Choy v Arnott

District Court of NSW|2008-07-31|Before: Mr J

For the reasons outlined above my assessment of the Plaintiff's entitlement to damages in respect of the first period is $30,384 and my assessment of the Plaintiff's entitlement to damages in respect of the second period is $60,974. This results in a total assessment for damages for past domestic attendant care services in the sum of $91,358.

The plaintiff makes a claim for the cost of future domestic or attendant care services. The basis of that claim is found in section 5.7 of the report of Mrs Miller Ravagnani in which she surveys the activities of daily living that would ordinarily be expected of a non-disabled person and which in her opinion requires the provision of regular paid services were the Plaintiff to live independently of his family. The services in question relate to housework, meal preparation, menu planning and shopping, garden and lawn care, home maintenance and spring cleaning. In the tabulated analysis of these issues in her report she estimates that such activities would require a total of 414.5 hours per annum which is the equivalent of 8 hours per week. The question to be determined is whether the Plaintiff in fact requires such assistance and to such an extent.

The Defendant submits that the Plaintiff needs little in the way of future domestic assistance and this should be assessed at no more than 2 hours per week. That submission seems to be based on the report of Ms Zeman of Empact Pty Ltd. The basis of Ms Zeman's opinion in this regard is evident in the summary table at paragraph 11.6 of her report at page 34. She appears to have taken the Plaintiff's own statement that he was able to manage tasks at face value without making allowance for the Plaintiff's over-confident attitude, his word finding difficulties and the other difficulties that relate to his frontal lobe disorder. She clearly has not taken into account the content of the evidence of the Plaintiff's aunt and his mother. In my view her analysis is over-simplistic and internally inconsistent. On the one hand she states the Plaintiff does not need assistance with, for example, housekeeping and bedroom maintenance, yet in contrast, and inconsistently, at paragraph 10.12 she noted her observation that the Plaintiff's residence was messy and disorganised. She also refers to the Plaintiff's needs for occupational therapy for planning for task execution, supervision, and monitoring of task performance. She noted he needed prompting with tasks. She appears to have paid little or no regard to the Plaintiff's problem with motivation to engage in task performance due to loss of executive function associated with his frontal lobe problems. For these reasons I find Ms Zeman's opinions and report unreliable on the issue of the Plaintiff's future care needs. I do not accept Mr Zeman's opinions on the levels of future care and assistance required by the Plaintiff.

Instead I prefer and accept the estimate within the Ravagnani report. In my view that estimate is inherently reasonable when examined against the tasks required.

I find that the Plaintiff's ongoing cognitive, emotional and behavioural problems, together with his depression will in combination preclude him from properly attending to and carrying out his day to day housework, shopping, cooking and attending to ordinary household tasks and home maintenance tasks that he would normally have attended to himself without prompting if he were not injured.

I consider that the above tasks which Mrs Miller Ravagnani has described would readily occupy at least 8 hours per week. I therefore allow 8 hours per week for future domestic and attendant care assistance on an ongoing week-to-week basis. I am satisfied that uninjured, the Plaintiff would not have needed to have paid for such assistance. Further, I am of the view that 8 hours per week is a conservative estimate because it makes no allowance for the prospect that the Plaintiff may not always be in a position to drive a motor vehicle. At section 5.9 of her report Mrs Miller Ravagnani raises for consideration an issue that whilst the Plaintiff drives a motor vehicle he displays some behavioural and cognitive features that are of concern. These concerns include difficulty with community orientation, which in the context I take to mean recognising his perspective relationship with those around him, and his difficulty in moderating his behaviour which leads to "road rage". I consider Mrs Miller Ravagnani's expressed concern to be a realistic one. If the Plaintiff did lose his licence on account of such factors, which I consider to be a real but unquantifiable possibility, then his need for additional future assistance in the form of driving him to and from where he needs or reasonably wants to go would considerably increase this need beyond the estimated 8 hours.

A question that falls to be determined is whether the allowance for future care should be costed to apply at the present time or be deferred to some future date. Although the Plaintiff gave Ms Zeman the impression he would not be leaving home in the near future I feel that view is an unsafe assumption. I think this is so because of the state of tension between the Plaintiff and other members of the household and the evidence of a deteriorated state of the relationship with his mother. I believe it to be in the Plaintiff's best interests to establish his supported independent living environment as soon as practicable and make the necessary and inevitable adjustment to it as soon as is possible and I therefore assess his damages on that basis without deferring the calculation.

The parties have agreed that the applicable rate for the assessment of this head of damage is $35 per hour. The projection of $35 per hour for 8 hours per week which is the equivalent of $280 per week which, at 5% over 62 years (x 1017.5) yields an amount of $284,900.

The Plaintiff has submitted that the amount assessed for future care should be discounted by 15 percent. I do not accede to that submission for two reasons. First, I consider that such an approach would involve impermissible double discounting as the 5% actuarial discount tables already incorporate a discount factor and, secondly, the concerns raised by Mrs Miller Ravagnani relating to the Plaintiff's driving contraindicate and serves to counterbalance the appropriateness of any discount.

