Densley v Nominal Defendant (Queensland) & Ors [1993] QSC 160

~'? dfi ,,-; -;~. . ~ . .. . . . .. . . · .. 1~" .. "~ State Reporting Bureau~., ... ., . ' ' ~ \ /~ . . ) l_/ TRANSCRIPT. OF PROCEEDINGS (Copyright in this transcript is vested in the Cr.own. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) . · SUPREME COURT OF QUEE,NSLAND CIVIL JURISDICTION WHITE J No 4839 of 1986 ·-,. •, STEVEN JOHN DENSLEY ~ · ., ... :;:~~~ an'infant by his next friend and lawful. mother LINDA LOVE and THE .NOMINAL DEFENDANT (QUEENSLAND) and JOSIP SWEIGER· and JOHN ANDREW LAREDO BRISBANE .. DATE 1 5 I 0 6 I 9 3 \:JUDGMENT 1 RE\'lSED COP!ES ISSUED State Reporting Bureau . Date .J; ? I f.3 Plaintiff ·First Defendant Second Defendant Third Defendant 4th Floor, The Law Courts, Geor!(e Street, Brisbane. 0. 4000 Telmho1re: f07l 227 4.':JM_ Fa.l"<:im11~>· tn7l ??71;1;-:t? ·~' ..... -- 1 of 57 -- 150693 ck/gfh (White J) HER HONOUR: There will be judgment, after apportionment, for the plaintiff against the first defendant in the sum of $839,523. I give liberty to apply with respect to the arithmetical calculations set out in this judgment and the reasons, including liberty to apply with respect to the appr·oach of the calculations of the Public Trustee's charges. It is further ordered that the first defendant pay the plaintiff's costs of and incidental to the action to be taxed and the costs of and incidental to the action of the second defendant-to be taxed. I request that counsel bring in formal minutes of orders to reflect this judgment in these reasons. I publish my reasons. I adjourn for further consideration the orders to be made in this matter till 9 o'clock on Thursday, 17 June 1993. - 12- 1- er J 1 .. 1 ' 10 20 0 ~) 30 C) 40 [) 50 60 -- 2 of 57 -- < -, ) I .. , ) I ' ( ) ( \ I I I >- IN THE SUPREME COURT OF QUEENSLAND No. 4839 of 1986 BETWEEN: STEVEN JOHN DENSLEY an infant by his next friend and lawful mother LINDA LOVE Plaintiff AND: THE NOMINAL DEFENDANT (QUEENSLAND) Defendant AND: JOSIP SWEIGER Second Defendant AND: JOHN ANDREW LAREDO Third Defendant REASONS FOR JUDGMENT -WHITE J. Judgment delivered 15/06/1993. CATCHWORDS: Counsel: Solicitors: Plaintiff passenger - mechanically poor car - no seat belt - contributory negligence - liability of driver of second car - severely brain damaged - vegetative state - value of home care. S.C. Williams Q.C. with him W.A. Martin for plaintiff J. Clifford Q.C. with him D.J. Tait for first defendant R.R. Douglas Q.C. with him P.V. Ambrose for second defendant No appearance for third defendant Hunt & Hunt for plaintiff Biggs & Biggs Francis & McGregor for first defendant Mcinnes Wilson & Jensen for second defendant Hearing Dates: 24, 25, 26, 27, 28 May, 1993 -- 3 of 57 -- IN THE SUPREME COURT OF QUEENSLAND No. 4839 of 1986 BETWEEN: AND: AND: AND: STEVEN JOHN DENSLEY an infant by his next friend and lawful mother LINDA LOVE Plaintiff THE NOMTNAL DEFENDANT (QUEENSLAND) Defendant JOSIP SWEIGER Second Defendant JOHN ANDREW LAREDO Third Defendant REASONS FOR JUDGMENT- WHITE J. Delivered the 15th day of June, 1993 The plaintiff is a young man aged 24 years who sustained injury in a motor vehicle accident on 21st April, 1984 near ( Waterford in this State. He sues by his next friend, Mrs. Linda Love, his mother, having sustained serious brain injury in the accident. Liability and quantum are both in issue. The plaintiff was a passenger in a motor vehicle which was unregistered at the time of the accident. The second defendant, Josip Sweiger, was the driver of a following vehicle which came into collision with the vehicle in which the plaintit'f was a passenger. In issue i$ whether the plaintiff had already -- 4 of 57 -- 2 sustained his injuries prior to the collision with the second defendant's vehicle. The third defendant, John Laredo, was the driver of the vehicle in which the plaintiff was a passenger. The plaintiff, the second and the third defendants were friends. The Nominal Defendant has served a notice pursuant to s.4G of the Motor Vehicle Insurance Act upon Laredo seeking to be indemnified by him for any damages which it might be ordered to pay to the plaintiff. The Nominal Defendant and second defendant have served indemnity and contribution notices upon each other. Laredo did not participate in the trial as a party although he gave evidence as a witness for the Nominal Defendant. He had not filed or served an entry of appearance. In the course of his evidence his rights as a party and the effect of the notice from the Nominal Defendant were explained to him. In the event, Mr. Douglas Q.C., counsel for the second defendant, assisted the court on the issues affecting Laredo vis-a-vis the Nominal Defendant's claim against him as set out in s.4G(1) proviso (b) of the Motor Vehicles Insurance Act. c 0 0 r, In the pleadings it was alleged by the Nominal Defendant ~-) that the plaintiff was the owner of the motor vehicle in which he was travelling as a passenger and was thus precluded from recovery. It was also alleged that the plaintiff was, in fact, the driver of that vehicle. Investigations some years after the action was initiated revealed that Laredo was indeed the driver of the vehicle and the issue of who was driving was not pursued at trial. The former allegation that the plaintiff was the owner was pursued but faintly. -- 5 of 57 -- 3 The first and second defendants alleged that the plaintiff contributed to his own injuries by consenting to be driven by an inexperienced driver in an old, mechanically unsound motor vehicle and by not wearing a seatbelt. On 21st April, 1984 the plaintiff was aged 15 years. It was Easter Saturday. The plaintiff had been living with two of his mother's brothers since the beginning of the year in a unit at North Road, Woodridge. The plaintiff ought to have been attending school at the Woodridge High School but he was truanting on a quite regular basis. He was mixing with a group ~~~, ~. ) of boys some years older than he was including John Laredo and Josip Sweiger who lived in the same units as· the plaintiff together with Josip Sweiger's sister, Vesna and her baby. Sweiger' s brother, Sini, and Nicholas Greenwood were also members of the group. Sini was a passenger in his brother's car at the time of the accident in which the plaintiff was injured and Greenwood, in his car, was a witness. Sweiger and Greenwood were in employment at that time. Laredo was not. (_) The plaintiff's uncles were to attend a wedding in Mildura over the Easter holiday and the plaintiff was to return to his mother's home at Alderley where she lived with a Sam Scognamiglio, whilst they were away. The plaintiff did not go to her but instead stayed with Laredo, Vesna, and·the baby at the Blue Gum Caravan Park where they had moved from the units about a month previously. There was a conflict of evidence as to how the car in which the plaintiff was injured came to be in the possession of Laredo. The plaintiff's case is that a Garry Nolan purchased the -- 6 of 57 -- 4 car, a 19~4 Holden Premier, reg. no. 666-0PR, from a Mark Cuzzu and Dawn Smith in about 1983. In fact, Dawn Smith was the registered owner of the vehicle. Mr. Nolan used the car for work purposes until the registration ran out. The registration had not been transferred into his name. He then stored the car in his backyard. Mr. Nolan did not recall having any mechanical problems with the car. He was approached by one Frank Scognamiglio about selling the car. A week or so later he spoke to be considering the matter. Mr. Nolan went away to work in the country and when he returned the car was gone from his mother's house where he had left it. He ascertained that Sam Scognamiglio had taken it without his permission and without. paying for it. He subsequently challenged Sam Scognamiglio about this, but never received any money for the car. Mrs. Love recalled Sam Scognamiglio bringing the Holden home shortly before the accident. He used it a few times and Mrs. Love travelled with him in it to visit her sister Norma Watt at ( Daisy Hill. The car developed trouble in a back wheel on that \..__) ·trip and was left at Norma Watt's house. Norma Watt gave evidence and said that shortly thereafter a "kid" whom she knew as "John" came to the door enquiring as to who owned the Holden and whether it was for sale. He had arrived with someone else in another car. She said she told him that the car belonged to Sam Scognamiglio and told him how to contact him. She said that she also told him that the car was not able to be driven. -- 7 of 57 -- ,/-"-.\ ) 5 In due course, Norma Watt said that the boy came back, told her either that he had paid a deposit or had paid for the car. He had a toolbox with him and said that he was going to fix the car. She was vague about recalling if the plaintiff was with him, remembering that he came "at some stage" but recalled other "kids" being with him. She said that she drove her car over to jump-start the Holden because it had a flat battery and the car was then driven away. She said that she tried to ring Sam Scognamiglio or Linda Love without success to verify if it was alright for the car to be taken. She was unable to recall the plaintiff's part in these events. Lisa Watt, married to Norma Watt and Lirida Love's brother, Stewart and who also lived at the Daisy Hill address, recalled the plaintiff coming with another person who enquired about the Holden. She recalled him returning some days later saying that he had bought or was buying the car from Sam Scognamiglio and () that the person with the plaintiff got the car going and drove it away. She did not recall the plaintiff being there on that· ( day and had no recollection of the car being started by the \.. .. battery from Norma Watt's car. John Laredo's evidence, for the Nominal Defendant, was that he first heard of the Holden from the plaintiff when the plaintiff was at the Blue Gum Caravan Park some time before Easter. The plaintiff described the car, said that it was for sale and asked Laredo if he wanted to buy it but Laredo said that he could not afford it. Later the plaintiff told Laredo that he had bought the car and asked Laredo to help him to collect it. I should mention that the plaintiff told Laredo and the other -- 8 of 57 -- 6 friends that I have mentioned that he was 17. Greenwood said that he seemed to have plenty of money. Laredo walked with the plaintiff to the house at Daisy Hill and whilst he remained by the Holden the plaintiff went up to the house and spoke_to a woman there. He returned but they had difficulty starting the car - which they identified as battery trouble. The plaintiff again ;r-eturned to the house and came back with a battery which they used to start the car successfully. Laredo was in the car keeping the engine going whilst the (' plai~tiff returned the battery to the house and Laredo, even though unlicensed, drove the car back to the Blue Gum Caravan Park. The Holden remained there being driven from time to time by the plaintiff and Laredo and