Diamond v Simpson

CATCHWORDS : DAMAGES- The approach to be adopted in determining an appeal from an assessment of damages in a personal injuries action- Relevance of an award being particularly high- Claims for gratuitous services rendered by a publicly or privately funded charitable institution- Application of principle of proportionality and reasonableness to various heads of damages. (D) Blundell v Musgrave (1956) 96 CLR 73 Burden v Rath (1986) Aust Torts Reports 80-050 Calder v Boyne [1991] 1 Qd R 325 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Donnelly v Joyce [1974] QB 454 Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258 (CA) Fry v McGufficke (unreported, FCA, 26.11.1998) Fuller v Galvin (unreported, NSWCA, 7.4.1995) Gamser v Nominal Defendant (1977) 136 CLR 145 Government Insurance Office of NSW v Cox (1976) 51 ALJR 559 Government Insurance Office of NSW v Mackie (1990) Aust Torts Reports 81-053 Graham v Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House (2000) 201 CLR 321 Harper v Bangalow Motors (unreported, NSWCA, 24.7.1990) Joyce v Geelan [2001] NSWCA 29 Kars v Kars (1996) 187 CLR 354 Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 AC 729 CASES CITED : Lawson v Flavel [2001] WASCA 272 Miller v Jennings (1954) 92 CLR 190 Moran v McMahon (1985) 3 NSWLR 700 Mt Isa Mines Ltd v Peachey (unreported, Supreme Court of Queensland (CA), 1.12.1998) National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 659 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Nunn v Hardcastle [2001] WASCA 428 Paff v Speed (1961) 105 CLR 549 Parry v Cleaver [1970] AC 1 Paul v Rendell (1981) 55 ALJR 371 (PC) Pettersen v Bacha (1995) 21 MVR 71 Rajcoomar v Darocha [2001] NSWCA 30 Redding v Lee; Evans v Muller (1983) 151 CLR 117 Rosniak v GIO (1997) 41 NSWLR 608 RTA v Palmer [2001] NSWSC 846 Sharman v Evans (1977) 138 CLR 563 Sherwood v Guneser (1992) 110 FLR 459 State Government Insurance Commission v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, 11.3.1997) Van Gervan v Fenton (1992) 175 CLR 327 Robert Diamond (Appellant) PARTIES : Calandre Simpson by her Tutor William Charles Simpson (1st Respondent) Trustees of the Sisters of St Joseph (2nd Respondent) FILE NUMBER(S) : CA 40962/01 P L G Brereton SC and I Butcher (Appellant) COUNSEL : D F Jackson QC, L A Levy SC and Ms J L Lonergan (1st Respondent) P Hall QC and S Woods (2nd Respondent) Blake Dawson Waldron (Appellant) SOLICITORS : Turtons (1st Respondent) Makinson & d'Apice (2nd Respondent)

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 12791/87 FILE NUMBER(S) : LOWER COURT Whealy J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40962/01 SC 12791/87

STEIN JA IPP JA YOUNG CJ IN EQ

Monday 7 April 2003 ROBERT DIAMOND v CALANDRE SIMPSON by her Tutor WILLIAM CHARLES SIMPSON & 1 OR (NO 1) FACTS As a consequence of the appellant's negligence during the delivery of the first respondent, the first respondent is severely disabled by athetoid cerebral palsy. All of the first respondent's physical activities are affected by her disability. She therefore brought proceedings for damages against the appellant and the second respondent. Whealy J awarded total damages of $14,202,042, which was broken down into numerous heads of damages. The appellant, in this appeal, challenged various heads of damages. The first respondent also cross appealed against the disallowance of an amount claimed for a fund manager.

FINDINGS The approach adopted by the Court of Appeal in determining the appeal (being an appeal from an assessment of damages in a personal injuries action) is that laid down in Harper v Bangalow Motors (unreported, NSWCA, 24 July 1990). The size of the aggregate sum awarded was very large and it was questioned whether its size should play any roled in the determination of the appropriateness of the total sum awarded. The mere fact, however, that the total award might be particularly high does not warrant an appellate court interfering with it: Pettersen v Bacha (1995) 21 MVR 71 at 72 (per Handley JA); Government Insurance Office of New South Wales v Mackie (1990) Aust Torts Reports 81-053 at 68,209.

The Court of Appeal dealt separately with each of the heads of damages challenged.

In relation to past and future loss of earning capacity, interest and superannuation, the trial judge awarded $50,880 for past loss of earning capacity, $15,860 interest on past lost earnings and $720,169 for future loss of earning capacity. His Honour also awarded $2,100 for past loss of employer-funded superannuation and $87,700 for future loss of employer-funded superannuation, and allowed the sum of $5,000 as the value of the loss of future long service leave entitlements. The Court of Appeal found that the figures arrived at by the trial judge were well within the range available and should not be interfered with.

With regard to future gratuitous services, the trial judge allowed $25,000: $10,000 for short term gratuitous services necessitated by the plaintiff's transition from living at home to independent living, nil for long term gratuitous services arising from the plaintiff's inability to speak, and $15,000 for a continuous life long need for family and friends to receive instructions in the use of the plaintiff's communication equipment etc. The Court of Appeal brought the total sum back to $10,000 by deleting the allowance of $15,000, because after the transition period from living at home to independent living, the employment of a case manager should mean that there is no need for further instruction of family and friends.

In relation to future attendant care, the trial judge allowed $6,518,098, which included the provision of managed care for a quarter of each year. The Court of Appeal reduced this figure to $4,933,800 finding that the provision to the first respondent of a case manager means that there is no requirement for managed care. The Court of Appeal considered the effect of this reduction on the provision of a case manager, and increased the amount to be awarded for a case manager by $180,906. With regard to home building costs, the trial judge allowed for $159,963 and $42,359 for costs of modification to her parents' Vaucluse home and to their Palm Beach holiday accommodation respectively. The Court of Appeal found that the trial judge had imposed an unreasonable cost upon the appellant and that the likely benefits of home modifications to the first respondent were out of proportion to the cost of modifications visited upon the appellant. Therefore, the respective sums were both reduced to nil.

The Court of Appeal upheld the trial judge's award of $390,606 for additional home maintenance, despite the fact that that this figure included certain matters which were not claimed to be additional in the evidence. In relation to therapeutic aids, appliances and equipment, the trial judge allowed $472,980. This included $84,340 for a Pathfinder and Zygo head pointer, the subject of the appellant's challenge under this head of damage. The appellant submitted that an alternative head pointer was adequate and cheaper, and it was unreasonable for his Honour to have chosen the more expensive product. The Court of Appeal dismissed this ground of appeal, stating that the trial judge was entitled to accept the expert's evidence that this particular head pointer was the better alternative for the plaintiff, as it was a superior product with more functions and features.

