(b) Gardening and maintenance
196. Dr Black's submission does not deny the necessity for allowance to be made for the performance of such services for Tom. While there is some quibble with the amount awarded, $128,949, the principal submission is that his Honour erred in rejecting a submission that the carers could provide those services. Why his Honour rejected that submission has not been made clear to us but we intend no criticism of his Honour in that regard. In a case of the complexity and size of this one, this was a very small issue indeed. In such a case a trial judge cannot be expected to give reasons as to every allowance of an item of damages. It must be questionable whether carers, faced with the formidable task of caring for Tom, would be prepared to do the gardening for nothing. The award was made by the trial judge exercising his judgment in the context of his findings on all the evidence and on all the issues. It should not be interfered with simply because the appeal court would not have made a similar award.
(c) House modification and air conditioning
197. His Honour dealt with this as follows:
"Household renovations
It is reasonable to allow for future modifications to any house Tom is able to purchase. The claim is for -
Conversion costs $237,965.00
Air-conditioning $ 15,862.00
Maintenance and running costs $195,431.11
Professional fees and planning approval $ 19,995.00 $469,253.11
My impression was that these figures were somewhat high but neither they, nor the evidence on which they have been based, has been the subject of dispute. In round figures, I allow $469,250.00."
198. Dr Black asserts that all these matters were in dispute. Tom's submissions seem to acknowledge that the need for air-conditioning was not conceded by Dr Black and that some submission was made that much less than then the claimed amount for house-modification ought to have been allowed. Dr Black's main submission was that there was no need for air-conditioning and a need for home alterations only insofar as would be necessary to augment Tom's safety and to allow accommodation for live-in carers; in particular there was no need for the kinds of alterations necessary for a wheelchair-bound person, which the first respondent is not.
199. It is most unfortunate that the matter comes before us as it does, although we intend no criticism of anyone, least of all his Honour. This was, as we have said, a big, complex case for all concerned. While the sums involved are in absolute terms, quite large, relatively to other matters in issue they are fairly small. The choices seem to be (a) that we take a narrow view that, as detailed submissions were not made to his Honour, regard should not be had to them on appeal; (b) that we leave it to Dr Black to approach his Honour under the "slip" rule, or in the broader jurisdiction available where the tenets of justice demand it: Autodesk v Dyason (No 2) (1992-3) 176 CLR 300; (c) that we remit the matter to his Honour for reconsideration on the analogy of the "slip rule" or (d) that we deal with the matter ourselves, as best we can. We think the last course is the most practical and, ultimately, the fairest.
200. As to the necessity for air-conditioning, a report from an occupational therapist, Ms Broad, dealt with the matter. In view of Tom's gross disabilities, her proposals appear not unreasonable. Ms Broad included:
"Heating: Air-Conditioning:
Maintenance of a comfortable internal-air temperature through the use of appropriate house heating and cooling systems, due to Tom's health and weight loss problems."
201. Thus, air conditioning seems reasonably to be required.
202. As to the costings of building modification, and of the installation of air-conditioning, these were provided by an architect, Mr Hardiman.
203. The matter can only be viewed in a broad-brush way. We agree with his Honour that, on their face, the costings do look high. Such considerations alone cannot lead very far as we have indicated above. As to a possibly assumed need for wheelchair access, there was included only a small sum which might be thought to have been related thereto. The matter is small enough not to warrant intervention. More broadly, there are two considerations as to which it is surprising that no evidence was led about them by Dr Black. The first is that the incorporation of the necessary features into a house would, one surmises, be more cheaply accomplished by the construction of a new, purpose-built house, than by the alteration of an existing one. The second is that, to the extent that the house, after construction/alteration, would be larger and/or better equipped than Tom would require but for his injury, the value of his property might well, to some extent, be increased. The same applies to the installation of air-conditioning. Had there been an evidentiary basis for so doing, it might well have been fair to make some offset for those factors. It does not appear that his Honour was urged, in terms, so to do, even without evidence. We should not now interfere on a factual matter simply because we might, at first instance, have taken a different approach from his Honour.
(d) ACT 10% regional costs
204. In his second report the Architect includes:
"ADD Regional area building indices for
A.C.T. 10% for the unchanged costs as
per the original report $16,782 - 16,998"
205. The submission that there is no evidentiary support for the figure of $16,782 allowed, appears, with respect, to be the result of a misreading of what appears at 3285 and 3286 of the Appeal Book (AB). As far as we can see, there is no substance at all in the submission.
(e) Discount for long-term arrangements
206. Dr Black makes the point that long-term arrangements ought to result in cheaper wages than a series of short-term arrangements, particularly for the anticipated weekend carers. If this be true, the Dial-an-Angel estimates have already made the same assumption by providing a rate for permanent part-time carers. With respect, this submission seems to be misconceived.
(f) Placement fees while parents provide care
207. The case seems to have been conducted on the assumption that for about the next 10 years Tom's parents would continue to be, as they have so faithfully been, the primary carers. It is then argued that for 10 years there would be no agency "placement" fees for funding such employees. That seems to be right. However, an examination of the materials supporting the award (AB 3271-2) indicates that for that 10-year period such fees were not included.
(g) "Keep" for parents
208. The same is true of "keep". It was not included in the calculations for the first 10 years after trial. We need not, therefore, consider the matter further but would not wish to be thought to have decided that Dr Black's (and the consulting actuary's) assumption that such keep ought not to have been included was necessarily correct.