I therefore assess the Plaintiff's damages for future domestic or attendant care at $284,900.

I find that as a consequence of his injuries the Plaintiff will need to incur future expenditure when he obtains treatment from time to time in respect of a number of required treatment modalities. These include general practitioner consultations, consultations with a psychiatrist, consultations with a psychologist, medications of various types and periodic review by the Brain Injury Rehabilitation Unit. I will review these issues in the ensuing paragraphs.

Notwithstanding that the evidence does not directly or specifically identify a need for the Plaintiff to have future consultations with a general practitioner, I find that the Plaintiff has an obvious need for such services. For example he has been prescribed the psychotropic and neuroleptic medications Avanza and Epilim and he suffers from depression. I infer from this fact that he will need to be periodically reviewed and monitored by a general practitioner to have prescriptions renewed from time to time and for the general practitioner to consider whether he needs any other referrals to specialists or other treatments from time to time, including any re-assessment by the Brain Injury Rehabilitation Unit.

In these circumstances, although there was no costing evidence tendered to guide me in the monetary assessment of this need, I consider that an allowance for three consultations per annum with a general practitioner at a cost of $50 per consultation would be a reasonable way of addressing these needs. This is the equivalent of $2.88 per week which, when projected over 62 years at 5 percent ( x 1017.5) yields the amount of $2,916.

The Plaintiff suffers from depression and experiences bouts of anger triggered by unpredictable external factors that cause him to become frustrated. This is a permanent feature of his condition. Dr McClure describes the Plaintiff as having a major depressive disorder in partial remission. He takes medication to address this. This indicates to me that the condition may not always be in partial remission. He has expressed suicidal ideas in the past and has nihilistic thoughts. He also has frontal lobe brain damage with impaired executive functioning.

In my view the Plaintiff's circumstances justify a reasonable provision being made for him to have ready access to the opportunity for regular consultations with a psychiatrist to assist with the review, monitoring and management of these conditions and their resulting behaviours especially since he has had suicidal thoughts in the past and he thinks obsessively. There is also a need for professional monitoring of the appropriateness or dosage of the Plaintiff's prescriptions for psychotropic and neuroleptic drugs such as his current medications of Avanza and Epilim or any alternatives that may be thought to be appropriate to be prescribed for him from time to time over the course of the Plaintiff's remaining lifetime.

Notwithstanding that there is no direct evidence of the current cost of consultations with a psychiatrist, doing the best I can to be fair to the Plaintiff and not unfair to the Defendant, I assess the Plaintiff's need for such services to be reasonably addressed by allowing two referred monitoring consultations per annum with a consultant psychiatrist at a cost of $200 per consultation which is the equivalent of $7.69 per week. I have selected two consultations per annum recognising that the Plaintiff will most probably be seeing a psychologist separately and probably with greater frequency, however a psychiatrist will still need to see him for medical review for the appropriateness of the prescriptions and dosages of his medications. The projection of $7.69 per week over 62 years at 5 percent (x 1017.5) yields the amount of $7,824.

The Plaintiff claims an allowance should be made for the cost of future consultations and treatment sessions with a psychologist for 20 one hour sessions per annum at a cost of $120 per hour for the next 30 years of his life. This is the equivalent of $46.15 per week. The need for future consultations with a psychologist is supported by the opinion of Dr Andrew McClure, a psychiatrist and Medical Assessor retained by the Motor Accidents Authority. At page 9 of his report Dr McClure recommends treatment consisting of regular clinical psychology consultations for the Plaintiff's condition of permanent major depressive disorder in partial remission. Dr Smith, who reported for the Defendant, also supports the need for future consultations with a psychologist.

The Defendant submits that an allowance of $5,000 which ought also cover future occupational therapy reviews should be sufficient compensation to meet any such need of the Plaintiff which suggests to me that it is acknowledged that the Plaintiff is in need of psychological treatment and it is the frequency and therefore the amount which is at issue. I consider an allowance of $5,000 to cover the Plaintiff's needs for consultations with a psychologist and for the services of an occupational therapist to be an inadequate allowance to address the Plaintiff's needs in this regard.

There is no evidence as to the current cost of a consultation with a psychologist however a comparison of the claim for $120 per hour when measured against $135 for the hourly cost for the services of a Case Manager leads me to the view that the rate of $120 per hour is reasonable.

In my view the claimed frequency of 20 visits per annum may be excessive. I consider it reasonable that the Plaintiff see a psychologist to have the opportunity to vent his frustrations in an appropriate professional setting so that he can receive guidance and instruction on strategies to manage his behaviours, his depression and issues concerning his inter-action with others. Doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant, I consider that an allowance of a monthly visit to a psychologist as a lifetime average would be reasonable. I do not understand the basis for limiting such consultations to a 30 year projection period as the visits to a psychologist relate to permanent behavioural issues that arise from the Plaintiff's head injury and are unlikely to abate by cure and will therefore require ongoing palliative attention for management. Twelve visits to a psychologist at $120 per visit is the equivalent of $27.69 per week.