His Honour allowed $292,679 for the provision of computer equipment and a traineeship. The appellant submitted that some of the costs of computer equipment ($51,951) should not have been allowed, as these were not additional costs arising from the plaintiff's injuries. The Court of Appeal dismissed this ground of appeal. The trial judge allowed $171,628 for a special education teacher to assist the plaintiff for five years. The appellant contended that no allowance should have been made. The Court of Appeal held that his Honour overestimated the respondent's loss of earnings for this five-year period of education, and accordingly deducted the sum allowed by $13,000. The trial judge allowed the sum of $330,000 for additional vacation costs for the plaintiff and two carers. This figure represented local and overseas holidays for 50 years. The Court of Appeal reduced this figure to $200,000.

In relation to the provision of medical and allied professional services to the first respondent from the Spastic Centre for New South Wales (for which the Spastic Centre subsequently sent invoices to the first respondent to be paid if she successfully received damages), Whealy J allowed a sum of $614,752. His Honour held that the appellant was required to pay damages, on a Griffiths v Kerkemeyer (1977) 139 CLR 161 basis, to the first respondent based on the Spastic Centre's charges (albeit that the first respondent had no legal obligation to pay the Spastic Centre). In doing so, his Honour extended the Griffiths v Kerkemeyer doctrine to therapeutic services provided free of charge by a charitable organisation.

The Court of Appeal held that the trial judge erred in so extending the Griffiths v Kerkemeyer doctrine. Griffiths v Kerkeymeyer claims are anomalous and exceptional and courts should be reluctant to extend the doctrine to new categories of claims. Claims for gratuitous services rendered by a friend or relative fall into a separate, identifiable category of claims, that can properly be described as Griffiths v Kerkemeyer claims. Claims for gratuitous services rendered by a publicly or privately funded charitable institution are not payable by the wrongdoer merely on the ground that the injured person has established a need for the services in question. The injured person's entitlement to such claims will depend upon an application of the principles expressed in National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569.

In the opinion of the Court of Appeal, the benefit of the services received from the Spastic Centre was conferred on the first respondent independently of any right of redress she might have against others. Accordingly, on the Espagne approach, the services provided by the Spastic Centre constitute subventions given out of benevolence with the intention that no payment was to be made for them by the first respondent. Thus, it is not possible to say (as Whealy J found) that the Spastic Centre did not intend the market costs of its services to reduce the first respondent's ordinary entitlement to damages. Thus, the Court of Appeal set aside the awards made in respect of the Spastic Centre.

The Court of Appeal dismissed the cross appeal against the trial judge's disallowance of an amount claimed for a fund manager. ORDERS

1. Appeal allowed.
2. Order of Whealy J set aside except as to costs.
3. In lieu, verdict for the first respondent for $10,998,692.
4. Order that the first respondent repay to the appellant any sum already received over and above the amount referred to in order 3 plus interest at the court rate from the date of payment.
5. Order that the cross appeal be dismissed with costs.
6. Stand over the question of costs of the appeal to 9.15 am on 9 April 2003.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40962/01 SC 12791/87

STEIN JA IPP JA YOUNG CJ IN EQ

Monday 7 April 2003 ROBERT DIAMOND v CALANDRE SIMPSON by her Tutor WILLIAM CHARLES SIMPSON & 1 OR (NO 1) Judgment 1 THE COURT:

The claims and cross claim, the judgment, the appeal and the cross appeal 2 Calandre Simpson (the first respondent) was born on 5 July 1979. She was injured during the birth process. The appellant (Dr Diamond) was the attending obstetrician. The second respondents (the Trustees of the Sisters of St Joseph) were responsible for managing and controlling the hospital where the first respondent was born. Several years later, the first respondent brought proceedings against the appellant and the second respondent claiming damages for the injuries she had sustained. 3 Prior to the trial, the appellant admitted: "[The first respondent's] cerebral palsy is caused by his negligence in the manner, timing and circumstances of his use of forceps and negligence of the [second respondent]". 4 On 5 November 2001 Whealy J gave judgment in favour of the first respondent against the appellant. The first respondent had, by then, withdrawn her claim against the second respondent. At that stage, there were two principal issues before the learned Judge. The first principal issue was the amount of damages to which the first respondent was entitled. The second principal issue concerned a cross claim for contribution brought by the appellant against the second respondent. 5 Whealy J assessed damages in the sum of $14,202,042. He granted judgment in favour of the first respondent against the appellant in this sum. He dismissed the appellant's claim for contribution against the second respondent. 6 The appellant appealed, challenging the assessment of damages and also the dismissal of his cross claim for contribution. At the conclusion of argument on the assessment of damages issue, the appeal was adjourned to a date to be arranged for the further hearing of the appeal in regard to the cross claim. These reasons relate only to the appeal against the assessment of damages. 7 Since birth the first respondent has been severely disabled by athetoid cerebral palsy. This is a rare type of cerebral palsy characterised by changing tone and abnormal movements induced by attempts at normal movement or maintaining posture. The change in muscle tone and the uncontrolled movements affect all the first respondent's physical activities and severely impair all physical function. 8 In a report dated 5 July 1994, Helen Figgis, a physiotherapist, stated: "Calandre has fluctuating tone from low to high, especially evident when excited, distressed or on exertion in attempting a task. This change in muscle tone, as well as uncontrolled movement, affects all activities, severely limiting function".

Janet Crowe, an occupational therapist, stated in a report dated 30 June 1995: "Calandre is able to roll, crawl reciprocally, come to sitting both sides and balance in kneeling for a short time on the floor. She is able to sit in a chair for short periods before losing her balance … Calandre walks with the facilitation of one person behind, or on level ground, in a forward leaning walker."

Ms Crowe noted: "Other therapists report that Calandre's upper limb function is influenced by the fluctuating tone, total patterns of flexions/extension movement and associated reactions in her hands and mouth. This includes teeth grinding, tongue thrusting, jaw extension and, at times, poor saliva control. Grasp and release is gross and poorly controlled. The right upper limb being worse than the left. Calandre's preferred hand is the left. She is able to isolate her left thumb when her splade hand is supported on a flat surface. With her hand in this position she is able to use her communication board and drive her powered wheelchair. She chooses to have her right arm held down in a cuff on her tray to provide stability when seated. This facilitates more functional use of her left hand." 9 Ms Sturgess, an orthoptist, in an undated report, stated: "Calandre cannot look upwards, past the midline and has difficulties moving her eyes across to each side (especially a problem to the left). All objects of interest should be presented below the midline, and from her right side, then placed slightly to the left, as this is the position she finds most comfortable". 10 The athetoid cerebral palsy has severely affected the first respondent's speech. A speech pathologist, Ms Judi Cowdery, in a report dated 4 July 1994, noted: "She has some gross word approximations for example, 'hi', 'Mum' but does not have functional speech to support her communication needs. She uses a reliable yes/no response, nodding or shaking her head. She currently uses a voice output communication aid, a 'LightTalker' with a Words Strategy program installed to provide vocabulary. The messages generated are then spoken using synthesised speech. Cally uses a combination of the pre-stored vocabulary and spelling to form messages. In addition she has a backup symbol board system …"

