Fitzgerald v Dansey [2001] NSWCA 339 (24 October 2001)

Last Updated: 29 October 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Fitzgerald v Dansey [2001] NSWCA 339

FILE NUMBER(S):

40981/00

HEARING DATE(S): 18 September 2001

JUDGMENT DATE: 24/10/2001

PARTIES:

Brad Peter Fitzgerald by his tutor Robyn Lynette Fitzgerald

Craig Dansey

JUDGMENT OF: Powell JA Fitzgerald AJA Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2037/99

LOWER COURT JUDICIAL OFFICER: Cooper DCJ

COUNSEL:

Mr R McIlwaine SC with Mr I Cullen for the Appellant

Mr P Neil SC with Mr G Travers for the Respondent

SOLICITORS:

Paul A Curtis & Co for the Appellant

W R Harvey & Associates for the Respondent

CATCHWORDS:

Damages assessed under Motor Accidents Act

appeal against quantum

apportionment for contributory negligence

non-economic loss: whether "a most extreme case"

interest: whether "appropriate" for the defendant to have made an offer

ND

LEGISLATION CITED:

Motor Accidents Act 1988, s73, s79, s79A

DECISION:

As per para 113 of the judgment.

JUDGMENT:

- 7 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

POWELL JA

FITZGERALD AJA

SPERLING J

Wednesday, 24 October 2001

40981/00 Fitzgerald v Dansey

Judgment

1 POWELL JA: I agree with Sperling J.

2 FITZGERALD AJA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Sperling J. I agree with the other members of the Court that the cross-appeal should be dismissed. I will deal with the appeal briefly.

APPORTIONMENT

3 I agree with the other members of the Court that the trial judge's apportionment of responsibility for the appellant's injuries should not be altered. The High Court and this Court (see, e.g. Dunnet v Brennan [2000] NSWCA 211) repeatedly reaffirm the principles which restrict an appellate court's power to review a trial judge's decision on apportionment. Despite those principles, the Court is regularly asked to change the apportionment determined at trial. As with most of the appeals in which challenges are made to apportionment, this is not a case in which the Court could legitimately interfere with the trial judge's decision.

4 However, I do not agree with the other members of the Court that the trial judge might reasonably have concluded that the appellant alone was responsible for his own injuries. Although the respondent advanced that submission in seeking to uphold the trial judge's refusal to award interest, the respondent's argument in relation to apportionment effectively conceded that he was 25 per cent responsible for the appellant's injuries. There is nothing in the trial judge's judgment which suggests that his Honour considered that a conclusion that the appellant was solely responsible for his own injuries was reasonably open.

NON-ECONOMIC LOSS

5 By s 79A of the Motor Accidents Act 1988, the maximum amount which may be awarded for non-economic loss may only be awarded in a most extreme case. Otherwise, when damages are properly awarded for non-economic loss, the amount awarded must be a proportion of the maximum amount that may be awarded determined according to the severity of the plaintiff's non-economic loss as a proportion of a most extreme case. While the statutory concept of "a most extreme case" is elusive, it is related to the degree of impairment of "the injured person's ability to lead a normal life".

6 In Dunnet, all members of the Court agreed (paras 1, 2 and 17) that, as the appellants in that case accepted:

"A comparison between an injured person's condition and a most extreme case requires a value judgment related to circumstances which vary in significance from person to person. Different opinions are legitimately open. This is another area in which an appellate court is not justified in interfering with the trial judge's decision unless there is discernible error or the decision is so unreasonable that it cannot be correct."

7 The trial judge determined that the severity of the appellant's non-economic loss was 90 per cent of a most extreme case.

8 No error is discernible in his Honour's approach, and his conclusion was reasonably open having regard to the nature and consequences of the appellant's injuries. Although his ability to lead a normal life has been severely impaired, the appellant failed to persuade me that the only conclusion reasonably open to the trial judge was that the appellant's was "a most extreme case".

FUTURE CARE

9 The trial judge concluded that the appellant requires a carer 24 hours per day seven days per week and that he will continue to do so for the remainder of his life. His Honour rejected the appellant's "primary claim ... for the cost of a live-in house couple to reside with him". His Honour found that the "... presence of two people is not necessary for appropriate care to be given to [the appellant]. The presence of one carer, present at a time, would be sufficient."

10 Consistently with the trial judge's rejection of the appellant's "primary claim ... for the cost of a live-in couple to reside with him", his Honour had earlier found that the appellant's need for care 24 hours per day seven days per week would "... not have to be from a qualified nurse, but could be from a person (preferably male) with whom [the appellant] gets on well and who could build a rapport with [him] to the extent that [he] will do what he is told. This carer must have considerable patience and understanding."

11 Subsequently, and generally consistently with those conclusions, the trial judge later found:

"Of course it cannot be expected that the one person would be on duty 24 hours per day seven days per week. Accordingly, it would be necessary to have one person on per shift. Logically, each shift would be of 8 hours duration."

