Castro v Hillery & Ors [2001] QSC 510

SUPREME COURT OF QUEENSLAND CITATION: Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 PARTIES: LOLINY CASTRO (by her next friend ANTONIO CASTRO) (Plaintiff) BRIAN ERNEST HILLERY (First Defendant) SUNCORP GENERAL INSURANCE LIMITED (Second Defendant) NORTH QUEENSLAND ELECTRICITY CORPORATION LIMITED (Third Defendant) THE COUNCIL OF THE CITY OF MOUNT ISA (Fourth Defendant) FILE NO/S: 11 of 1998 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 21 December 2001 DELIVERED AT: Cairns HEARING DATE: 3 September 2001 JUDGE: Jones J ORDER: 1. Judgment for the plaintiff against the second and third defendants in the sum of $4,551,900.06 (the “judgment sum”) inclusive of interest and administration costs and charges. 2. Perpetual Trustees Queensland Limited (hereinafter referred to as “the administrator”) be appointed administrator pursuant to s14(1)(c) of the Guardianship and Administration Act 2000 in relation to all financial matters relating to the amount hereinafter referred to as the trust sum. 3. The second defendant and the third defendant pay the judgment sum as follows: (a) To WorkCover Queensland the sum of $288.050.71; (b) to Messrs Conroy and Conroy, the solicitors for the litigation guardian, the sum of $603,270.00, for care that has been provided to date to the plaintiff and Annaliese Castro; (c) to the appropriate recipient or recipients, any other statutory refund or refunds; -- 1 of 35 -- 2 (d) as to the balance of the judgment sum (which balance sum is referred to herein as “the trust sum” and “the trust funds”), to the administrator. 4. In each instance, the receipt of the respective sum by the recipient or recipients identified in paragraph 2 hereof shall be sufficient discharge for the payment by the second defendant and the third defendant. 5. The plaintiff’s action against the fourth defendant is dismissed. 6. The second and third defendants pay the plaintiff’s costs of the proceedings to be assessed on the indemnity basis, such costs to include the costs of the plaintiff’s proceedings against the fourth defendant and to include reserved costs (if any). 7. The administrator be appointed manager to take possession of and control and manage all financial matters of the plaintiff relating to the trust funds only and to hold the same in trust for the plaintiff absolutely and apply such funds and the income thereon in such manner as the administrator thinks fit for the maintenance and benefit of the plaintiff. 8. The administrator have the power to invest the trust funds for and on behalf of the plaintiff pursuant to s51 of the Guardianship & Administration Act 2000. 9. The parties and the administrator be at liberty to apply in respect of this judgment and these orders as they may be advised, and the plaintiff, the litigation guardian and the administrator be at liberty to apply in respect of the administration of the said trust fund as they may be advised. 10. I grant leave to the second and third defendants to appeal against the order for costs. CATCHWORDS: TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – where plaintiff pedestrian seriously injured when struck by motor vehicle whilst attempting to cross pedestrian crossing late at night – where plaintiff claims damages for personal injuries sustained in accident – where quantum and liability in issue TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – where pedestrian crossing ordinarily lit by overhead lights but where lights inoperative at time of incident – where first defendant aware that lights were not working – whether first defendant’s vehicle travelling at excessive speed at time of collision with plaintiff – where 50 kph advisory speed sign in relevant area - whether first defendant failed to keep a proper lookout -- 2 of 35 -- 3 TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – contributory negligence – whether contributory negligence on part of plaintiff in failing to keep a proper lookout, particularly in crossing road with knowledge of inoperative overhead lights – whether plaintiff contributorily negligent in wearing dark clothing – where onus of establishing contributory negligence on defendant DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – where female plaintiff aged 36 years and married with one child at time of accident – where plaintiff suffered severe brain damage, tension pneumothorax and fractured tibia and fibula as a result of collision – where plaintiff left with gross physical disabilities as a result of brain damage – where plaintiff possibly suffered psychological damage – where extent of psychological damage difficult if not impossible to measure given plaintiff’s greatly impaired capacity to communicate - whether plaintiff has insight into her condition – whether plaintiff has reduced life expectancy - where plaintiff employed as kitchen-hand at time of accident – where plaintiff offered promotion to kitchen supervisor prior to accident but declined offer – where plaintiff held Bachelor of Science degree in nutrition and previously worked as nutritionist and in clerical position – where plaintiff to be dependent upon full time care for daily needs – whether commercial rate of care appropriate for past and future care of plaintiff – whether appropriate for carers to work 24 hour roster or shift arrangement – whether Wilson v McLeay damages warranted – whether plaintiff entitled to compensation for loss of her ability to care for her child – whether commercial rate of care appropriate – whether plaintiff entitled to housing alteration costs – whether plaintiff’s claim for future speech therapy and aids and future equipment expenses appropriate and reasonable – whether plaintiff entitled to holiday expenses Commissioner for Railways (Qld) v Ruprecht (1997) 142 CLR 563, considered Goode v Thompson (unreported SC (Qld) Ambrose J; 2 July 2001), considered Griffiths v Kerkemeyer (1977) 159 CLR 161, applied Grincelis v House (1998) 84 FCR 190, considered Kars v Kars (1996) 187 CLR 354, considered Nance v British Columbia Electric Railway Co Ltd (1951) AC 601, considered Sharman v Evans (1977) 138 CLR 563, considered Sturch v Willmott [1997] 2 Qd R 310, considered Van Gervan v Fenton (1992) 175 CLR 327, considered -- 3 of 35 -- 4 Waters v Mussig [1986] 1 Qd R 224, considered Wilson v McLeay (1961) 106 CLR 523, applied Winterton v Mercantile Mutual Insurance [2000] QCA 249; 23 June 2000, considered Guardianship & Administration Act 2000, s 14(1)(c), s 51 COUNSEL: JA Griffin QC and with him AJ Williams for the plaintiff M Grant-Taylor SC and with him RF King-Scott for the defendants SOLICITORS: Conroy & Conroy Solicitors for the plaintiff Quinlan Miller & Treston for the defendants [1] The plaintiff, who was born on 2 September, 1960, was seriously injured when struck by a motor vehicle on 13 September 1996. She brings this action claiming damages for the loss occasioned by those injuries. The defendants have admitted that the first defendant was negligent but argue that the plaintiff contributed in part to her own injuries. The issues which remain to be determined are whether the plaintiff was guilty of contributory negligence and, if so, to what extent and the quantum of damages. Background facts [2] The incident occurred at approximately 11.15 pm on a Thursday evening. The plaintiff was walking from her place of employment at the Mount Isa Irish Club to her home. On the way, she attempted to cross Fourth Avenue, Mt Isa, on a marked pedestrian crossing which is located 60 metres south of the intersection between Fourth Avenue and Eleventh Avenue. The plaintiff regularly made this journey at night time. [3] Fourth Avenue is a well-trafficked street and is used, in particular, by vehicles travelling to and from the Irish Club. At the intersection of Fourth and Eleventh Avenue there is a deviation in the line of travel for vehicles travelling along Fourth Avenue. The nature of this deviation, sometimes referred to as an S-bend, is illustrated in the photograph, ex 40, and the sketch plan, ex 41. At the intersection there are traffic islands which prevent vehicles from cutting across the intersection and ordinarily, the presence of these islands would cause a driver to reduce speed. -- 4 of 35 -- 5 Visibility across the intersection itself is unimpeded but for a person about to use the pedestrian crossing from the western side, there is some restriction in the view of vehicles travelling in a southbound direction. This can be seen in photographs, exhibits 40 and 3A. Moreover, the deviation in the roadway would make more difficult an appreciation of a vehicle’s speed as it proceeded through that intersection. [4] The pedestrian crossing was ordinarily lit by overhead lights. On the evening in question there was a problem