McChesney v Singh[2002] QSC 311

SUPREME COURT OF QUEENSLAND 

[1] MACKENZIE J:  When the plaintiff was not quite 18 years of age she was severely injured in a traffic accident.  The accident which occurred on 27 August 1995 was caused by a northbound vehicle crossing onto the southbound carriageway of the Gateway Arterial Road at Brackenridge and colliding with the vehicle in which the plaintiff was a passenger. 

[2] The only issue other than quantum was whether the plaintiff was guilty of contributory negligence because she had failed to take reasonable care for her own safety by failing to wear a seatbelt properly adjusted and securely fastened.  In his final submissions Mr Williams QC for the defendant conceded that there was no evidence upon which a finding could be made that the plaintiff was guilty of contributory negligence.

[3] The plaintiff was 24 years and 8 months old at the commencement of the trial.  She suffered a combination of orthopaedic injuries and brain damage which have left her with pain, a problem with her gait and consequences of a brain injury. The brain injury has not rendered her wholly incapable of living independently but seriously affects her memory and her ability to recognise common objects and people who should be familiar to her, amongst other problems to which more detailed reference will be made later. 

[4] The items of damages where there are significant disparities between the plaintiff’s claim and what the defence is prepared to concede are the components for pain, suffering and loss of amenities, past and future gratuitous care, the extent of the need for future commercial care and a number of other items related to her future amenity.  There is little between the parties with regard to past and future economic loss and associated items.  The issues relating to future care raise some fundamental matters concerning the basis upon which the plaintiff’s entitlements in this regard should be quantified.  This is reflected in the fact that the plaintiff claims, in total, in excess of $5,000,000 damages whereas the defendant is prepared to concede about $1,250,000 as the totality of damages to which the plaintiff is entitled.  As will be noted in respect of particular claims, there is a tendency to claim what are essentially the same things under more than one head of damages, which inflates the amount sought.  It is now necessary to consider individual components of the plaintiff’s claim. 

The pre-accident plaintiff

[5] The plaintiff had an uneventful childhood.  There is nothing to suggest that at that time her home life was dysfunctional in any way.  However, in late primary school or early high school her school work, which had been of an average standard, deteriorated and she fell into bad company.  She became troublesome at school and rebellious at home.  She argued with her mother causing friction in the family.  She also sneaked out at night to be with her friends.  Eventually just before she was 15 she refused to go back to school.  She wanted to leave home.  It was agreed that if she got a job she could do so.  She got a part-time job at Hungry Jacks and moved out.  Despite her parents’ expectation that she would not cope in the outside world, she continued to live away from home.  Contact with her parents was relatively infrequent, more often by phone than in person. 

[6] In this period she had undesirable friends.  One of her boyfriends was described as an habitual car thief.  She was convicted of stealing and unlawfully using a motor vehicle.  Her friends generally were abusers of drugs and alcohol.  She would not accept advice from her parents concerning them.  Eventually she lived with her boyfriend at his mother’s home.  At some point she had told her mother that she was sexually active. 

[7] About a month before the accident, she had begun to have more contact with her mother who began to teach her to drive.  She had also enrolled in a course at Yeronga TAFE to which she had been introduced by Centrelink.  The plaintiff’s father is a motor mechanic by trade and a maintenance supervisor with a waste disposal company.  The plaintiff had an interest in mechanical things and the course seems to have focussed on manual semi-skilled work.  An official from Yeronga TAFE gave evidence that the relatively short course, called “Women in Non-traditional Roles”, was designed to improve opportunities for long term unemployed, which the plaintiff was by this time, to gain access to employment.  However, notwithstanding her expressing interest in the course to her grandmother, the evidence does not suggest that she made a concerted effort to fulfil its requirements.  Records indicated that in the 4 weeks she was enrolled she participated to some extent in some subjects but did not attend others, including those which were essential to successfully complete the course. 

[8] Counsel for the plaintiff relied on this evidence as an indication that her life had turned around.  However, given the circumstances at that stage, her prospects of leading a happy rewarding life were far from assured, to adapt a concept from Castro v Hillery [2001] QSC 510 to the present case. While there was some prospect that, with more maturity, she may have abandoned the lifestyle she was then living, the probability that she would do so was not assured; at the time of the accident, her future was uncertain.