Communicating with the first respondent is time consuming and requires infinite patience. 11 The first respondent's hearing is within normal limits and, importantly, she is a person of normal intelligence. Her predicament is overwhelming. Whealy J succinctly observed that apart from her inability to control her physical movements "she is unable to speak, is confined to a wheelchair and is totally dependent on others for all her needs." 12 The damages of $14,202,042 awarded by his Honour were made up as follows: Head of Damages Trial Judge Appellant's contention 1 General damages 390,000 390,000 2 Interest on past general damages ($100,000) 87,087 87,087 3 Past loss of earnings 50,880 46,995 4 Interest on past lost earnings 15,860 14,408 5 Future loss of earning capacity 720,169 569,200 6 Past loss of employer-funded superannuation 2,100 2,100 7 Future loss of employer-funded superannuation 84,700 73,641 8 Long service leave 5,000 NIL 9 Past gratuitous services 119,730 119,730 10 Interest on past gratuitous services 310,880 310,880 11 Future gratuitous services 25,000 NIL 12 Future attendant care 6,518,098 4,111,500 13 Home building and architectural costs 502,322 300,000 14 Hydrotherapy pool 95,467 95,467 15 Home maintenance and running costs 390,606 294,205 16 Therapeutic aids, appliances and equipment 427,980 343,640 17 Maintenance on aids, appliances and equipment 25,916 25,916 18 Computer 292,679 231,928 19 Educational tutoring 171,628 NIL 20 Motor vehicle 161,623 161,623 21 Future medical treatment 125,564 125,564 22 Future paramedical costs 476,625 476,625 23 Future pharmaceutical costs 16,569 16,569 24 Additional vacation costs 330,000 80,338 27 Case manager 361,812 361,812 29 Out-of-pocket expenses 1,103,452 488,700 30 Interest on paid out-of-pocket expenses 1,335,296 510,411 31 Funds management charges 55,000 55,000 TOTAL 14,202,042 9,293,339

13 The heads of damage challenged in this appeal are past loss of earnings, interest on past lost earnings, future loss of earning capacity, future loss of employer-funded superannuation, long service leave, future gratuitous services, future attendant care, home building and architectural costs, home maintenance and running costs, therapeutic aids, appliances and equipment, computer, educational tutoring, additional vacation costs, out-of-pocket expenses (the Spastic Centre claim) and interest on paid out-of-pocket expenses. These are items 3 to 5, 7 and 8, 11 to 13, 15 and 16, 18 and 19, 24, and 29 and 30 in the table of damages set out above. Items 27 and 31 are also collaterally affected. 14 The first respondent also cross appealed against the disallowance of the whole amount claimed for a fund manager. The amount of this claim was not quantified. Although Whealy J awarded the first respondent $55,000 in respect of funds management costs (item 31 in the table of damages), he found that the first respondent was not entitled to damages for engaging a funds manager at the appellant's expense.

Approach of an appellate court to an appeal against the assessment of damages 15 The task of an appellate court in determining an appeal from an assessment of damages in a personal injuries action has been discussed on many occasions. In the well-known decision of Moran v McMahon (1985) 3 NSWLR 700, Priestley JA carefully examined the relevant High Court decisions and decisions in this State. To the cases to which his Honour referred, we would add Government Insurance Office of New South Wales v Cox (1976) 51 ALJR 559. Since then the issue has been discussed in this State in Burden v Rath (1986) Aust Torts Reports 80-050, Fuller v Galvin (unreported, NSWCA, 7 April 1995), Joyce v Geelan [2001] NSWCA 29 and Rajcoomar v Darocha [2001] NSWCA 30. Elsewhere, consideration has been given to the topic by the Queensland Full Court in Calder v Boyne [1991] 1 Qd R 325, the ACT Full Court in Sherwood v Guneser (1992) 110 FLR 459 and a five judge Full Federal Court in Fry v McGufficke (unreported, FCA, 26 November 1998). It is unnecessary to refer in any detail to these authorities, however, as both the appellant and the first respondent agreed (and this Court accepts) the principles are accurately and conveniently expressed by Clarke JA in Harper v Bangalow Motors (unreported, NSWCA, 24 July 1990). 16 In Harper v Bangalow Motors Clarke JA, after referring to remarks made by Lord Wright in Davies v Powell Duffryn Associated Collieries Limited [1942] AC 601 and Lord Diplock in delivering the judgment of the Privy Council in Paul v Rendell (1981) 55 ALJR 371, said: "What one draws from these statements is that the intuitive nature of, and the speculation involved in, awards of damages make it inappropriate to apply the principles applicable in an appeal from a finding of fact. Of course there may be determinations which involve little, or no, speculation. For instance, the success of a claim for past loss of earnings (and I use that expression as a convenient way of describing the impairment of past earning capacity) may depend, in essence, upon the resolution of a disputed issue of fact. Such as whether the plaintiff is truthful in his assertion of incapacity. Similarly the resolution of a claim for damages in respect of a permanent impairment of earning capacity may depend substantially on a finding on incapacity. At the other end of the scale there are cases in which the trial judge will be required to reach a conclusion based on a high degree of speculation. In these cases the choice accorded to the trial judge must lie within a wide range and, in my opinion, the decision which reflects that choice can only be reversed in accordance with the test in Miller . Obviously that test is not to be applied automatically to all elements, economic and non-economic, of the claim for damages. Whether that test is applied in respect of claims for economic loss will depend upon the facts of the given case. If the assessment is based essentially on factual determinations then no reason would appear to me why the Warren rule should not apply. Such a case would be one in which the allowance of a particular medical expense depended upon a determination whether the expense was payable in respect of the tortiously affected injury - the result depending upon the factual determination whether a causal link between the tort and the medical condition in respect of which the expense had been incurred had been established. If, however, the decision reflects a degree of judicial prophesy or speculation then I think that Miller must apply". 17 His Honour's reference to the approach in Miller was to the view expressed by Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 (at 196) that: "[T]he appellate court must be convinced that the judge acted on a wrong principle or that the amount awarded was so extremely small as to make it, in its judgment, an entirely erroneous estimate of the damage to which the party is entitled". 18 We shall apply the principles so expressed.