with the lights which resulted in them being illuminated for a period of time with the light diminishing in intensity until there was no light at all. The defendant gave evidence that the light would be on for about one minute and out for eight minutes. Each of the witnesses present at or about the time of the incident said there was no light on the crossing. There was no natural light and because of the location of the residences adjacent to the crossing, there was no light from that potential source. [5] The vehicle which struck the plaintiff was a taxi cab owned and driven by the first defendant, Brian Hillery. On the day in question he had driven the taxi during the morning and had taken a break in the early afternoon and recommenced work at 5.00 pm. He had already passed along Fourth Avenue a number of times that evening and he was aware that the street lights were not working. [6] Prior to his vehicle’s impact with the plaintiff, the first defendant said he was travelling between 50-55 kilometres per hour. He did not see the plaintiff at any stage before impact. He recalls, when his vehicle was on the crossing, hearing a thump and then observing something hitting the windscreen. He says he stopped the vehicle within a couple of metres beyond the crossing. The photographs reveal a 50 kilometre per hour advisory speed sign located on the northern side of the intersection but it is not confirmed in evidence that that advisory sign was there at the time of this incident. [7] A passenger in the taxi was Mr Cyril King. He was seated in the middle of the rear seat. The other occupants in the vehicle were Mr Johns, sitting in the front seat, Mr Colley in the rear passenger side seat, and a Mr Jaques in the rear seat behind the -- 5 of 35 -- 6 driver. Mr King claimed that the vehicle was travelling at an excessive speed. He estimated that to be approximately 70 kilometres per hour. He described the incident in the following passage of evidence:- “All right. Now, would you just tell the Court then what you recall about that accident that occurred that night? – Well, we – we left the Buffs Club and then went via taxi – we were going to the Irish Club and we come through that S-bends there and straightened up and there was a woman on the – in the – on the crossing and I thought she was gunna land in me lap. And then the taxi driver hit her and she got shot to the side and we pulled up, and got out and seen if she was all right, and she was pretty smashed up. But one of the other blokes went and get some – get assistance and that – ring an ambulance and whatever, and we just sort of stayed there until they – until the services turned up. -----did anybody say anything about the woman on the crossing? – Yeah, well Peter Johns was sitting in front and Peter said to the taxi driver that there was a woman on the crossing, and he didn’t sort of take any notice of it or anything. He just kept driving. Right. Now, did he alter his speed at all? – No. How fast was the taxi travelling?— Well, I don’t know much about speeds and that but I would’ve said over 70 kilometres an hour – or 70 kilometres an hour at least.1 … All right. Now, why did you say, “Oh shit”? – Because I actually thought she was gunna land in my lap. She was pretty well lined up with the centre of the car – or just off centre of the car and I did think she was gunna come through the windscreen on me. … MR GRIFFIN: Mmm. All right. Well, now, you said that at that point she seemed to be lined up in the middle. When the taxi hit her did he – was it the middle of the taxi that hit her or not? – No. No, it was the – it was the right-hand side around the corner of it – round near the light. Right-hand side? And are you able to tell us whether it was the – the front of the taxi on the right-hand side or the side of the taxi on the right-hand side or right on the corner? – Right on the corner. All right. How did the pedestrian get from that position where she was apparently right in front of the taxi to the point where she was at the right-hand side of the taxi? – Well, I’d – I’d say she jumped backwards.”2 None of the other passengers were called to give evidence. 1 Transcript 20/8-32 2 Transcript 21/12-40 -- 6 of 35 -- 7 [8] Driving her vehicle in a northerly direction along Fourth Avenue at the same time was a Mrs Wilmott with a passenger Mrs Erkens. Mrs Wilmott saw the plaintiff only after she had been struck by the taxi. Mrs Erkens said she saw the plaintiff “walk into the vehicle on the crossing”3. Their vehicle was, at the time, crossing the intersection with Thirteenth Avenue, some 40 metres to the south of the pedestrian crossing, though Mrs Erkens estimated the distance at 200 yards. At that point Mrs Erkens could not see the white bars of the crossing but she and Mrs Wilmott were aware of its presence. Each would have had a view of the taxi as it came through the Eleventh Avenue intersection. Neither of them formed any impression of excessive speed on the part of the taxi although their capacity to form any estimate would be made difficult by reason of the fact that it was an oncoming vehicle travelling in darkness. Mrs Erkens placed the plaintiff at a point one foot to the east of the centre line on the road at the time of being struck and denied the suggestion that the plaintiff had stepped backwards prior to the impact. When challenged whether the plaintiff may have been a distance of six feet further to the east, she thought that would put the plaintiff across to the eastern side of the road. Mrs Erkens also said the taxi came to rest one foot from the pedestrian crossing. [9] It is clear from her evidence that Mrs Erkens was unreliable in estimating distance. I have taken the view also that her version of the plaintiff’s movements should not be relied upon. Her view of the crossing was affected by the headlights of the oncoming taxi and any view of the plaintiff would be as a silhouette. By contrast Mr King’s view was more favourable by reason of his position behind the headlights of the taxi. Moreover his opportunity to observe the plaintiff spanned a longer period. I accept his observations of the plaintiff’s movements as being the more accurate. [10] Mr King conceded some difficulty in estimating speeds of motor vehicles though he was clearly convinced the taxi was travelling too fast. The clear evidence is that the taxi stopped a relatively short distance past the pedestrian crossing. This distance was not measured because the vehicles moved into a position to provide light at the area where the plaintiff was lying when being attended to by ambulance officers. The short distance of travel after impact, however, suggests that the speed of the 3 Transcript 270/20 -- 7 of 35 -- 8 vehicle was probably closer to the estimate given by the first defendant than that given by Mr King. However, the speed of the vehicle was excessive in the circumstances and there was a complete failure in the first defendant’s lookout. The concession of negligence was properly made. -- 8 of 35 -- 9 Contributory Negligence [11] The impact initially left the plaintiff in a vegetative state and though she has made a significant recovery, she remains grossly impaired. She was unable to give evidence. Her movements and actions leading up to the impact can only be inferred from other evidence. She finished her shift at the club at approximately 11.00 pm. She left the club premises wearing her work uniform, this consisted of a dark skirt, white blouse and a black vest as is depicted in photograph ex 4. The upper garments which the plaintiff was wearing were tendered as ex 13. [12] It was the plaintiff’s practice, upon finishing a shift, to walk to her home and to cross Fourth Avenue at this particular crossing. She was able-bodied and had no impediment affecting her capacity to walk. [13] The allegations of contributory negligence are made in a factual context that the overhead lights were inoperative and that the crossing was not illuminated by either artificial or natural light. I find this to be the case. It was further alleged that the plaintiff was wearing dark clothing. This is only partially correct. The upper garments consisted of a white blouse covered by a black vest. The plaintiff had dark hair and a swarthy complexion but parts of her white blouse – the collar, part of the bodice, (the “V” on the plaintiff’s chest created by the line of the vest), the shoulders and short sleeves would show a distinct contrast. In the circumstances it is unlikely that she would have made any assessment of the level of her conspicuity before stepping onto the pedestrian crossing. [14] There are two allegations of contributory negligence, namely – (a) Failing to keep a proper lookout; (b) Continuing to cross the pedestrian crossing in the circumstances of lack of lighting and the level of her conspicuity. The onus of establishing contributory negligence is on the defendant. What needs to be established is that the plaintiff did not “in her own interest take reasonable -- 9 of 35 -- 10 care of herself and contributed, by this want of care, to her own injury”.4 In Commissioner of Railways v Ruprecht Mason J (as he then was) said:- “Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co. Ltd.