The projection of $27.69 per week over 62 years at 5 percent (x 1017.5) yields the amount of $28,174.

The Plaintiff claims an allowance should be made for the cost of future treatment from a physiotherapist, massage therapist or an acupuncturist for 12 one hour sessions per annum at a cost of $90 per hour over the Plaintiff's remaining lifetime. This is the equivalent of $20.76 per week. There is no evidence to support that submission. Further, the Plaintiff's neck and shoulder problems have resolved years ago. Therefore, it would appear that there is no reason to make any allowance for such services or treatment. I therefore accept the Defendant's submission that the Plaintiff does not have an injury based need for such services and I therefore make no allowance for these services.

The Plaintiff claims an allowance should be made for the cost of future reviews by an occupational therapist consisting of 6 one hour sessions every three years at a cost of $135 per hour over the Plaintiff's remaining lifetime. This is the equivalent of $5.19 per week. That submission is based on Section 5.10(c) of the report of Mrs Miller Ravagnani which suggests an occupational therapy assessment of 4 hours per year at a rate of $135 per hour which is the equivalent of $10.38 per week. Mrs Miller Ravagnani identifies the basis as providing a benefit in the nature of what I consider to be the diversional therapy goals, namely leisure activities the identification of which would enhance the Plaintiff's life and allow maximum enjoyment.

I would not allow this amount simply on the suggested basis of a benefit to the Plaintiff as to do so appears to be impermissible and the Plaintiff is already being compensated for non-economic loss in respect of the loss of enjoyment of his life. However, I allow the sum I have identified on the basis of reasonable diversional therapy aimed at distracting the Plaintiff from his depression, nihilistic thoughts and obsessive and impulsive behaviour including the ever present potential for him to resort to alcohol and gambling which have been problems for him in the past following his injury. This relates to an injury related need rather than a benefit.

On the other hand the Defendant submits that an allowance of $5,000 ought to cover the likely cost of both future occupational therapy reviews as well as consultations with a psychologist. I have already rejected that submission in my assessment of the Plaintiff's damages for the cost of future consultations with a psychologist and I also reject it insofar as it applies to this component of the claim for occupational therapy consultations. I consider the Plaintiff's claim to be reasonable. I also note that the Defendant's own occupational therapist recommends occupational therapy consultations at a cost of $1,300 per annum or $25.38 per week. In my view this confirms the inherent reasonableness of Mrs Miller Ravagnani's recommendations.

The projection of $10.38 per week over 62 years at 5 percent (x 1017.5) yields the amount of $10,561.

The Plaintiff's treating rehabilitation specialist, Dr Veerabangsa has noted that the Plaintiff is currently prescribed Epilim 200mg twice daily and Avanza 60 mg at night to assist him with his anger management issues. Dr Veerabangsa also noted that these medications require review. He noted that the Plaintiff's earlier attempt to cease medication resulted in a return of increased anxiety, anger and low mood. I infer from this evidence that in order to try and achieve some sort of stability in his emotional state the Plaintiff will continue to require such medication or its equivalent for the remainder of his lifetime. In their respective submissions the parties both agree that an allowance of $5 per week should be made for the likely future cost of medications. The projection of $5 per week over 62 years at 5 percent (x 1017.5) yields the amount of $5,087.

The foregoing allowances for the Plaintiff's future treatment costs total $54,562. Taking a global view of the components of that aggregate sum on first glance it may be thought that an allowance should be made for contingencies and the potential for a slight overlap of the respective costs and services. On the other hand, the conditions calling for treatment may get worse and require more intensive and therefore more costly treatment. I therefore do not propose to round this sum down and I assess the Plaintiff's entitlement to damages for future treatment costs in the sum of $54,562.

The Plaintiff makes a claim for the lifetime cost of the services of an independent case manager at an average frequency of 1.8 hours per week at the rate of $135 per hour which is the equivalent of $243 per week. This component of the claim is based on the recommendation of Mrs Miller Ravagnani at Section 5.29a) of her report dated 27 May 2007 in which she has expressed the opinion that the Plaintiff will require this category of assistance for 8 hours per month to ensure that he has adequate access to the appropriate services and assistance to address his needs in a comprehensive, co-ordinated and consistent manner to meet his changing needs over time. Given the nature of the Plaintiff's disabilities I consider this to be a reasonable recommendation directed at fulfilling an injury caused need. The projection of $243 per week at 5 percent over 62 years (x 1017.5) yields the amount of $247,252. I consider that it is inappropriate to discount this amount for adverse vicissitudes as has been suggested on behalf of the Plaintiff as I consider that in this case the vicissitudes are more likely to operate adversely to the Defendant, that is, the Plaintiff's condition could lead to entrenched and challenging behaviours which would then operate to increase his need for such services. I therefore assess the Plaintiff's entitlement to damages for case management services in the sum of $247,252 without further discount.