The size of the aggregate sum awarded 19 The aggregate sum awarded is undoubtedly very large. The question arises whether its size should play any part the determination of the appropriateness of the total sum awarded. 20 It is now settled that, although the total amount of damages appropriate to be awarded is the ultimate question to be decided, the component items have to be separately considered. As Lord Fraser said in delivering the judgment of the Privy Council in Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 AC 729 at 735 "They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total".

See also Gamser v Nominal Defendant (1977) 136 CLR 145 at 149; Paul v Rendell at 376 to 377. There have been several expressions of opinion in this Court to the same effect. It is sufficient to refer again to the judgment of Clarke JA in Harper v Bangalow Motors . 21 In Sharman v Evans (1977) 138 CLR 563 Gibbs and Stephen JJ at 585 noted that the total amount awarded in that case was said to have been "the largest yet made for personal injuries in Australia". The plaintiff had been injured in a motor car accident at the age of 20, had suffered very serious injuries including brain stem damage and had been rendered a quadriplegic. The overall award involved several components or heads of damage. Gibbs and Stephen JJ, after discussing in detail some of those heads, said (at 589): "We have carried out the detailed examination of the factors constituting an appropriate award of damages in order to equip ourselves to determine whether the judge erred in his conclusion on the total amount of damages appropriate to be awarded. We bear in mind that this is the ultimate question to be decided and that the trial judge had a wide discretion. We have therefore adopted in the process the maximum figures which on the evidence in this case could be accepted under each head of damages. It does not follow that these amounts are those which we would have adopted in the first instance. When the approach we have thought appropriate in the circumstances of this case is adopted in order to test the award and when consequently maximum figures under each head are taken there is of course no room for a further allowance whereby the verdict could be sustained as one within permissible limits. It would be otherwise if less than maximum figures were taken under each head, that is to say, if a court on appeal were to form its own estimate of the appropriate, rather than the maximum, amount of damages under each head".

Applying this approach, their Honours determined that the total amount of the verdict was too high and that it was necessary for them to determine a proper amount. 22 It is in this sense, at least, that the aggregate amount does become relevant. The approach adopted by Gibbs and Stephen JJ in Sharman v Evans is one way in which an appellate court might utilise the overall sum awarded in a process of assessing whether there has been appealable error. That is, where the court determines the maximum amount that could be awarded under each head and, on comparing the aggregate sum so arrived at with the total sum in fact awarded, it appears that the latter exceeds the former, it will be established that the total amount of the verdict is too high. 23 It is difficult to apply this approach in the present case as several of the heads of damage assessed by Whealy J are not under challenge and the Court is not in a position to say whether the amounts not subject to challenge are the maximum amounts that could have been awarded. Nevertheless, the rationale underlying the quoted remarks of Gibbs CJ and Stephen J in Sharman v Evans has to be borne in mind, at least as a last reality check when assessing, according to the principles expressed in Harper v Bangalow Motors, whether error has occurred. 24 Where the damages award is particularly high, and is made up of several components - the majority of which are based on discretionary considerations - there is considerable room for individual choice in regard to a multitude of factors. There is authority that in such a case the Court will only interfere in the award if the substitution of an appropriate award for the particular item would make a substantial alteration in the total award: Lia Wee Lian v Singapore Bus Service (1978) Ltd at 735, Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 (CA), Mt Isa Mines Limited v Peachey (unreported, Supreme Court of Queensland (CA), 1 December 1998); State Government Insurance Commission v Hitchcock (unreported, Full Court, Supreme Court of Western Australia, 11 March 1997); Lawson v Flavel [2001] WASCA 272; Nunn v Hardcastle [2001] WASCA 428. 25 The mere fact, however, that the total award might be particularly high does not warrant an appellate court interfering with it; Pettersen v Bacha (1995) 21 MVR 71 at 72 (per Handley JA) and Government Insurance Office of New South Wales v Mackie (1990) Aust Torts Reports 81-053 at 68, 209. In the latter case Clarke JA said that it would be "quite wrong" for the Court to award less than fair compensation simply because the resulting judgment would be very large. "The size of the damages may raise a question whether the community can continue to afford to pay damages of the order assessed in this case but, if so, that is not a question which directly concerns the Court. As I have said the task of the Court is to apply the appropriate legal principles and to determine the appeal upon its view of the correctness of his Honour's assessments and, in the event of a re-assessment, what is fair and reasonable compensation in all the circumstances".

