McMillan v Pritchard[1997] QDC 269

CIVIL JURISDICTION

JUDGE FORNO QC

and

BRISBANE

DATE 26/09/97

JUDGMENT

HIS HONOUR: This is an action by the plaintiff for loss of consortium of her husband who was injured in a motor vehicle collision on 4 August 1994. It is only quantum which is in issue.

The husband's action is resolved. He has been left with fairly substantial permanent partial disability of both legs - as to the right, 25 percent or thereabouts (10 percent loss of efficient function of the whole body due to this) and, as to the left 37 percent or thereabouts (15 percent loss of efficient function of the whole body due to this).

Future operative procedures on his knees are indicated. According to Dr Gillett (report September 16, 1996) he may require a high tibial osteotomy on his left knee to try to improve stability; results are not guaranteed. He would be out of the work force for some eight weeks if he undertook it. Within the next 20 years he will require total knee replacements on both sides. 10 to 15 years later he would require revision knee replacements more likely of the left than of the right.

In a further 10 years, a third revision could be done if he has sufficient bone stock or, he could be left with some form of arthrodesis, excision arthroplasty, or wheelchair bound. There is a 10 to 15 percent risk that in his seventies he will be wheelchair bound.

It is a fairly bleak scenario and must cause him concern about the future. His damages will provide him with the means to get psychological assistance and that may assist him with his pain and attitude management. All of this is relevant to the impact it has and will have on the plaintiff so far as loss of society is concerned.

A second part of the claim relates to loss of services. The plaintiff and her husband have been married for the last 10 years and were together for two years before that. They have two children, both girls, aged 10 and seven. There was no evidence about plans for future family. Husband and wife are each aged 29 and I take the view from having seen them both give evidence that both were vital and active up to the accident. They have their own home and developed their 16 perch block creating gardens and lawn, fencing, et cetera.

Mr McMillan is a qualified chef and worked in a senior position in well regarded establishments and is now reduced to a much lesser role, and that of course reduces his sense of satisfaction and impacts negatively upon his general attitude including his attitude at home and generally towards his family.

He becomes extremely tired at the end of each day's activities and this reduces his capacity for interaction with his family. His wife is thus deprived of significant periods of his company compared with the situation before the accident. He now falls asleep at about 8.30 p.m. in a lounge chair. The children retire to bed at about 7.30 p.m. and formerly husband and wife could enjoy each others company up until 10.30 p.m. or later when ordinarily they would retire if Mr McMillan did not work at night. If he did, he used to be home at about 9 and they would retire at about 12.30 or so.

I am confident that most married couples of about the age of the plaintiff and her husband with young children value that time together very highly, and I have no doubt that that was the case here. Anybody with young school age children to look after together with home duties would appreciate the value of time to spend with adult company even just to discuss the problems of the day after the children have gone to bed.

It seems clear the situation in this respect for the plaintiff could never be retrieved and that represents, in my view, a substantial loss to her. Of course, the loss of such company at any age and also after children have left home is certainly not insignificant.

Immediately after the accident and for a time sexual relations ceased and the frequency of intimate relations is significantly lessened after that time. This is due substantially to Mr McMillan's increased fatigue and may also be partly related to physical difficulties involving his legs. When considering the appropriate award for this in the future I would need to take into account the normal lessening of libido with ageing.

I have not overlooked the effect of the evidence which is that the plaintiff and her husband continue to enjoy a loving relationship as they did before the accident, generally speaking. They fortunately remain committed and loyal to each other. However, I accept Mrs McMillan's evidence that, “He gets irritable, short-tempered, distant. I find a lot of the time I sort of humour him and agree with him to keep the peace. I just walk away instead of fighting because he gets short-tempered and irritable with me.”

Both Mr and Mrs McMillan impressed me as honest and reliable witnesses. I did not detect any exaggeration on the part of either of them and I accept their evidence.

The claim embraces loss of society and also loss of services as I mentioned earlier. Mr and Mrs McMillan were only recently asked to assign times to the various services Mr McMillan used to perform which they both benefited from before the accident. It is therefore obvious that schedules 1 and 2 (Exhibits 2 and 3) are useful only as a broad guide. Tc Exhibit 2, shopping needs to be added according to Mrs McMillan's evidence.