12 For reasons which were not explained anywhere in the judgment, the amount awarded by the trial judge for future care was not based on the cost of the care which his Honour had held was necessary, namely, "24 hours per day seven days per week with one person in attendance for each of three shifts each of 8 hours duration". The amount awarded was instead based on the cost of a single carer, living-in for five days per week, with another carer attending at weekends and on public holidays.

13 On the evidence before the trial judge, the damages assessed for future care might have been $2 million to $3 million higher if the assessment had been made on the basis of his Honour's findings that the appellant required care "24 hours per day seven days per week with one person in attendance for each of three shifts each of 8 hours duration".

14 The trial judge's reasons for judgment reveal a significant error, such serious consequences for the appellant.

INTEREST

15 Sub-section 73(4)(a)(i) of the Motor Accidents Act contemplates that there might be circumstances in which it would be "appropriate" for a defendant not to make an offer of settlement in respect of a plaintiff's full entitlement to all damages of any kind even though the defendant had been given information that would have enabled a proper assessment of the plaintiff's claim and had had a reasonable opportunity to make an offer of settlement. The structure of the sub-section tends to suggest that it is for a plaintiff to establish each of the matters referred to, including that it would have been "appropriate" for the defendant to make an offer of settlement.

16 The respondent did not dispute that it had been given information that would have enabled a proper assessment of the appellant's claim and had had a reasonable opportunity to make an offer of settlement.

17 Nonetheless, the appellant failed to persuade the trial judge that it was "appropriate" for the respondent to have made an offer of settlement. His Honour's reasons are unsatisfactory. The judicial obligation to explain the reasoning process which underpins a conclusion cannot be avoided merely by use of a phrase such as "in all the circumstances".

18 If it matters, the trial judge did not proceed on the basis that the respondent had reasonably formed the opinion that the appellant's claim might totally fail. His Honour referred to the respondent's view "... that it had reasonable prospects of successfully defeating [the appellant's] claim or alternatively reducing the damages very considerably", but its argument at trial was summarised as follows:

"The [respondent] argued that the nature of the [appellant's] claim was such that it had good prospects of a substantial reduction of the [appellant's] damages by reason of contributory negligence. For this reason it argued that it was not appropriate to make any offer of settlement." [Emphasis added].

19 As earlier noted, the trial judge apportioned responsibility for the appellant's injuries equally between the appellant and the respondent. In its argument in relation to apportionment in this Court, the respondent conceded that it was 25 per cent responsible. A conclusion that the respondent was not responsible at all for the appellant's injuries was not reasonably open and the trial judge did not find that it was.

20 While it is by no means obvious to me why it would be "appropriate" for a defendant not to make an offer of settlement merely because of a reasonable but erroneous opinion that it might win a case that it subsequently loses, that need not be further considered in this matter. The respondent correctly considered merely "that it had good prospects of a substantial reduction of [the appellant's] damages by reason of contributory negligence." It was for that reason that "it argued that it was not appropriate to make any offer of settlement." Although the trial judge's reasoning process is disguised by his reference to "all the circumstances", that is the argument which his Honour must have accepted.

21 Sub-section 73(4)(a)(i) of the Motor Accidents Act only arises for consideration where a plaintiff has succeeded and a defendant has not made an offer of settlement. The compromise of litigation is plainly in the interest of the public as well as the parties: Studer v Boettcher [2000] NSWCA 263, [74]. Sub-section 73(4)(a)(i) of the Motor Accidents Act seeks elliptically to give effect to that public interest by exposing a defendant who is in a position to make an offer of settlement to the risk of an order that he pay interest if he fails to make an offer and is unsuccessful in the litigation. That legislative intent would be rendered nugatory by a conclusion that it is "appropriate" for a defendant not to make any offer of settlement merely because of a possibility that he might be ordered to pay the plaintiff less than he claims.

22 Although the ultimate onus remains on a plaintiff to establish that it would have been appropriate for a defendant to make an offer of settlement, an order that the defendant pay the plaintiff damages effectively determines that the defendant has had the use of the plaintiff's money for a period. In the absence of circumstances such as material delay by the plaintiff or any satisfactory explanation from the defendant of its failure to make an offer, no more would ordinarily be necessary than for the plaintiff to prove that the defendant had been given information that enabled the proper assessment of the plaintiff's claim, had had a reasonable opportunity to make an offer of settlement and had not done so. Ordinarily, in cases in which a plaintiff is successful, both the public interest and fairness between the parties are best served by requiring a defendant who had been given information that enabled a proper assessment of the plaintiff's claim and had had a reasonable opportunity to make an offer of settlement, to pay interest when no offer was made.