Past and future loss of earning capacity, interest and superannuation - items 3, 4, 5 and 7 26 His Honour awarded the first respondent $50,880 for past loss of earning capacity (item 3), $15,860 interest on past lost earnings (item 4), and $720,169 for future loss of earning capacity (item 5). His Honour also awarded $2,100 for past loss of employer-funded superannuation (item 6 and not in dispute) and $84,700 for future loss of employer-funded superannuation (item 7). 27 According to the submission of counsel for the appellant the single issue in dispute under these heads of damage is whether his Honour erred in adopting the category of average weekly earnings for all adults (male and female). The appellant submitted that his Honour should have adopted the average weekly earnings (AWE) for all adult females. In money terms, the difference is around $80 per week or a little over $4,000 per annum. This flows through to each of the items of damage in dispute under the above heads of damage. 28 In approaching this issue the Court will apply the principles discussed earlier in paras 15 to 18 of the Court's reasons for judgment. This essentially means that the appellant must convince the Court that the trial judge acted on a wrong principle or the estimate of damage was an entirely erroneous one, see Harper v Bangalow Motors and Miller v Jennings. 29 With regard to Calandre's loss of earning capacity, the starting point is that the appellant accepts that her future earning capacity has been completely destroyed with the result that she has no residual earning capacity [para 338]. His Honour concluded that the appropriate and most proximate rate to apply was the full time adult rate and not the AWE for full time adult females. 30 On the way to this conclusion Whealy J made a number of relevant findings of fact. We summarise some of them by reference to the judgment. 31 Prior to the consideration of loss of earning capacity, and when considering whether the plaintiff would have been likely to have undertaken tertiary education, his Honour observed [at 331]: "… there is sufficient material to satisfy me that there is a higher possibility that the plaintiff had a capacity for, at the very least, average prospects so far as future earnings are concerned. Indeed, she had quite probably a realistic possibility of becoming a high earner". 32 Counsel for the plaintiff contended before his Honour that she would, if uninjured, have become a successful lawyer. His Honour rejected this submission, but in doing so, made some important findings. For example: "… her father is a highly successful professional, indeed described in the evidence and submissions as "a workaholic". Her mother, Gail Simpson, is a redoubtable woman of significant determination, perseverance and aptitude. These aspect [sic] of the family's situation are countervailing considerations in the context of the submissions made by the defendant regarding the plaintiff's sisters". [346] "Calandre's personal characteristics certainly support the proposition that she would have become at least an average earner, and quite possibly a higher than average earner. They do not, however, enable me to predict with any really positive persuasion that she would probably have gone into a legal career". [348] "Calandre Simpson is a young lady of considerable drive and determination. She has average intelligence. There seems no basis, in my opinion, for excluding the possibility that she may have gone on to become a high earner in the workforce. It is possible that she may have gone on to a tertiary education and there is some support for that proposition in her own character and the background of her father especially. There is, however, very little else to support the possibility and I am not satisfied overall that any real possibility of a legal career based on tertiary education has been established as likely". [354] 33 Clearly Whealy J recognised that it was a possibility that Calandre may have undertaken tertiary education. Indeed, there were a number of possibilities that her career could have taken. However, because she was injured at birth, very little could be known or even guessed regarding her likely career path had she not sustained injuries during the birth. 34 His Honour continued [at 358]: "The best I have been able to do is to determine that she would have most likely developed into and become a person who would have undertaken and succeeded at a business career which probably would have put her in at least an average earning position and, quite possibly, a better than average earning position. The mere fact that little is known, and that a degree of guesswork is involved, is not sufficient to condemn the plaintiff to an unjustified average category. The facts which are known about the plaintiff include the positive personal characteristics I have already described such as her drive and determination. There are as well her personality, intelligence and lively humour. In addition there is her father's successful professional background as a dentist and his obvious capacity for hard work. There are, as well, her mother's qualities of determination and perseverance and aptitude. Contrary to the defendant's submissions, I do not see the plaintiff's socio-economic ground [sic] as a negative factor in the circumstances of this case. Rather given the range of other factors I have mentioned, the plaintiff's background gives me an assurance that she was likely to have done well in her business career. I have little doubt that she would have married and had children but I am prepared to accept as quite a likely possibility, indeed a probability, that the plaintiff would have maintained a business career notwithstanding marriage and the burdens of parenthood". 35 His Honour stated emphatically that he had no hesitation in rejecting the category of AWE for adult females suggested by the appellant. His Honour said that this was too low a yardstick for the plaintiff [360] because it included all the lesser rates for part-time earnings and casual earnings for intermittent female workers "absent a specific degree of ambition". 36 The Judge stated that if the rate contended for by the appellant were to be chosen, it would be necessary to make an adjustment to reflect "the particular level of earning capacity I have found Calandre is likely to have achieved" [361]. 37 Whealy J concluded that on balance, the most appropriate rate was the full time adult rate, which comprised both men and women. This category was the most convenient because it required no further adjustment. His Honour added: "Importantly, the selection of this rate enables the court to take into account the very real possibility that the plaintiff may have become a high income earner in the pursuit of a business career" [362]. 38 Counsel for the appellant submitted that there was no evidence before his Honour to suggest that any category other than AWE for adult females was appropriate. His Honour's reference to a "business career" was vague and provided no guarantee of above AWE. In any event, a possible business career offered no justification for moving from the AWE female rate to the all-adult rate. Moreover, the performance of the plaintiff's siblings provided no guide to the possibility of above AWE earnings. 39 Two further points were emphasised by Mr Brereton. First, the use of average rather than median rates in the AWE females category allowed for the prospect of higher than average income, see Rosniak v GIO (1997) 41 NSWLR 608 at 627-628 and, if his Honour considered that the plaintiff's prospects were better than average, he should have adjusted the AWE female rate rather than adopted the AWE all adults category. 40 At the trial, the appellant sought to portray the development and experience of the plaintiff's sisters as indicative of the likely career path of the plaintiff. His Honour considered this submission and concluded that it must be rejected as "too glib a prophecy to glean from the experience of the sisters". The siblings' development and experience could not be separated from the family circumstances, which were overwhelmed by the ordeals arising from Calandre's disability [330]. If Calandre had not been injured at birth, it was possible that the lives of the family members might have taken a different course. In any event, the two younger sisters, Chloe 16 years and Jade 19 years, were both too young to draw any adverse conclusions against the plaintiff. 41 The first respondent contended that the evidence concerning each of Calandre's sisters provided a very thin basis to counter the view that his Honour formed of the plaintiff. Mr Jackson pointed to the advantage that his Honour had in assessing the plaintiff at first hand. 42 It is plain to us that Whealy J considered the development and experience of the siblings of the plaintiff. He balanced that evidence with the other evidence. As against this, he had the positive experiences of the father and mother referred to by his Honour in para [346] of the judgment. 43 In essence the appellant complains that his Honour did not give the evidence concerning Calandre's sisters more weight in the balance. This is an inadequate basis for a submission alleging an error in principle. 44 As mentioned above, the appellant is critical of his Honour's findings regarding the possibility of the plaintiff earning higher than average earnings from a business career. There can be no suggestion that Whealy J's findings that the plaintiff had many positive personal characteristics including her considerable drive and determination, insight and intelligence, were not properly open on the evidence. Nor could it be said that his Honour was not entitled to find that there was sufficient evidence to satisfy him that there was a higher possibility that the plaintiff had the capacity of at least average prospects and probably a realistic possibility of becoming a high earner. 45 Having considered the "very real possibility" that the plaintiff would have become a high-income earner, which would probably put her in a better than average earning position, his Honour was left with two possibilities. He could adopt AWE females full-time as the most appropriate category but make an adjustment upwards to take account of the chance of higher than average earnings and his positive assessment of the plaintiff's likely future economic capacity. 46 Alternatively, he could adopt the AWE for all adults as best reflecting his assessment of the possibilities for the plaintiff. 47 It seems to us impossible to conclude that his Honour erred in principle in selecting the higher category. After all, it includes both adult female workers, as well as adult male workers. His Honour found that the choice before the court was between the AWE full-time adults category and that for adult females [361]. Even if he chose the latter, it would still be necessary to adjust it to reflect his views of the plaintiff's likely level of earning capacity. In the end, his Honour concluded that the most proximate rate was that for full-time adults. His Honour stated that this rate best reflected the "very real possibility that the plaintiff may have become a high-income earner". 48 We are unable to conclude that in adopting the AWE for all adults, his Honour committed an error of principle by selecting the wrong class or category of employees. He was clearly appraised of the fact that the AWE adult female category included higher than average female earnings. Further, we are unable to conclude that, given his Honour's singular advantage, there was a misapprehension of the facts. Indeed, the findings of fact made were available on the evidence and open. It cannot be said that the result arrived at by his Honour was other than well within the available range. 49 As a result, these grounds of appeal must be rejected.

