Schelker v Vandenberg[1997] QCA 360

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9412 of 1996

Brisbane

[Schelker & Anor. v. Vandenberg]

BETWEEN:

LESLIE ANDREW SCHELKER

(First Defendant) First Appellant

AND:

SHANE PATRICK McCOOL

(Second Defendant) Second Appellant

AND:

CLINTON PETER VANDENBERG  by his next friend

SANTINA MARIS FERGUSSON

(Plaintiff) Respondent

DIRECTOR-GENERAL DEPARTMENT OF TRANSPORT

(Third Party)

Davies J.A.

Demack J.

Mackenzie J.

Judgment delivered 21 October 1997

Judgment of the Court

APPEAL DISMISSED.  RESPONDENT'S NOTICE OF CONTENTION REJECTED.  EACH PARTY TO BEAR ITS OWN COSTS AND EACH PARTY TO BEAR EQUALLY THE COURT COSTS INCLUDING THE COSTS OF PREPARING THE RECORD.

CATCHWORDS: DAMAGES - personal injuries - 14 year old male rendered unemployable by multiple injuries including brain damage.  Appeal against assessment of economic loss and future care dismissed.

INTEREST - allowance in respect of past economic loss - Social Security payments to be deducted.

Shield Contractors Pty. Ltd. v. John Nicol McGill (Appeal No. 4632 of 1996)

Counsel: Mr. K. C. Fleming Q.C. for the first and second appellants

Mr. S. C. Williams Q.C., with him Mr. M. T. O'Sullivan for the respondent

Solicitors: Murrell Stephenson as town agents for Roberts Leu & North of Townsville for the first and second appellants

Charlton Muller & Madders of Bundaberg for the respondent

Hearing Date:  27 June 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9412 of 1996

Brisbane

Before Davies J.A.

Demack J.

Mackenzie J.

[Schelker & Anor. v. Vandenberg]

BETWEEN:

LESLIE ANDREW SCHELKER

(First Defendant) First Appellant

AND:

SHANE PATRICK McCOOL

(Second Defendant) Second Appellant

AND:

CLINTON PETER VANDENBERG  by his next friend

SANTINA MARIS FERGUSSON

(Plaintiff) Respondent

DIRECTOR-GENERAL DEPARTMENT OF TRANSPORT

(Third Party)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an appeal from the assessment of the plaintiff’s damages in an action at the trial of which the defendants accepted that the plaintiff’s injuries were caused by their negligence.  The award of damages was $807,460.

Mr Vandenberg was born on 19 June 1973.  He was seriously injured in a motor vehicle accident on 26 March 1988.  His injuries were described in brief by the trial Judge as follows:

"a head injury with depressed right parietal skull fracture and underlying extradural haematoma and cerebral contusions;

a right brachial plexus injury;

a fractured right humerus;

abdominal injuries;

shock, pain, discomfort and diplopia.

He developed a further condition of his shoulder as a result of the injuries to his right side.  Fortunately his left side is dominant, but his right upper limb is seriously disabled."

Before the hearing began, counsel had agreed on the appropriate amount in respect of some of heads of damage.  Others were agreed during the hearing.  The matters left to the trial Judge for decision were economic loss and gratuitous care.  The trial began in the afternoon, a bundle of documents including medical reports was tendered and some evidence was heard.  The next day, further evidence was heard and the counsel addressed.  During the course of addresses, the experienced trial Judge indicated the approach he was taking to the matters left for his decision.  He adjourned for an hour and then delivered his reasons for judgment.  In some respects, these reasons need to be read in the light of what was said in the course of addresses which were recorded.

It was accepted that Mr Vandenberg was virtually unemployable.  He said that he always wanted to join the Air Force, hoping to be a member of an aircrew.  Schedules were prepared on the basis that he might have been successful in that, and these schedules were tendered to indicate potential loss of income.  When he was injured, Mr Vandenberg was at the beginning of Year 10 at High School so there was no established pattern of employment.  School reports were tendered, school teachers gave evidence and a friend from school gave evidence about his employment path.

In his reasons for judgment, the trial Judge said:

"The other large area of dispute relates to earning capacity.  The plaintiff was an average student at school.  It is highly unlikely that he would have attained a university level of education with employment commensurate with such qualification, but it is equally unlikely that he would have been reduced to unskilled or even semi-skilled work.  He probably would have been a qualified tradesman or a middle range clerical worker.

As best that can be assessed in relation to such amorphous possibilities, his income level should be assumed to be set at about $475 per week, allowing for all the contingencies in both directions.  His loss to date after an allowance for the ordinary contingencies of life should be assessed at $140,000, on which interest should be allowed a $35,000 after taking into account the amount which he has received by way of social services.

Future economic loss should be assessed globally at $375,000 after allowing for the contingencies of life.

It will be seen that some of these figures are not strictly in accordance with the mathematical calculations that have been mentioned, but a mathematical calculation has been used as the foundation and then suitable adjustments have been made in both directions to take account of countervailing factors that need to be recognised.  In effect, the result of those adjustments has produced some small upward adjustment of the figures."

This was attacked on the basis that the figure for past economic loss was too high and did not allow for the fact that, in the early years of employment, he would earn much less than $475 per week and that, in any case, that was too high a figure for a sustainable weekly income.