(4)): and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury.” [15] I can readily infer that at the time the plaintiff stepped onto the crossing she was under no threat from the northbound vehicle driven by Mrs Wilmott. That vehicle would then have been more than two blocks away. It is likely that when the plaintiff stepped onto the crossing the taxi was not in her view. At what point in the plaintiff’s travel she ought to have become aware of the presence of the taxi is a matter of conjecture. Whenever that was, the plaintiff had right-of-way and was entitled to assume that the vehicle would stop for her. [16] The evidence was that the taxi travelled at a constant speed. The plaintiff’s opportunity, realistically, to assess that the vehicle was not slowing down would only occur after the vehicle had rounded the deviation and was exiting the intersection. Should she have retreated, bearing in mind the presence of Mrs Wilmott’s vehicle proceeding towards the crossing? Should she have rushed forward and perhaps more squarely placed herself in the path of the vehicle? Should she have stood still? Whether her continuing to walk across the pedestrian crossing was an act of contributory negligence depends upon her position when she ought to have been aware of the danger. [17] The evidence of Mr King and Mrs Erkens describes only the instant before the impact. There is no evidence of her position on the crossing at the time when she ought to have been aware of the danger presented by the oncoming taxi and consequently there is no evidence of what she ought, in her own interest, to have 4 Nance v British Columbia Electric Railway Co Ltd (1951) AC 601; see also Commissioner for Railways (Qld) v Ruprecht (1997) 142 CLR 563 at p 570 -- 10 of 35 -- 11 done to have taken reasonable care of herself. Given the evidence of Mr King, which I accept and the relative speeds of the taxi, I find, on the balance of probabilities, that the plaintiff was already on the eastern side of the roadway when she would have become aware of the danger that the taxi was not going to stop. On any view of the circumstances, there was little time for the plaintiff to make a choice between the options. The attempt to avoid the collision by jumping backwards, it seems, was an “agony of the moment” decision for which there can be no criticism. Her delayed reaction does not lead to an inference of delayed appreciation of danger any more than it does to an inference of an incorrect choice of options. [18] I am not satisfied on the evidence that there was any failure of lookout on the part of the plaintiff. There is no evidence to suggest that when she made her entry onto the crossing it was otherwise than safe for her to do so. [19] The defendants have not made out a case of contributory negligence against the plaintiff. Quantum [20] The plaintiff was 36 years old at the time of the incident and is now aged 41 years. [21] On 8 April 1989 she married Antonio Castro and they have one child, Annaliese, born on 24 November 1990. She was 6 years old at the time of the incident and is now 11 years. [22] The family migrated to Australia in August 1993 and settled in Mount Isa where Mr Castro’s sister, Myra Wagner, was already residing. The plaintiff and her husband became Australian citizens on 26 January, 1996. [23] The plaintiff was educated in the Philippines and completed a 4 year Bachelor of Science degree in nutrition at the University of the Immaculate Conception, Davao City. Prior to coming to Australia the plaintiff worked as a nutritionist and in a clerical position. -- 11 of 35 -- 12 [24] Antonio Castro had worked on occasions as a welder/mechanic in the Philippines but his qualifications were not recognised in Australia. He commenced employment with Mount Isa Mines as an apprentice boilermaker and was in his second year of that apprenticeship when the incident occurred. He has completed that apprenticeship. [25] In June 1995 the plaintiff commenced employment with the Mount Isa Irish Club as a kitchen-hand. She worked two shifts per day, - 10 am to 2.00 pm and 5 pm to 10.00 pm. The plaintiff’s talents were recognised and she was offered a position of kitchen supervisor but she declined that promotion at that time. [26] Before the accident the plaintiff was in good health, happily married and enjoyed a close relationship with her daughter. She is described as then being an energetic, caring and generous person. She was prepared to work hard in support of her family. She was able to balance the demands of her home duties and her full time work. Her prospects of leading a happy rewarding life were high. The injuries [27] As a result of the collision, the plaintiff suffered severe brain damage and when first attended to by Dr. Hayllar at the scene of the incident, was in extremis. Her Glascow-Coma Score was 4 (with 3 being the lowest possible score). She was treated at the Emergency Department at the Mount Isa Hospital where burr holes and a craniotomy were carried out and an extensive right subdural haematoma was drained. The next morning she was transferred to the Townsville General Hospital for further management. She was diagnosed as having – • A right temporo-parietal intra-cerebral haemotoma • A left parietal contusion • Persistent intra-cranial hypertension due to hydrocephalus requiring a ventriculo-peritoneal shunt. • A right tension pneumothorax -- 12 of 35 -- 13 • A fractured left tibia and fibula. [28] She remained in the Townsville General Hospital for two months. During this period she underwent surgery on six occasions – three times in respect of her brain damage and also for the insertion of the left tibia intra-medullary nail, tracheostomy and percutaneous gastrostomy. She was transferred back to Mount Isa where she was hospitalised for a further four months. Between March-November 1997 she returned to the Townsville General Hospital for rehabilitation. [29] Until May 1998 the plaintiff was fed by tube. She is now fed by mouth but she has little control over the mastication process because she is unable to retain food in her mouth. She has difficulty swallowing and needs to be closely supervised when she takes food. [30] The plaintiff has been left with gross physical disabilities as a result of her brain damage. She has left sided spasticity which interferes with her mobility. She is unable to walk normally but moves with a shuffling gait. The plaintiff can walk unaided but is very slow in her movement. She has equino-cavo varus in her left foot. She has to wear leg casts from time to time to prevent clawing of her toes. She has undergone flexor-tenotomies to lengthen the flexor tendon in her big toe. There is prospect of further surgery on her foot. She has required a wheelchair from time to time during her rehabilitation and more recently following surgery. She requires a wheelchair also to avoid having to walk long distances or to speed up her mobility eg. when visiting shopping centres or airport terminals. Her carers, however, discourage the use of a wheelchair except when it is absolutely necessary so that the plaintiff can maintain the level of independent mobility she has thus far achieved. The plaintiff will, in any event, require a wheelchair in the latter stages of her life. [31] A further difficulty arises if the plaintiff falls because she is unable to pick herself up. She has fallen on occasions and is prone to tripping. She is clumsy in her gait and has poor balance. A fall of this kind is just one of the instances which makes necessary close supervision of the plaintiff. -- 13 of 35 -- 14 [32] A most significant defect resulting from the brain injury is the plaintiff’s loss of speech. She can write instructions with some difficulty but will not always persist in this task. She mainly communicates using hand signals, sounds, facial expressions or body posturing or a combination of the above. In the main she understands what is being said to her and she cannot communicate her feelings or opinions. Sometimes she complies with requests and other times she refuses. Sometimes she shows anger and frustration at not being able to communicate. She appears to have lost some of her understanding of the English language in which she was quite proficient prior to the accident. She is also used to communicating in native Filipino languages – Cebuano dialect to her husband and to Mrs Wagner and Tagalog to other Filipino carers. Since the accident she has been cared for primarily by members of her family or friends for whom the Filipino languages are more natural. [33] The damage to the plaintiff’s brain has resulted in a significantly compromised swallowing mechanism and reduced tongue and lip control. She has an inability to chew properly and consequently close attention must be given to the consistency of her food and fluids. She is at a constant risk of aspirating food and choking and her carers therefore need to be skilled in the first aid technique to combat this risk. A video tape of the plaintiff eating was tendered. It shows the plaintiff spooning soft food into her mouth at a fast rate whilst much of the existing contents of her mouth falls out. [34] There has been a significant improvement in other aspects of the plaintiff’s physical disabilities. For example, she is no longer incontinent, though she still wets the bed on occasions. She no longer complains of pain which once seemed to trouble her particularly in the region of her right shoulder. [35] The plaintiff continues to have a disturbed sleep pattern which is characterised by her waking three or four times during the night and moving about the house - sometimes to go to the toilet, sometimes attempting to go outside. Again, this is a difficult issue for her carers to guard against. The plaintiff also grinds her teeth in a very loud fashion and this at night-time produces a noise which can be heard throughout the house. -- 14 of 35 -- 15 [36] The extent of the plaintiff’s psychological damage is difficult, if not impossible, to measure. This is because of her greatly impaired capacity to communicate. Her carers and the experts engaged to assess her deficits comment on the fact that she expresses her emotions in an immature fashion, demonstrating her feelings in an “extreme” manner. I had the opportunity to observe this while the plaintiff was present in the courtroom. She often steals papers and things and hides them, taking a childish delight in doing so or at other times denying that she has done so. She goes to the toilet, even when there is no need for her to do so. She plays with and wastes toilet paper and tissues with the consequence these items have to be hidden from her. She will wash clothes sometimes and hide them whilst wet in the wardrobe. She lacks sense of direction and orientation. [37] The plaintiff is able to work on word puzzles and can solve them. Ex 35 was tendered as an example of this. She appears to be aware of times and routines. She will note the time for the return of her daughter, Annaliese from school. She can express delight at her daughter’s arrival. However, there is no doubt that the plaintiff has substantial cognitive deficits as a result of this incident. [38] The question arises as to the level of the plaintiff’s insight as to her condition. It is seen from the above that the plaintiff is aware of what’s happening around her and she does exhibit anger and frustration at being unable to do things. She has some cognitive skills as is demonstrated by her ability to solve the word puzzles. Mrs Coles, occupational therapist, gave evidence that the plaintiff was still able to express a wish that her daughter should continue with piano lessons and that when asked why she couldn’t work the plaintiff wrote in reply “I can’t speak”.5 Dr. Powell called by the defendants, did not believe that the plaintiff had insight into her disability or her future and felt that the plaintiff’s comment about her daughter’s future was simply a wish not indicative of insight. Mrs Coles provided a definition of insight from a medical dictionary which read “Self understanding: a person’s ability to understand the origin, nature, mechanisms and meaning of his behaviour, feelings and attitude and too, superficially, the ability of a mentally disturbed person to recognise that he is ill”. It seems to me that the plaintiff is well aware that she can’t speak, can’t work and can’t care for her child. The manifestations of her -- 15 of 35 -- 16 frustration and anger, together with the fact that she does have residual cognitive skills, leads me to the view that she does have insight into her problems and the impact this has had on her life. [39] All the deficits, physical and cognitive, lead to the conclusion – which is not challenged by the defendants – that the plaintiff is dependent upon full time care for her daily needs. She is obviously unable to care for her family, she is unemployable and she faces a future of continuing frustration at not being able to communicate fully with others. [40] The plaintiff has a present life expectancy according to the official tables of 42 years. Mr Grant-Taylor, senior counsel for the defendants, urged upon me that there should be taken into account, by way of contingency deduction, the fact that the plaintiff may have a reduced life expectancy because of her susceptibility to choking. That obviously is a matter which must enter into considerations but it is an event which carers are specially trained to guard against and it is an event which could happen at any time. It is not similar to the case where by reason of physical deficits, medical opinion is able to express a likelihood that an injured person has a reduced life span. [41] On the assessment of general damages I have been referred particularly to two recent decisions of this Court. The first is Winterton v Mercantile Mutual Insurance6 in which a plaintiff 14 years of age sustained severe brain damage resulting in impairment of gross and fine motor skills and severe cognitive deficits. The Court of Appeal reduced the award of $200,000 set by the trial judge, to $150,000. The second case was Goode v Thompson7 in which a 12 year old boy was struck by a motor vehicle and suffered severe brain damage which resulted in physical and cognitive deficits which were dissimilar to and in my view, not as severe as the plaintiff’s in this case. [42] The fact that each of those plaintiffs was younger than Mrs Castro and therefore, having to endure their respective disabilities for a longer period, is a factor to be 5 Transcript 132/55 6 [2000] QCA 249; 23 June 2000 7 Unrep SC (Qld) Ambrose J; 2 July 2001 -- 16 of 35 -- 17 taken into account. The life prospects of each of those plaintiffs had not, at the time of their accident, been established but in any event may not have been as favourable as those which Mrs Castro could demonstrate. The plaintiff Winterton was performing, prior to the accident, in the “mildly mentally retarded” range and had “very significant cognitive deficits”. The effect of her injury was to reduce her from being a person who, although not very bright, could be expected to cope on her own to one who was unable to live independently. The plaintiff Goode had, prior to the accident, demonstrated behavioural problems and had difficulty in socialising with his peers and coping with school discipline which had led to the diagnosis that he was suffering from attention deficit disorder. He did, however, have high to high average range of intellectual activity but because of the uncertain outcome of his pre-existing disorder it is difficult to compare his prospects in life with those of Mrs Castro. [43] Of most significance in the comparisons with these cases, is the fact that Mrs Castro has lost the power of speech and the impact that has had on the prospects of retaining some happiness in life despite the other disabilities. Therefore, the awards made in those cases, whilst helpful in formulating a range for the assessment of general damages, do throw up differences which has led me to the conclusion that notwithstanding the age differentials between Mrs Castro and the others, the effect of her injury has more significantly impacted on the life which she then enjoyed. I would assess the allowance for general damages at $160,000 of this sum I would apportion $60,000 to the past period. [44] Because of benefits which the plaintiff has already received by way of WorkCover benefits no claim is made for interest in respect of the past general damages. [45] The parties have reached agreement on the quantum of past economic loss and interest, past loss of superannuation benefit, rehabilitation expenses, WorkCover expenses, future hospitalisation and past and future medication. The agreed allowances will be reflected in the summary of allowance at the conclusion of these reasons. -- 17 of 35 -- 18 Future economic loss [46] At the time of the accident the plaintiff was in established employment as a kitchen- hand. Her prospects of advancement were good. She had been offered a promotion which she had refused. Given her circumstances at that time, caring