The Plaintiff claims the cost of ad hoc or drop-in supervision under the vigilance of a Case Manager for 12 hours per week at a cost of $37.95 per hour. This claim is based on the recommendation of Mrs Miller Ravagnani in Section 5.2(a) of her report dated 27 May 2007. The rationale for the claim is that the Plaintiff needs to be monitored in the areas of domestic, social, financial, emotional, transport and community orientation, which I take to mean a check on his relations with those around him, as well as his medical and nutritional needs. It is proposed that such drop-in vigilance be initially staged at 4 hours per visit on three days per week with the possibility that the need for this service will increase in the future.

Mrs Miller Ravagnani's reasoning for this recommendation in a case such as this where the Plaintiff's brain damage affects so many areas of his life seems unremarkable and appropriate to the Plaintiff's situation and I accept her opinion in this regard. However, what is remarkable is the discrepant hourly cost between this type of care manager, i.e. $37.95 per hour, and the other case management recommendation aimed at ensuring that the other services required by the Plaintiff are, as Mrs Miller Ravagnani described it at Section 5.2(b) of her report, "comprehensive and co-ordinated and that these services are consistent as well as being flexible enough to meet Mr Choy's changing needs over time".

I have been left to speculate on the basis of this discrepancy as it was not explored in the evidence or in argument. The possibilities are that the lower rate could be a typographical error or, alternatively, the lower rate may be correct but could involve a different and therefore lesser paid professional skill set so that the service could be provided under the supervision of the professionally qualified Case Manager employed at the higher rate of $135 per hour. Having seen this type of care over a number of years I lean towards the latter explanation. However, in identifying the foregoing potential explanation I am mindful of the need to avoid substituting my own opinions for evidence : Strinic v Singh [2009] NSWCA 15. In these circumstances I have decided to simply take the recommended figures at face value without further analysis as such analysis would be speculative and the figures seem to me to be inherently and unquestionably reasonable for the services described.

Accordingly, I allow the cost of 12 hours of drop-in case management at $37.95 per hour which is the equivalent of $455.40 per week, which, when projected at 5% over 62 years (x 1017.5) yields the amount of $463,369. I do not propose to apply a further discount of 15 percent as submitted by the Plaintiff for the reasons already given in relation to the claim for future psychological consultations and occupational therapy. Further, I must have regard to the unchallenged evidence that the Plaintiff's need for such services will not decrease and may in fact increase. I therefore assess the Plaintiff's entitlement to damages for future drop-in case management in the amount of $463,369.

A claim is made for the cost of respite care calculated at a cost of $285 per day at 5 percent (x 231.5) for 5 years to yield the sum $53,245. The argued basis for that claim is the recommendation of Ms Ko, the Plaintiff's Head-2-Work case manager and Dr Veerabangsa, the Plaintiff's treating rehabilitation specialist. In my view there is little room for doubt that the Plaintiff will, from time to time, probably life long, need occasional respite care in the Community Living Unit of the Brain Injury Rehabilitation Unit at Liverpool Hospital. The cost of a 7 day respite care admission is identified in Ms Ko's report dated 17 May 2006 to be $1,955 or $285 per day. There is no argument as to the basic cost of such an admission. In his report dated 22 January 2008 Dr Veerabangsa refers to the Plaintiff having benefited from weekend/week stays at the Community Living Unit of the Brain Injury Service.

I read Dr Veerabangsa's reference to the Plaintiff being benefited by such a respite admission to be in a different contextual sense to Mrs Miller Ravagnani's use of the word benefit in that Dr Veerabangsa refers to a medical benefit. The past admission proposed by Ms Ko, as is evident from her report dated 17 May 2006, was proposing an imminent admission and was in response to an immediate need for the Plaintiff to have respite accommodation to not only assist in reducing family tensions and conflicts but to also assist to monitor his compliance with medications and as an additional strategy to alleviate his exposure to alcohol. Dr Veerabangsa's recommendation, although stated in his report dated 22 January 2008, clearly relates to the same events referred to by Ms Ko in June 2006.

In my view, if the Plaintiff is awarded compensation to cover the cost of the services of a case manager, a drop in case manager, a psychologist and the treatments regime I have already assessed, the need for the expense of respite care as claimed would be somewhat reduced although I find it should always be available as a background consideration and treatment option for the Plaintiff if his circumstances required it in the opinion of those responsible for addressing his reasonable injury caused needs.

In these circumstances I consider that a reduced allowance for a lifetime average of a three night weekend admission each year would reasonably address this need. I do not accept that such a claim should be limited to only 5 years. In my view it represents a lifetime need and needs to be assessed accordingly.