There was, as part of Mr McMillan's action, a claim for gratuitous services provided for him by his wife on the principles of Griffith v. Kerkemeyer (G and K). Thorne v. Strohfeld (1996) Australian Torts Reports is some authority for the proposition that there should not be double recovery in a situation like the present one. Also it appears it is permissible to look at the pleadings in Mr McMillan's action to have some appreciation of what it was that he was compensated for under the G and K head even although there was a lump sum award.

In the case before me the matter was resolved by case appraisal. Details of that were sought to be urged upon me on the basis I could take judicial notice of the case appraiser's assessment, but objection was taken to that course by defendant's counsel. I did not have the Supreme Court file before me (the husband's action was heard in the Supreme Court) although I have no doubt the Supreme Court Registry would have provided it for my perusal if I had called for it. A difficulty is that I do not know what power I have to call for the file over objection by counsel to my having regard to what is on it. Additionally, I do not know whether the assessment is sealed not be opened except by order of the Supreme Court.

In the end result it seems to be the case that plaintiff's counsel was content to ask me to refer to Mr McMillan's statement of claim and amended statement of loss and damage which were tendered without objection.

In Exhibit 5 (amended statement of loss and damage) it is clear that a great deal of what was claimed related to driving Mr McMillan to appointments and also nursing and personal grooming and hygiene matters. Additionally however, included in that is that for 100 days following the accident Mrs McMillan “prepared and served meals and mowed the lawn”.

For the next 200 days in addition to the nursing and personal hygiene related matters et cetera she “continued to do cooking and washing for the plaintiff”. I can only assume in the absence of any indication to the contrary that the appropriate principles were followed in the Supreme Court action and that Mr McMillan did not receive an award for anything done by his wife referable to the accident that previously she had been doing anyway. Similarly, the claim by Mrs McMillan is for services that she now has to perform herself which she previously did not because they were performed by her husband.

Where there is overlap I should not allow what really would amount to double recovery. Some of what is now claimed was not previously claimed - that is, car washing and servicing, making the beds, gardening, hosing driveway and maintenance work. Part of what I will allow will account for such matters during that first 300 days. What I allow for the future needs to be discounted by reason of the usual vicissitudes and also to take account of what counsel for the defendant referred to as “changing family dynamics”. For example, children as they get older may be expected to assume more household tasks thus relieving the parents of them; children will probably eventually leave home which will reduce the washing, cooking and cleaning presently necessary.

I also need to bear in mind that Mr McMillan does some things now which he did not do before, such as taking the children to school. It seems that I should not allow anything for tasks done by sympathetic neighbours or the children (see Luntz, Third Edition, page 452) although not to do so ignores the principle relevant to G & K claims which perhaps logically should apply to claims for loss of servitium namely that what is being compensated for is the need for services to be rendered which need is directly related to the accident.

It was submitted that the evidence was that Mr McMillan could still do tasks he does not do now and therefore there should be no award for those. The tasks individually would take him, however, much longer and cause him increased pain and fatigue. It is not, in those circumstances, reasonable it seems to me to deny damages in this case. If I did, in any case, it seems to me I would need to increase perhaps by a similar amount the award for loss of society.

An interesting point arises in a situation where an injured spouse prior to an accident as here did the gardening and the gardens are simply “let go” after the accident. Similarly, cars may not be washed as regularly as previously. Unless there is evidence that the able-bodied spouse, who is claiming damages, saw gardening and regular car washing as necessary or at least desirable, need by such a spouse may not be established. That is not a complicating feature here in my view. Mrs McMillan physically helped set up the gardens and would appear since she herself is well groomed if I may say so with respect to be the sort of person who would regard gardening and car washing as desirable. If it is not done her sense of pride I am satisfied would be offended and damages therefore would seem to be indicated.

Exhibit 6 is the Domicare letter which indicates a commercial rate of about $10 per hour give or take in the circumstances. On the authority of Nguyen v. Nguyen (1992) 1 Qd.R it is not appropriate simply to multiply a number of hours by the commercial rates by reason of the matters referred to in that case. I am of the view that it is appropriate in this case to fix global sums to both segments of the claim. In doing so I have borne in mind the matters I have referred to so far. Thus, in taking a global approach in this sense I have attempted to avoid denying to the plaintiff something to which she would be entitled.

I do not regard the amount awarded by my brother Dodds in King (Maroochydore, 24 March 1997) namely $5,000 for loss of society as particularly helpful in this case only because the facts are so different. The spouses in that case were both 62 years of age. Additionally, part of the reduction in the enjoyment of sexual relations was due to non-compensible injury. There is nothing in the reasons in King to show that the circumstances Mr and Mrs King found themselves in were in important respects comparable to the McMillans' situation.