When the discussion in the course of addresses is considered, it becomes apparent that the assessment of $140,000 for past economic loss is based mainly on the schedule prepared for employment as a general aircraft mechanic.  That showed a nett loss of $183,000, but counsel for the plaintiff recognised that it was far too generous because it assumed a year 10 entry on 2 January 1988.  Mr Vandenberg was only beginning year 10 at that date.  Counsel reduced the amount to $156,000 by taking off the last year from the calculation.  The other schedule of possible Air Force employment was calculated on the rates of pay for a general hand, and its comparable figure was almost $146,000.  His Honour saw Mr Vandenberg in the witness box and was impressed by him.  He also heard teachers speak well of him.  The selection of $140,000 for past economic loss was within the range available on the evidence, and is based, to a significant extent, on the assessment made of Mr Vandenberg’s capacity.

In the course of discussion with counsel for the defendants, His Honour asked counsel about the appropriate weekly rate for future economic loss.  Counsel for the defendants was contending for an assessment of $300,000, starting from a weekly loss of $400.  His Honour indicated that, looking at the figures counsel for the plaintiff had given, the range would be between $450 and $500 per week.  There was also considerable discussion about the period over which the loss should be assessed, and about where the discounting for contingencies should be made.  Counsel for the plaintiff submitted a figure of $400,000, based on a weekly loss of $480 over a period of 42 years, discounted by about 10%.

The amount of $375,000 for future economic loss is apparently based on the favourable assessment that His Honour made of the plaintiff.  Clearly these assessments cannot be made precisely, and the learned trial Judge knew that.  He considered all of the relevant matters, mostly in the course of counsel’s addresses, and the assessment he made is within the range available on the evidence.

The appeal in respect of the assessments of pre-trial economic loss and future economic loss should be dismissed.

The plaintiff has given notice of his contention that the award in respect of the future cost of gratuitous assistance was manifestly low as was the award for future economic loss.  By an amended notice of contention, the plaintiff further contended that the learned trial Judge was in error in taking into account the amount that Mr Vandenberg received by way of social security payments in assessing interest on pre-trial economic loss.  This latter point was decided by this Court in Shield Contractors Pty Ltd v. John Nicol McGill (Appeal No. 4632 of 1996) and does not need to be considered any further.

So far as the assessment of future economic loss is concerned there is no basis for finding that the assessment is too low, any more than there was any basis for saying it was too high.  This has been adequately discussed.

With reference to the need for gratuitous services in the future, the case advanced for Mr Vandenberg relied on the opinion of Dr Maureen Field, clinical neuropsychologist, that he needed one hour’s supervision per day.  The difficulty arises because of brain damage which affects his concentration, memory and speech.  In the course of evidence, His Honour was clearly unwilling to accept the need for daily supervision.  He findings were:

"He is largely able to function independently, though he needs some minor supervision to check on his welfare from time to time.  He certainly does not require anything like one hour per day for supervision and assistance, as claimed on his behalf.  Nevertheless, it would be desirable that there be some assistance of a supervisor who may pay attention to his needs and condition for a brief time on a weekly basis.

While he cannot cook, he can provide himself with a range of domestic services, and when sharing accommodation can perform these by way of his contribution to a real division of labour in domestic affairs.  Providing he is in a position where he shares accommodation with someone else, which he can probably arrange, he will have no other need for paid domestic assistance.  Otherwise, he can make reasonable arrangements for things like ironing and cooking on a reasonably economic basis without bringing in domestic help for those purposes.  He could easily make some arrangements for the provision of meals by a neighbour on a paid basis from time to time, or even for the purchase of prepared food from food stores.  He should, however, be allowed a small further component within this head to provide for contingencies."

Mr Vandenberg had been in shared accommodation and was able to contribute to the tasks that were necessary and to receive the benefit of the activities of others in respect of tasks he could not perform.  Thus the finding about shared accommodation was based on evidence.  Also he had lived for a time with his grandmother.  She did the cooking and he performed other domestic tasks.  As he was assessed as virtually unemployable, it was of no significance that he performed tasks slowly or needed things that reminded him how to do tasks.  His Honour’s assessment of the cost of future care was expressed in this way:

"For the future there should be an average allowance of two hours per week at a commercial rate of $13.50 per hour or $27 per week.  This includes an allowance for his deterioration well into the future.  It is for his lifetime, but allowance should also be made for the various contingencies that might reduce the estimate of that figure.  This should produce a global figure of $30,000 after making suitable minor adjustments for various minor countervailing features."

His Honour was told that Mr Vandenberg’s life expectancy was 50.04 years, i.e. a multiplier of 976.  The assessment of a need for two hours’ services a week is based on the assessment His Honour made of Mr Vandenberg’s capacity to care for himself.  It is not possible for this Court to substitute its view of that.  The rate of $13.50 is a generous one.  Only $9 per hour was allowed in the past and that has not been challenged.  Over a period of 50 years a weekly cost of $27 amounts to $26,352 so that the amount allowed has been increased from the mathematical base.

All of the relevant factors have been taken into account and the final figure is justified on the evidence and the other findings.  There is no basis for interfering with the award.

As both the appeal and the respondent’s contention were argued unsuccessfully, each party should bear its own costs and the court costs including the cost of preparing the record should be borne equally.