23 In the absence of any other circumstances, it is not reasonably open to the trial judge to conclude that it was not "appropriate" for the defendant to make an offer of settlement. The defendant's opinion that it might win or that the plaintiff's damages would probably be substantially reduced because of contributory negligence, would legitimately have affected the amount offered in settlement but, without more, did not make it appropriate for the respondent not to make an offer of settlement at all.

24 Since Powell JA agrees with the orders proposed by Sperling J and with his Honour's reasons, there is no sufficient purpose to be served by my discussing the other issues.

25 I would allow the appeal with costs.

26 I agree that the cross-appeal should be dismissed. I would order the respondent to pay the appellant's costs of the cross-appeal.

27 SPERLING J: On 10 April 1996, the plaintiff, Brad Peter Fitzgerald, was injured when he fell from a utility motor vehicle being driven by the defendant, Craig Dansey. He brought proceedings in the District Court for damages for personal injury. Cooper DCJ found negligence and contributory negligence. He apportioned responsibility 50:50. His Honour directed the entry of judgment for $2,206,746.74.

28 His Honour's assessment of damages the determinations in relation to the following items are challenged on appeal and cross appeal:

(1)	Apportionment	Appeal and cross appeal
(2)	Non-economic loss	Cross appeal
(3)	Future attendant care	Appeal and cross appeal
(4)	Future case management	Appeal
(5)	Future vacation costs	Appeal
(6)	Mobile Phone	Appeal
(7)	Future transport costs	Cross-appeal
(8)	Future specialist neurologist and medicines	Appeal
(9)	Interest	Appeal
(10)	Goods and Services Tax (GST)	Consequential

29 As will appear, in my view, the appeal succeeds only in relation to Items (5) and (8) and then only to a limited extent in relation to each of those items. The cross-appeal, in my view, fails altogether.

30 I will deal with the relevant items in the order in which they appear above.

Apportionment

31 The findings of negligence and contributory negligence are not challenged on appeal. Both sides appeal against apportionment. The plaintiff says 25 per cent against the plaintiff. The defendant says 75 per cent against the plaintiff. Both sides challenge particular items in the trial judge's assessment of damages.

32 On appeal, neither side challenged the following findings by the trial judge. The plaintiff and the defendant were both moderately affected by alcohol. At the commencement of the journey, the defendant was driving the vehicle with the plaintiff and another passenger, Gregory Taylor, in the cabin of the vehicle. While the vehicle was in motion, the plaintiff climbed into the back of the utility through the window. The defendant and Mr Taylor endeavoured to restrain him but without success. The plaintiff then sat for a time in the back of the utility with his back to the cabin. The defendant saw him there. The plaintiff stood up at some stage. The defendant did not see him stand up or standing up. There was a gradual left hand bend in the road. The defendant was driving at 70 to 80 kilometres per hour in an 80 kilometre zone. He drove steadily around the bend. Towards the end of the bend, the plaintiff, while standing, fell from the right hand side of the vehicle.

33 The trial judge found the defendant negligent in a number of respects. Of these, only one need be noted as being causally related to what happened. That was allowing the plaintiff to ride in the back of the utility, knowing the plaintiff was affected by alcohol.

34 The act or omission inherent in the finding of negligence was that the defendant drove the utility with the plaintiff in the back of the vehicle, knowing of his condition; or, putting it another way, the defendant failed to stop the vehicle when the plaintiff got into the back of the utility, knowing of his condition.

35 The relevant act or omission constituting contributory negligence, as found by the trial judge, was that the plaintiff rode in the back of the utility, in a standing position, knowing that he was affected by alcohol.

36 The trial judge recognised the relevant considerations applicable to apportionment, namely, the culpability and causal significance of the respective breaches.

37 For myself, I would have regarded the plaintiff as being much more responsible than the defendant. Standing up while the vehicle was in motion was flagrantly negligent, the more so when affected by alcohol. It was when the plaintiff stood up that the danger arose which culminated in the accident. Before that, on findings made by the trial judge, the only risk of injury was if the vehicle lurched in an emergency or was driven recklessly. That did not happen. Standing up was the immediate cause of the accident. The negligence of the defendant amounted to a failure to save the plaintiff from his own folly.

38 The trial judge's apportionment was, in my view, very generous to the plaintiff. Indeed, it would have been open to his Honour to have found a verdict for the defendant on the basis that the only real cause of the accident was the plaintiff's negligence and that the defendant's negligence had merely set the scene: Birch Brothers Ltd v Brown [1931] AC 605. (These observations are material, at a later point in this judgment, concerning the plaintiff's claim for interest.)

39 Notwithstanding my own view, I would not interfere with the apportionment made by the trial judge. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, the court said, at 532:

A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

40 That approach has been followed in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 and Dunnet v Brennan [2000] NSW CA 211.

41 It was open to the trial judge to find that the plaintiff and defendant were equally responsible on the basis that each of them was in control of the situation. The defendant could have stopped and obviated the risk. The plaintiff could have remained seated and obviated the risk. I would therefore dismiss the appeal and the cross appeal against the trial judge's apportionment of responsibility.