General damages

[9] The plaintiff’s claim for pain and suffering and loss of amenities is $200,000.  The defence argues that it should be no more than $130,000. The plaintiff bases the claim on the combination of orthopaedic injuries and brain damage which has left her with gross functional incapacity and loss of the capacity to do many things which she would otherwise have been able to do.  She has a slightly reduced expectation of life.  It is submitted that the fact that she has insight into her condition exacerbates the situation. The injuries included a closed severe head injury, a fracture of the left femur, compound fractures of the left radius and ulna, left foot drop or hemiplegia and other injuries.  The evidence establishes that, orthopaedically, she is still suffering from substantial functional loss and that in the course of her treatment she had to undergo a number of procedures with regard to her orthopaedic injuries.     

[10] With regard to the brain injury she suffers memory deficits including severe retrograde and post-traumatic amnesia, mild to moderately impaired capacity to hold information while performing mental operations upon it, profoundly impaired new learning ability for both visual and verbal information, severe visual agnosia involving inability to recognise and remember shapes and objects or to recognise faces, mild to moderate reduction in general intellectual ability, a capacity to become lost if in an unfamiliar location, slowness and paucity of cognition and left hemiparesis and related motor problems.  She also had to undergo surgery on her foot to correct problems arising from the neurological injury.  She also has scarring which has required surgical treatment. 

[11] The plaintiff’s orthopaedic injuries have left her in a condition where she cannot use her left hand and arm in a functional way and her gait has been affected.  She is unable, probably because of a combination of the physical injuries and the neurological consequences of her acquired brain injury, to perform adequately a number of daily tasks of living.  Her capacity to do household tasks is reduced where they require physical agility. She has difficulty walking up and down stairs, getting on and off buses and walking for long distances or over uneven ground.   In addition to the consequences of the acquired brain injury previously mentioned, she cannot drive a car and has lost her sense of taste. 

[12] The plaintiff submitted that there were four particular consequences of her acquired brain injury.  The first was that she was unable to enjoy normal relationships with her peers.  The second was that she was vulnerable to sexual predators.  The third was that the injury had rendered her incapable of properly caring for a child, should she have one, in the absence of significant support.  The fourth was that she had a significant degree of insight into her condition.  In particular this was manifested by her desire to live not in a managed or quasi-managed environment but to live independently.  

[13] The first, third and fourth of these are established by the evidence.  With regard to the second, a good deal of evidence was led as to this.  There was anecdotal evidence of occasions when she experienced or was vulnerable to predatory behaviour.  I am satisfied that she has increased risk of sexual exploitation as a result of the acquired brain injury.

[14] Counsel referred to Trenerry v Hedge (SC No 2249 of 1987, 14 May 1996, unreported, Shepherdson J) and, on appeal Hedge v Trenerry (Appeal No 4911 of 1996, 7 November 1997, unreported) and Goode v Thompson and Suncorp General Insurance Ltd [2001] QSC 287 and, on appeal, Goode v Thompson and Suncorp Metway Insurance Ltd [2002] QCA 138. Castro v Hillery is another case with some resemblances to the present.  As is usually the case, decisions depend on their own particular facts and are only a guide to the kind of level which is appropriate in a case of this severity.  Having considered the particular facts of the other authorities the plaintiff’s claim for $200,000 for pain, suffering and loss of amenities is in my view high.  When the variety of factors in the various cases to which reference has been made are balanced out, I am satisfied that $150,000 general damages is an appropriate award. 

Past economic loss

[15] The plaintiff’s submission was based on earnings, firstly as an apprentice motor mechanic and then as a first and second year motor mechanic up to the date of trial. Without any discount this amounted to $102,013.60. The calculation was based on an assumption that the plaintiff’s life was turning around, that she would have got an apprenticeship within months and successfully completed it within the time frame predicted.     

[16] On the other hand, the defendant was prepared to calculate past economic loss on the basis of a net loss of $440 per week during the period but to discount that amount by one-third for contingencies. The base sum which the defendant is prepared to concede appears high, since on the evidence it would involve a level of occupation unlikely to be achieved by the plaintiff, even on the plaintiff’s own figures. Each of the approaches is of some concern to me but since the defendant is prepared to concede a sum which is about the same, after discounting, as the plaintiff seeks, albeit by a different route, I will allow $100,000.

[17] According to the plaintiff’s figure, $72,141.67 was received from Centrelink in disability support pension. Interest on $27,858.33 amounts to $9,750 in round figures. Lost superannuation for this period is allowed at $6,000 on the basis of an average of 6% which the plaintiff claims. Interest on lost superannuation is allowed at $2,100.