3. Overseas trips
209. His Honour dealt with this matter in a way that bears repeating:
"Transport overseas
It was made clear to Tom's parents that medical science, as far as Australian medical practitioners could advise them, was unable to reverse Tom's brain injury. They could offer no significant prospect for improvement. Consistently with my impression of them as concerned parents, Mr and Mrs Lipovac took Tom overseas to Croatia on two occasions. There were about 15 individual trips throughout Europe including a visit to Lourdes, the latter seeking miraculous intervention, the others sought conventional medical advice hoping that new developments in Europe might be of assistance.
I indicated earlier that I did not regard those trips as being, from an objective viewpoint, likely to have benefited Tom. However, I have now been persuaded that that is not the test for determining whether an allowance should be made on account thereof. The test, as explained in Kostik v Giannakopoulos [1989] Aust Torts Reports ¶80-274 (SASC), is whether it was 'reasonable' to pursue the prospect of such treatment and undertake the associated expenditure. Also persuasive is the recent case of Harris v Briggs [1994] Aust Torts Reports ¶81-301 (QSC) in which Derrington J allowed the costs of unorthodox and, ultimately, futile treatment.
The test his Honour applied was expressed in the following terms at 61,721:
These [costs] were incurred in relation to investigation of Tom and instruction to her mother as to future treatment by the Brain Therapy Centre, an organisation with unorthodox ideas. Its offer of hope was attractive to the vulnerable parents of a child so badly disabled. It was not palpably bogus and there was no discouragement at a responsible level of medical advice available to them. It was only when competent medical advice discountenanced the continuation of the treatment that its justification ceased.
While as it turned out none of this treatment was beneficial to Tom, it was reasonable, taking into account the severity of her injury, to pursue possible means of amelioration such as this. Had it been successful, its benefit to Tom would have been substantial, and so far as Tom's parents were concerned, it was not so devoid of credibility that it was unreasonable to pursue it. On the contrary, it is understandable that they did so.
On that basis, the expenses were allowed.
The decision in that case, sub nom Harris v Northern Sandblasting Pty Ltd, was reviewed by the Queensland Court of Appeal, see (1995) Aust Torts Reports ¶81-365. Whilst the appeal was allowed, the grounds of appeal considered did not call into question the test applied by Derrington J at first instance in relation to the allowance of the expense of the treatment referred to.
There are two trips in question in this case. The first was in 1982, the second in 1988. There was no challenge to the reasonableness of the expenses themselves, due allowance for non-treatment purposes being made. The expenses were directed to seeking amelioration of Tom's condition. In 1982, one trip, costing, after allowances, $2,460.00, was to Lourdes. I understand that the parents' religious beliefs would have made that trip seem reasonable but I do not believe that any medical practitioner would have considered this an option worth trying. Nevertheless, the other consultations and trips were medical in nature and I have no evidence that they were considered hopeless by competent Australian medical advisers.
At the time, 1982, the cause of Tom's disabilities were not entirely clear. The extent of them could be judged only from the exhibition of symptoms. Given the correctness of the diagnosis of brain damage, it was, objectively, unlikely that European doctors would be able to do better than Australian doctors had. However, in Derrington J's words, I am persuaded that the hope of more advanced and beneficial treatment was not 'palpably bogus' and it was not 'discouraged' by responsible authorities, albeit there is no evidence that there was any encouragement sought or given by such authorities. Allowing deletion of the trip unassociated with seeking medical treatment, the sum of $11,950.00 is allowable plus interest of $10,780.00, a total of $22,730.00.
The trip in 1988 was similar, save that it embraced only medical consultations. There was no religious component. It certainly could be said that, the 1982 trip having produced no beneficial result, it was unlikely that the 1988 trip would do so. Nevertheless, given the lack of any challenge to the evidence of Tom's parents, or to the methodology of the calculation of the added expense, I am persuaded that the additional expenses of this trip over and above a family holiday component should be allowed so far as they are referable to that purpose. That expense was $7,865.00 plus interest of $3,500.00, making a total of $11,365.00. It was not unreasonable to suppose that, after six years, some advances in medical science may have occurred in Europe.
I would allow that sum also."
210. In the circumstances, including Tom's ethnic background, the extreme nature of his disabilities and the relatively modest amounts claimed and awarded, we consider there was no error in his Honour's approach and that the allowances he made were not unreasonable.
4. The vicissitudes of life
211. His Honour applied a discount rate of 5% to "future care" items and 7.5% to loss of earning capacity items (wages and employer superannuation contributions). Dr Black says that 15% should have been applied to the latter items. We are not persuaded that appellable error has been shown. His Honour appreciated that there was room for movement in particular cases from the customary 15%: Koeck v Persic (ACT Supreme Court, Miles CJ, Gallop and Foster JJ, 26 March 1996, unreported) and that, in any event, "there is nothing sacrosanct about that percentage": ibid. His Honour gave reasons for selecting a figure less than 15%. They do not, in our view, fall outside the range of a sound exercise of the available discretion.
212. Tom, by his cross-appeal, challenged the application of any discount to economic loss claims predicated on his shortened life expectancy. We agree with his Honour that there are contingencies other than loss of life to be taken into account. It seems to us that his Honour's approach was right in principle and well within the discretion available to him.