for her husband and a five year old daughter and being new to that employment, her refusal was not unreasonable, nor would I regard it as showing lack of ambition and drive on her part. Opportunities for advancement, I find, would have continued for the plaintiff. [47] Mr Fitzpatrick was the catering manager for the Mount Isa Irish Club at the relevant time and was the plaintiff’s work supervisor. He regarded the plaintiff as an excellent worker. In fact, he regarded her as the best of his team of 18 employees. He said of her – “Why was she up the top, compared to the others. Just explain to the Court if you wouldn’t mind? -- Just her ability and the way she went about her job, you know, she’s a very intelligent person, you know, one of those persons that you can show something once, or explain to them once, and that’s it, they – they follow through that job whenever they came to work. And after a while you didn’t have to take them aside then and explain things as you do with some of the others. Uh-huh. And was she hard-working? – Very. Very. Did she complain? – Never. And she followed your directions? – Yes. Was she able to get on very well with the other workers? – Yes. Did she have any organisational skills? – Yes, she led the way most of the time, and in – when I say lead the way, she would encourage the others but also she would show them how things were done and what they were supposed to do.”8 [48] Had she remained in that employment her likely progression would have been to kitchen supervisor and thence to catering manager. Mr Fitzpatrick expressed the opinion that the plaintiff would likely have filled the position of manager after his departure from the position which was a short time prior to the trial. Such a -- 18 of 35 -- 19 decision, however, would have been made not by Mr Fitzpatrick but by the manager of the Club after advertising for other candidates. [49] Mr Fitzpatrick was a qualified chef but said that such a qualification was not a requirement for the supervisor’s position. The plaintiff was interested in cooking but it was not demonstrated to me that she had any interest in completing an apprenticeship to qualify as a chef. It is more likely, in my view, that she would have built upon her existing qualification and obtained recognised qualifications in the field of nutrition or as a dietician. That course may not have been possible in Mount Isa but as the family intended one day to move to Brisbane, her opportunities for education and for employment in this field would have increased. [50] I accept as accurate the statement Mr Fitzpatrick made as to the plaintiff’s ability and capacity. I assess that the plaintiff would over time have found employment in a supervisory level or as a manager. This was more likely to occur when the demands of child raising had reduced. Of the five scenarios provided by Vincents, Chartered Accountants, in exhibits 26 and 27, the two that most likely match the assessment I have made of the plaintiff’s prospects are scenarios 2 and 5. With respect to these, the progression rate to the rank of dietician by August 1998 and catering manager by July 2001 are each too quick. Such higher positions would not, in my view, have been gained until approximately 2006. Therefore, I would assess the plaintiff’s loss on the basis of her continuing at a kitchenhand level ($419 per week) for a further five years (multiplier 232) and then at dietician level ($564) or manager level ($617) for a further 15 years delayed by five years (multiplier 666 – 232 = 434). Adopting this approach the primary calculation shows a loss of $342,000 for a dietician and $365,000 for a manager. [51] By adopting 60 years as the cut-off age for the plaintiff’s employment there has been already some discounting. To that I must add further allowance for the usual contingencies and the contingency that the plaintiff may have lost some time at work if she and her husband had another child. Taking into account all of these matters I assess the allowance for loss of future earning capacity at $320,000. 8 Transcript 108/50-109/13 -- 19 of 35 -- 20 [52] The loss of superannuation benefit flowing from that would be calculated at the agreed rate of 8% which computes to the sum of $25,600. Past care [53] The care of the plaintiff in the past period has been provided mainly by her husband, his sister Mrs Wagner, the plaintiff’s sister and by friends from the Filipino community. There are in addition to the plaintiff’s husband, three full time carers, Mrs Wagner, Mrs Talabucon and Mrs Merino. Mrs Talabucon has had training in medicine in the Philipines and Mrs Merina, training as a nurse in the Philipines. These carers work on a roster system and appear to interact well together. Essentially, they are friends. Because of this there is some flexibility in the arrangements. For example, the plaintiff will on occasions sleep at Mrs Wagner’s house so that the plaintiff’s husband can have some respite and gain a full night’s sleep. Similarly, Annaliese frequently sleeps over at the Wagner household to reduce the demand on the carers or the plaintiff’s husband at her own home. But the end result is that care has been provided for 24 hours on each day since the incident, apart from times when the plaintiff was in hospital. [54] In accordance with the principles enunciated in Griffiths v Kerkemeyer9 the defendant must pay for services reasonably required to satisfy that 24 hour a day need. The damages are to be assessed not by actual costs but by the market costs of providing those services. These principles have been considered and reaffirmed by the High Court in Van Gervan v Fenton10 and Kars v Kars11 and considered by Ambrose J in Goode (supra). Ambrose J identified some elements of suggested unfairness which were argued before him and raised again by me. Foremost amongst these is that the application of these principles would result in the plaintiff’s husband being paid commercial rates whilst sleeping in his own bed during the evening and supervising his sleeping wife. But this concern is answered by the remarks of Mason CJ (Toohey and McHugh JJ) in Van Gervan12 at p 335 in saying:- 9 (1977) 159 CLR 161 10 (1992) 175 CLR 327 11 (1996) 187 CLR 354 at p 372 12 supra -- 20 of 35 -- 21 “It does not seem reasonable that the defendant’s liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge or at less than market rates. Yet post- Griffiths awards have been reduced on this or similar theories.13 Moreover, a plaintiff should be entitled to arrange his or her affairs in the way in which that person pleases and should not be constrained by monetary considerations from dispensing with gratuitous services and obtaining outside services if they are desired. Indeed, the relationship between the provider and the plaintiff may continue to exist in some cases only because outside help is able to be obtained.” [55] The notion is further answered by Toohey, McHugh, Gummow and Kirby JJ in Kars (at p 372):- “It is an accepted principle in Australia that damages for past and future gratuitous services constitute a sum designed to provide for the injured plaintiff’s established needs. That sum may be calculated by reference to what the provider does and even what the commercial costs of doing it would entail but the focus is on the plaintiff’s needs.” [56] Moreover in this case, where the plaintiff has an irregular sleep pattern and could be a danger to herself if she is awake and unsupervised, in most instances the costs of the service in all probability has been well earned. It should be noted also that Mr Castro had to take less remunerative employment in order to provide the services undertaken by him. [57] The second area of concern raised on behalf of the defendants is the fact that commercial rates include a component described as an administration charge. The rationale for such a charge is to cover the overheads of the care organisation, the costs of recruiting and ensuring the suitability of the persons who do the work. The issue did not arise in Goode because the plaintiff particularised his claim at the rate paid to the care worker excluding the administration charge but here the plaintiff seeks the full market costs. [58] It seems consistent with principle and with the approach taken by the Federal Court in Grincelis v House14 and which was not questioned an appeal to the High Court. 13 Note: footnote [39] in original text) See Johnson v Kelemic [1959] FLC 90-657; Kovac v Kovac [1982] 1 NSWLR 656; Carrick v The Commonwealth [1983] 2 Qd R 365. 