And the plaintiff's treating general practitioner in Dungog, Dr Melville, has observed "gastro-intestinal symptoms" associated with the effects of her internal injuries on her gall bladder, which was shown to be "contracted" in an abdominal ultrasound scan. Dr Melville considers Miss Babbage "clearly suffers from major physical disability as a result of her motor vehicle accident".
39 A number of circumstances call for a very substantial award of general damages in this case. Not only was the plaintiff extremely seriously injured, she was injured in many areas of her body, and many of her injuries have had lasting consequences. She has endured much pain over a long period, and the best medical science can offer her is help in its management. That should not be minimised, and there is ground for confidence that Miss Babbage is the kind of person who will find a viable path forward and follow it successfully. She will not do so, however, without very considerable suffering and difficulty. She has lost all chance of any kind of performing career, part-time or full-time, after training for it from the age of four, and she has also lost the full-time career as a teacher that was open to her. As she was about to grasp the fruits of her years of university studies, they were largely reduced to nothing in her hands. Although I think she will find some occupation within her capacity, she will always be handicapped by pain and disability. Her recreations have changed from those of an active and athletic girl of 21 to those of one anatomically restricted and at risk of very possibly becoming even more arthritic. Her self-image, which, in view of the concentration of her hopes and dreams for her future on so physical an art as dance, was necessarily bound up with her slim and agile body, has been marred by physical defects and unsightly scarring. In my opinion, for the consequences of her injuries that are other than economic an appropriate award of damages is the sum of $140,000. Interest should be added, calculated on half this sum, at two per cent from 23 June 1998 to the date of judgment.
40 Out-of-pocket expenses are agreed at $20,000, to which should be added provision for future treatment. That provision is required for expenditure on medicines (such as Cipramil and analgesics), medical review and measures which may be prescribed, such as physiotherapy, as well as for the possibility that further care may be required, such as counselling or surgery. Indeed, at the time of the hearing, the plaintiff was still undergoing treatment at a pain clinic. It is not practicable to cover all these matters by some precise calculation, but in my opinion a fair and reasonable sum to allow would be $12,000.
41 The plaintiff's loss of earning capacity must be reflected in an allowance for the past and an allowance for the future. As regards the past, the weight of the medical evidence supports the proposition that Miss Babbage's injuries and their consequences were severe enough to justify her substantial inability to earn income for organic reasons aggravated by an attributable psychiatric condition. Also, I should record that, having heard the plaintiff's evidence and considered it in the light of the expert evidence, I am satisfied she has not exaggerated her problems, but on the contrary should be accepted as a witness of truth. To the extent that in the more recent portion of the period up to the hearing she has diverted her residual capacities towards activities aimed at her own rehabilitation, including the completion of a university course that should have ended by the end of 1998, I find this was a reasonable response to the situation in which she was placed by the gravity of her injuries. At the date of the conclusion of the hearing, she was not yet in a position to earn any significant income, and would have required retraining in some field making less physically stressful demands upon her than dance teaching before she could be expected to do so. Accordingly, and in view of my conclusion that she would, but for her injuries, have been employed from the beginning of the school year in 1999 as a dance teacher, and would also have engaged in some part-time work utilising her skills as a dancer, probably in performance, she should be allowed a sum calculated as representing the loss of the opportunity to exercise those capacities, as she would have exercised them, to the date of judgment. A sum to represent this loss up to 30 June 2002, estimated by expert accountants at $119,704, was placed before the Court on behalf of the plaintiff, and counsel for the defendant agreed that the mathematics were correct. However, he contended that the plaintiff had not fully exploited her "retained earning capacity". I have explained that I do not accept this qualification, and I consider the calculation should be adopted, subject to the addition of a further sum assessed on the same basis to complete the period to judgment. Interest should be added, calculated in the normal way, as to which I understand counsel are agreed.