Future economic loss

[18] The plaintiff will be unable to work in future.  Her claim is for about $313,800 on the basis of a mechanic’s wage. The calculation is based on $411.20 net per week to age 62 (37.5 years) giving a discounted figure of about $370,000, reduced by 15% to allow for contingencies. The defendant’s calculation is based on net week loss of $440 as a base figure, which is subject to the same concern as previously. A discount of 25% for contingencies produced about $270,000. I allow $275,000 under this head which approximates what the defendant is prepared to concede and a more realistic discount on the figure reached on the plaintiff’s assumptions and my view of the likelihood of them being fulfilled. Lost superannuation will be allowed at $24,500.

Past and future gratuitous services – principles and issues

[19] The applicable principles developed and defined by the High Court in a series of cases are that where the defendant negligently injures the plaintiff the defendant must pay for services reasonably required to satisfy the plaintiff’s needs arising from the disability caused by the accident (Griffith v Kerkemeyer (1977) 139 CLR 161, 193-194). It is irrelevant whether the plaintiff has paid for such services in the past or will actually pay for them in the future (Nguyen v Nguyen (1990) 169 CLR 245). The damages payable for such services are to be assessed by reference to market cost of providing them, except where there are particular facts indicating that market cost is not the reasonable value of services required by the injured person (Van Gervan v Fenton (1992) 175 CLR 327, 333-334).

[20] In Grincelis v House (2001) 201 CLR 321, 327 the current state of the law, except where modified by statute, was summarised as follows:

“In Van Gervan v Fenton, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision.  Accordingly, it was held in that case that a plaintiff’s damages on this account are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them.  Neither party sought to reopen the decision in Van Gervan.”

(footnotes omitted)

[21] As is pointed out in Kars v Kars (1996) 187 CLR 354, 368 the decision in Griffith v Kerkemeyer involved a departure from earlier authority in the High Court, most prominently Blundell v Musgrave (1956) 95 CLR 73.  It was also observed (371):

“… especially because Griffiths v Kerkemeyer was itself an exceptional development which departed from the compensatory principle in its pure form, and has been the subject of statutory modification in parts of Australia, we are not persuaded that this court should now adopt a different principle.  To do so would cause unnecessary confusion and instability in settled legal doctrine.”

[22] It was also said in Kars v Kars (371-372) that the principle in Griffith v Kerkemeyer that the plaintiff should be regarded as beneficially entitled to the judgment without question of the imposition of any trust in respect of some part of the damages in favour of a person who had rendered or might render in future gratuitous services to him is “too deeply entrenched in this part of the law in Australia for (the High) Court to reopen it”. The notion that what was decided in Griffith v Kerkemeyer is too deeply entrenched to be reopened was repeated in Grincelis v House (330) immediately following a reference to “judicial dissatisfaction” with the principle.  Kirby J and Callinan J in separate judgments expanded on the difficulty in applying the principle, particularly as there is nothing but a moral obligation on the plaintiff to pass on sums calculated at commercial rates to a person who has performed the services gratuitously or who may do so in the future.

[23] The line of authorities represent a policy decision that a defendant, who will most often be a statutory or other insurer, should not gain a windfall because the expense of acquiring services to fulfil a need created by negligence is not actually incurred. The principle has been abrogated to a limited extent in Queensland by the WorkCover Queensland Act 1996, s 315, which has echoes of the cautionary comments of Deane and Dawson JJ in Van Gervan v Fenton to the effect that while additional services provided gratuitously to serve a victim’s needs should in fairness be compensated for, extension to the case of services and companionship which would have been provided in any event as an incident of a pre-existing and continuing relationship was not compelling. Those remarks were delivered in a minority judgment. The reasoning upon which the comments were based was that an over-generous approach to compensation for gratuitously provided services may be seen to conflict with the interests of the community as a whole, where the community or part of the community such as employers or owners of motor vehicles funded an insurance scheme providing the compensation (to which one may add, in light of recent experience, professionals and community organisations where insurance is mandated by practical necessity, not statute).

[24] Since the principles are now said to be entrenched beyond the capacity of the courts to modify them, it is necessary to approach the assessment of damages for past and future gratuitous care in accordance with the principles laid down by the High Court.

Past gratuitous services

[25] The plaintiff’s and the defendant’s assessments differ by a wide margin. The plaintiff claims over $227,000. The defendant submits that the claim should be about $29,000, based on 15 hours per week for 6 months at $10 per hour, 25 hours per week for 18 months at $12 per hour and 2 hours per month at $12 per hour for 4½ years. The periods referred to are respectively the period when the plaintiff was in Princess Alexandra Hospital, the 15 hours care being based on periods she spent at home on weekends during that period; the 18 month period after discharge from hospital until the plaintiff began to live in her own home; and the 4½ year period when the plaintiff has been living in rented premises.