occasionally by Greenwood until the day of the accident. Greenwood understood the plaintiff to be the owner from conversations had in the presence of Laredo and the plaintiff. _ There- are inconsistencies in the accounts of Norma and Lisa watt ~hich may be attributable to the passage of time or which may be attributable to a desire to assist the plaintiff. Although Laredo told lies about who was driving the Holden to the polic~ ~nvestigating the accident I accept that by the time he gave evidence at the_ trial he was doing his best to give a reasonably accurate account of what had occurred even though he may have been playing down his part in the enterprise of acquiring the Holden. It was plain that Laredo ~as a person of fairly limited intellectua1 capacity and had difficulty understanding some of the questions that were put to him during -- 9 of 57 -- (j "'··· () c 7 the trial, but nonetheless I accept his account of how the Holden car came to be in his and the plaintiff's possession. Laredo said that some repairs were effected to the Holden whilst it was at the caravan park and that the plaintiff paid for those repairs. He said that he drove the Holden car around as did the plaintiff but that he drove it more often than the plaintiff. New back wheeis were put oh th~ car which were bigger than the front wheels. At least after the plaintiff's uncles left .on the Thursday before Easter the plaintiff went to live with Laredo at the caravan park. It was suggested that he had been living there longer than that but I find more likely than not it was not until his uncles left that he moved in. He told Laredo that his uncles were beating him. Some credence was lent to this story by the fact that Laredo saw one of the uncles hit him in anger. On 21st April, 1984 the plaintiff and his friends went to Mt. Tamborine in three cars. The plaintiff and Laredo, with Laredo driving, were in the Holderi. Sweiger and his brother were in their car and Nicholas Greenwood was alone in his car. Laredo noted that the Holden was sluggish going up the. steep hill and Greenwood, who was driving behind, noticed that the back end of the Holden was not gripping the road very well. ·When they reached their destination they noticed that the Holden's engine had slipped off its mounts. They used a fallen tree to lever the engine back onto the mounts and fixed the fan belt. In due course they set out to return. It had been raining and the road was wet. -- 10 of 57 -- 8 On the way down from the mountain and on the flat country following there was some changing in position on the road. Immediately prior to the accident the Holden driven by Laredo with the plaintiff as passenger was in front. The car driven by Josip Sweiger with his brother Sinisa as passenger followed and then Nicholas Greenwood in his car. Nicholas Greenwood gave evidence, and I accept him as a reliable witness, as to what occurred at the time of the accident. Indeed, all counsel urged me to accept his evidence. As the photograph, (ex.29A) shows, where the accident occurred the road takes a sharp sweep around to the left. Greenwood noticed that the Holden driven by Laredo slid out a li~tle as it commenced to enter the corner. He saw that he seemed to correct it at the beginning of the corner and carried on into the corner a little further. The Holden was seen to slide right out and drove straight into the guard rail rounding the curve on the opposite of the road. Greenwood saw c~ the front end of .the Holden hit the guard rail and keep swinging ~ around until the back end then hit the guard rail. By this time the car driven by Sweiger was entering the corner. The Holden came back across the road and struck the car driven by Sweiger. Both front ends hit and then the back ends. It was the back end impact which appeared to Greenwood to push Sweiger' s off the road down the left embankment as seen in the photographs (exs. 30A and B). Greenwood was about 100 metres back from Sweiger's car at this point. He was able to estimate that both cars were doing the speed limit. The Holden finished up on its correct side of the road facing in the direction of travel with Sweiger's car off the road down the embankment with the nose sticking up at the top (! -- 11 of 57 -- f~i \ ' 9 of the embankment. Greenwood parked his car further down the road and returned to the vehicles. There was panic and confusion and everyone was looking for the plaintiff who was missing. Greenwood ultimately found him over the embankment on the right hand side of the road beyond the guard rail. Constable Simmons, who attended the scene of the accident, said that the photograph, ex.30D, shows him pointing to the pla6e below which the plaintiff was found. It was not suggested that the plaintiff had been moved. In photograph, ex.30E, Constable Simmons is pointing to the top of the guard rail where fresh blood and hair were seen. (_') It is reasonable to conclude that they were from the plaintiff. He identified the indent in the guard rail shown in the photograph, ex. 32, as, probably, the first indent to the guard rail. Laredo was scared that he would go to prison for what had occurred and sought to persuade the others to say ·that the plaintiff was driving the Holden. Sweiger said so but Greenwood said that he could not say who was driving. Th~t.position was ( \ maintained for some years and it was not until about 1986 that police investigations uncovered rumours that it was Laredo and not the plaintiff who was driving. As I mentioned earlier, by trial it was accepted by the defendants that L~red~ had been ·driving. Greenwood estimated that the distance was about· 50 metres between Sweiger's vehicle and the Holden at the time that it entered the corner. He noted that Sweiger's car's brake lights came on when the Holden first appeared to slip on the road but he was not conscious of it slowing down as it went into the -- 12 of 57 -- 10 corner. Greenwood did not see the plaintiff, fall out of the Holden. He says this was probably because he was watching both cars and was trying to stop his car so that he was not involved in any collision. He did not notice that the front passenger door of the Holden was open right back against the body of the car until he approached the Holden after it had stopped. Laredo was able to remember parts of what occurred at the time of the accident. He did not see the plaintiff thrown out of the car but he noticed that he was not there before the Holden c) stopped. As the Holden went across to the right-hand side of the road towards the guard rail he remembers calling out to the plaintiff to hang on. He remembers looking across to his left, that is, to the front passenger side, when the Holden was trayelling back across the road headed towards the embankment on the left hand side of the road. He could see that the plaintiff was no longer in his seat. This occurred before the first collision, with Sweiger' s car. Laredo could recall only one 0 impac,t with the guard rail and one impact with Sweiger' s car. As I have said, ~ accept Greenwood's account of what happened. It was suggested that Laredo may not have been telling the truth about how the accident occurred because he was still fearful of the consequences of the Nominal Defendant's s.4G notice. I am satisfied, however, that to the best of his ability Laredo was attempting to recall accurately what occurred. There was no benefit to him in excluding Sweiger from liability. Sweiger did not give evidence, although his record of interview with the police dated 23 June 1986 was tendered (ex.31). I was asked by Mr Clifford to draw an adverse inference -- 13 of 57 -- ( 11 from this, namely, that the plaintiff was still in the Holden when it collided with Sweiger's car. I take into account that Sweiger could not be cross-examined on his statement. He says he did not see the plaintiff come out of the Holden and he was unclear about how many turns the Holden did on the other side of the road, but he identified two impacts, front and rear end between his car and the Holden. He said that he put his brakes on prior to going into the corner and otherwise his evidence is consistent enough with Greenwood's evidence. I do not draw any inference from his failure to give evidence that more probably (~) than not the plaintiff was in the Holden at the time of impact () with Sweiger. I find that more likely than not the plaintiff was thrown from the Holden on its impact with the guard rail prior to any contact with the car driven by Sweiger and that the plaintiff struck his head on the top of the guard rail and was thrown forward down the embankment. The alternative hypothesis that the plaintiff was flung out of the Holden after impact with Sweiger's () car seems most unlikely, given the place where the plaintiff was found and the places of impact between the Holden and Sweiger's car together with the Holden's final position on the road; It follows, therefore, that I need make no finding against the second defendant. Mr. Clifford, on behalf of the first defendant, conceded that Laredo had driven the Holden negligently. Indeed this was most proper. The evidence was overwhelming that Laredo drove the car negligently. However, should I be found to be wrong in the conclusion as to when the plaintiff sustained his injuries, I will consider what degree of -- 14 of 57 -- 12 culpability, if any, should attach to Sweiger, if it be concluded that as a consequence of one or other of the impacts between Sweiger's car and the Holden the plaintiff was ejected from the Holden. The first defendant and the plaintiff submitted that Sweiger's car was travelling too close behind the Holden to avoid a collision. Greenwood's evidence, which was unchallenged, was that about 50 metres separated Sweiger's car from the Holden. It appears that all three cars were doing about 100 k.p.h. in an (' 1 area where that was the speed limit. When Greenwood saw the Holden start to swing out for the first time going into the corner he also saw the brake lights of Sweiger's car light up. He did not notice any appreciable lengthening of distance between the two cars. Activating the brakes in his car suggests that Sweiger was attentive to the vehicle in front of him and to the topography of the road. At all times his vehicle remained on the correct side of the road. The conduct of the Holden was erratic. Greenwood was concerned not to become involved in the collisions taking place in front of him and was endeavouring to avoid those cars. He managed to do so. He was travelling about 150 metres behind the Holden. It was not submitted by the Nominal Defendant or the plaintiff who supported the submission that the plaintiff was injured after impact ~ith. Sweiger's car, that the cars were travelling too fast for the prevailing conditions. I find that there was no negligence demonstrated by Sweiger. Contributory Negligence 0 () -- 15 of 57 -- 13 The Holden car was fitted with a lap-sash seatbelt of a non- retractable type on the front passenger side. Laredo was unable to recall if the plaintiff was wearing the seatbelt at the time. The plaintiff apparently had something of an aversion to wearing a seatbelt. Greenwood's evidence is instructive at t/s p.263: "Every time he hopped in my vehicle he thought it was cool not to wear one [a seatbelt] and I made him wear one because I didn't want to get pulled over myself. He for some reason detested wearing a seatbelt." (-----\ Laredo thought that the plaintiff was indifferent as to whether he wore a seatbelt as a matter of practice. () The plaintiff's father was killed in a car accident in 1981 by decapitation. Mrs Love said that evidence given at the inquest suggested that her husband may have survived had he not been restrained by a seatbelt. She said that it was a matter that was the subject of discussion between herself and Richard, her second son, who was in the car with his father at the time. C ', .