Non-Economic Loss

42 Section 79 of the Motor Accidents Act 1988 provides that the amount of damages to be awarded for non-economic loss should be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. The maximum amount specified may be awarded only in "a most extreme case".

43 The trial judge awarded damages assessed at 90 per cent of the amount payable for a most extreme case. On appeal, the plaintiff asked this court to substitute a finding that this is "a most extreme case" within the meaning of the legislation. In written submissions, the defendant maintained the position taken at the trial, namely, that the case should have been assessed as 85 per cent of a most extreme case.

44 The plaintiff was born on 1 December 1974. He was 21 at the time of the accident and 26 at the time of trial.

45 The trial judge's findings in relation to the plaintiff's injuries and sequelae were as follows. Relevantly, the plaintiff suffered diffuse brain injury. Complications included lack of inhibition in certain situations, mainly in the form of loudly spoken comments about what he thought about young women to whom he was attracted. He had limited control over feelings of anger or frustration. He tended to swear openly on occasions. He urinated in inappropriate places. He displayed a destructive streak, mainly aimed at property, such as hitting cars in car parks and pretending to smash items in the kitchen. He had a habit of spitting. He went through periods where he bashed his head against the wall. While living at home for a time, his behavioural difficulties placed an enormous strain on members of his family, particularly his parents.

46 The plaintiff was permanently unfit for work. He was very unlikely to marry or to establish any meaningful relationship with a woman. He would be incapable of parenthood. There was or was likely to be a degree of insight into his own situation. His Honour's summary of the plaintiff's condition was as follows:

It is common ground that the plaintiff suffered very severe brain damage in the accident of April 1996 which has left him with severe behavioural and cognitive impairment. Furthermore he will never be able to work on the open labour market and he requires constant supervision because of the aberrations in his behaviour.

47 The trial judge made the following further findings:

The plaintiff is essentially lonely and bored. He has no friends - male or female. His inappropriate comments to females would scare them off. He had one so-called friend who ended up stealing his Sony Play Station. His main entertainment is playing with this instrument and also viewing videos of motorcycle races. He is unable to follow the plot for a normal film and so enjoys these videos.

. . . . .

Because of impairment of his short term memory he forgets that a stove may be on with the result that what is on the stove burns. His mother bought him an electric fry pan fitted with an automatic cut-out.

He has no concept of money and his mother has to care for it, doling out to him enough for immediate needs. If he has extra money he is likely to spend it on alcohol.

Because of his manner of walking, the slurring nature of his speech and his inappropriate remarks in public, taking him to public places presents major difficulties. Mrs Fitzgerald described how in her presence, her son was told to leave a shopping mall because he was intoxicated although he had consumed no intoxicating substances. Mrs Fitzgerald conceded that at times her son's demeanour is such that a person who did not know his problem could regard him as intoxicated.

When the family had to bring him from Nowra to Sydney for medical examinations and for the hearing of this case they stayed in Hotels near the court. On one occasion the plaintiff walked off at night dressed in his pyjamas and ended up at St Vincent's Hospital. On other occasions he made audible abusive remarks about waiters who were of Asian appearance. On one evening during the course of the hearing of this case he assaulted his sister. On another evening his parents took him down to Circular Quay to see the pre Olympic lighting. Whilst there he wanted to urinate on the ground. His father managed to prevent this by finding an open toilet.

A neighbour in the block of flats where the plaintiff lives has rung Mrs Fitzgerald at night complaining of the noise he is making with loud music and bashing of walls and doors.

48 His Honour concluded with the following observations:

For the reasons stated earlier it is quite clear that the plaintiff's ability to lead a normal life has been drastically impaired. He has severe and permanent brain damage which affects his ability to relate to others and to manage his own affairs. From the physical point of view he is affected to the extent of loss of balance from time to time, has diminished power on his left side and lost his sense of smell.

On behalf of the plaintiff it is submitted that the injuries and disabilities constitute "a most extreme severe case" and qualifies him for 100 percent of the non economic loss prescribed under the Motor Accidents Act. On behalf of the plaintiff it is submitted that the degree of loss is not a most extreme case.

At the time of his injury the plaintiff was 21 years of age he is now almost 26. He is a young man whose ability to lead a normal life has been grossly impaired. I do not regard this as a most extreme case but I regard it as close.

Under these circumstances I assess his accident cause disabilities as 90 per cent of the maximum amount which may be awarded and this is equivalent to $255,500.

49 How does one characterise the question as to whether the case is "a most extreme case"? Is it discretionary in character, attracting the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 and Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, or is it a mixed question of fact and law, involving the weighing of evidence by witnesses and attracting the principles in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472? In either case, the constraints on appellate review are well known.

50 Of course, once it were decided that the case is not "a most extreme case", the percentage assessment is a discretionary exercise.