[26] Mr Williams for the plaintiff criticised the evidence of the witnesses whose gratuitous services are to be compensated. It is true that there is little reason to think that the estimates given of hours spent are precisely accurate although in saying that I do not impute dishonesty to any of the family members whose services are relevant.  It is simply a case where generally records have not been kept or, where there are limited records, they do not provide an adequate basis for extrapolation of what they record over lengthy periods. It is therefore necessary to consider what has been satisfactorily proved in this regard.

[27] I should mention that Mr Grant-Taylor SC for the plaintiff submitted that since disputed care claims, including details of the surveillance evidence, were not put to the plaintiff, the rule in Browne v Dunn removed any significance that might otherwise attach to those aspects of the defendant’s case. I should record that reading the transcript of the plaintiff’s evidence will confirm the impression gained by me at trial that to do so would have been a futile exercise given the plaintiff’s disabilities. The same comment applies to the wider aspects of Mr Grant-Taylor’s argument in this regard.

[28] The plaintiff was in Royal Brisbane Hospital from 27 August 1995 until 15 November 1995. For the first two weeks she was in a coma in the intensive care unit, then in a neurological ward. On 15 November 1995 she was transferred to the head injuries unit at Princess Alexandra Hospital where she remained until the 26 April 1996 when she was admitted to a rehabilitation facility called Casuarina Lodge. She was discharged on 15 June 1996 and then lived in her parents’ home until January 1998, when she moved into a rented house.

[29] There is also a claim for Wilson v McLeay damages which will be considered separately. It is necessary to keep in mind that the same events should not be compensable more than once, having regard to this and other possible overlaps. In the amended statement of loss and damage, the Wilson v McLeay claim extended from 27 August 1995 to 14 June 1996 and amounted to almost $20,000, including some allowance for Mrs Rutherford, the plaintiff’s grandmother.

Quantification of past gratuitous care

[30] The methodology adopted is that for the period when the plaintiff was in Royal Brisbane Hospital compensation based on allowing for the performance of certain kinds of assistance that the family were encouraged to give which would not otherwise have been given due to prioritisation of the time of hospital staff will be assessed.  In doing this I have allowed about 5 hours per day.  I have disregarded as a valid claim the alleged necessity for someone to remain present constantly in case it might be necessary to consent on behalf of the plaintiff to the performance of procedures on her.  Given modern methods of communication that is fanciful.  A similar approach has been adopted for the period when the plaintiff was in the ward at Princess Alexandra Hospital.  The nature of the services was different in some respects but overall I am satisfied that it was reasonably necessary to perform them having regard to the way in which the time of the staff was organised.  For the week-ends when she was brought home from Princess Alexandra Hospital and Casuarina Lodge, I have treated the need for care as effectively fulltime.  There is evidence that in this period she was demanding and required high levels of care when at home. 

[31] After she came home from hospital, I have notionally treated the waking hours as effectively fulltime care throughout the period until paid care began to be provided.  The level of care needed may have varied and even tapered off.  If the approach taken may be over-generous for some of the period when she was living at home such over-generousness is compensated for by the likelihood that nights were probably not infrequently interrupted by necessarily attending to the plaintiff’s needs.  Once paid care began to be provided I have worked on the basis that about half as much gratuitous care would be necessary. 

[32] Once she had gone to live in her own premises I have made the assessment on the basis that services which are compensable under the relevant principles were of variable frequency and intensity.  The onus is on the plaintiff in this regard and the lack of reliable evidence is a matter upon which a comment has already been made.  There was no reliable evidence that it was necessary to provide gratuitous services every day.  There is evidence that one factor impacting on the need was whether or not she had a boyfriend.  I have adopted an average of about half an hour per day as the basis of calculations in this regard bearing that in mind.  In doing so, I have also adopted the approach that things that a parent would normally do irrespective of whether a child had special needs or not are not eligible for compensation.  Social and ordinary parent-child interaction are in this category.  The rate adopted is averaged at $15 per hour over the whole period.  The sum awarded after rounding up slightly is $132,000.  The calculation has been done on the basis that the equivalent of one carer at any given time has been allowed for, apart from some overlap where the plaintiff’s parents were interacting with paid carers for the purpose of advancing the plaintiff’s well-being.  The rationale generally is that multiple carers would not have been engaged at the one time if the services to meet the need had been purchased commercially.  Interest at 5% for 7 years is $46,200.            