42 An amount must also be calculated to represent the plaintiff's loss of earning capacity for the future. That is perhaps the most difficult aspect of the assessment of damages in this case. As I have said, I am satisfied the plaintiff is well motivated and will, in time, find some pursuit within her residual abilities. Both sides accept this, but senior counsel for the plaintiff argues the loss should be reflected in a calculation based upon a net reduction of earning capacity of $250 per week to age 65, with a deduction of 15 per cent for vicissitudes, whereas counsel for the defendant urges the figure should be in the range $100 to $150 per week, with a deduction for vicissitudes of 25 per cent. Both sides draw attention to the plaintiff's pre-accident potential as a performer, the plaintiff's counsel to support an extra earning capacity that has been lost, the defendant's to support his contention that the deduction for vicissitudes should be higher than usual because of the greater strain imposed on a dancer's physique by comparison with the stresses of a more usual occupation. However, if one sees the long term earning potential of the plaintiff, uninjured, as depending more on steady full-time employment as a teacher than upon part-time work in her youth as a performer, I do not think the case calls for any increase in the usual deduction. The capacity to earn extra by performance is not a negative, but a positive, feature of the plaintiff's pre-accident potential. Bearing in mind the "huge" progress Miss Babbage had made at university, together with her academic performance, I consider she had above average career prospects. Some of the qualities which gave her those prospects will, of course, enhance her remaining capacity, but a further period without earnings, or with small earnings, would be likely to be involved in any retraining for less physically demanding employment. I must also take account of her evidence that it was her desire to marry and have children. Doing the best I can to balance all the factors, I have concluded that a calculation based upon a loss of $200 per week to age 65, with the usual deduction of 15 per cent for contingencies, would be appropriate.
43 Calculated figures, based on the amounts allowed for past and future economic losses, should be added to take account of the plaintiff's loss of superannuation entitlements. I understand counsel are agreed as to the method of carrying out these calculations.
44 The plaintiff also claims for domestic assistance, relying, inter alia, on a report of a qualified occupational therapist, Fiona Lyon, who examined a considerable number of the medical reports and visited Miss Babbage to assess her home situation on 4 April 2002. Mrs Lyon concluded that the plaintiff required the provision of ongoing domestic assistance to overcome her physical difficulties caused by her injuries to the extent of three hours per week at a cost of $30 per hour. She also suggested that various items should be installed in the plaintiff's home to relieve some of those difficulties. The defendant disputes the whole of the sum of $6000 claimed in respect of the items suggested. It referred Mrs Lyon's opinion about the need for domestic assistance to Prof. Higgs, the orthopaedic specialist whom it called to give evidence, but did not seek his views on the claim for items of home equipment. Prof. Higgs endorsed Mrs Lyon's opinion about the need for domestic assistance. So far as the home equipment is concerned, in the absence of a reasoned refutation, I think I should accept Mrs Lyon's assessment of the position as indicating some provision is reasonably required, but I consider a fair allowance would be $3000.
45 Domestic assistance is more difficult. The plaintiff's mother has provided much help, including in the period since the end of August 2000 something like nine hours per week, and a claim is made in respect of this assistance upon the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327. The defendant's submissions accept that three hours per week, as assessed by Mrs Lyon, would be reasonable from then on and for the future. On the whole, and smoothing out the wrinkles of weeks in which more or less might have been or might be required, I think an allowance based on Mrs Lyon's figures would be appropriate for the whole period from 31 August 2000 and into the future for the plaintiff's life expectancy. In making that broad provision over the whole period, I do not think I should reduce any part of it to differentiate between the services that have been provided by the plaintiff's mother and those that may be provided in the future commercially, or between services provided in Dungog and services required elsewhere. Nor is it appropriate to reduce the amount to be calculated on this basis for the future by some percentage related to the vicissitudes of life. That is because the limiting factor is the statistical expectation of life which takes account of both favourable and unfavourable contingencies: Sharman v Evans (1977) 138 CLR 563 at 587; Bresatz v Przibilla (1962) 108 CLR 541 at 546; Luntz on Assessment of Damages for Personal Injury and Death, 4th Ed (2002) at para 6.4.4 and footnote 126. As it is put by Luntz (ubi supra):
[I] n most instances there will be no need to apply any discount at all to the head of damages relating to the costs of future care.