Long Service Leave - Item 8 50 His Honour allowed the sum of $5,000 as the value of the loss of future long service leave (LSL) entitlements. The appellant submitted that no allowance should have been made. Three arguments were advanced. First, long service leave is not an additional earning capacity. Secondly, to award the additional component of LSL would be to doubly compensate the plaintiff. Thirdly, the award involved the speculative assumption that the plaintiff would have remained in the same employment. 51 The Long Service Leave Act 1955 provides a statutory entitlement to leave calculated at 2 months for the first 10 years and thereafter, one month for each 5 years of service. While the intention is to provide an employee with time off work during which the employee continues to receive ordinary pay, it is often not enjoyed in this way. As his Honour observed, it is not uncommon for employees to take LSL on termination of their employment in cash. 52 It seems to us that his Honour was correct to say that the legislation did provide an entitlement of value which was additional to loss of future earning capacity. To this extent, it is difficult to see how it can be said that the award of $5,000 made by his Honour amounted to double compensation. It was not included in the calculation of loss of earning capacity. 53 As we understand the entitlements to LSL under the legislation, it is not strictly limited to the one employer but can, in certain circumstances, include LSL earned with successive employers. Also, in the public sector, continuous employment can be with a number of different departments or agencies. 54 His Honour acknowledged that a degree of speculation was involved in the award but nonetheless considered that there was sufficient evidence to warrant his valuation of the lost chance of LSL to the plaintiff as a real prospect. It was not a very low chance as the appellant asserts. It had a value which the plaintiff had lost the chance of receiving. 55 The claim itself was modest. It involved an assessment of the monetary value of LSL entitlements over a total working life of 43 years. This yielded a sum slightly less than $23,000, discounted for present day values to $6,448. Whealy J then applied a 15% discount for vicissitudes yielding $5,481. He then further discounted this figure to $5,000 to allow for the event of time out of the workforce on account of child rearing. 56 It is implicit in his Honour's approach to the assessment of this aspect of the claim that he saw LSL as a thing of value and as a legitimate chance which the plaintiff had lost. He valued that lost chance at $5,000. It is very difficult to say that his Honour's ultimate figure was not within the range available and we are of the opinion that the award should not be interfered with.

Future Gratuitous Services - Item 11 57 The plaintiff claimed $186,329.00 representing the value of probable future gratuitous services. This claim was split into three elements, viz:

A. short term gratuitous services necessitated by the plaintiff's transition from living at home to independent living $11,206;

B. long term gratuitous services arising from the plaintiff's inability to speak $129,038;

C. a continuous lifelong need for family and friends to receive instructions in the use of the plaintiff's communication equipment etc $44,284. 58 The trial judge allowed $25,000 - $10,000 under head A; nil under head B and $15,000 under head C. The appellant argues that none of these amounts should have been allowed. 59 The basal point made by Mr Brereton was that under item 12 his Honour allowed for an extremely generous regime and in addition, under item 27, allowed $371,812 for a case manager on the basis of two hours per week for life. If such an allowance for a case manager is made, Mr Brereton puts there is absolutely no need to make an award for extra mothering. The case manager will do just this and item 27 provides full compensation. 60 Furthermore, Mr Brereton puts that as Calandre is to have full-time care, instruction of non-carers in the use of equipment is not reasonably necessary. 61 Mr Jackson replies by saying that his Honour approached the head of claim with a considerable degree of caution and sense of moderation and reasonableness and allowed only $25,000 of the much larger amount claimed. He says the evidence showed that the transition period was one fraught with difficulty, that mothers in Mrs Simpson's position tend to be less trusting of outside carers than case managers, that load would in fact fall back on family members and the small allowance made by his Honour was reasonable. 62 We would consider that the solution is somewhere between the two. We agree with Mr Jackson that some allowance should be made for the transition period, but we also agree with Mr Brereton that the sum allowed for the case manager overlaps to some extent the claim for gratuitous services. 63 As regards the $10,000 claim, the case manager is only employed for 2-3 hours a week and the carers will be busy with more physical tasks than monitoring Calandre's transition to independent living. When we give full weight to his Honour's discretion, the amount under A should stand. 64 Accordingly, we would reduce his Honour's sum by deleting the allowance of $15,000. This is because after the transition period the employment of a case manager should mean that there is no need for further instruction of family and friends. 65 Thus the amount allowed under Item 11 should be brought back to $10,000 in total.

Future Attendant Care - Item 12 66 This is a much more substantial claim. 67 The plaintiff claimed $7,024.63 per week or $9,627,255.40. The learned Judge allowed $6,518,098. This figure was reached by taking a figure of $4,756 per week at 3% over the plaintiff's remaining life expectancy of 50.67 years which gave a multiplier of 1370.5. The $4,756 was found by the Judge as being $4,000 per week for referred care on the basis of two 12 hour shifts for three-quarters of a year which in effect meant $3,000 per week and $1,756 per week for the remaining quarter year for managed care. 68 The appellant says a proper amount is $4,111,500. 69 His Honour defined the difference between referred care and managed care at [512] of his reasons, namely that managed care entails that the agency is contracted to supply staff so that it employs, pays, trains and cares for the staff members who form the team charged with the client's care. On the other hand, referred care is when the agency selects appropriate carers, charges a placement fee and a contract of employment is drawn up between the carer and the client directly. It should be noted that referred care costs less but there is no difference in the quality of the care. 70 Mr Brereton submitted that: "His Honour rightly accepted that it was not necessary for the court to 'prescribe' a particular care regime for the remainder of Calandre's life. Realistically, it is likely that, in the future as in the past, those care regimes will change. … The best that can be aspired to is an overall assessment of what her reasonable needs for care will be and how they can reasonably - not ideally - be satisfied. Having regard to the range of options from the house couple rates of roughly $3,500 per week, the single live-in carer rates of $2,500 per week, and the circumstance that care is available in the market for less than $1,000 per week, a generous assessment of the cost of a reasonable care regime for the first respondent for life is $3,000 per week. For life, this produces … $4,111,500." 71 The principal challenges to his Honour's assessment were:

(a) His Honour passed beyond what was reasonable care in the type of care he provided for the first respondent; and

(b) He over-estimated the cost of care. 72 Before dealing with these two matters in some detail, we should summarise what his Honour said at [520]-[522] of his reasons. He noted that counsel for the appellant made three major submissions:

(a) that it is not necessary for the Court to "prescribe" a particular care regime for the remainder of Calandre's life;

(b) that long term care arrangements are frequently negotiated privately at rates below those charged agencies; and

(c) that the authorities require damages to be assessed with considerations of reasonableness and proportionality and in particular the Judge must address what is required to meet the plaintiff's "reasonable requirements" and not her "ideal requirements".