Wilson v McLeay Damages

[33] In Wilson v McLeay (1961) 106 CLR 523, Taylor J sitting in the original jurisdiction of the High Court awarded a sum to be added to general damages in a case where parents travelled from interstate to visit a daughter who was seriously injured and emotionally upset in consequence of a motor vehicle accident and there was evidence that the treating doctor considered it to be of assistance to her medical treatment for them to be present to provide comfort and assistance.  The claim was treated as falling within the head of general damages and an amount less than the precise costs incurred was allowed.  However, reduction of the sum where actual costs can be quantified is not universal (for example O'Connell v BCC (1966) QWN 26; Le Bon v Lake Placid Resort [2000] QSC 049) but the authorities do not suggest that it is correct in principle to quantify Wilson v McLeay damages by reference to a notional hourly rate as schedule J to the amended statement of loss and damage does. 

[34] A further factor in the present case is that a separate claim is made for travel expenses to and from the hospital so that the plaintiff’s parents and grandmother could be with her.  A claim is also made for services performed during their time at the hospital to attend to the plaintiff’s needs which would not otherwise have been adequately attended to.  Since it is necessary to avoid double compensation for activities compensated for elsewhere, I do not allow a separate Wilson v McLeay component. 

Issues about care actually provided

[35] The insurer, pursuant to its obligations to provide rehabilitation services under the Motor Accident Insurance Act, paid professional carers, initially from Brisbane North Lifestyle Support Service and subsequently from Brisbane South Lifestyle Support Service to assist the plaintiff.  At the time of the trial 42 hours per week were being paid for.  Originally, 30 hours had been paid for, and then, from late 2000, 38 hours per week. 

[36] Ordinarily such evidence might be thought to be an accurate indicator of the level of paid care reasonably required.  However, there were two issues pursued by Mr Williams concerning this proposition which was advanced by Mr Grant-Taylor.  One was whether the hours being paid for were actually being performed.  The other was the extent to which the time was spent on activities described as community linking rather than direct care of the plaintiff.  The former issue has two aspects.  If the whole of the care paid for, whatever its description, was not being performed that would be reprehensible.  But such neglect would not automatically mean that the care was not needed, subject to the observation that if the plaintiff did not suffer any detriment because it was not being given, it may provide some evidence that it was not necessary to meet a need. 

[37] The evidence led to cast doubt on the time devoted to the plaintiff’s care was principally surveillance evidence.  Three separate weeks at the beginning of November 2001, in mid December 2001 and at the end of April 2002 were the periods in respect of which evidence was led.  Because of the location of the plaintiff’s residence, conditions for surveillance were not perfect.  However, in respect of the person responsible for providing care from December 1998 on, Mr Butler, there were a number of matters raised on behalf of the defendant as casting doubt on the accuracy of hours spent with the plaintiff.  Mr Butler was virtually the sole carer during the relevant period.  It was submitted that his evidence should be viewed with caution because he was a proponent, and the principal proponent, of the proposition that even more paid hours of care, up to 50 hours per week, were necessary. 

[38] One further complication of the issue was that the plaintiff has had a series of friendships with men, mostly of quite short duration.  However, by the conclusion of the trial, the latest of the men with whom she has been associated and with whom she had been friendly for some months, had commenced cohabiting with her.  He is a man in his early thirties, with a stable job, who says his intention is to engage in a long term relationship.  There is no reason not to believe that his present intention is genuine although no-one can guarantee that it will be the outcome.

[39] The point for present purposes is that it was the experience of the plaintiff’s family and to some extent those engaging in her care, that while the plaintiff was in a relationship she spent time with her friend on social and other ordinary domestic pursuits when, otherwise, she may have needed the benefit of assistance from a carer in focusing her activities.  I am satisfied that even if the present relationship for some reason does not last, the pattern has been that the plaintiff is not averse to forming relationships, although sometimes without a high level of discrimination.  There is no reason to think that this pattern will not continue, at least for a number of years. 

