76. In principle, and uninstructed by authority, I would incline to the view that, as general damages, the award for the past should attract an award of interest, in accordance with the principle in MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657.
77. Despite some incautiously provocative remarks made by me during argument, I am obedient to, and instructed by, higher authority, which requires the interest rate of 4% on general damages to be applied, either over part of the period or with respect to part of the component: Hallett v Schoevers (Supreme Court of the ACT, 5 March 1992, unreported); Protonotarios v Zapasnik (Supreme Court of the ACT, 5 March 1992, unreported). If interest could be awarded, I would allow $3,400 for interest on that element of the award.
78. Some of the statements made in Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 must be taken to be no longer the law in the light of the High Court's decision in Van Gervan (supra). One statement, however, has not yet been overruled. That is the comment by Kirby J (as he then was), at 381, that "It now seems clear that interest is not payable on the component of the verdict calculated under this head of damages."
79. That case was an appeal to the Federal Court of Australia from a decision of Kelly J in this Court. Kelly J had not made an award of interest, so that the statement by Kirby J does not form part of the ratio decidendi of the case. It was, however, concurred in by Gallop and Morling JJ.
80. In Marsland v Andjelic (1993) 32 NSWLR 649, Kirby P (as he has now become), together with Meagher JA, declined to follow Settree v Roberts (1982) 1 NSWLR 649 and Burnicle v Cutelli (1982) 2 NSWLR 26, upon which cases he had based his comment in Hodges v Frost (supra). He did so, however, in the context of interpreting provisions of the Motor Accidents Act 1988 (NSW), and was by no means resiling from what he had said in Hodges v Frost.
81. Again, despite my initial attraction to the simple proposition that, in principle, as general damages, this element of an award should attract interest, I am aware of the force of the considerations set out in the dissenting judgment of Mahoney JA in Marsland v Andjelic (supra) at 655-661.
82. Judicial opinion in Australia is divided on this question. See Luntz, "Assessment of Damages" 3rd edn., para. 11.3.14 and the cases cited. Policy considerations are not clear cut or universally agreed. See The Assessment of Damages in Personal Injury etc. in Report No.45, October 1993, Queensland Law Reform Commission, pp.58-65.
83. It must be left to a higher authority than me, either judicial or legislative, to change what I have, since Hodges v Frost (supra), understood to be the law in the Australian Capital Territory on this issue.
84. I do not therefore award any sum for interest on the Griffiths v Kerkemeyer component of this award.
85. For the future, I note that the present value of $28 a week for 47 years is $37,096. Taking into account the pre-existing condition of his spine I award $24,000 on account of his future need for personal services.
86. The total award is therefore made up as follows:
Pain and suffering 50,00087. I direct the entry of judgment for the plaintiff for $282,260.00
Interest 4,500
Out of pocket expenses 39,336
Past wage loss 15,915
Interest 2,363
Fox v Wood 1,950
Loss of weekend opportunity 10,000
Interest 4,500
Loss of future capacity 60,000
Future expenses 30,000
Past Griffiths v Kerkemeyer 26,600
Future Griffiths v Kerkemeyer 37,096
_______
$282,260
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