·· She did not say that the plaintiff was involved in those conversations or if he had heard them. There is no evidence to (__) suggest that the plaintiff was influenced by the manner of his father's death in adopting a hostile attitude towards wearing a seatbelt. The wearing of seatbelts was not something which went by default, because both Greenwood and Laredo recalled conversations with the plaintiff about him, the plaintiff, wearing a seatbelt. Laredo's was as recently as the drive down from Mt Tamborine just prior to the accident. Laredo said that the passenger seatbelt was used by him in the Holden previously and that it had worked. Laredo sustained no physical injuries in the accident on the 21st -- 16 of 57 -- 14 April, 1984. Although of no relevance, I mention for completeness, that neither apparently did Sweiger or his brother. Dr. Weidmann, neurosurgeon, said that there was no doubt that the wearing of seatbelts led to a marked reduction in the incidence and severity of head injuries in motor vehicle accidents. I conclude that, more likely than not, the plaintiff was not wearing a seatbelt at the time of the impact which caused him to be thrown from the Holden and that if he had, his injuries would have been appreciably less. It was submitted that being a passenger in a car known by the plaintiff to be unsound was a further and/or compounding basis for finding contributory negligence. The only clear evidence of unsoundness was Greenwood's evidence 'that the Holden took the hill to· Mt Tamborine sluggishly and did not appear to handle well. This· might well have been thought to be attributable to the engine coming off its mounts, which was replaced by the boys when they stopped at Cedar Creek Falls. I do not conclude that there was anything about the Holden when the plaintiff got into it for the trip home which should have alerted him to danger due to mechanical defects in the car. The extensive evidence of Mr MacDonald as to the effect on the steering mechanism of·a Holden car of the engine coming off its mounts does not add anything to the view to which I have come. There was nothing to suggest that the ·failure of the Holden to "take" the curve in the highway was due even partly to anything other than Laredo's negligent driving .. It is plain from the authorities that there is no scale or percentage to be applied in reduction of an award of damages for 0 0 0 -- 17 of 57 -- 15 failure to wear a seatbelt, see Hallowell v. The Nominal Defendant (Qld) [1983] 2 Qd.R 266 at p.268 and the cases therein referred to. Having regard to the plaintiff's share in the responsibility for his injuries by failure to wear a seatbelt, I will reduce his damages by twenty per cent. Recovery by the Nominal Defendant from Laredo ( ') It is convenient to consider here whether the Nominal Defendant is entitled to be indemnified pursuant to s.4G of the Motor Vehicles Insurance Act by John Laredo. That provision C) provides:- " ( 1) Any amount properly paid by The Nominal Defendant (Queensland) in satisfaction of a claim made or judgment recovered against it and the amount of any costs and expenses properly incurred by it in relation to any such claim or to the action in which the judgment was obtained may be recovered by The Nominal Defendant (Queensland) as a debt (b) If the claim was made or the judgment was recovered in respect of an uninsured motor vehicle, from the person who, at the time of the occurrence out of which such claim arose or in respect of which such judgment was recovered, was the owner of the motor vehicle or, where at the time of such occurrence some other person was driving the motor vehicle, from the owner and the driver jointly or from either of them severally; Provided that - (b) It shall be a sufficient defence in any action brought under this subsection against the driver (whether severally or jointly with the owner) if he establishes to the satisfaction of the court -- 18 of 57 -- 16 t.hat, at the time of the occurrence, he was driving the motor vehicle with the authority of the owner or had reasonable grounds for believing and did in fact believe that he had such authority, and that he had reasonable grounds for believing a,nd did in fact believe that the motor vehicle was · insured under this Act." I accept that Laredo had reasonable grounds for believing and in fact did believe that he was driving with the authority of the owner. He believed that the plaintiff was the owner because the plaintiff told him that he had bought the Holden. Taking the car from where it was stored at the Watts' home with the apparent agreement of the occupiers supported this. The plaintiff had paid to have new brakes fitted in the car to the knowledge of Laredo which was consistent with ownership. The plaintiff was a passenger in the car at the time.of the accident when Laredo was driving and it seems to have been the case that Laredo drove regularly with the plaintiff as passenger. As to the other limb of the proviso, Laredo could recall a registration sticker being on the Holden at the time of the accident bearing the number "6". He distinctly recalled the car having number ~lates. Laredo had not placed the registration sticker on the car and it can be inferred that it was not consistent with the expiration of registration referred to by Mr. Nolan but would have suggested to an observer that the registration was current. Accordingly, I conclude that he had reasonable grounds for believing and did in fact believe that the Holden was insured pursuant to the relevant legislation then in force in Queensland. (\ c) -- 19 of 57 -- c~-~ 17 Accordingly, Laredo falls within the proviso to s.4G which is a sufficient defence to the claim for indemnity brought by the Nominal Defendant. Quantum Pain and suffering and loss of the amenities of life The plaintiff was admitted to the Princess Alexandra Hospital after the accident deeply unconscious. He has never regained consciousness. He has been diagnosed as having both a diffuse brain injury and a brain stem injury and is described by Dr. W~R. Davies and Dr. K. Hirschfeld as being in a vegetative () state. \,_ / ( ( ' "--! His mother visited him daily at the hospital and, in due course, took over much of his daily routine, which was normally carried out by the hospital staff. The plaintiff was released home into the care of his mother on 20th September 1985. At that time her brother Gordon Watt lived with her on an invalid pension but now no longer resides with her. Mrs. Love otherwise has and does live alone. The plaintiff remains in a decorticate posture with flexed elbows keeping his arms up against his chest and flexed wrists. These can be relaxed a little by physiotherapy which is given by his mother. The plaintiff has plantar flexion deformities of both ankles. His hypertonic state can be seen clearly on the video which was taken in his home just before the trial. Mrs. Love maintains that her son is not entirely unconscious of his surroundings. She says that if he is in a darkened room with his eyes closed and she turns on the light, he will open his eyes. She notes him to turn his head towards her in the room, -- 20 of 57 -- 18 and if there is a different voice in the room she notices that his eyes dart around more than usual. She notes that he seems more relaxed when he is on the banana lounge in the sitting room which is evidenced by him being easier to feed and easier to give drinks to and she can pull his arms down more easily there. Mrs. Love says that she speaks to the plaintiff as she would to her other two sons and sometimes scolds him, and she says that she sees on those occasions tears in his eyes. She believes that he knows , if he is going to Bald Hills Annexe for respite care C1 because he becomes very rigid and is difficult to shower. She -- believes that she discerns a pouting expression when she scolds him for spitting out his food. When she thinks him to be thirsty, she notes that he makes a smacking sound with his lips. The plaintiff sometimes has a definite rash on his chest and she concludes that this indicates that he is uncomfortable. Mrs. Love believes that he can_feel pain because when she pinches his feet, he pulls away and she understands him to be frowning c) at her. On examination, Dr. Davies, who is well-known as the former director of the Princess Alexandra Spinal Unit, found the plaintiff to be unresponsive to verbal stimulation or to physical stimulus apart from withdrawal. He concluded that the plaintiff has no vision at all. Neither pupils reacted to light. Dr. Davies found that there was no startle reflex. He did not believe that the plaintiff is aware in any way of pain, and that his withdrawal is simply a reflex response to noxious stimuli. Dr. Hirschfeld, a well-known and respected expert in rehabilitative. and geriatris: care, examined the plaintiff and c) -- 21 of 57 -- 19 could not elicit any response to stimuli of any type. This included loud noises, voice, light and painful stimuli. He was unable to establish any communication with the plaintiff. Dr. Michael Weidmann, a neurosurgeon, examined the plaintiff and concluded that he had no significant interaction with the outside world, and that it was unlikely that he had any insight into his plight. He concluded that he did not appear to be suffering in any significant way, either emotionally or physically. Those specialists were closely cross-examined as to this part of their evidence and all conceded that there is always C) some possibility that there is some degree of cognitive function which is unable to be discerned by the tests which they had administered. On the evidence of the three specialist medical practitioners and, indeed, the evidence of Mrs. Love, I conclude that the plaintiff has no, or virtually no insight into his plight. The medical evidence would also suggest that he suffers no pain and has not ever suffered pain as a consequence of his l injuries. There is some external evidence by way of rash on the body that some adverse stimulus is being received by the body. In a conscious person this