His Honour said he clearly upheld points (a) and (c), but he had some reservations about point (b). 73 Mr Brereton puts that his Honour's repeated references to what the plaintiff would prefer is really introducing unnecessary material as plaintiffs will always prefer to take the most expensive option, but that what was required was reasonable provision. What, he asks, is the real difference between a 24 hour carer and two 12 hour carers? 74 His Honour seemed to answer that by saying that there is a risk of fatigue when one has a series of 24 shifts, the conditions of work are less than optimal and accordingly, less conducive to the best people applying for the work as was evident from evidence given by one principal of an agency that where there is a 24 hour shift there is a high turnover of carers. 75 As indicated earlier, we will apply the principles expressed by Clarke JA in Harper v Bangalow Motors and consider whether the Judge acted on wrong principle. 76 Mr Jackson says, quite simply, that it was open for his Honour on the evidence to assess damages for future attendant care at $4,756 per week. His assessment was based on demonstrated medical need and from the only practical evidence of the cost of shift arrangement from Mrs Blackman. When making his assessment his Honour expressly acknowledged the appellant's general arguments (a), (b) and (c). Furthermore his Honour expressly discarded the material that suggested a 24 hour shift was appropriate, and gave reasons for so doing. 77 Mr Brereton strongly put that his Honour should have merely made provision for a house couple at a cost of $3,000 per week. 78 His Honour seriously considered this option, but rejected it in [488]-[489] and [491] where he said: "While appreciating that there is much in this evidence to recommend the engagement of a House Couple, there are significant aspects that militate against its applicability in this case. Several experts have commented upon its flaws. Ms French and Dr Kennedy-Gould both gave evidence that in their experience House Couple arrangements have not worked successfully for any period of time (French T322, Kennedy-Gould T379). Often, for example, the people attracted to this employment include people who are looking for a refuge themselves through economic necessity, and often one member of the house couple would have had experience in the care industry and the other might not have (T379). The intensity of a live-in relationship between carers and client, in the circumstances where a high level of care is required to be provided by them, and the difficulties associated with situations where one of the carers becomes sick, or where the couple leave the employment render the impact of this care arrangement to be more negative than positive (T323). However the most significant and telling factor against the suitability of this care regime is that its availability is extremely uncertain. … The questionable availability of this type of care, and the uncertainty of its longevity, even if availability difficulties are surmounted, renders this alternative inappropriate in a practical sense. It remains a possibility but it would be unwise, in my view, to base a care regime around it." 79 Mr Brereton puts that the Judge misread the evidence in the passage we have quoted from [489], but we do not accept that proposition. 80 His Honour was quite within his mandate to reject this option. 81 Mr Brereton's next proposition was that his Honour should have preferred a 24 hour shift regime. However his Honour duly considered this and rejected it making a choice that was open to him on the evidence. 82 Thus, we should not disturb the Judge's view that it was appropriate, fair and reasonable to allow the plaintiff carers on the basis of two 12 hour shifts. 83 However, the allowance of a quarter of the year at managed care rate is difficult to defend in view of the fact that in item 27 his Honour allowed $361,812 for a case manager, a finding which is not challenged on appeal. A function of the case manager is to keep his or her eye on the whole of the care programme. His Honour at [827] accepted the evidence of Mr Kennedy Gould that the case manager is a person who must constantly be in contact with Calandre to know what is going on, to know what her perceptions were and her views in relation to the care programme, to be in contact with the family, to make sure their views were receiving proper weight, and to ensure that Calandre did not become isolated within her own care programme. As his Honour said in [827], the case manager has significant duties not only in relation to the patient but also to the carers and to members of the family. 84 The principal difference between referred care and managed care is that with one the agency is responsible for the carer, whereas in the other, it is merely a job placement agency. As there is a case manager, there was no warrant in our view, to award to the plaintiff as well the managed care rate for 25% of the year. The case manager will undertake the tasks that would otherwise be performed by managed care. Thus, where there is a case manager, there is no requirement for managed care. 85 Accordingly, in our view the figure of $4,756 per week should be reduced to $4,000 per week. 86 However, we must be careful to watch the effect of that reduction on other items. The Judge limited the case manager to 2 hours per week on the basis of there being managed care for 3 months per year. Once the award is based on referred care, the amount to be awarded for a case manager should be adjusted. 87 We believe that in making the reduction in item 12, there should be a counterbalancing adjustment to item 27 to allow for 3 hours per week for a case manager. This adjustment is noted later under the appropriate heading vide para 193. 88 Mr Brereton's submitted the figures from Dial an Angel should not have been accepted by his Honour. He said that such evidence was contrary to the strong evidence that most of the time people can obtain good carers privately at considerably less than those rates has caused us some concern. However, the conclusion we reach is that the finding was well within his Honour's range of possible findings. 89 However, we do consider that the matters raised by Mr Brereton as to private arrangements being able to be obtained at a much cheaper rate, coupled with the admitted possibility or stronger that at some stage in those 50.67 years Calandre may elect to have some other form of care, mean that far from adding a factor for managed care, his Honour should have discounted the $4,000 per week by some factor for contingency. This is clearly justified when one sees that indeed the Simpsons did in fact obtain much cheaper care for a large number of years even though they were more than adequately taking care of Calandre. 90 Taking a 10% figure for contingency and thus working on a figure of $3,600 per week, this would produce a verdict figure for this item of $4,933,800. That is a reduction of $1,584,298.