51 The question of how to characterise the finding that this was not "a most extreme case" was not ventilated in argument. It does not need to be resolved for the purpose of this appeal. The result would be the same on either approach.

52 This was a case of severe injury to the psyche, but not one involving severe physical disabilities. Irrespective of my own view - and I do not express one - I would not interfere with the trial judge's determination that this was not "a most extreme case" or with the assessment of damages at 90 per cent of the damages specified for "a most severe case".

Cost of future attendant care

53 His Honour's findings were as follows:

On behalf of the plaintiff a claim is made for the cost of a carer 24 hours per day seven days per week. On behalf of the defendant it is submitted that such a requirement is for a limited period only and that such a cost should not be visited upon the defendant for the rest of the plaintiff's anticipated lifespan.

The evidence comfortably satisfies me that the plaintiff, as a consequence if his accident caused injuries, needs supervision 24 hours per day seven days per week. This does not have to be from the qualified nurse but could be from a person (preferably male) with whom the plaintiff gets on well and who could build a rapport with the plaintiff to the extent that the plaintiff will do what he is told. This carer must have considerable patience and understanding.

The evidence comfortably satisfies me that the plaintiff's need for such care will persist indefinitely into the future. The problems requiring constant care arise from his permanent brain damage which will not get any better. The best that can be expected is that he will learn to adjust to the deficits brought about by the subject accident.

It is not easy to work out what is a reasonable allowance for such future care.

The plaintiff's primary claim is for the cost of a live-in house couple to reside with him. Whilst a house couple would be one of the appropriate courses of action it gives rise to difficulties arising out of the fact that two people are involved. The presence of two people is not necessary for appropriate care to be given to the plaintiff. The presence of one carer present at a time would be sufficient. Of course it cannot be expected that the one person would be on duty 24 hours per day seven days per week. Accordingly it would be necessary to have one person on per shift. Logically each shift would be of 8 hours duration.

54 Relevantly, there were two estimates before the trial judge concerning the cost of domestic care. They were predicated on different assumptions. The figures provided by Care Solutions assumed three eight hour shifts each day, including three active night shifts a week. On the other hand, figures provided by Dial an Angel were for a single carer, living in for five days a week, with another carer attending at weekends and on public holidays. The trial judge adopted the regime which underlay the Dial an Angel regime.

55 The plaintiff's position on appeal was as at the trial, namely, that the plaintiff required carers on continuous eight hour shifts or, at least, a live-in house couple.

56 Depending on how one reads his Honour's findings (quoted above), there could be a tension between those findings and his Honour's adoption of the Dial an Angel regime. I would resolve any such tension as follows.

57 When his Honour spoke of "supervision 24 hours per day seven days per week" early in the passage which I have quoted, his Honour said, in conjunction with that, that the service could be provided by a person who was not necessarily a qualified nurse but someone with whom the plaintiff got on well and who could build a rapport with him. The person, his Honour said, would need to have considerable patience and understanding. It is apparent from those observations that what his Honour meant by "supervision 24 hours per day seven days per week" could be provided by a single live-in carer who might have to get up at night to attend to the plaintiff but who would be able to manage notwithstanding that. Adoption of the Dial an Angel figures conformed with that approach.

58 As to the paragraph at the end of the passage which I have quoted, I would construe everything in that paragraph as relating to the plaintiff's claim for a live in house couple or for carers attending on continuous eight hour shifts.

59 For these reasons, I do not see any inconsistency between his Honour's observations and his Honour's adoption of the Dial and Angel figures.

60 I would, therefore, reject the submission that his Honour's assessment of the cost of future attendant care is vitiated by inconsistency or error of reasoning.

61 That leaves for consideration the plaintiff's argument that a more expensive regime than that allowed by the trial judge is reasonably required. I reject that argument. In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1970) 122 CLR 649, Barwick CJ said (at 661):

Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent.

62 I would not interfere with the trial judge's finding that the Dial an Angel regime was sufficient to meet the plaintiff's reasonable requirements.

63 In the written submissions, the defendant sought a reduction in this item. That was not pressed save as follows.

64 The trial judge made no allowance for the vicissitudes. The defendant argued that he should have done so. The trial judge's approach was correct: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 587; Nominal Defendant v Gardikiotis (1994) 19 MVR 307, 312. The assessment was made on the basis of life expectancy tables. There is as much chance of the plaintiff living longer than his current life expectancy as there is that he will not live as long. There is only the most remote possibility that the plaintiff might have required similar services in any event as a result of some other accident or illness except, possibly, in old age. In this case, that is balanced out by the prospect that the plaintiff will, as his Honour accepted, develop epilepsy at some stage and might then require a higher level of care.

65 For these reasons, I would not interfere with the trial judge's assessment of this item one way or the other.

Future case management

66 Dr S R Buckley, a consultant physician in rehabilitation medicine, explained the role of a case manager in his report of 25 August 1999, as being to oversee and coordinate the plaintiff's maintenance program and to ensure that everything possible is done to maximise the plaintiff's quality of life, independence and assimilation into the community.