14 (1998) 84 FCR 190 -- 21 of 35 -- 22 The claim in Grincelis related to whether a living-in allowance constituted part of the commercial cost and the Court held that it did. There is no basis, in principle, it seems to me, to distinguish between a live-in allowance and the administration costs, both of which really form part of the component of the market rate. [59] Given that the assessment of care must be focused on the plaintiff’s needs, the approach for past and future care will be the same. For the future there is no basis for assuming that care would continue to be provided gratuitously. [60] Counsel, on behalf of the defendants, referred me to the remarks of Davies JA when the Court of Appeal considered Kars v Kars15. His Honour there made an assessment that it is “most unlikely that, in a labour market such as the present one, in which there is a high level of unemployment, particularly in unskilled labour, unskilled services such as this could not be obtained at a price charged by the commercial care giver before adding its administration price charged by the commercial care giver before adding its administration charge”. On the material before me the care of Mrs Castro could not be regarded as unskilled services. The task has been described by all who assessed it as being “demanding”. Further to that there needs to be a consistency in those who are providing the care and so I do not see His Honour’s remarks as being particularly apposite to this case. [61] Counsel for the defendant’s also referred to comments in Sharman v Evans16 calling for the “touchstone of reasonableness” to be applied to assessments of future nursing and medical care. That remark, however, was going to the issue of the benefits derived from such services compared with the costs. Here there is no argument about the extent of the plaintiff’s needs for care, only what is the market cost of meeting that need. [62] In the present state of authority I am compelled to assess the cost of past and future care by reference to market rates. Market rates are dictated by the necessity to have available a supply of reliable competent carers on demand. Such a situation in 15 (1995) Aust Torts Reports 81-369 at p 6817 16 (1977) 138 CLR 563 at 573 -- 22 of 35 -- 23 market terms would usually be achieved only by the engagement of a reputable agency and with that, the inevitable administration costs. [63] The defendants sought to have the market cost determined in accordance with a care proposal that carers would work on a 24 hourly roster in contrast to the shift arrangement which has characterised the plaintiff’s care to date and which is most commonly provided by care agencies. The costs of the 24 hour arrangement was significantly less because the carer’s are paid at a lesser hourly rate. Despite this, the agencies who offer this service maintain there is no difficulty in finding suitable persons who are prepared to work for such extended periods at a lower rate. Evidence of this 24 hour model was adduced from Mr John Hart who has carried on the business of Quality Lifestyle Support Service since February 2000, Ms Melissa Hall who is the manager of Madison Community Care since December 1999 and Ms Berry whose business is called Caretime. None of these witnesses has met the plaintiff, nor members of her family. They have relied on the reports of others to gauge the extent of the plaintiff’s deficits and the demands of caring for her. Mr Hart’s business is based in Toowoomba but provides services to clients in Brisbane, the Gold Coast, Rockhampton and Roma. Mr Hart, who has no formal health care qualifications, worked for eight years with the Cerebral Palsy League and has lived with an older brother who is afflicted by cerebral palsy and therefore has some personal experience of persons with that condition and with other neurological injuries. Ms Hall has formal qualifications in psychology, health science and some business administration but has had limited experience in providing for long term care of a person with the disabilities such as the plaintiff. In fact, she has only one client who is managed in this 24 hour care model. Her experience of providing staff prepared to work on such a roster has been supplying to other care agencies when the staff of those agencies are sick or on holidays. Ordinarily the supply of carers on this basis is for a short term.17 Both Mr Hart and Ms Hall rejected criticisms that they would have difficulty finding a sufficient cohort or workers prepared to work on this basis and the criticism that carers might become fatigued having to work two 24 hour shifts in a week, even with backup support. Ms Berry’s program assumed the carers would be able to sleep during the shift and generally did not address the challenges to which this plaintiff’s care gives rise. -- 23 of 35 -- 24 [64] Against the confidence that Mr Hart and Ms Hall exhibited for this model of care, is the assessment of persons who had actual dealings with the plaintiff. The persons who are presently responsible for her care described the role as demanding. The plaintiff requires close supervision because of the risk of her choking, because of her tendency to wander off and to behave in an unpredictable way. The fact that the plaintiff has reduced communication capacity adds to the problem. Some of the comments made by the professional witnesses who were familiar with the plaintiff and the demands were as follows:- “We think that because of her needs, 24 hours continuous care would be rather extreme.” Ms Helen Davis – 104/25 “As far as I am concerned I think that her level of care is quite pronounced, and that 24 hours looking after one person is a lot to take on board.” (Ms Davis 105/36) “I wouldn’t want to care for Ms Castro on a 24 hour basis. Even with my experience, she is very demanding, - very demanding in terms of the vocalisations and it’s constant – she’s constantly calling out and constantly monitoring where she is”. (Mrs Coles 138/42). “I would question whether you would get constancy of carers if they had to provide 24 hours of unrelieved care”. (Mrs Coles 149/30). “I do think that the carers for this lady should be consistent, in other words I don’t believe that she should be having different people coming in through the week. If there are two or three people who are consistent and can form part of the family unit then I think that’s preferable to anybody who is just available to come in for an eight hour shift.” (Dr. Powell 335/15) [65] I must say that I have concerns whether the level and consistency of care would be able to be found in the 24 hour model. I am not convinced that the model has been in use by care agencies for a sufficiently long period of time to establish what is the attrition rate for carers who undertake shifts over such a long period. Such a model might be suitable for certain patients, particularly older persons who might have established sleep patterns or for other reasons are subdued or have predictable behaviour patterns. However, in my view a 24 hour shift model would not be appropriate for the care of the plaintiff because of the demands that she makes of the carers virtually on a continuous basis. 17 Transcript 326/50 -- 24 of 35 -- 25 [66] I do not regard the 24 hour model as being a reasonable basis of care for this particular plaintiff. I accept the model of care suggested by Ms De Campo which more closely approximates what has been successfully implemented for the plaintiff up to the present time. I expect that by the adoption of this model a wider range of carers might be available and the opportunity might exist to engage carers with the higher level of skills necessary to achieve rapport with the plaintiff. I propose to assess damages on the basis of the model proposed by Ms De Campo, the market costs for which are set out in the Life Care letter of 23 July 2001 (doc (xxi) of ex 1). The calculations based on these costs are set out in the Vincents report (ex 28) which reveal a market cost for unpaid gratuitous services of $430,874. The figure urged upon me by the defendant for costs of such services, net of the administration fee, totals $263,000. For the reasons which I have given I will adopt the calculation advanced in the Vincents report. [67] The period covered by the Vincents calculation does not include the time when the plaintiff was hospitalised and when Mr Castro accompanied her and undertook some care services as well as providing consolation to her. Compensation for such services in the interests of the plaintiff have been allowed under the principle enunciated in Wilson v McLeay18. It is neither appropriate nor necessary to make a formal calculation based on the hours of attendance and an hourly rate. However, I will make a global assessment as was suggested by both counsel during addresses. For Mr Castro’s attendance at hospital in Mount Isa and in Townsville over a total period of 436 days during which time he was absent from work I will allow the sum of $40,000. [68] The claim is also made under the heading of past care in respect of services beyond the range of care provided by others to the plaintiff and to the household made necessary by her injury. The particulars of this claim are set out in Schedule 19 which is part of exhibit 2. The services are mainly in the nature of preparing meals, supervising the plaintiff while eating in the absence of carers, lawn-mowing and other minor chores. The total claimed in respect of these items is $54,718. 