would be described as discomfort. In assessing the plaintiff's damages for pain and suffering and loss of the amenities of life for the past and into the future, I am governed by the observations of the High Court in Skelton v. Collins (1966) 115 C.L.R. 94 and Sharman v. Evans (1977) 138 C.L.R. 563, and the pattern of awards which, following those authorities, are regularly made in this court; see, for example, Tille v. Parkinson unreported decision of G.N. Williams J. of -- 22 of 57 -- 20 February 1992 (no. 174 of 1987). On the basis that there may be some slight feeling of discomfort being registered by the plaintiff which is consequent upon his injuries, I will allow the amount of $5,000 for pain and suffering and loss of amenities of life for the past and into the future. It will attract interest at two per cent per annum for nine years, amounting to $900. Loss of Life Expectancy It is well recognised by medical specialists that severely brain injured persons do not survive the normal span of human ( , life. This is due largely to the risk of their succumbing to intercurrent infections of the chest and urinary tract infect'ions C'~ as well as infections from bed sores which become septic and often fatal. It can therefore readily be appreciated that the level of care which is received by a severely brain-injured person will dictate, in many respects, the likelihood of that person having a serious infection. It is accepted by the defendants that the level of care which is given to the plaintiff C! by his mother is of such a high order that his needs are best met by him being nursed by her at home. He has had no urinary tract infection whilst he has been in her care largely because she is () able to collect his urine in a bottle placed between his legs, obviating the need for an in-dwelling catheter which is the usual source of infection. There is no reason why this will not continue for the future. The plaintiff has had no bed sores whilst he has been in his mother's care but on his return from respite care at the Bald Hills Annexe, he has had bed sores. One was seen on the video which was taken shortly after the plaintiff's return home from the Bald Hills Annexe. It is clear -- 23 of 57 -- 21 that if Mrs. Love is able to get respite care in her own home for the plaintiff she will not send him to Bald Hills, although, she concedes, that apart from the bed sore problem the care there is excellent. The plaintiff has continuing chest secretions and his mother gives him daily physiotherapy to assist clearing his lungs. The plaintiff has had no major chest problems to date, but it is- regarded by the three specialists who examined him to be the most likely risk of infection and which will diminish his life expectancy. Dr. Weidmann considered that the plaintiff is :--\\. ) unlikely to survive beyond approximately ten years from the present. Dr. Hirschfeld was of the opinion that the biggest threat to the plaintiff's immediate survival would be respiratory infection secondary to inhalation of material. He considered that ten years survival from July 1991 would be the best estimate that he could give. Dr. W.E. Davies agreed that the major risk was chest infection from inhalation of food together with the risk of pneumonia. He estimated that the plai-ntiff is estimated l) life expectancy in July 1991 was between ten and twenty years. Dr. Davies' specialty has been as the head of the Spinal Unit at the Princess Alexandra Hospital and he has had -less exposure to severely brain damaged patients than has Dr. Hirschfeld. I accept the reluctance of the specialists to give evidence as to the predicted life expectancy of patients such as the plaintiff. I accept that Dr. Hirschfeld's long experience of dealing with over 1,500 head injured patients referred to his unit at the Princess Alexandra Hospital from the neurosurgical unit gives him some edge in making the assessment that he has. -- 24 of 57 -- 22 I conclude that on the balance of probabilities, the plaintiff is likely to live ten years from the present if he continues to receive the level of care which he presently obtains from his mother. Again, ~pplying the principles established in Skelton v. Collins and Sharman v. Evans a nominal award is made for this loss in the sum of $2000.00. Interest is to be added to that sum at two per cent per annum for nine years, amounting to $360.00. Past Griffith v. Kirkemever care The first and second defendants challenged the entitlement ( of the plaintiff to be recompensed for the care which his mother gave to him during the period when he was in hospital prior to being taken home. This was on the basis that the plaintiff was c \, unconscious and therefore unaware of her presence and that the tasks which she performed for him such as showering and feeding, were provided for in the hospital costs which the defendants would be obliged to meet in any event. There was no suggestion that the hospital costs would be any less because Mrs. Love c:~ carried out some of their functions. On the other hand, Dr. Hirschfeld and Dr. Davies said that families were encouraged to be involved in the care of hospital patients so that they could learn how to look after them when they went home. I find that it was reasonably necessary for the plaintiff's care for his . . mother to attend him whilst he was at the Princess Alexandra Hospital so that she could get used to managing him. There was no evidence as to what was reasonably required. Mrs Love attended at the hospital for an average of 10 hours per day, six days per week, over the whole period of the plaintiff's hospitalisation. Although Dr. Hirschfeld admitted that one -- 25 of 57 -- 23 person thought to be vegetative had, in due course, demonstrated cognitive function, he emphasised that it was only one person in fifteen hundred. There was no evidence that Mrs. Love's constant attendance was necessary if the cognitive function was ever to be realised. Taking a very broad approach to this claim, using the Domicare rate (ex.25) for 1985 as a basis for the calculation, I allow $15 a day for four months on a six-day week. This amounts to approximately $1500, which will attract interest at six per cent per annum for eight years, being $720. The question of interest for this gratuitous care discussed, infra. r) The plaintiff Is mother has provided and continues to provide him with what is, in essence, 24 hour care at home. The standard of that care is spoken of by the medical specialists in their reports and in their oral evidence as excellent. CJ ( She turns the plaintiff two-hourly throughout the day and night, although she usually lets him go from 2 a.m. until 5.30 a.m. when she gets up. She then empties his urine bottle, gives him a drink, gives him a massage and does a load of washing from the night. She prepares his breakfast which i~ vitamised food and feeds him by mouth with a spoon. This is a slow process and must be done very carefully. He takes his fluids through a squeezer bottle. After breakfast every second day the plaintiff's bowels are evacuated by means of a suppository. The evacuation takes place in the bed. He is then showered by means of a commode chair which is wheeled into the bathroom. The plaintiff is tied into the chair and the shower comes directly off the wall. He is returned to bed to be dried. The plaintiff is usually clothed in a T-shirt with socks added for the winter. -- 26 of 57 -- 24 He is carried by Mrs. Love to the sitting room and lies on a banana.lounge. On a suppository day this is usually at about 10.30 a.m. and on a non-suppository day at about 9.00 a.m. Mrs. Love gives the plaintiff a light morning tea and then starts preparing his lunch which is his main meal. By the time the meal is given and clearing up occurs it is about 1.30 p.m. or 2.00 p.m. In the afternoon Mrs. Love will give the plaintiff a sustagen based drink. Sometimes he is taken outside because it is cooler, particularly in the summer, and in the winter he may stay in the banana lounge or go back to bed. In the summer, Mrs. Love may shower him up to 3 or more times per day because he perspires a lot. In the winter he has a second shower in the evening. On a suppository day he might have an extra shower. He is given a light evening meal between 5.00 p.m. and 6.00 p.m. and the plaintiff is usually asleep by 7. 00 p.m. Mrs. Love retires about 9.00 p.m. Throughout the day she massages his back, elbows, ankles and the backs of his legs using skin balm. She gives him physiotherapy to clear his chest of secretions. She gets up two or three times in the night to turn the plaintiff and lightly massages him on each occasion. Throughout the day he is given numerous drinks to keep his kidneys flushed. Mrs. Love is given an opportunity to shop when a son or a neighbour sits with the plaintiff for an hour or so. She has no other relief from the 24 hour care of the plaintiff except when he goes to respite care. The plaintiff is prone to fitting and when Mrs. Love thinks that a seizure is likely she gives him dilantin. He was admitted c (: () -- 27 of 57 -- 25 to the Logan Hospital in February 1991 with facial twitching and rolling eyes, and was assessed as having had epilepsy secondary to his head injuries. He has had three admissions to Ipswich Hospital, two for respite care in December 1986 and January 1987. In February 1987 he had his teeth removed. The plaintiff has attended the Bald Hills Annexe for respite care on two occasions for two weeks per annum since 1987. During this time the Mrs. Love catches up on domestic matters. The video shows Mrs. Love carrying the plaintiff, who is CJ about 6 feet 1 inch in height and weighs 8 stone, from his bedroom to the sitting room. She lifts him from the bed to the commode chair for showering and into his wheel chair. If he is to go outside she carries him to his wheel chair at the front entry of the house. Mrs. Love is a slight woman, only 5 feet 1 inch in height. She has a vulnerable back pre-dating her son's accident. She suffers from occasional sciatic pain and low back pain from time to time particularly if she is not as careful as c~ she ought to be in lifting the plaintiff. She has a substantial disc bulge at the lumbar sacral level. The late Dr. D. Watson, orthopaedic specialist, gave evidence and said that Mrs. Love has been trained in proper lifting techniques and that if she abided by them she would be reasonably safe however, he added, that all that was necessary to expose her to danger was the slip of a foot which might produce results which were totally incapacitating. Mrs. Love's house is on different levels with a number of steps up from the outs.ide ground to the entrance and again to the living area and the plaintiff's bedroom. There is one bathroom -- 28 of 57 -- 26 on this level. Mrs. Love's bedroom is up further stairs whilst the laundry and only W. C. are down internal stairs. The passages in the house-are awkward and narrow. These are matters which need to be addressed in considering