67 At the trial, the plaintiff's claim was for long term case management at $100 per hour for five hours per week. His Honour rejected that claim. His Honour went on to say -

I do accept that some form of supervision of the plaintiff by an appropriate professional is required. A claim is made later for review by the traumatic brain injury units service and I propose to allow something in that to cover the cost of this aspect of case management. Accordingly nothing is allowed under this particular heading.

68 Later in the judgment, his Honour made allowance for the future cost of services provided by the Brain Injury Rehabilitation Unit outreach team and for behavioural counselling costs. He allowed that item as claimed but made the following observation in relation to it:

Although this allowance is rather high, I am satisfied on the evidence that it is appropriate to allow this sum in full. In doing so I have taken into account my rejection of the claim for future case management (see above) and it will also be taken into account when considering further claims dealt with later.

69 In context, it is clear that by "rejection" of the claim for the cost of future case management his Honour meant rejection of that item as claimed.

70 In his report of 25 August 1999, Dr Buckley proposed that a case manager would be required for four hours per month of active involvement plus any travelling time that might be required. Although a larger claim was made in the plaintiff's written submissions on appeal, that was moderated in argument to a claim based on Dr Buckley's evidence.

71 The trial judge made no express finding in relation to Dr Buckley's proposal one way or the other. On behalf of the plaintiff it is submitted that, because his Honour had accepted Dr Buckley in other respects, it should be assumed that his Honour either had or should have accepted Dr Buckley's proposal in this respect also. That does not follow. It was open to his Honour not to be satisfied that the regime proposed By Dr Buckley was reasonably necessary.

72 For my own part, I would not be satisfied that anything like four hours per month was reasonably required for supervision of the plaintiff's requirements. Once the plaintiff's regime of domestic and other care was set up, it seems to me that the need for supervision of that regime would become little more than nominal and capable of being monitored in most respects by telephone calls rather than visits.

73 His Honour made no separately quantified allowance for this item. He was not obliged to do so. I am not satisfied that the allowance in fact made by his Honour was inadequate to cover this and the other items to which reference has been made.

Vacation Costs

74 This item represents the cost of the plaintiff being accompanied by a carer or carers while on holiday away from home.

75 At the trial, a claim was made for $5000 for four weeks per year for each of three or alternatively, two, carers. The claim was based on statistical evidence concerning the average expenditure of Australians on interstate and overseas travel.

76 His Honour allowed a lump sum of $3000 for this item.

77 At the trial, the defendant submitted that a lump sum of $25,000 would be adequate and does not resile from that position on appeal.

78 In his reasons for decision, the trial judge rejected the plaintiff's claim on the basis that it did not represent, in his view, what the plaintiff would have expended on holidays had he not been injured. I have to say that this was not a relevant consideration. The claim is for what is reasonably necessary now as a result of the plaintiff's injuries.

79 The plaintiff's own costs in relation to holidays are accommodated in the allowance for future loss of earnings. The item of claim presently under review is for the additional cost, attributable to the plaintiff's injuries, of having to take a carer or carers with him when he goes on holidays.

80 I would start with the assumption that it is reasonable for the plaintiff to go on holiday once a year. There is a limit to his capacity to enjoy a holiday in the ordinary manner but it is reasonable for him to have a break from his day to day environment.

81 For how long? This is more a matter of what is reasonable than what is strictly required. Community standards and expectations have a role. It is a matter of how long on holiday away from home. That is not directly related to the usual duration of annual leave for people in employment. I think two weeks holiday away from home would conform reasonably well with the usual or the average case in this country.

82 What kind of holiday? The kind of break that would now be suitable for the plaintiff would be something like a stay in a holiday unit on the north or south coast of the state. Anything more elaborate would I think be wasted on him.

83 The additional cost of such a holiday attributable to the plaintiff's injuries would be the cost of accommodating the one or more carers required throughout the year. The trial judge held that only one carer is necessary, with relief at weekends and on public holidays, a finding I have proposed should be upheld. So the relevant cost would be the additional cost of a two bedroom rather than a one bedroom holiday apartment and the fares for two return trips for carers.

84 Estimating these costs as best I can, I would reduce this item to the figure proposed by the defendant, namely, $ 25,000.

Mobile Phone

85 The trial judge rejected this item of claim. The item was based on evidence by Dr Buckley as follows:

"He should have available to him a mobile phone in order that he might summon assistance if he should become lost or otherwise disorientated".

86 His Honour dealt with the claim as follows:

The plaintiff claims the cost of a mobile telephone.