It can safely be assumed that there were no young children taking up Mrs King's time such that she was in any situation comparable to Mrs McMillan's where she has lost valuable close adult companionship at the end of each day to as it were unwind and discuss the day's problems and events which is to be the fate of Mrs McMillan for quite a number of years to come and there is no other time available to catch up with that.

Her life will not be made any more easy once the responsibilities of guiding children through the teenage years is upon her. When Mr McMillan is having operations in the future, it is to be expected that this will result in cessation of sexual relations for some recuperation periods and also increased loss of society.

Having regard to everything that I have said I am of the view that the figures urged upon me by plaintiff's counsel are very close to being appropriate. They were:

The calculation of those sums is indicated in the plaintiff's counsel's submissions and I need not go through that. They allow for substantial discounting.

Mr Morton submitted $10,000 all up for loss of servitium and $5,000 or a bit more for loss of society. I am satisfied those figures, with respect to Mr Morton, are far too low. I award in total for past and future loss of services including interest for the past $20,000.

Because of the serious view I have taken and which I am convinced is justified of the loss of comfort. I award $15,000 all up. I give judgment for the plaintiff, therefore, against the defendant by election in the total sum of $35,000. I will hear the parties as to costs.

...

HIS HONOUR: Well, perhaps, I will just read what the case appraiser awarded into the record. Loss of society, including interest was a total of 12,000; past loss of servitium, including interest, 5,000; future loss of servitium, 25,000 making a total of 42,000.

...

HIS HONOUR: The plaintiff's solicitor submits that I should order costs of the District Court trial, no doubt excluding the case appraisal ... Is that so, excluding the case appraisal?

MR COCKBURN: I don't think I could argue against that no.

HIS HONOUR: ... excluding the case appraisal costs on the basis of solicitor and client having regard to an offer that the plaintiff made to settle dated 7 November 1996.

So far as that is concerned I need to take into account that the defendant made an offer dated 8 September 1997 which exceeded the amount referred to as the plaintiff's previous offer and that apparently was not accepted at that stage.

It is relevant that the statement of loss and damage was not delivered until about 17 February 1997 at a time when the time for accepting the plaintiff's offer of 7 November 1996, obviously, had expired.

Up until the statement of loss and damage was delivered, the defendant would not reasonably have any appreciation of what the case was against it and in those circumstances it seems to me that I should not make an order which means that the defendant by election should pay costs on a solicitor and client basis. The plaint did not enlighten the defendant to any extent about the relevant amount.

Defendant's counsel submits in the light of the amount that I have awarded, namely $35,000, that I should grant the plaintiff her costs only on the basis of the relevant Magistrates Court scale since it is submitted that the matter should have been brought in the Magistrates Court.

The amount assessed by the case appraisal counsel was 42,000. It seems to me it is relevant for me to bear that in mind when overall I decide what is to be the relevant costs order. The claim in the District Court was for $50,000.

In all of the circumstances it seems to me that I should order, and I do, that the defendant by election pay the plaintiff's costs of and incidental to the action to be taxed on the District Court scale for matters where less than $50,000 is recovered.

It is clear, it seems to me, that it is not appropriate to award costs on the basis of solicitor and client, but I cannot be satisfied that overall it was inappropriate for the plaintiff to bring this action in the District Court although it is somewhat borderline.

So far as the case appraisal costs are concerned defendant's counsel seeks an order for those since it did better before me than it did before the case appraiser.

The question of costs in these circumstances is really taking us into unchartered waters. Access to ADR processes is to be encouraged by the Courts and it seems to me if the Courts start to make orders for one side or the other to pay the full costs of case appraisal, then the ADR processes may fall into disuse having regard to the risk of the extent of the costs that may be incurred.

It seems to me the ordinary situation is that when case appraisal is agreed to, each side is expected to contribute to the extent of 50 per cent of the costs, at least of the case appraiser and, of course, each side on the way will provide its own costs of representation and preparation and the like.

In all the circumstances it seems to me inappropriate to order that the plaintiff pay the costs of the case appraisal to the defendant and I will make no order as to costs in that regard.

...

HIS HONOUR: The costs of the action which, as I say, I order the defendant to pay the plaintiff do not include costs of case appraisal. That might be an appropriate way to deal with matters such as this generally, although I do not pretend to lay down any hard and fast rule for the future.