The analysed cost of such a provision is $16.44 per week which when projected at 5 per cent over 62 years (x 1017.5) yields an amount of $16,727. I assess the Plaintiff's damages for respite care in the sum of $16,727.

In view of the relatively modest sum assessed for this head of damage I make no offset from this assessments for any possible savings on the cost of future care because during the Plaintiff's periods of respite there will be an ongoing cost and need to maintain his living circumstances and such offsets, if they arise, appear to be negligible and difficult to identify.

The Plaintiff makes a claim for the cost of gymnasium membership and for the services of a personal trainer for 2 hours per week at the rate of $78 per week. The basis of this claim is found in the reports of Dr Veerabangsa dated 31 May 2006 and 11 November 2006 as well as in Section 5.1 of the report of Mrs Miller Ravagnani dated 27 may 2007. She recommended the Plaintiff be provided with an exercise programme as well as a "training buddy" being someone who will take him to the gymnasium and exercise with him. She also makes a recommendation for a separate allowance for two hours of supervision at the gymnasium each week. The total cost of these recommendations is $4,070.53 per annum or $78 per week.

The Plaintiff's evidence was that before his injury he was much lighter in his weight and he was much fitter than he is now. He said that at that time he felt good about himself. Before his injury the Plaintiff used to work out with weights and for between three and five days per week he also pursued a programme for keeping fit. He also used to play soccer and basketball occasionally.

The Defendant submits that the Plaintiff's physical condition does not suggest that such an allowance is called for. That submission ignores the basis for and the effect of the opinion of Dr Veerabangsa who felt it was reasonable to offer the Plaintiff a gym programme that incorporated feedback, which I interpret to mean supervised, rather than self-directed exercises, presumably to promote motivation in the Plaintiff to continue with the programme. I accept that opinion as being reasonable and reject the Defendant's submission arguing that the Plaintiff should not be compensated for this item of future expense.

I am persuaded that as a consequence of his head injury the Plaintiff has a reasonable and injury based need to be motivated and supervised in connection with his exercise needs in the interests of promoting and optimising his continued physical and mental good health.

Although I accept the reasonableness of the recommendation for the provision of access to a gymnasium and personal trainer I am not satisfied that the entire amount claimed as the cost for such services should be visited upon the Defendant. I have come to this conclusion because before the Plaintiff acquired his brain injury the evidence discloses that he exercised with weights for between three and five days per week. Whilst the evidence is silent as to where and at what cost if any he took such exercise I infer from this evidence that he did so at a gymnasium. In my view it therefore follows that the Plaintiff was already incurring a degree of this type of expenditure before he was injured. It is true that before his injury such activity and therefore the expenditure for its cost was at his discretion, however, now it is a therapeutic recommendation and therefore it is a cost for which he should be compensated. However, the amount claimed by the Plaintiff in this regard will require some discounted adjustment for this factor and I therefore allow the discounted sum of $50 per week.

The projection of $50 per week over 62 years at 5 percent (x 1017.5) yields the amount of $50,875. In my view this sum requires some further discounting for the impact of adverse vicissitudes as it is unlikely that the Plaintiff will avail himself of this assistance for the whole of his remaining lifetime as this requires a degree of intensity in the motivation and dedication for this task which may be lacking in him over the entirety of his remaining years. True it is it will be the function of the case manager to encourage the Plaintiff to comply with the recommendations made to him in this regard by Dr Veerabangsa and those who will take over his management in the future. Even if he were to do so I consider that it is unlikely that he will continue to adhere to the recommended intensity of such an exercise programme on a regular weekly basis despite the advisability for him to do this. To reflect the impact of such factors I apply a discount of twenty-five percent to yield an amount of $38,156 in respect of this head of damage.

In the opinion of the occupational therapist Mrs Miller Ravagnani the Plaintiff's ability to appropriately initiate sexual contact and to establish a long-term sexual relationship has been compromised by the effects of his injury. There is no evidence that this identified compromise relates to matters of physical function but rather, it seems to relate to the cognitive and emotional sequelae of the Plaintiff's brain injury. On behalf of the Plaintiff Mrs Miller Ravagnani advocates for funds to be made available for the Plaintiff for him to have access to specialised sexual counselling and education including the provision of the regular services of a sex worker for two one hour sessions per month at a cost of $310 per hour. The defendant opposes the assessment of a separate award for this claimed head of damage and submits that a modest sum of the order of no more than $5,000 should be added to the award for non-economic loss on account of any such need.

The evidence that bases the claim for the cost of the services of a sex worker is meagre. The Plaintiff said that since his injury he no longer has a girlfriend or a sexual relationship. He was asked whether he would be interested in having such a relationship if the opportunity arose but was unsure if in the future he would avail himself of the services of a sex worker for this purpose.