I am satisfied that the plaintiff does need access to a telephone. However he would have had a land line phone in his home even if injured. I have already allowed for the cost of full-time carers. This would overcome the problem of the plaintiff requiring a mobile phone of he gets lost. I regard the cost of a mobile telephone as an unreasonable expense and not one which would make the plaintiff's life any better more bearable or safer. Accordingly no allowance is made for this item.

87 The plaintiff presses this item of claim on appeal.

88 I agree with the trial judge's approach. The plaintiff would be in the company of a carer full time. The contingency contemplated by Dr Buckley would not arise. The appeal fails in relation to this item.

Future Transport Costs

89 The trial judge allowed $150,000 for this item. The defendant submits on appeal that this should be reduced to $70,000. There is, accordingly, no dispute about this item being included. It is a question of quantum.

90 The following is an extract from his Honour's judgment

At the same time I bear in mind that the plaintiff is unable to drive a motor vehicle himself. Accordingly if he is to be driven it would have to be either by a carer or in a taxi. The plaintiff is likely in the future to live some kilometres out of Nowra. To attend diversional therapy is likely to result in an annual distance travelled of about 20,000 kilometres. In a schedule to his submissions the plaintiff claimed for a vehicle with a capital cost of $39,284 which is the cost of a Holden Acclaim. There are other vehicles which would be just as effective and last as long and cost some $10,000 less and have lower running costs. I also consider it appropriate to make an allowance not for the total cost of running the vehicle for the rest of the plaintiff's life but rather for the additional costs brought about by reason of his accident caused injuries. Thus an allowance for future transport cannot be a matter of precise arithmetical calculation but rather one of judgments. In respect of this item I allow the lump sum of $150,000.

91 The distinction between total cost and additional cost relates back to a passage in the judgment, immediately preceding the quoted extract, where his Honour recognised that the plaintiff would have had some transport costs in any event, perhaps by motor bike as was the case before the accident. It would be a consideration that, in later life, the plaintiff is likely to have acquired a motor vehicle in any event.

92 On behalf of the defendant, it is submitted on appeal that, having decided not to allow the cost of a Holden Acclaim, his Honour in fact did so. That argument is not made out. The evidence is that the combined capital and operating cost for a Holden Acclaim travelling 20,000 kilometres per annum would be $215, 846.08. A discount in the order of one third for a cheaper vehicle and for the other considerations which I have mentioned was reasonable.

93 I would not interfere with the assessment with this item of damage.

Future Specialist Neurologist Costs and Medication

94 The trial judge allowed $15,000 for this item. The plaintiff's claim at the trial was for $43,985. That was made up as follows

Initial treatment	$3,155.00
Ongoing annual costs	$10,830.87
Future medication ($4,982.00 to $43,841.60) say	$30,000.00
Total	$43,985.87

95 The claim relates to the prospective development of epilepsy but was calculated on the basis of immediate onset. Some discount was therefore required. On appeal, the plaintiff proposed the sum of $30,000, being the midpoint in the range of $18,913 to $57,827, that is, $38,000, less a discount of $8,000 for conservatism.

96 His Honour dealt with the claim in the following way.

This arises out of the views of Dr Bleasel that the plaintiff will suffer from epilepsy at some time in the future. His opinion started as being a possibility of future epilepsy and became a certainty by reason of an incident which occurred on 8 December 1998. There is no evidence of any similar incident having occurred since then. Nonetheless, I am satisfied on the balance of probabilities that there is more than the bare possibility of epilepsy striking this plaintiff at some unknown future date. Precisely when it will occur, if it does, is a matter for speculation.

The costs of treatment are estimated at an initial cost for treatment at $3155 and annual treatment of $565. In addition there would be the costs of medication the estimates of which vary. According to the evidence the initial treatment would include consultation with a neurologist, electroencephalograph, some hospitalisation and further reviews.

Because of the imponderables involved I consider it appropriate to allow an amount in the nature of a cushion to cover the cost of epilepsy developing at some time in the future. I propose to allow $15,000.

97 The defendant submits, on appeal, that the trial judge's allowance of $15,000 was reasonable because the onset of epilepsy was uncertain and the time of onset was also uncertain, if it occurred.

98 The defendant has the trial judge's limited finding that there was "more than the bare possibility of epilepsy". But that finding cannot stand. Dr Bleasel's evidence that the development of epilepsy was a certainty, albeit uncertain as to time of onset, was not challenged and should have been accepted by the trial judge. It is necessary, therefore, that the item be re-assessed on that basis.

99 The uncertainties as to when epilepsy will occur and as to the cost of medication, when it does occur, introduce a large measure of arbitrariness into the exercise. I would allow $19,000, being, in round figures, one half of the midpoint ($38,000) in the range of possible expenditure under this item.

Interest

100 Section 73(4) of the Motor Accidents Act 1988 provides, so far as is material, as follows:

(a) Interest is not payable (and a court cannot order the payment of interest) on such damages unless:

(i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer.