modifications to the house which I shall do in due course. Sister Omiros of Domicare, an agency specialising in the provision of services of the kind required by the plaintiff provides care on a 24 hour basis at a cost of $100 per 24 hour period to the carer and a $20 administration fee. Such an arrangement involves two persons rotating the care every 48 hours .. An hourly rate for a carer's service is $9.50 to the carer and $3.00 for administration. Those administration costs include insurance and workers' compensation payments in relation to the carer. Sister Omiros accepted that the use of a hoist as an aid in lifting patients is wide-spread in nursing and patient care, and single carers can and do use them but she added that ideally her 0 organisation preferred two people, even with the assistance of a hoist to be ava:i,.lable to lift a patient. However, I understood c- her answer to refer particularly to patients who might be described as flaccid. The plaintiff here is rigid and relatively light. Sister Omiros had not seen the plaintiff and Dr. Hirschfeld's evidence was that a properly fitted hoist in which.the carer was instructed could be appropriately used by one person. I shall return to that in due course. Mrs. Love would like some relief from the drudgery side of her .son's care. -- 29 of 57 -- 27 The defendants ·and plaintiff are in dispute as to the compensation for the plaintiff's past care gratuitously rendered by his mother and for his future care which will occur at home outside an institution. The defendants maintain that the past should exclude Mrs. Love's attendance at the Princess Alexandra Hospital which I have considered above. The first defendant submits that the balance of the past period including periods in hospital and in respite care should be at the commercial rate for 24 hour care as varied from time to time. The second defendant submits that the commercial rate must be discounted by 20 per c·) cent because Mrs. Love did not give the level of care that a commercial carer would give for 24 hours per day. This submission was based on Mrs. Love's evidence that she eased off a little in her work load for the plaintiff over the weekend period. She said that she did not lift the plaintiff around as much then. This was because of her sore back which was usually giving her trouble by the end of the week. The difference in the plaintiff's calculations is due to ( applying an hourly rate to 1 0 hours per day which rate is '-.. "averaged out" to $75.00 per day and by making no deduction for periods spent by the plaintiff in hospital or in respite care. Mr Williams for the plaintiff submitted that this took account of the fact that Mrs Love actually spent more than 10 hours a day caring for the plaintiff. The plaintiff has spent a total of 239 days at the Bald Hills Annexe and approximately 20 days at the Ipswich and Logan Hospitals. The rationale underlying the recovery of damages for services rendered gratuitously in the past and for the future was -- 30 of 57 -- 28 recently examined by the High Court in Van Gervan v. Fen ton (1992) 66 A.L.J.R. 828. In Donnelly v. Joyce [1974] Q.B. 454, Megaw L.J. said at p. 462: "The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying of those needs." Stephen J. in Griffith v. Kirkemeyer (1977) 139 C.L.R. 161 approved this line of reasoning as did Mason J. Gibbs J. took a different approach which was regarded by Mason C. J., Toohey and McHugh JJ. in Van Gervan (supra), at p. 829-30 as inconsistent with the principles enunciated in Donnelly v. Joyce which were to be applied in Australia. They concluded, at p. 830: "Consequently, it should now be accepted that the true basis of a Griffith v. Kirkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show as Gibbs J. held, that the need 'is or may be productive of financial loss' . 11 They went on to hold, ibid, "Once it is recognised that it is the need for the services which give the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to plaintiff of having them provided or by reference to the income foregone by the provider of the services. As Stephen J. pointed out in Griffith v. Kirkemeyer (1977) 139 C.L.R. at 178, the principle laid down in Donnelly 'is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary "value" of his loss' . Because the market c~ (I 0 () -- 31 of 57 -- c 29 cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost, as a general rule, is the amount which the defendant must pay as damages (See per Mason J., at 193). But in some cases the market cost .may be too high to be the reasonable value of the services." The second defendant's submission ~hat the past care should be discounted is answered by Mason C.J., Toohey and McHugh JJ. at p. 831 thus: "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 service free of charge or at least less than market rate." It follows from the above that the proper basis for assessing compensation to the plaintiff for the need.for care created by the tortious act of Laredo is the commercial rate for those ~ervices, there being no other basis for its reasonable assessment. That Mrs. Love may do more for her son than is reasonably required by his needs does not attract an obligation (_) in the defendant to pay more. The appropriate .level of care is represented by 24 hour individual care for 7 days per week to the plaintiff. The rates are as set out in ex. 28. I accept the calculations made by the first defendant set out in schedule 2 of Mr. Clifford's submissions save with respect to the period of attendance at the Princess Alexandra Hospital which I have dealt with above and a slight reduction to take ~ccount of the p~riod in the Ipswich and Logan Hospitals which seems to have been overlooked. That amounts to the sum of $165,000.00. The first defendant has submitted that .interest at two per cent for nine years should be awarded on this component of the damages award, based on M.B.P. (S.A.) v~ Gogic (1991) 171 C.L.~. 657. The High -- 32 of 57 -- 30 Court held that interest on pre-trial non-economic loss ought to be restricted to four per cent per annum, rather than at a commercial rate. By non-economic loss the High Court appears to refer to pain and suffering and loss of the amenities of life because that expression is used interchangeably with the expression non-economic loss throughout the judgment, see especially at p.666. I cannot accept that an award of damages to reflect past care gratuitously rendered can be characterised as non-economic, particularly in light of the reasoning in Van Gervan v. Fenton to which I have earlier referr~d. There is no reason to depart from the existing practice of awarding interest at six per cent per annum over the whole of the period of nine years. Interest is therefore allowed on $165,000 at that rate and over that period in the sum of $89,100. Future Griffith v. Kirkemeyer care It is submitted for the plaintiff that the basis for future care should be either the cost of a paid carer on a 24 hour shift basis at a present cost of $840.00 per week plus Mrs. Love's care of 3 hours per day at $12.50 per hour being $262.00 per week, or on the basis that a carer does one eight hour shift per day amounting to $700.00 per week plus Mrs. Love doing the balance of the caring at $525.00 per week. The former gives rise to a weekly cost of $1,102.00 and the latter a cost of $1,225.00. It is also submitted that because the plaintiff has returned from respite care in an institution with pressure sores, it is reasonable to provide for Mrs. Love's respite by the plaintiff () c/~ -- 33 of 57 -- 31 being cared for at home by the provision of an extra carer to replace Mrs. Love. The first defendant submitted that the basis for the future care of the plaintiff should be the provis{on of 24 hour care at commercial rates over 10 years. The second defendant submitted that for the same reasori that it advanced for not accepting commercial rates for the past as appropriate, those rates ought not to be allowed for the future, in blunt terms, that the mother will not provide the same level of care dedicated to the plaintiff's needs as a professional carer. Mr. R.R. Douglas proposed that the compensation be calculated at 80 per cent of the commercial rate for 7 years and thereafter at the full commercial rate of $840.00 per week for the last 3 years conceding that the services may need to be provided commercially by then. The evidence is that Mrs. Love will provide the plaintiff with care as long as she is able to do so. She is aged 42 years and in good health. As mentioned above, she has a vulnerable 1 back and has been treated for depression by" her general " practitioner. Dr. Hirschfeld said that it was essential that Mrs. Love have some assistance because her physical condition could not tolerate the provision of 24 hour care relieved only by 4 weeks respite per year. He suggested that she should be relieved at the level of one 8 hour shift per day arranged in a fashion to suit her. What is reasonable compensation for the need generated by the plaintiff's injuries does not, in my view, call for more than the equivalent of 24 hour individual care. The commercial situation is that the 24 hour care would be -- 34 of 57 -- 32 provided by 2 or more persons in rotation. There is no reasonable necessity for Mrs. Love to supervise that assistance, if she avails herself of it, once her requirements as to the proper care for her son are understood by the commercial carers. However I will allow a nominal "extra" sum to represent this initial supervision of $5,000. Further, I will make provision for the plaintiff to be provided with an electric hoist. The present hoist is unsatisfactory and Mrs. Love is not able to make use of it. Dr. Hirschfeld was very much in favour of a hoist which can be custom fitted for the plaintiff. He stressed that the carer needs to be trained in its proper use and if this occurs there is no need to have a second person involved in the lifting. The Public Trustee will administer this award of damages and accordingly the appropriate commercial rate will be for the employment of a carer through an agency. The agency fee includes, as I have mentioned earlier, workers' compensation and insurance plus the provision of replacement carers when illness or other circumstances are required. The amount allowed for future home care is $840.00 per week for 1 0 years. As I have concluded that the respite care is likely to be taken in the home, the whole period is allowed less 10 weeks for future hospital care, the provision of which I will allow. Using a multiplier for 10 years of 412.91 the amount is $346,844.00 less $6670.00 representing the 10 weeks in hospital. I will allow $340,000.00 for future home care plus $5,000 for supervision. Future Hospital Care (; -- 35 of 57 -- 33 Provision must be made for the future hospitalisation of the· plaintiff associated with any illnesses which he might have. Taking into account his past attendances after leaving the