In my view the evidence does not suggest this to be an appropriate case for the consideration of such a head of damage. Further, this issue has been considered by the Full Court of the Supreme Court of Western Australia in Stewart v Andri [1993-1994] 19 MVR 1 where a similar claim was rejected at pages 12-13 per Owen J in the following terms: "In my opinion the trial judge was in error treating the loss of the opportunity to develop a conventional sexual function in the way that he did. There was a paucity of evidence relating to the issue. The occupational therapist said in his report: '[The respondent's] limitation on his independent undertaking of social activity and restriction on ability to establish relationships and to perform as an active sexual partner have seriously eroded his lifestyle. In all likelihood such limitations will continue and having broached the issue of sexuality with [the respondent] and his mother there is a general acceptance that access to a masseuse in the future would go some way to satisfying this young gentleman's sexual needs.'

The issue of sexuality was not put to the respondent when he gave evidence. None of the medical practitioners commented on it nor did the occupational therapist or the respondent's mother in their oral evidence. To treat the award in the same way as, for example, an allowance for the costs of acquiring a telephone answering machine or a Braille text reader seems not to be warranted on the evidence. It could also raise issues of public policy depending on the view that is taken as to the nature of the services to be provided.

This is not to say that the sexual aspect of the respondent's future life was not a relevant consideration. The impairment of sexual capacity and the loss of realistic prospects of a meaningful married life or other personal relationship are serious matters that reflect in loss of enjoyment of life. But the rationale for compensation lies in the loss to the injured party of the faculty, not its preservation in a different form. This is what entitles the injured person to compensation. It is a loss of amenity and should properly be regarded as a component of the award for general damages in the sense of non-economic loss: see for example, Linsell v Robson (1976) 1 NSWLR 249 at 252-253; Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21 at 22-23."

I find the decision in Stewart v Andri to be persuasive authority in this instance. In my view, consistent with that authority, in this particular case, this component of the Plaintiff's claim must be regarded as having been subsumed into the award for non-economic loss without the identification of a separate or calculable component for damages as it relates to the loss of amenity of the Plaintiff's life. Notwithstanding the Defendant's submissions to the contrary, I therefore make no separate allowance for this part of the Plaintiff's claim.

A claim is made for additional costs the Plaintiff is likely to incur when he takes his future vacations. The evidence relied upon in support of this claim is that the Plaintiff needs to be accompanied when he travels as he tends to forget where he is or where he is going even if he has made the same journey beforehand. A graphic example comes from the evidence of the Plaintiff's mother, who described the Plaintiff had forgotten the way to the Court from Central Railway Station even though he had taken that route beforehand. Another example was the Plaintiff's evidence concerning his experience of not remembering the location of the home of his friend at Minto whereas beforehand, as a delivery driver, he had a good sense of direction and memory for locations. The Plaintiff said he would worry about having a holiday alone in case something untoward might happen to him indicating an anxiety over such a prospect. I accept the evidence given by the Plaintiff and his mother in respect of these matters. This component of the claim is supported by the opinion of Mrs Miller Ravagnani who in Section 5.10(d) of her report dated 27 May 2007 identifies a need for the Plaintiff to have assistance and supervision on vacations. She identifies this need to extend to not only having someone organise vacations for the Plaintiff but to also accompany him on such vacations as well.

The Defendant submits that any such allowance should be modest. That submission was based on the speculative assumption that the Plaintiff may well prefer to travel with a companion in any event, irrespective of the effects of his traumatic brain injury. I reject that submission as it pays no regard to the injury created need in the Plaintiff for assistance of the kind claimed. The Plaintiff argues that this item represents an injury caused need. I accept that submission as being reasonable.

The Plaintiff submits that this need should be assessed according to the suggestion made by Mrs Miller Ravagnani, namely 24 hour care, which I interpret to include supervision, for 4 weeks of vacation taken every 3 years at a cost of $3,120 for each week of vacation plus an allowance of an additional sum of $2,500 to allow for the travel costs of a companion carer. Properly, the claim makes no allowance for the cost of arranging the holidays as this item is incorporated within the costings of the claim for the cost of the assistance of a case manager, for which a separate allowance has already been made.

The above costings are analysed to be the equivalent of $96 per week which, in my view is a reasonable allowance especially as it makes no provision for the additional accommodation and sustenance costs that a carer would undoubtedly require on such vacations. I consider the frequency of one four week holiday every three years to be a reasonable basis for assessment and I consider the suggested travel costs component for the companion carer to be reasonable as well.

The Defendant submits that the amount claimed is excessive because the Plaintiff may not go overseas for his holidays, or may not take overseas holidays as frequently as once every three years. Whilst that argument has some superficial attraction I remind myself that the assessment of this head of damage requires a balancing exercise. On the one hand there is some force in the Defendant's submission as I have paraphrased it. On the other hand, accepting the Defendant's submission as to frequency of holidays for the purpose of analysis, if the Plaintiff took less frequent holidays overseas in my view he would be more likely to take more frequent holidays within this country so that the analysed weekly cost of a companion carer would therefore increase. Further, in my view, the absence of an inclusion of the likely additional cost for the companion carer's accommodation and sustenance costs, together with the latter point serve to tip the balance in favour of accepting the Plaintiff's suggested costings.