[40] The underlying notion in this is that two areas in which there is proven difficulty are the efficient management of the household and shopping and motivating herself to get through the day, if left to her own devices.  But if there is someone with her to focus her on the task or to perform it in cooperation with her, she can perform it adequately.  Where this kind of situation is a genuine part of an ordinary cooperative domestic relationship, it is straining the concept of gratuitous services even in its attenuated form, to treat it as compensable, because it is not done for the purpose of fulfilling a need caused by the accident but as part of a cooperative effort.  On the other hand the consequences of being in a relationship should not be overestimated since there will be periods when she is not in one and even when she is, there will be a need, especially when her partner is at work or doing other things, which must be fulfilled by a paid carer.  But to the extent that interesting the plaintiff in social activities is an element of the notion of care propounded by the professional carers, the need for a paid carer to participate or motivate the plaintiff will be less. 

[41] Reference has already been made to the imperfections in the surveillance.  One aspect of the surveillance is that the carer’s vehicle was not seen in the vicinity of the plaintiff’s residence at times when he claimed to be there.  One possibility put forward by him was that since his vehicle had become unreliable, he often walked to the plaintiff’s residence.  However, correlation of timesheets with verified incidents during the surveillance suggests that in material respects there are reasons to doubt that times and events recorded in the timesheets are an accurate reflection of times spent with the plaintiff.  I accept generally the references to the evidence in support of this proposition set out in Mr Williams’ outline of submissions without repeating them in detail in these reasons.  Without specifically referring to Parkinsons Law, Mr Williams in effect submitted that there had been a deliberate application of it, on the foundation of the explanations given by the carer as to how time had been accounted for.  The component of damages for future care will be assessed with these findings in mind. 

[42] Another aspect of the evidence concerning necessary care requires comment.  The plaintiff appears to be content to spend her leisure time at the Greenbank RSL Club engaging in the activities it provides, going tenpin bowling once a week and going to the gymnasium.  Having regard to her pre-accident lifestyle, there is little evidence suggesting her preferred leisure activities would have been markedly different in character, or perhaps quality, had the accident not occurred.  It must be accepted that the range of activities she can now engage in is much more limited than before the accident.  It may also be accepted that exposing her to possible ways of spending her time to allow her a reasonable lifestyle consistent with her capabilities and interests is appropriate. 

[43] The difficulty is to decide at what point such a process of pursuing what is described in the evidence as “community linking” goes beyond the bounds of satisfaction of need created by the defendant’s negligence.  Unfortunately, while there was an abundance of evidence from a variety of witnesses as to the processes involved in carers trying to expand their clients’ ranges of interest there remained a gulf between the approach of those in the caring business and the contentions on behalf of the defendant.  To the best that I can rationalise the evidence, I accept that community linking activity is important in attempting to provide as fulfilling a life as possible for the injured person and is a legitimate aspect of care.  However, I have serious concerns that once a pattern of what interests a client and what does not interest him or her emerges in a long enough period after the accident, there is a substantial risk that some of the cost of “community linking” exceeds what may be legitimately visited upon a defendant.

[44] The notion of a succession of carers each attempting to interest the client in particular activities, without necessarily having knowledge of or regard to whether it has been tried before and been of no interest, which seems to be implicit in some aspects of the evidence, illustrates why I have a concern.  To my mind the issue was never satisfactorily addressed by the witnesses at trial.  In a case where the person in need of a degree of care retains some capacity, albeit significantly reduced, to engage in social activities, the notion of a carer not accompanying her but carrying out surveillance over her raises delicate issues of the extent to which her privacy may be invaded.  I found the submission by Mr Grant-Taylor that she had effectively forfeited the right to privacy disturbing.  The matters of concern have a bearing on the amount of paid care required into the future and will be factored into the assessment.

[45] The assessment in a case like the present is also exceptionally difficult because it involves a high degree of speculation concerning the future over and above the ordinary contingencies of life.  For example the plaintiff is presently committed to living an independent lifestyle rather than living in some form of communal environment.  My assessment is that she is unlikely to change her mind concerning this in the short to mid term.  However, there is always the possibility that as she grows older and perhaps her disabilities become worse a different style of living may prove more attractive.  But it is only speculation whether that will ever occur. 

[46] There is also necessarily a high degree of speculation about how her personal life will unfold.  The most obvious example of this is whether she will have a child or children.  If she does, her need for paid care will be significantly greater than if she does not.  The amount of paid care actually needed even if she does have children may depend on whether she has a stable relationship during critical periods.  That she would have grave difficulties in caring for a child is not in doubt and is something she realises at this point; objectively, the evidence is that it would be ill-advised to have a child.  But the possibility that she may do so must be taken into account as real.  It is therefore not inappropriate to make allowance for that possibility. 