18 (1961) 106 CLR 523 -- 25 of 35 -- 26 [69] In my view many of those hours overlap with the care services for which significant allowance has already been made. Other claims – for example lawn-mowing by the plaintiff’s father – have been increased because of his slowness in performing the task. Another claim related to building a fence which I am not satisfied falls within the principle. I accept that some of the services, additional to those care services for which allowance has already been made, were made necessary by the plaintiff’s incapacity. It is not possible to discriminate between those areas where overlap has occurred. I will simply make an assessment for this part of the claim on a global basis and allow the sum of $25,000. [70] The total of the individual components ($340,874.00, $40,000.00 and $25,000.00) is $405,874.00, which I will round off to an allowance of $400,000. [71] Interest is payable on that sum at 5% for five years resulting in a further component of $100,000. Future Care [72] For the future, the proposal is that some care will be provided by Mr Castro and the balance by paid carers. Carers who sleep over will be paid at the reduced rate as advised in the LifeCare letter. The calculation undertaken by Vincents (exhibit 29) show an average weekly care cost of $3,285.00. This calculation is done on the basis of standard market costs which are applicable to the shift arrangement model. Those rates are applicable to short term clients as well as long term clients. The 24 hour model proposed by the defendants would give rise to a cost between $2,000 - $2,100 which the defendants submit I should not ignore. Whilst I maintain the view that the standard model is appropriate for the plaintiff, there should be some discounting process which makes allowance for efficiency in the care arrangements and/or concessions in the prices in circumstances where the care provider will have a long term relationship with the plaintiff as a client. [73] A further significant discount must be undertaken to take account of the risk that the plaintiff because of her disabilities, particularly swallowing, may have a shortened life span. Having regard to the need to take into account the wide range of contingencies I would allow for future care costs at $3,000 per week for a period of 34 years. The $3,000 per week should be apportioned between Mr Castro $1,000, attracting a discount of 3% (1119) and the paid carers $2,000 attracting a discount -- 26 of 35 -- 27 of 5% (866). The resultant calculation using these figures amounts to $2,851,000 which I will round off to $2,850,000. Care of Annaliese [74] Annaliese was six years of age at the time of the incident and is now eleven years. Following the incident the care of Annaliese was undertaken principally by Mrs Wagner who has a son of a similar age to Annaliese. When the plaintiff’s sister Mrs Recto came to Mount Isa from the Philipines, she took over the care of Annaliese but after her departure such care has principally reverted to Mrs Wagner and Mr Castro. [75] Annaliese frequently sleeps over with the Wagner family and sometimes at the home of another carer, Mrs Merino. The closeness of the association of Annaliese to the Wagner family results in her now being at home in either household. The amount of time which Annaliese spends with the Wagner family is gauged from the routine for her which is set out in the most recent report of Mrs Coles dated 20 August 2001. [76] Annaliese, in addition to her school activities, also takes lessons in music, swimming and tennis. Although the major burden of making arrangements for and having Annaliese attend these activities falls upon Mrs Wagner she is able to combine these tasks with the normal activities of her own household. [77] Counsel for the plaintiff urged that the assessment of the cost of meeting these needs should be made on an entirely commercial basis. Counsel for the defendants referred the decision of Kneipp J in Waters v Mussig19 and submitted that the allowance should be done on a basis which is referrable to the actual effort expended in providing this care. [78] There is some artificiality in asserting that the care of her child, who is now 11 years old, has to be assessed on the approach taken by Ms De Campo and quantified in the Vincents report (exhibit 32). The approach which I adopt is to note the 19 [1986] 1 Qd R 224 -- 27 of 35 -- 28 interaction between the family carers and to have regard also to the fact that Mr Castro, despite his heavy, but rewarded, load in caring for his wife, continues to have an obligation to care for his daughter. Therefore, some apportionment is necessary to take account of the obligations of both parents to meet the needs of the child. Compensation arises only for that part of the obligation which the plaintiff is unable to meet. This obligation is in the main met by Mrs Wagner in conjunction with her other duties as a paid carer of the plaintiff and whilst being able to attend to the demands of her own household. I shall deal with the past period in two sections which reflects changing hours and changing commercial rates of remuneration as depicted in Mrs De Campo’s report.20 I have taken an average of the commercial rates in determining the allowance. I allow the following amounts for past care:- September 1996 – September 1999 35 hours per week @ $10 per hour $54,600.00 September 1999 – September 2001 20 hours per week @ $13.50 per hour $270 pw $28,080.00 $82,680.00 I shall round off this amount to an allowance of $82,600. I allow interest on past care at 5% for five years which calculates to a further component of $20,670. [79] For the future I take account of the fact that Annaliese is now reaching an age where a child is less dependent on services being provided and usually makes a contribution to household chores, although there still remains some services and supervision to be provided. Again Mr Castro’s obligation to his daughter should not be ignored. I allow 15 hours per week at $15 an hour - $225 per week for five 20 See Sturch v Willmott [1997] 2 Qd R 310 -- 28 of 35 -- 29 years (232) which computes to a figure of $52,200 which I will discount and round off to $50,000. Housing costs [80] The plaintiff and her husband expect to move to Brisbane at some time in the future. This will enable the plaintiff better access to rehabilitation and for Annaliese, better access to education facilities. The claim then relates to the cost of modifying a project home to cater for the plaintiff’s special needs. The first question is whether the house should be designed for wheelchair access. As has been stated above, the plaintiff has been required to use a wheelchair in the past but does not do so on a regular basis. It is necessary for the plaintiff to own a wheelchair, to be used when speedy mobility is necessary. It would be used inside the house only on those occasions where the plaintiff has had surgery on her leg and perhaps in her later years. Even though the in-house use of the wheelchair is limited the house should be designed to accommodate that use. Mr Deshon, architect, who was called on behalf of the plaintiff, suggested a differential in housing cost, made necessary by meeting these needs at $98,845.00. The plaintiff has reduced its claim from the amount suggested by Mr Deshon to $98,000 by deleting certain safety items. In my view the house should include the safety features of smoke detectors, which reduce the risk arising from the plaintiff’s limited mobility and perhaps from her irresponsible behaviour. Mr Herring, quantity surveyor, prepared a report which suggested that the modified project home to cater for wheelchair access to the house and in certain parts of the house can be achieved at an increased cost of approximately $25,000. The main points of difference was again the question of whether the safety items should be deleted, and the fact that Mr Deshon estimated using a square metre rate rather than looking at individual items. A further contention was the cost of professional services in supervising the house construction. [81] I accept as being reasonable some of the additional space incorporated in Mr Deshon’s proposed design but I am not satisfied that it would necessarily involve all costs suggested by him. I am satisfied that the standard