The remaining issue concerning the need for additional vacation assistance is to determine the period over which the Plaintiff is likely to enjoy the benefits of such holidays. I consider that it is unlikely that the Plaintiff will travel and incur such expense at the contended frequency towards the end of his projected life expectancy. I therefore propose to allow the sum of $96 per week over the lesser period of 50 years at 5 percent (x 976.2 ) which yields an amount of $93,715. I consider that this sum should be reduced to reflect a number of potentially adverse vicissitudes. I will apply a discount of 15 percent in this regard which yields the amount of $79,657. I therefore assess the Plaintiff's entitlement to damages for the additional cost to the Plaintiff of periodic vacations in the sum of $79,657.

The Plaintiff makes a claim for the cost of a 24 hour back to base alarm system involving an installation cost of $2,000 and a recurring expenditure of $7 per week plus some extra call-out charges in the event the alarm is activated. Given that the Plaintiff has at times forgotten the personal identification number to his bank account it is quite possible that such call-out charges could be incurred. This raises the question of the practicality of such an alarm for the Plaintiff. The submitted basis for this claim is so that the provision of such a service would assist the Plaintiff to keep in touch with family and friends and his case manager and also in the event that the Plaintiff may need to contact his case manager. Section 5.11 of the report of Mrs Miller Ravagnani dated 27 May 2007 does not invoke such a rationale and instead proposes that the suggested need for such a service is on account of the Plaintiff's security needs. In my opinion the Plaintiff does not have an injury created need for the provision of a home security system. Further, on the assumption that the claimed need for such a security system was to facilitate communications between the Plaintiff, his family and his case manager, in my view a standard domestic telephone service would more than adequately address any such need without the need to visit the cost of a back to base alarm service on the Defendant.

The Plaintiff makes a claim for the cost of training for and the supervision of the transition it is anticipated he will be required make from living with his family to living independently in his own residence in the future. The basis of this claim is explained by Mrs Miller Ravagnani to be that the Plaintiff's presence at home is having a negative effect on his mother and his younger siblings due to his behaviour this justifying the provision of monitoring, assistance and support during the first twelve months of the transition to independent living. In addition there is the obvious point that neither the Plaintiff nor the Defendant can assume the Plaintiff will continue to live with his parents indefinitely. His right as an adult is to live independently and it is that right that has been adversely affected by the effects of his injury. I find that it is reasonable that the Plaintiff be provided with the funds for such a transition now rather than postponing it until later.

The basis of Mrs Miller Ravagnani's recommendation is that the Plaintiff would benefit from the provision of such training and support. In my view that reason alone would be an insufficient reason to award such damages. The threshold test for such an allowance is not so much whether the service would benefit the Plaintiff but rather, whether the injury has created a need in the Plaintiff that has to be addressed when assessing damages.

In this regard Dr Veerabangsa's report states that the Plaintiff is capable of independent living with the provision of support and set up structures in the initial short-term. Dr Veerabangsa is of the opinion that this would involve someone checking on the Plaintiff once or so per week and such an arrangement would also address the need to assist the Plaintiff with the initial set up of his independent living surrounds to ensure they are adequate for his needs. I accept as reasonable Dr Veerabangsa's recommendation in this regard. I also accept as reasonable Mrs Miller Ravagnani's costing estimate of $21,600 to implement the arrangement. This represents 160 hours required in the course of the first twelve months which is a little over three hours per week at $135 per hour. I am conscious of the need to avoid overlap with the services that will be provided by a case manager and for which I have made a separate allowance within my assessment of damages. Having regard to the need to avoid such an overlap I round Mrs Miller Ravagnani's costing recommendation down to $14,000 which is the equivalent of about two hours per week for the provision of such a service.

The Plaintiff's out-of-pocket expenses have been agreed in the sum of $125,773.54 and I assess the Plaintiff's entitlement to an award for out-of-pocket expenses in that amount. I note that it has been agreed that of this sum the Defendant's insurer has paid an amount of $3,947.70 : s.83 of the Act.

The Plaintiff makes a claim for funds management charges. The argued basis of that claim is that the Plaintiff's compensable injury has damaged his capacity to invest and manage his funds. The Defendant contests the claimed entitlement and points to the fact that the Plaintiff did not have a Tutor in the proceedings and further submits that in the relevant legal sense that there is no evidence of an impairment of the Plaintiff's capacity to manage his compensation funds.

The legal basis upon which an award of damages for funds management charges in cases such as this is well settled. If the claimed purpose of damages for funds management arises simply from the size of the damages award and the resultant need to obtain skilled assistance with investment choices and systems for managing such investments the cost of obtaining such assistance is not a matter that sounds in damages : Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49, 54-55; Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627.