[47] This aspect of the matter also raises another issue, the reasonable market value of services.  Using the Brisbane South Lifestyle Support Service costings, Mr Grant-Taylor asked for a rather astonishing annual sum of about $220,000 for full-time care over 12 years of childhood if she had a child.  On the other hand Mr Williams relied on significantly cheaper rates that could be obtained by using other agencies supplying care services.  The point is that it is not justifiable to require a defendant to pay for care to a higher extent or at a higher rate than might be reasonably available from other sources. 

[48] In arriving at an appropriate level of care and the cost thereof it is necessary to have regard to the likelihood that the plaintiff’s needs will be variable from time to time in the future and that the kinds of services will be varied.  While there is a possibility that she may need some particular kinds of services there is uncertainty about whether some of them will ever be required at all.  Taking all of the imponderables into account, I have concluded that it is appropriate to allow $825,000 for future care on the basis that it is appropriate to allow 28 hours per week at an average cost of $30 per hour, both figures being a reflection of the variabilities to which reference has been made.

Past expenses

[49] Medical expenses of $393.25 are not in dispute; nor are parking fees of $155.50.  Pharmaceutical expenditure is allowed as claimed at $205.95.  With respect to travelling, the defendant accepts that in principle the travelling expenses of the plaintiff’s parents amounting to $7,668.46 and of the plaintiff’s grandmother some of which relate to attendance at hospitals when gratuitous assistance was provided are recoverable.  However, it is submitted that in respect of Mrs Rutherford $3,730.50 of the $6,062.04 claimed should be deducted.  The only basis for arriving at that deduction is that it rounds the total claim down to $10,000.  In the absence of any more compelling explanation that that I allow the whole claim of $13,730.50.

[50] There is a sum described as “past miscellaneous expenses” which appears to be comprised of items purchased during the early period of the plaintiff’s time in hospital.  No submissions were addressed to these items by the defendant although it is not included in amounts conceded as being special damages.  Having regard to the evidence of the conditions in which the plaintiff had to exist while in hospital, the clothing appears to be reasonably related to the evidence of her needs while in hospital although in theory it could be of more general use.  The other items are small in value and seem to be reasonably related to her comfort.  I allow the total amount of $192.37 in this regard.

[51] According to my mathematics the total of these amounts is $14,677.57.  Schedule A to the plaintiff’s submissions suggest that the items amount to $14,239.09.  The reason for the apparent discrepancy is not clear.  In the absence of any compelling reason to the contrary I will treat the figure in schedule A to the plaintiff’s submissions as erroneous and allow the larger amount.  Interest at 5% for 7 years is $5,137.15.  There is also a sum of $2,909.90 to be allowed for Health Insurance Commission refund.  I should also mention that allowance of travel costs under this heading is one reason for not making a specific award under the separate Wilson v McLeay claim.

Future expenses

[52] Under this general heading there is agreement as to pharmaceutical costs of $4,356.31, medical costs of $3,478.94, and optometry costs of $2,153.60.  Future travel costs were disputed.  However, I am not persuaded that there is any basis to make the relatively small deduction submitted for by the defendant.  I allow these costs at $7,367.47.  With regard to future physiotherapy and gymnasium costs, the amount claimed for the first four items in schedule W will be reduced to approximately $23,000 to reflect what appears to be an excessively long period projected for future attendance at the gym.  Otherwise the items in schedule W are allowed as claimed at $14,338.65.  The total rounded up amount under this heading will be $70,000.

Future gratuitous care

[53] This is one of the items where there is a very large difference between what the plaintiff seeks and what the defendant submits is appropriate.  There is a claim by the plaintiff for 10 hours per week for 55 years.  This care would necessarily be in addition to paid care.  I do not accept that the evidence establishes a need for almost 1 ½ hours gratuitous care every day, on average.  The evidence does establish that there are occasions when she needs assistance for tasks of daily living including transportation, social activities, gardening, household maintenance and rehabilitation.  However, these are intermittent rather than constant.  There is also some overlap with maintenance items claimed under “Accommodation Costs”.  It is plain that her needs will vary depending on her personal circumstances, as the plaintiff’s submissions recognise.

[54] The onus is on the plaintiff to establish the number of hours which will be required to fulfil needs not met by paid care into the future.  Any calculation must necessarily be imprecise because of the variables involved.  The plaintiff also submits that the care should be costed at the rate of $32.60 per hour.  There is no satisfactory basis for thinking that the kind of gratuitous care that will be necessary, having regard to the nature of the tasks to be performed, should be costed at that rate.  In my view an average rate of $15 per hour is appropriate.  On the evidence, I am of the view that when all of the variables are taken into account I should allow $52,000 for future gratuitous care on the basis of an average of about 3½ hours per week at the rate referred to.