Princess Alexandra Hospital for non-respite care and the evidence of Dr. Davies I will allow for one week per annu~ at a rate of $2450.00 per week. Using the 5 per cent tables over 10 years, that amounts to $19,454, which I will allow at $19,500. Past economic loss (' \. The plaintiff was described by his mother as being a quiet child who liked reading, was good at school and who loved school (-) prior to the accident. She said that he was a good student up until the accident and that his hobbies were reading and cooking; that he had no interest in mechanical things and hated getting his hands or clothes dirty; and that her son had expressed an interest in being a chef with the navy or the air force. Thi~ latter ambition is confirmed by the notation on his inter~iew l card at the Woodridge State High School in February 1984. Similarly, the plaintiff's aunt, Lisa Watt, recalled him as being ( . a quiet obedient boy who enjoyed cooking and did not like getting \./ dirty. A somewhat different picture of the plaintiff emerged during the trial. It was clear from the evidence of Laredo and Greenwood that the plaintiff was not attending school prior to Easter 1984. Ms. Norma Watt, another aunt, and Gordon and Martin Watt, the uncles were aware of this and Ms. Watt went to the school to discuss this. His tendency to truancy was fairly long- standing going back to at least 1982. His parents were separated in 1975 when the plaintiff was about 7 years and his brothers 5 -- 36 of 57 -- 34 and 3 years. The plaintiff's mother came to Queensland in 1977 and it appears that the children remained in the cus~ody of their father in Victoria. In 1981 the plaintiff's father was killed in a motor vehicle accident as I have mentioned. The children then came to live with their mother in Queensland. Mrs. Itene Timpone, the deputy principal of Sandgate State High School, recalled the plaintiff as a pupil who was considered a truancy problem in 1982 and 1983. She produced the school records to support this (ex. 55). Truancy was defined as an absence from school without explanation and did not .include those periods when students were regularly expected not to attend, namely, after exams had concluded. She described the plaintiff notwithstanding his truancy, as a "likeable little fellow" in Grade 8 who.was bright and that he had had trouble settling into the school from Victoria. The plaintiff returned to Victoria to school in 1983 and left there at the end of term 3. Those () subjects in which he was assessed in mid-1983 reveal a mark of c=J 50 per cent and above in each subject. He then transferred to the Woodridge State High School for the 1984 school year. His record card would suggest that he was enrolled there on 15th February, 1984 after the commencement of the school year. As I accept Laredo's explanation as to how the Holden came to be in·the plaintiff's and his possession, it follows that the plaintiff was probably ·the prime mover in taking the car, although I have conceded above that Laredo has possibly minimalised his role. The plaintiff may have had some understanding that the car did not belong to Sam Scognamiglio. He drove the Holden on the public highway unlicensed on more than () -- 37 of 57 -- 35 one occasion. He had unexplained possession of sums of money. He would appear to have been trying to establish himself with his new friends who were all older than him by some years. He told them that he was 17. It may well have been the case that he would "come good" in due course. However I accept the first defendant's submission that it was unlikely that the plaintiff would ·have completed the 1984 school year with regular attendances and that by the beginning of 1985 he·would have left school. His mother was then working and directing her attention to the two younger boys in the family, which was why the ('' \) plaintiff was living with his uncles. One of the uncles worked long hours and was thus unable to supervise his attendance at school and the other, apparently, did not. I conclude that the plaintiff would have sought to join the workforce in 1985. A number of rates of pay have been tendered including those for an unskilled labourer, a gardener, a storeman and packer and a cook. An approach, very fair to the plaintiff, was proposed by the first defendant which was to take the average for all occupations !' (; set out in ex.46 (plaintiff) and ex.60 (first defendant) taken back to 1st January, 1985. This gave an average of $117,082 representing past loss of wages. The plaintiff relied on an average of the ex. 46 figures but did not submit that the plaintiff would join the workforce until 1987 after completing Grade 12. I accept the approach of the first defendant and adopt the base figure of $117,082. The whole of the plaintiff's living expenses were met whilst he was in the Princess Alexandra Hospital from the end of March 1984 to September 1985, nearly 18 months. A.deduction must be -- 38 of 57 -- 36 made for this, see Skelton v. Collins (1966) 115 C.L.R. 94. I do not propose to enter the debate as to the appropriate head of damage from which this should be deducted, see Lunz Assessment of Damages, 3rd ed. pp.44 et seq., but am content to take a notional amount from the plaintiff's past loss of wages representing his living expenses for the period. The period under consideration is from 1st January, 1985 (when he notionally commenced work- not the full 18 months as proposed by the second defendant) to September 1985 - nine months. There is no evidence (. as to the breakdown of the Princess Alexandra Hospital charges for the 11 domestic element 11 and even if there were, I am mindful that those costs would be greater in such an institution than for a single young man either boarding at home or sharing with friends. The first defendant has proposed a deduction of $3,600 to reflect this and I will adopt that figure. I should also make a deduction for the prospect that the plaintiff might have had periods of unemployment. Given his lifestyle at Easter 1984 and his lack of training this seems more probable than not. I will deduct 25 per cent for that contingency. An amount of $85,000 is allowed for past loss of wages. Interest should be allowed on that amount at six per cent per annum from 1st January, 1985 for eight and a half years amounting to $43,350. Past superannuation loss The compulsory three per cent superannuation loading has been in existence for the past three years and the plaintiff has claimed it on a labourer's wage. I will allow it in the amount () 0 () -- 39 of 57 -- ,~"'- \\ 37 claimed being $1,491 together with interest thereon at six per cent for three years amounting to $268. Loss of future earning capacity I propose to utilise the same approach in assessing the plaintiff's economic loss for the future as for his past loss of wages. The average of the various incomes proposed in exs. 46 and 60 is $295.80 net. That includes a cook's net wage of $263.20 $299.35. Taking into account the plaintiff's own particular circumstances at the time of his accident and the probability that he would not have been recruited into the navy (~ .. \ \ · as a chef (exs. 19 and 40) I am persuaded that more likely than I \._, not he would have found an occupation somewhere in the ranges set out in exs. 46 and 60. Accordingly, I will take as a net weekiy earning capacity $295.80. The calculations using the multiplier· of 412.91 for ten years on the five per cent tables arrive at $122,139. From that should be deducted the costs associated with employment. In such areas of employment as are contemplated for· the plaintiff this would generally be travelling to work and, for example, workboots. In the absence of any evidentiary figures, I will assess this at $20 per week. An amount should be deducted for contingencies including the prospect of unemployment. I will reduce the above figure by 15 per cent considering that the plaintiff would have become more stable in his working life by the age of 24 years. I am assisted in that conclusion by Mr. Greenwood's situation. He now has steady employment in the Army. The plaintiff's prospects were clearly always much better than those of Mr. Laredo who is presently unemployed and whom I assessed from his demeanour in the witness box and response to -- 40 of 57 -- 38 questions as being of much lower intellectual capacity than was reflected in the report cards of the plaintiff and the observations of him by Mrs. Timpone. I accept that this is a most impressionistic way to deal with this matter but it is of some assistance. That gives a figure of $96,798.50 which I will round off at $97,000. The broad approach to assessing a plaintiff's future economic loss is agreed by the parties although there are differences in detail. I will assume that the plaintiff would c~ have remained in employment to age 65 years. The methodology established by Skelton v. Collins, supra, is to calculate the whole period during which the plaintiff would have been likely 0 to earn an income ignoring the diminution in his life's expectancy because of his injuries and then deduct from that figure the saving of expenses by the plaintiff on his maintenance during the "lost years". It was submitted for the plaintiff that the appropriate way c) to assess the value of the maintenance was to utilise the table reproduced in Lunz, op cit., at p.396 and used in dependency actions to estimate the percentage of dependency of a dependent () adult arid dependent children. The average suggested by those figures is broadly that 25 per cent of a deceased person's income who was part of a family as parent was dedicated to his or her own maintenance. The defendants on the other hand utilised the Australian Bureau of Statistics figures ( exs. 60 and 61 ) and particularly Table 3 of ex. 61 which gives figures for single perspn household expenditure by reference to ·weekly income. Those figures include expenditure on recreation. In the -- 41 of 57 -- (; 39 plaintiff's appropriate income range this is $21.47. It also includes items such as tobacco and alcoholic beverages. In Fitch v. Hyde-Cates (1982) 150 C.L.R. 482 Mason J. seems to exclude "pleasures" from the living expenses when he notes at pp.497 and 498:- "He [the plaintiff] recovers damages for his loss of earning capacity which is equated with his future earnings less his probable living expenses ~n the lost years, for without that expenditure he would not have continued to exercise his earning capacity, and it is after deduction of that expenditure that there remains a surplus which he could spend as he wished on his dependents or otherwise ... Once the relevant loss is identified as a loss of earning capacity there is a difficulty in saying that there should be deducted future expenditure on the living expenses of the deceased's dependents as well as future expenditure on his own living expenses which should be regarded as an essential condition of the exercise of his earning capacity. 