There was no evidence that the Plaintiff had an intellectual deficit that materially impaired or adversely affected his ability to understand or appreciate his specific injury caused needs. He has a form of brain damage that has changed his personality, changed his behaviours and created a need for him to access an array of therapeutic and assistive services. He manages his own bank account and credit card account. There was evidence that the memory problems affecting the Plaintiff tend to render him liable to forget to pay his bills as they fall due for payment however a case manager would address this issue. There is no evidence that he cannot handle money or appreciate the value and importance of money. In the past he has exhibited obsessive behaviours and an addictive attitude to gambling in response to low moods. He will receive an award for the cost of treatment and for the services of a case manager to manage this problem if it becomes recurrent.

In my view the foregoing summary reveals no special features of the Plaintiff's situation entitling him to an award of damages for the cost of funds management charges.

The Plaintiff is the recipient of a sizeable and once only award of damages that is aimed at addressing his multiple and significant needs insofar as these can be reasonably measured in money terms. It is therefore imperative that he has the benefit of wise and careful advice concerning money management to enhance the longevity of his compensation funds. This circumstance is a compelling reason for the Plaintiff to seek out and implement a prudent investment regime in an endeavour to maximise his potential investment returns and avail himself of the tax benefits available to persons in his situation. Such advice and assistance will undoubtedly come at a price. In cases of substantial awards for personal injury it is commonplace to see a trustee company appointed to provide the requisite financial advice and implementation of that advice. The Plaintiff would be well advised to follow that course. However, in my view, on the current state of the law, the cost of such an endeavour is not an expense that can be reasonably visited upon the Defendant in this instance. Accordingly, I am constrained by authority to reject the claim for the cost of funds management charges.

My assessment of the Plaintiff's damages claim is summarised as follows:

(a) Non-economic loss $225,000.00 (b) Past loss of earning capacity $175,951.00 (c) Fox v Wood $12,800.00 (d) Future loss of earning capacity $760,185.00 (e) Past loss of employer funded superannuation contributions $19,354.00 (f) Future loss of employer funded superannuation contributions $83,620.00 (g) Past domestic and attendant care services $91,358.00 (h) Future domestic care services $284,900.00 (i) Future treatment $54,562.00 (j) Case manager $247,252.00 (k) Drop-in supervision by Case Manager $463,369.00 (l) Respite care $16,727.00 (m) Gymnasium membership and personal trainer $38,156.00 (n) Sex worker $Nil (o) Additional vacation expenditure $79,657.00 (p) Back to base alarm $Nil (q) Independent living, training and support $14,000.00 (r) Past out-of-pocket expenses $125,773.54 (s) Funds management charges $Nil Total $2,692,664.54

The total of the foregoing damages assessment in the sum of $2,692,664.54 requires adjustment to reflect the agreed 20 percent apportionment on account of the Plaintiff's own contributory negligence. That apportionment results in a reduced award for the Plaintiff in the sum of $2,154,131.60.

I make the following orders:- (a) Verdict for the Plaintiff in the sum of $2,692,664.54; (b) The Plaintiff's contributory negligence is assessed in the agreed apportionment of 20 percent; (c) Judgment be entered for the Plaintiff in the apportioned sum of $2,154,131.60 after discount; (d) The Defendant is to pay the Plaintiff's costs; (e) The exhibits may be returned; (f) Liberty to apply on 7 days' notice if further orders are required.

WEEKLY PERIOD WEEKS s.128(4) AMOUNT RATE

07.04.2004 to 20.08.2004 19.28 $793.60 $15,300.60
21.08.2004 to 19.11.2004 12.85 $797.70 $10,237.59
20.11.2004 to 31.12.2004 5.85 $828.50 $4,846.72 37.98 $30,384.91

WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT RATE RATE

01.01.2005 to 18.02.2005 6.85 $828.50 $20.71 $2,127.95
19.02.2005 to 20.05.2005 12.85 $836.10 $20.90 $4,028.47
21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 $4,155.69
20.08.2005 to 18.11.2005 12.85 $863.80 $21.59 $4,161.47
19.11.2005 to 17.02.2006 12.85 $867.00 $21.67 $4,176.89
18.02.2006 to 19.05.2006 12.85 $856.30 $21.40 $4,124.85
20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 $4,201.95
19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 $4,236.64
18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 $4,403.10
18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 $4,314.40
19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 $4,413.97
18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 $4,396.62
17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 $4,435.17
16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 $4,310.59
17.05.2008 to 28.07.2008 10.28 $904.70 $22.61 $3,486.46 184.05 $60,974.22

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Griffiths v Kerkemeyer [1976-1977] 139 CLR 164 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED: Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 Stewart v Andri [1993-1994] 19 MVR 1 Strinic v Singh [2009] NSWCA 15 Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627

At a glance

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Judgment (74 paragraphs)

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Cases Cited (7)

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