of floor coverings should be as provided by Mr Deshon and that it is reasonable for the plaintiff to -- 29 of 35 -- 30 engage a professional consultant in implementing the special design features. However, the amount of the consultant’s fees because of a reduced cost, will themselves be reduced. The plaintiff having conceded certain items in reducing the claim, leads me to an assessment of an allowance under this heading of $40,000. I will allow future recurring expenses associated with these additional items at $10 per week which leads to an allowance of $9,000. Future speech therapy and aids [82] Ms Bricker-Bell in a comprehensive report, made recommendations that various rehabilitation programs should be provided for the plaintiff. Some of these programs run on computers, others involve simple aids, such as the “GoTalk”. The defendant submits that expensive aids such as this would not be justified because the plaintiff is unlikely to use them, as is evidenced by the fate of the Franklin Language Master which was provided for the plaintiff and her family use but which was not persisted with. Ms Bricker-Bell explained the limitations of the Franklin Language Master and made the point that the benefit from any such aids was dependent upon the carers’ being instructed in their use and some persistence for the plaintiff to become proficient in its use. The solutions proposed by Ms Bricker- Bell led to the preparation of a report by Vincents which computed the total cost of the computers, the computer software and communication aids and the training of carers would total $107,435. [83] Whilst I believe it would be important for the plaintiff to be assessed as to whether these items of equipment would be helpful I am not persuaded that the defendants can reasonably be expected to bear the cost of a program which is essentially untried in terms of its benefit for the plaintiff. However, I accept that the plaintiff should have ongoing regular speech therapy assessment which would include a review of her communication capacity and her swallowing mechanism. The cost of reviews I would fix at approximately $1,000 per annum and the cost of therapy on average $3,000 per annum. Over the 35 years which I have allowed for the plaintiff’s life expectancy, the total cost of these items attract an allowance of $70,000. -- 30 of 35 -- 31 Future equipment expenses [84] The future equipment expenses claim is based on the items set out in Schedule 9 of the Loss and Damage Statement (exhibit 44). Many of the items referred to have now been determined by the experts to be unnecessary. For example, the recliner chair, shower chair, as well a major item - the wheelchair - will have only slight use and will not be required to be replaced with the frequency that applies to a wheelchair in constant use. [85] In this state of the evidence I accept the defendant’s submission that the appropriate allowance under this heading is $5,000. Holiday Expenses [86] The issue here is whether the plaintiff, because of her disabilities, ought to receive an allowance based on the fact that when she travels by aircraft she would need to travel in business class. This submission is founded on the fact that because of the plaintiff’s manner of eating that she should not be exposed to other passengers in close proximity and further because of the frequency with which she goes to the toilet she would cause inconvenience to other passengers unless she had available the additional leg room of a business class seat. As it is necessary for the plaintiff to travel with a carer the upgrade to business class would necessarily apply to the other person. The amount claimed in respect of this upgrade is predicated on the plaintiff taking a holiday to the Philipines each year. [87] The plaintiff has returned to the Philipines since her accident on two occasions, once on holiday to see the family and once to attend a wedding. She was, on each occasion, accompanied by her husband and they travelled in economy class. [88] The defendant takes no issue with the claim for past holiday expenses of $4,000 but submits that the claim for future holidays based on an overseas trip every year and travel in business class is excessive. -- 31 of 35 -- 32 [89] I consider it reasonable for the plaintiff to have the convenience of business class travel. One of the main concerns about such travel is the frequency with which the plaintiff goes to the toilet and the difficulty in knowing whether she needs to go or not. There is associated with this a danger that her behaviour would be upsetting to other passengers if she is forced to queue whilst waiting for a toilet to become available. As well, when she is eating she needs to have space and as far as it can be arranged, privacy. The seating configuration in business class would allow some prospect of achieving both of these aims. [90] I would not, however, be prepared to allow this additional expense to be assessed on an annual basis. The recreational trip of this kind would not be made with that frequency had the accident not occurred and probably will be less likely to occur now. Doing the best I can with the figures provided and acknowledging that the increased expense of upgrades will be delayed over a time I will allow the sum of $25,000 under this heading. Summary [91] The total list of allowances which I have assessed and those which have been agreed between the parties are as follows:- General Damages $ 160,000.00 Past Economic Loss $ 107,000.00 Interest thereon $ 15,295.00 Loss of past superannuation $ 6,750.00 Rehabilitation expenses $ 70,840.64 WorkCover expenses $ 3,548.47 Fox v Wood $ 4,927.95 -- 32 of 35 -- 33 Future hospitalisation $ 30,000.00 Past and future medications $ 5,000.00 Future dental expenses $ 20,000.00 Future Economic Loss $ 320,000.00 Loss of future superannuation $ 25,600.00 Past Care $ 400,000.00 Interest thereon $ 100,000.00 Future care $2,850,000.00 Past care of Annaliese $ 82,600.00 Interest thereon $ 20,670.00 Future care of Annaliese $ 50,000.00 Housing Costs $ 40,000.00 Future expenses $ 9,000.00 Future speech therapy expenses $ 70,000.00 Future equipment $ 6,500.00 Past holiday expenses $ 4,000.00 Future holiday expenses $ 25,000.00 -- 33 of 35 -- 34 Fund Administration cost $ 125,168.00 TOTAL $4,551,900.06 Orders 1. Judgment for the plaintiff against the second and third defendants in the sum of $4,551,900.06 inclusive of interest and administration costs and charges. 2. Perpetual Trustees Queensland Limited (hereinafter referred to as “the administrator”) be appointed administrator pursuant to s 14(1)(c) of the Guardianship and Administration Act 2000 in relation to all financial matters relating to the amount hereinafter referred to as the trust sum. 3. The second defendant and the third defendant pay the judgment sum as follows: (a) to WorkCover Queensland the sum of $288.050.71; (b) to Messrs Conroy and Conroy, the solicitors for the litigation guardian, the sum of $603,270.00, for care that has been provided to date to the plaintiff and Annaliese Castro; (c) to the appropriate recipient or recipients, any other statutory refund or refunds; 4. as to the balance of the judgment sum (which balance sum is referred to herein as “the trust sum” and “the trust funds” to the administrator. 5. In each instance, the receipt of the respective sum by the recipient or recipients identified in paragraph 2 hereof shall be sufficient discharge for the payment by the second defendant and the third defendant. 6. The plaintiff’s action against the fourth defendant is dismissed. 7. The second and third defendants pay the plaintiff’s costs of the proceedings to be assessed on the indemnity basis, such costs to include the costs of the plaintiff’s proceedings against the fourth defendant and to include reserved costs (if any). 8. The administrator be appointed manager to take possession of and control and manage all financial matters of the plaintiff relating to the trust funds only and to hold the same in trust for the plaintiff absolutely and apply such funds and the income thereon in such manner as the administrator thinks fit for the maintenance and benefit of the plaintiff. -- 34 of 35 -- 35 9. The administrator have the power to invest the trust funds for and on behalf of the plaintiff pursuant to s 51 of the Guardianship & Administration Act 2000. 10. The parties and the administrator be at liberty to apply in respect of this judgment and these orders as they may be advised, and the plaintiff, the litigation guardian and the administrator be at liberty to apply in respect of the administration of the said trust fund as they may be advised. 11. I grant leave to the second and third defendants to appeal against the order for costs. SG Jones (sgd) JONES J -- 35 of 35 --