11 It is quite impossible to conclude that tobacco, for example, should be excluded as recreational and not part of a person's living expenses - accepting, as I must, the statistical nature of the figures. It could also well be argued that as an "essential condition of the exercise of the earning capacity" a ( worker must have recreation. I conclude that the approach proposed by the defendants is more consistent with the authorities than that of the plaintiff and has the advantage of utilising what is known about the plaintiff, namely, that he was a single young man. I propose to use the amount of $210 as approximately relating to the deductions for an income between the second and third quintiles of Table 3 of ex. 61. An Australian male aged 24 years has a present life expectancy of 49.12 years. -- 42 of 57 -- 40 The 11 lost years 11 for lost earning capacity will commence ten years from the present and conclude a little over 41 years hence. The amount per week after the deduction for living expenses is $295.80 less $210 equalling $85.80. Using the multipliers for the five per cent tables the following calculations are made:- 41 years 925.00 10 years 412.91 512.09 512 X $85.80 = $43,929.06 This may be rounded off to $44,000. The Government Statistician's figures are based on full employment. I would expect that by the plaintiff's early thirties, had he not been injured he would have settled into a steadier lifestyle than seemed to be predicted for his earlier years when a deduction for unemployment contingencies was appropriate. In assessing his future employment possibilities a conservative approach has been taken. It seems to me that that is a sufficient discounting of the plaintiff's future earning capacity if that figure remains unreduced for further contingencies. The total amount under this head then is $97,000 plus $44,000 equals $141,000 for loss of future earning capacity. Future superannuation loss This head of damages was not disputed by the defendants. It is a percentage of the income earned and so it is appropriate that the base figure be the total future economic loss without deduction for living expenses in the lost years. That is $97,000 plus $151,449.06 (512 x $295.80) which equals $248,450. Allowing an average of seven per cent of employer contribution over the () c) () -- 43 of 57 -- 41 whole period gives an amount of $17,391.50 which I shall round off at $17,400. Special damages The plaintiff suffers from extremes of heat and cold and therefore has required an air-conditioner and a heater. A bed was paid for by one of his brothers some two years ago which permits easier access to the plaintiff. Mrs. Love uses sterilisation fluid for utensils and washing which is necessary to reduce infection. She uses suppositories and on her evidence pays $2.60 per packet of ten for them. This is at odds with the (l evidence of her general practitioner who said that each script obtained 30. For the future I will adjust to take account of his evidence and the number of repeats per script. Sheepskins are necessary for the plaintiff and have a limited life because they need to be washed so often. Mrs. Love uses skin balm when she massages the plaintiff although Dr. Davies did not suggest that it was necessary. On the other hand it really cannot be objected to as an unreasonable expenditure and I will allow it. The ~. ) plaintiff needs eye drops to keep his eyes moist. Mrs. Love uses gloves when administering the suppositories and they are a reasonable and necessary item. The annual subscription for the ambulance service is $49 and this is a reasonable expenditure in view of the cost of an ambulance from Mrs. Love's home to the Bald Hills Annexe of $116 per 24 km. trip plus $2.90 per km. thereafter. A refund is due to the Princess Alexandra Hospital in the sum $28,475 and that is allowed. There is also a refund due to -- 44 of 57 -- 42 the Ipswich Hospital, the Queensland Health Department and the difference in the Medicare payments. These items are allowed. The plaintiff received money for loss of dependency upon the death of his father in the motor vehicle accident in the sum of $5,589.36 in September 1987. Payments have been made by the Public Trustee from that fund on behalf.of the plaintiff for renovations to the bathroom, the provision of sheepskins and a ceiling fan and electrical repairs. I recall no evidence about the swimming pool, but it has not been opposed. One bed only is ( allowed as the plaintiff in any event required a bed. The foll~wing i terns which have been claimed by the plaintiff as special damages I allow as reasonable expenditure on behalf of the plaintiff in the past:- Air conditioner Heater Sterilisation solution Napisan Suppositories $1.75 p.w. Sheepskins Skin balm Eye drops Gloves Ambulance - 7 yrs x $49.00 P.A. Hospital Refund Ipswich Hospital Refund Qld. Health Department Medicare Schedules Paid by Public Trustee Renovations PoolSheepskins & Ceiling Fans Electrical Repairs Electric Bed from Morris Surgical Total $ 220.00 $ 75.00 $ 168.00 $ 3,744.00 $ 728.00 $ 1,440.00 $ 520.00 $ l26.00 $ 128.00 $ 343.00$28,400.75 $ 1,028.00 $ 5,103.36 $ 2,405.20 $ 2,498.00 $ 350.00 $ 350.00 $ 160.00 $ 3,358.00 $ 450.00 $48,237.31 -- 45 of 57 -- 43 The plaintiff is entitled to interest on $11,300 of that amount at six per cent per annum for seven and a half years giving an amount of $5,085. House modifications Mrs. Love complained of difficulties in moving the plaintiff around her house. The combination of an inadequate wheelchair, narrow corridors and doorways and numerous. steps up and down has meant that she has to carry him from his bedroom to the lounge room and to the entry if he has to be taken outside or to hospital or to be supervised outside his bedroom. Evidence was given by two architects about appropriate house modifications - Ms. Helen Smith for the plaintiff and Mr. John Deshon for the first defendant. Both prepared·reports. Ms. Smith made two recommendations - one for modifications to the existing house .and the other costing modifications to a new project house at the request of the second defendant. The former recommendation was largely predicated upon the building of a spa and exercise room and the provision of self-contained accommodation for a live-in carer. Neither Dr. Davies nor Dr. Hirschfeld considered a spa of benefit to the plaintiff and thought it increaseq the risk of infection. Dr. Weidmann, hesitatingly thought that it might benefit the plaintiff's skin circulation but also thought that the shower would be as effective. I accept the evidence of the former specialists who have greater experience in the rehabilitation of seriously injured plaintiffs than Dr. Weidmann whose speciality is as a neurosurgeon. -- 46 of 57 -- 44 The observation of Mr. Deshon then becomes apposite, namely, "If it is found that one or more important elements of Mrs. Smith's report are not reasonable, it is possible that the solutions proposed for those which are (in particular the method of providing exter.nal access) may be designed in a more efficient manner. Logically, the absence of a requirement to provide another spa would obviate the necessity for the room in which it is housed; in this case, the room could not be used for a route of access and more economical solutions t·o overcome the changes of level between inside and outside may present themselves." Mr. Deshon proposed that if Ms. Smith's proposals were not adopted then alternative wheelchair access would need to be provided to the exterior both for external visits and access to the side and rear yard. His proposals are set out in the plan accompanying his report (ex. 44) and separately as ex.25. That ci plan includes the construction of a new ramp/path across the front of the house up to a new porch and around the corner on the east side of the house to a new landing which will give wheelchair access to the house via a new entry. A·ramp then runs down off the landing to the existing entertainment/court yard area. Mr. Deshon's proposal includes a roof over the external 0 ramps as protection from the weather. Some concerns were expressed about moving the plaintiff in his wheelchair from his (j bedroom/bathroom to the lounge area. Ms. Smith's plans include widening the plaintiff's bedroom door and the bathroom door. Mr. Deshon accepts that proposal so that together with his sketch, ex.52, and Mr. Morris of Morris Surgical's evidence and demonstration with an Invacare reclining wheelchair, the cost of which I propose to allow for the plaintiff, I am persuaded that adequate access will be available for the movement of the plaintiff from his bedroom or bathroom to the lounge area and -- 47 of 57 -- 45 external areas. I do not accept that it is reasonable to provide a self-contained area for any carer who comes to assist in the house. There are sufficient bedrooms already available and a separate bathroom is not required according to Sister Omiros. Although I formed the view that a much more convenient arrangement for Mrs. Love in her care for the plaintiff would be to move into a modified project home as suggested by Ms. Smith, the extra cost involved could not reasonably be ordered against the defendant when appropriate modifications can be made to the existing home at a lesser cost. However, it would be entirely proper for the Public Trustee to provide such accommodation to the plaintiff out of the fund should Mrs. Love be agreeable to that course. I mention this only for the guidance of the officers of the Public Trustee. I conclude that reasonable renovations to Mrs. Love's home as recommended by Mr. Deshon in his oral evidence and report, supplemented by Ms. Smith's evidence and report be allowed. They are as follows:- External wheelchair access renovations as per plan Cover to this area Enlarging two doorways Provision and installation ofnon-slip tiles to bathroom floor Provision and installation of thermostatic mixer in the bathroom Intercom system from the plaintiff's bedroom to the carer's room (plaintiff's cough and bed rattle will alert carer) Council fees $4,880.00 $2,170.00 $648.00 $828.00 $680.00 $220.00 $342.00 -- 48 of 57 -- 46 Air-conditioning Total Future aids and equipment and medical services $3,207.00 $12,975.00 I am persuaded that the plaintiff needs . an efficient wheelchair to move him in and from his bedroom to other parts of the house and grounds and to get him to transport. There is some question mark as to whether location changes are necessary for the plaintiff's well-being but certainly post~re changes are necessary for the maintenance of respiratory and circulatory health according to Dr.