46 For past domestic and other care required by the plaintiff's condition over the period to 31 August 2000, substantial claims are put forward on her behalf, varying for different periods according to changes in her situation from time to time. While she was desperately ill in intensive care in hospital for the first two weeks, and again when, shortly afterwards, she returned to intensive care, hovering between life and death with what was described as an overwhelming sepsis, her mother maintained a constant vigil at her bedside to provide what support she could, and gave her devoted nursing attention. For the seven weeks from 23 June 1998, a claim is made assessed on the basis of 500 hours at $30 per hour. Then for two months at home, much of it confined to bed, the plaintiff claims on the basis of 40 hours per week of care from her mother, and (after her period in hospital again in October) on the basis of 17.5 hours per week up until August 2000.
47 As to these periods, the defendant submitted that the hours claimed were excessive and the commercial rate of $30 per hour should be reduced for a Griffiths v Kerkemeyer claim. In addition to Griffiths v Kerkemeyer itself, reference was made to Van Gervan v Fenton; Grincelis v House (2000) 201 CLR 321; and Kars v Kars (1996) 187 CLR 354. The defendant contended the assistance of the plaintiff's mother was not reasonably required during the period of hospital care between 23 June 1998 and 22 August 1998; that after the plaintiff's discharge from hospital, six hours per day for eight weeks was "appropriate"; thereafter, until 3 May 2000, two hours per day was "appropriate"; that from then till 30 June 2000, six hours per day was "sufficient"; and thereafter three hours per week was "appropriate". The rate, it was argued, should be allowed at $15 per hour.
48 So far as concerns the rate, I do not think the defendant's argument can stand with Grincelis v House, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (at 327), in their joint judgment, that damages in respect of care and services provided gratuitously for an injured plaintiff should be determined "generally, by reference to the market cost of providing them". Nothing about this case suggests to me it should be treated as an exception.
49 So far as concerns the number of hours to which the commercial rate should be applied, I do not accept the defendant's contention that no services were reasonably required to be provided by the mother within the hospital, simply because the hospital had nursing staff to do what was needed. In the condition in which the plaintiff was at and following her admission, something more was quite reasonably called for and was provided by her mother. However, it is extremely difficult to disentangle the hours spent in that way from the many hours when the situation was really beyond practical activity, and the mother was struggling, at her daughter's bedside, to live through her unconscious or semi-conscious battle for survival with her. I do not overlook the point made in Baldwin v Lisicic (unreported, Kirby P, Priestley and Meagher JJA, 20 April 1993) that it may be appropriate to take account of a "real need … to have … gratuitous care constantly at hand". See Henderson v Campbell [2002] NSWSC 1202 at [41]. Doing the best I can to allow what fairly falls within the principle of Griffiths v Kerkemeyer, while leaving aside hours spent, however lovingly and even agonisingly, in other ways, I am satisfied that a fair and reasonable assessment of the amount to be allowed to the plaintiff for the period from 23 June 1998 to 22 August 1998 should be calculated on the basis of 100 hours at $30 per hour. For the remaining periods up to 31 August 2000 I accept the submission of the defendant as to the hours to be allowed, while applying the same rate of $30 per hour.
50 Counsel for the plaintiff seek an award under the heading of interest upon the amounts allowed, in respect of the past, for care and domestic services. In Grincelis v House, the High Court held that it was appropriate, pursuant to a section equivalent to s94 of the Supreme Court Act 1970, to allow an amount calculated as interest upon an amount awarded for the past under Griffiths v Kerkemeyer, and to do so at commercial rates of interest. In making the calculation, it is appropriate to apply Practice Note 92 and Schedule J to the Rules: see Grincelis v House at 330-331.
51 It will be observed that, with respect to a number of heads of damages, I have stated my conclusions as to the way the amount to be allowed should be arrived at without doing the actual calculation. That is because counsel were agreed that the only formal order I should make, upon publishing these reasons, should be one directing the bringing in of short minutes. Counsel have undertaken to make the required calculations to enable the final verdict to be entered then, as well as an appropriate order in respect of costs. I direct that the plaintiff bring in, on a date to be fixed, short minutes to reflect these reasons, and at that time I shall hear any argument concerning costs.
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