Accommodation costs

[55] An architect, Mr Deshon, had reports from occupational therapists and like experts upon which he relied in assessing what modifications to a conventional dwelling would be necessary to cater for the plaintiff’s disabilities.  He noted that there was a difference of opinion between the experts as to whether a live-in carer should be engaged.  I prefer the view that a live-in carer is neither necessary nor the appropriate option, especially since it is likely that the plaintiff would not be disposed to engage one, given her strong preference for living as independently as possible. 

[56] The factors enumerated by Mr Deshon as relevant to his opinion as to the cost of modifications are broadly in accordance with the evidence concerning the effect of her disabilities.  He said that there were alternatives, modifying an existing dwelling-house or modifying the design of a new project home.  The alternative of modifying a project home with fixtures and fittings adapted to the plaintiff’s needs should be costed on the basis of the difference between standard items supplied and the specialised items, not at whole cost.  Having considered his report, I will award $60,000 for modifications. 

[57] There is also a claim for the possibility that the plaintiff will move every 15 years and have to incur the additional costs of performing the modifications again on each occasion.  The claim seems to be based on the proposition that it is realistic that she would relocate from time to time “irrespective of the suitability of her (then) accommodation”.  Such a situation would arise by choice, not necessity on that assumption.  In the absence of anything more than that, I am not satisfied that the plaintiff has established a case for further compensation on the basis of that assumption.  I will allow sums for maintenance and depreciation totalling $70,000 after considering the figures.  With regard to the provision of a security alarm, the important aspect of security, it seems to me, is that the plaintiff be able to feel secure when in the premises.  Security is necessary because of her lack of discrimination in some of her relationships due to her disabilities.  I have allowed a component for provision of security but I am not persuaded that a sophisticated security alarm system with monitoring is a needs based requirement, or desirable having regard to her capabilities.  A personal emergency device so that she could summon help in an emergency is a practical alternative.  While fire alarms are standard requirements in new houses now being built, as I understand the position, I allow the cost of basic fire alarms on the assumption that there is a significant possibility that the option of modifying an existing house will be adopted.  I allow $10,000 for these items.  The total award under this category will be $140,000.

Future aids

[58] Schedule Q to the statement of loss and damage lists a number of items many of which are ordinary household items which a person would be likely to acquire as a matter of course irrespective of whether the person was disabled or not.  There is no reason to suppose that the plaintiff would not have acquired them in any event had she remained uninjured and for that reason they should not be allowed as fulfilling a need caused by the accident.  Taking that into account I will allow $20,000 for necessary items in schedule Q.

[59] With respect to provision of a computer, the only evidence of use of a computer, apart from an electronic organiser already provided, is that before the accident the plaintiff played computer games on one.  It is likely that had the plaintiff not been injured she would probably have purchased a computer in any event.  Upgrading of hardware and software from time to time would have been necessary in any event irrespective of whether she was injured or not.  However, leaving aside the basic hardware and software that would be acquired with a computer, it remains to be said that the plaintiff has special needs as a result of her accident in the area of software, hardware and furniture in the broad sense.  With regard to the additional costs in connection with a computer, on the assumption that she would have acquired one in any event, I allow $10,000 for the additional items of hardware software and furniture and a component for customisation setting up and training.  I have reduced what is sought since I am not satisfied that several items of the support, particularly therapy, are satisfactorily justified on the evidence.  The total for this category is $30,000.       

Summary of damages

Orders

[60] It was agreed at trial that it was convenient not to determine issues concerning management of the damages until after they had been accessed.  Accordingly, I make the following orders:

1.That judgment be given for the plaintiff against the fourth defendant in the sum of $1,885,276 subject to addition of any sum which may be determined to be payable in respect of management costs relating to the moneys payable to the plaintiff.

2.That the plaintiff and fourth defendant exchange submissions in writing on issues concerning management of damages on or before 4pm on 15 November 2002, and deliver final submissions to my Associate no later than 4pm on 20 November 2002. 

3.That, unless submissions to the contrary are exchanged and delivered within the time limits referred to in paragraph 2, the fourth defendant pay the plaintiff’s costs, including reserved costs if any, to be assessed.

4.That leave be given to either party to request that both or either of the issues referred to in paragraphs 2 and 3 be listed for oral hearing if deemed necessary or desirable.