· Hirschfeld and Dr. Weidmann. .The plaintiff needs to be closely supervised and taking him from place to place during the day to where the carer will be working, for example, wheelchair. preparing his meals, will require the use of a The first defendant does not dispute that the plaintiff has a reasonable need for it although the second defendant does. The model proposed, without adjustable arms, is sufficient for the plaintiff's needs. Suitable cushions for the wheelchair are accepted as necessary. There was some· dispute as to whether the plaintiff required () a Hi-Low flexibed as he already has an adjustable bed. Dr. Hirschfeld considered that the plaintiff's contracted posture meant that such an adjustable bed would be of no benefit to him or to the , car er . The height could be expected to remain constant. An amount has been allowed under special damages for th~ existing bed which is suitable for the plaintiff's needs. It was bought relatively recently and I note from the schedule prepared in ex.34 that the life of a Hi-Low flexibed is said to be ten years. It would appear that there is little likelihood -- 49 of 57 -- 47 that the existing bed will need to be replaced during the plaintiff's life time. Accordingly I do not find that the plaintiff has a need for this particular bed. In Dr. Hirschfeld's opinion since the plaintiff was being nursed at home a ripple mattress would be of benefit in allowing the carer some relief from turning two-hourly if necessary. I shall allow the cost of that mattress bearing in mind that the allowance which I have made for future care will require the provision of all reasonable aids. A mobile shower commode chair is necessary for the 'I -· plaintiff. The present commode'will need to be replaced in due course. Dr. Hirschfeld was positive about the need and value of a hoist in assisting a carer in the proper handling of a patient. I have predicated the amount of care which the plaintiff needs upon the provision of such a hoist and upon Dr. Hirschfeld's evidence. The volume of washing generated by the plaintiff each day /( . . ~ / requires that he be provided with a washing machine and a dryer. It cannot be said that in ordinary life he would necessarily have provided a washing machine and a dryer for himself. With the demands upon the equipment and bearing in mind ~he plaintiff's life expectancy, a provision for a once only replacement of the washing machine and dryer must be made. Many of the regularly used i terns by the plaintiff are either not in dispute or not seriously so. -- 50 of 57 -- 48 I accept Dr. Woodhead's evidence with respect to the suppositories for the future even though Mrs. Love may have been correct for the past and allow $30.00 per annum for this item. Although skin balm for massage was not identified as a medical need by the specialists, the general practitioner prescribes it for the plaintiff and Mrs. Love gives many massages throughout the day. It was not suggested to Dr. Woodhead that it was unnecessary. The mother's meticulous skin care of the plaintiff has been noted by the medical specialists. I will allow that amount claimed. The blue disposable liners have been provided free in the past ~o the plaintiff by the Health Department but must be costed for the future. One carton per month is used. The costing for this and other items has been provided by Advent (Consultancy and Equipment Services Pty. Ltd.) in ex. 34. The plaintiff requires an ambulance to transport him to hospital if required as a consequence of incurring infections. Q An annual subscription is $49 and is more economical than calling on the ambulance on a needs basis. Maintenance on the wheelchair at $90 per annum is allowed. The life of the wheelchair, the gel cushion and head rest and ripple mattress, commode chair and electric hoist is ten years. They will not require replacement. The running cost of the air conditioner is $1,200 per annum and is allowed. There is no evidence that if the modifications to the house are carried out and if the plaintiff is provided with a new wheelchair that damage will occur to the structure of the house -- 51 of 57 -- 49 requiring maintenance. Accordingly, no amount for building maintenan·ce is allowed. General practitioner visits to the plaintiff have occurred on a one to two monthly basis. Dr. Woodhead has made 33 visits since May 1988 which is 6.6 visits per annum. That degree of regularity was considered reasonable by Dr. Hirschfeld. I will allow seven visits per annum for ten years at $40 per visit amounting to $2,223 using the five per cent tables. Mrs. Love provides the plaintiff with adequate physiotherapy on a daily basis. If, however, the plaintiff should succumb to a chest infection Dr. Hirschfeld considered that a physiotherapist would be necessary in the acute phase. The plaintiff has not, to date, experienced a serious chest infection whilst in his mother's care. Accordingly, all that I can provide for is a global amount to take account of the possibility that he may need physiotherapy through the next ten years. According to Dr. Hirschfeld the plaintiff would only need the services of a speech therapist if his swallowing reflex deteriorated. There is no evidence that this is likely to happen. An occupational therapist, Mrs. O'Leary, gave evidence as to the desirability of splinting the plaintiff's hands. Dr. Hirschfeld thought that splinting with the degree of spasticity of the plaintiff is fraught with danger as splinting can create pressure. I am not persuaded that there is any demonstrated need for the services of an occupational therapist. The following items are allowed:- Invacare chair $2,500.00 -- 52 of 57 -- 50 J105 Gel cushion J505 Backrest Alphabed Ripple mattress K Chair mobile shower commode Electric hoist Automatic washing machine Clothes dryer Total Future costs of aids and equipment Sterilisation solution Squeeze bottles Napisan $9 per week Kylie bed sheets Suppositories Sheepskins Skin balm Eye drops Rubber gloves Blue disposable liners Ambulance Air-conditioner running costs Maintenance of wheelchair Automatic washing machine Dryer Total $61.71 per week $545.00 $660.00 $450.00 $895.00 $3,560.00 $800.00 $400.00 $9,810.00 Per annum $21.00 $7.50 $468.00 $227.00 $30.00 $180.00 $65.00 $15.80 $16.00 $600.00 $49.00 $1,200.00 $90.00 $160.00 $80.00 $3,209.30 Using the five per cent tables over ten years amounts to $25,484. (~. C> (/ -- 53 of 57 -- i / \ ) \_ / 51 Summary of Damages The amounts under each head are as follows:- Pain and suffering and loss of the amenities of life past and future Interest Loss of expectation of life Interest Past Griffith v. Kirkemeyer (i) At Princess Alexandra Hospital Interest (ii) At home Interest Future home care Future hospital care Past economic loss Interest Past superannuation loss Interest Loss of future earning capacity Future superannuation loss Special damages Interest on $11,300 thereof House modifications Capital cost of aids and equipment Future recurring aids and equipment Future G.P. visits Future physiotherapy Total .$5,000.00 $900.00 $2,000.00 $360.00 $1,500.00 $720.00 $165,000.00 $89,100.00 $345,000.00 $19,500~00 $85,000.00 $43,350.00 $1,491.00 $268.00 $141,000.00 $17,400.00 $48,2~7.31 $5,085.00 $12,975.00 $9,810.00 $25,484.00 $2,223.00 $3,000.00 $1,024,403.30 -- 54 of 57 -- 52 That amount must be reduced by 20 per cent to reflect the plaintiff's contributory negligence. That amounts to $819,522.64 rounded off to $819,523. The award will be managed by the Public Trustee. His charges are set out in regulation 1 0 of the Public ·Trustee Regulations. It is well recognised that the plaintiff's injuries have made necessary the administration of the fund obtained by •·. judgment and it is proper to charge the first defendant with the ( cost of that administration, see Mullins v. Duck [1988] 2 Qd.R. 674. A once only commission is charged by the Public Trustee on receipt of the funds .. From $500,000 to $750,000 a 1.5 per cent commission is charged. On funds received in excess of $750,000 a one per cent fee is charged. Pursuant to regulation 10(e) a charge of the income of the fund is made annually by the Public Trustee. The charge is six per cent per annum for the first c/ $50,000 and five per cent per annum over $50,000. Five per cent per annum is charged in respect of the certain government inscribed stock or bonds (see ex.20). The total amount of the plaintiff's damages after apportionment is $819,523. Of that, $256,320 is likely to be paid out to Mrs. Love for her satisfaction of the plaintiff's needs to date for care and approximately $36,937 will be paid out in settlement of hospital and similar accounts. There will also be an amount paid for the plaintiff's solicitor and client costs. That will leave very approximately $520,000 for investment. Aids and equipment needed for the plaintiff will be purchased on his -- 55 of 57 -- \ 53 behalf almost immediately so that it is safe to assume that no more than $500,000 will be available for investment. The once only charge paid on receipt of the fund should be deducted first from the capital sum for investment. That leaves and amount of approximately $492,200 for investment. Interest paid on moneys invested in the common fund pursuant to the Public Trustee Amendment Regulations (No. 2) 1992 is eight per cent. This gives an annual income of just under $40,000. I will assume that the investment will be in government bonds and attract a charge of five per cent. That is $1,968 per annum (.) which I will round off at $2,000. This amount calculated over ten years using the five per cent tables is approximately $16,bOO. The initial charge on $520,000 is $7,800. I will allow $25,000 to represent the Public Trustee charges. This may appear considerably less than in some large awards of damages given in the past, but the rate of interest paid on money.s in the common fund has dropped considerably and the period of administration is to be only ten years. As was noted by the author of ex.20:- " ... it is not possible to calculate what the precise amount of administration costs will be in a particular case, unless factors such as the amount available for investment and future interest rates are known. Even then there is always the possibility that Section 10 will be altered from time to time." The amount awarded for Public Trustee charges is a head of damage and accordingly must be reduced, see Morris v. Hunter unreported decision of McPherson J. of 21st September, 1988 (No. 2182 of 1985). Accordingly, the amount allowed for Public Trustee charges is $20,000. -- 56 of 57 -- 54 There will be judgment for the plaintiff against the first defendant in the sum of $839,523. I give liberty to apply with respect to the arithmetical calculations set out in this judgment including liberty to apply with respect to the approach to the calculations of the Public Trustee's charges. It was submitted that if the second defendant was not found to be liable with respect to the plaintiff's injuries then the appropriate costs order should be a Sanderson order and I would (-~ , ____ _, so order. It is further ordered that the first defendant pay the plaintiff's costs of and incidental to the action to be taxed and (, costs of and incidental to the action of the second defendant to be taxed. Counsel may bring in formal minutes of order to reflect this judgment. c c~ /) -- 57 of 57 --