101 The trial judge disallowed the plaintiff's claim for interest. The relevant part of his judgment was as follows

The plaintiff claims interest upon the paid out of pocket expenses and past economic loss pursuant to the provisions of section 73(4) of the Motor Accidents Act. In support of this submission it is pointed out that at no stage did the defendant make any offer of settlement.

Counsel for the defendant did not dispute that it had sufficient information to enable it to make a proper assessment of the plaintiff's claim or that it had a reasonable opportunity to make an offer of settlement. The defendant argued that the nature of the plaintiff's claim was such that it had good prospects of a substantial reduction of the plaintiff's damages by reason of contributory negligence. For this reason it argued that it was not appropriate to make any offer of settlement.

The facts as to liability in this case are somewhat unusual. It was the plaintiff who placed himself on the back tray of the utility vehicle against the protestations of the defendant. One of the main causes of the plaintiff's injuries as alleged by him was that the defendant drove so erratically that the plaintiff was thrown from the back of the utility. The defendant had evidence that although he was affected by alcohol his manner of driving was not erratic or abnormal. Under these circumstances it was the view of the defendant that it had reasonable prospects of successfully defeating the claim or alternatively of reducing the damages very considerably.

My views on the issue of liability are set out in some detail in my judgment of 20 October and it is not necessary to repeat them here. Suffice to say that the plaintiff has failed to satisfy me on the balance of probabilities that in all the circumstances it was appropriate for the defendant to make an offer of settlement to the plaintiff within the meaning of those words as appearing in sub section 4 of sectio seventy-three of the Act.

Accordingly I decline to allow interest. In doing so it should be noted that section 73 specifically prohibits an order for the payment of interest unless an offer of settlement has not been made in the circumstances "where it would be appropriate to do so". The plaintiff has failed to satisfy the court on the balance of probabilities that "it would be appropriate to do so".

102 Under the relevant statutory provisions, there is no entitlement to interest unless the plaintiff satisfies the court of four matters:

(1) that the defendant has been provided with information enabling a proper assessment of the claim to be made;

(2) that the defendant has had a reasonable opportunity to make an offer;

(3) that it would be appropriate for the defendant to have made an offer; and

(4) that the defendant has not made an offer.

103 Of these, conditions (1), (2), and (4) were satisfied in this case. The trial judge held that condition (3) was not.

104 As at the trial and now on appeal, the ground advanced by the plaintiff for satisfying condition (3) is that the defendant should have recognised that the plaintiff was entitled to recover damages and it was, accordingly, appropriate for the defendant to have made an offer, taking into account the prospect of the damages being reduced for contributory negligence if that represented the defendant's view.

105 No other consideration was advanced at the trial or on appeal as a basis for the argument that it was appropriate for the defendant to have made an offer (which is not to suggest, one way or the other, that any other argument was or is now available).

106 In my view, the trial judge was right to reject the plaintiff's argument that it was appropriate for the defendant to have made an offer on the ground that was advanced. That is because there was, in my view, no reasonable requirement for the defendant to accept, before trial, that the plaintiff was entitled to recover damages. As I have said earlier in this judgment, it is my own view that it was reasonably open to the trial judge to have found, on the evidence, that the only real cause of the accident was the plaintiff's own negligence. The defendant was, accordingly, as I see it, not reasonably required to accept that the plaintiff was entitled to recover.

107 It is unnecessary, in these circumstances, to determine, for the purposes of this case, the meaning and ambit of the concept of appropriateness incorporated in the legislation. The only argument advanced fails within its own ambit, without this court having to decide whether the argument would have satisfied the condition, properly construed, had it been made out.

Costs

108 The appeal has substantially been unsuccessful. The appeal has failed in relation to apportionment, non-economic loss, future attendant care, future case management, interest and mobile phone. The cross appeal has failed altogether, that is, in relation to apportionment, non-economic loss, future attendant care and future transport costs.

109 The plaintiff's appeal has succeeded but to a limited extent only, in relation to vacation costs and future treatment for epilepsy.

110 The gains made by the plaintiff on appeal have been very small relative in absolute terms, and in relative terms by reference to the verdict as a whole and to the issues on which the parties have respectively failed on appeal.

111 In these circumstances, I propose that there be no order for costs of the appeal or of the cross-appeal, with the intent that the parties will bear their own costs of the appeal and cross-appeal.

Conclusion

112 The appeal should be allowed in part. The cross appeal should be dismissed. The parties should pay their own costs of the appeal and cross-appeal.

113 No orders should be made at this stage. The parties should, within seven days, bring in short minutes of order to implement what has been decided. That will, I think, need to include an adjustment of the item for goods and services tax. Counsel should consider whether any other consequential adjustment needs to be made. If there is agreement as the form of orders to be made, the short minutes of order should be sent to Powell JA's chambers, and no further attendance will be required. If not, his Honour's associate should be advised and other arrangements will be made.

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LAST UPDATED: 24/10/2001