Home building costs - Item 13 91 The appellant accepted that Calandre should be allowed the reasonable cost of a home, either purpose built or modified to enable her to live independently. His Honour costed this at $300,000, [530]. This component of the award is not appealed. 92 In addition, the plaintiff sought $159,963 as the cost of modifications to her parents' home in Vaucluse, where she had resided for much of her life. Also claimed by the plaintiff was the cost of alterations to holiday accommodation owned by her parents at Palm Beach ($42,359) and at Thredbo ($86,646). His Honour allowed the claim with regard to Vaucluse and Palm Beach but disallowed Thredbo. 93 The appellant submitted that the allowances for Vaucluse and Palm Beach were unreasonable and disproportionate. Mr Brereton submitted that it is unreasonable to require the appellant to pay for modifications to the family home, where the plaintiff will no longer primarily reside, or to the family weekender at Palm Beach, since the benefits derived by the plaintiff did not justify the expense of the alterations being borne by the appellant. 94 Dealing with the proposed modifications to the Vaucluse home, his Honour noted that the plaintiff claimed that she would be an occasional visitor to her parents' home and stay overnight. The present living quarters for Calandre at Vaucluse were uncomfortable and cramped. The proposals included the elimination of steps and the installation of a passenger lift. Also, the construction of two new en-suites, for Calandre's room and to a carer's room. At trial the appellant argued that the alterations would merely increase her accessibility to the family home. This increased amenity was at a cost to the appellant which could not be justified and was unreasonable. 95 His Honour's conclusion was that [at 535]: "There can be no doubt that it is reasonable for the plaintiff assuming she has moved into her own independent home, to visit her parents and family from time to time and indeed, to reside there from time to time. There may well be occasions, arising from health concerns or medical treatment, which will require that Calandre return to the family home for extended periods. Her quarters at Vaucluse are uncomfortably cramped, poorly designed and badly laid out. They may have been barely adequate for her as a little girl, but they are no longer adequate. In my view, this part of the plaintiff's claim is established and goes well beyond mere amenity or convenience. In the scheme of things the amount involved is both proportional and reasonable". 96 Turning to the Palm Beach weekender, although the family had holidayed at Christmas time in other accommodation at Palm Beach since Calandre was about two years old, it had only been acquired about five years before the trial. The Palm Beach house had been used only on occasional weekends over the past five years and was rented out over the peak Christmas period. Averaged out the family stayed about two weeks each year. For that reason, the only modification carried out was the installation of a ramp. 97 Calandre intimated in her evidence that she would use the Palm Beach home more if it were modified to enable her to circulate independently. 98 The proposed modifications would permit the first respondent to use the ground floor. They include the renovation of her en-suite, new ramps at the entry, ramps in the lobby and from the living areas to the beach, and a raised floor to allow access to the bedroom and living areas. 99 Again, the appellant argued at trial that the proposed alterations were not justified. Calandre was able to use the house and the modifications would do no more than increase its amenity for her. The expense was unreasonable and should not be borne by the appellant. 100 His Honour concluded [at 548] that: "The claim of $42,359 is in my opinion not unreasonable. Although close to the line, it is my view that the plaintiff should be allowed the costs of these comparatively minor changes to her parents' home at Palm Beach". 101 Notwithstanding this conclusion, his Honour declined to allow the cost of the proposed modifications to Thredbo. His Honour accepted the appellant's submission that Calandre was unlikely to use Thredbo with much frequency in the future and that the benefit in amenity to the plaintiff did not justify the additional costs being paid for by the appellant [554 - 555]. 102 With regard to the modifications to the family home it must be recalled that Calandre has resided there for much of her life. Accepting that her accommodation is cramped and badly designed, it is difficult to understand why at least some of the work now proposed had not been done before. There is little doubt that the parents of the plaintiff could afford it. If the family home were to continue to be the plaintiff's primary residence, there is no doubt that it would be reasonable to impose the cost of modification on the appellant. That however is not the case as the plaintiff will have her own independent living accommodation paid for by the appellant. Moreover, Calandre will still be able to use the Vaucluse house on her visits to her parents. 103 While there is no doubt that the modifications will increase the amenity and accessibility of the home for Calandre, it appears to us to be plainly unreasonable that the appellant should have to pay approximately $160,000 for the proposed modifications when the plaintiff will only occasionally visit the house. It seems clear to us that the benefits derived do not justify the expense being incurred by the appellant. The cost is disproportionate. 104 We are unable to accept his Honour's conclusion that the amount involved is both "proportional and reasonable". On the contrary, it seems obvious to the Court that it is an unreasonably costly imposition upon the appellant, and one which cannot be justified by the increase in amenity and convenience to the plaintiff. We would uphold this part of the appeal. 105 As to the Palm Beach property, we have a similar concern. It is difficult to understand how his Honour rejected the Thredbo claim yet allowed the Palm Beach one. It appears that his Honour considered that it was "a close call" but was swayed by what he regarded as the relatively small cost ($42,359) for alterations which he considered to be relatively minor. 106 The family, including Calandre, however have not used the Palm Beach house very much since it was purchased five years ago. Indeed, according to Mrs Simpson, on average the family has only used it for about two weeks per year. 107 As with Vaucluse Calandre is able to use the weekender, albeit with assistance from her family. Thus far only one ramp has been installed to aid her accessibility. 108 It is correct to say that the proposed alterations to Palm Beach will greatly increase the accessibility of the house for the plaintiff. This will allow her to circulate independently to a much greater extent than is currently possible. 109 Clearly, the Palm Beach house is not ideal for Calandre. It is however still usable as a weekender despite these limitations. The house itself has been little used by the family since it was purchased. It is difficult to accept that Calandre will necessarily visit it on a regular basis if the proposed alterations are made. 110 We are unable to agree with his Honour that the claim for Palm Beach is "close to the line". Rather, it seems to us to be demonstrably unreasonable to impose this cost on the appellant, given he is also paying $300,000 for independent living for the plaintiff. The likely benefit to Calandre is out of proportion to the cost of modifications visited upon the appellant. We are of the opinion that the Palm Beach claim fell well below the line and should not have been allowed. 111 Accordingly, the appellant succeeds on this aspect of the appeal and the amount of $202,322 is to be deducted from the damages awarded.

Additional home maintenance and running costs - Item 15 112 His Honour allowed the sum of $390,606 for the additional costs of home maintenance and running costs. The appellant submitted that this was in error in relation to four items, painting, plumbing, electrical and appliance repairs. As a result, the appellant contends that the adjusted sum under this head is $294,205, that is, a reduction of $96,401. 113 The argument the appellant raises before us is that the costs for painting, plumbing, electrical and repair of appliances should not have been allowed because the need for those services was not increased by reason of the plaintiff's disabilities. These costs would have been incurred in any event. 114 The first respondent maintains that the appellant seeks to raise a new argument not raised below. 115 In order to understand the respective submissions, it is necessary to examine the evidence placed before the Court with regard to the claim and how his Honour approached it. 116 During the plaintiff's case a lengthy report on the modification of an existing home to enable Calandre to live independently was tendered in evidence. The report, by a Mr Hardiman, was dated 27 February 2001 and included a section on the need to provide several additional rooms, including an equipment store and carer accommodation. Appeal Book 4 Blue 928 - 931 sets out the additional rooms and spaces seen as necessary to meet the specific needs of the plaintiff. They are quite extensive. 117 The Hardiman report also included a section on maintenance and running costs for painting, plumbing, electrical, appliance repairs, garden care, air-conditioning and a heated swimming pool. It is the first four mentioned items which the appellant now disputes. 118 Hardiman's report estimated $14,533 on a six-year cycle for additional painting costs, making the point that the interior walls would sustain wheelchair damage. As to plumbing, the report suggested that two trips per year by a plumber would compensate for the additional damage to tapware and drains resulting from the plaintiff's disabilities. Two visits per year by an electrician were allowed for the same reason. Lastly, Hardiman contended, again for the same reason, that household appliances would sustain damage more frequently and allowed one repair per year. 119 While Hardiman was cross examined about the necessity of the additional rooms and facilities he had posited, not one question was directed to the claim for additional maintenance and running costs for painting, plumbing, electrical and appliance repair. 120 The appellant tendered a report from a Mr Baker (AB 4 Blue 781). This also included a section on home maintenance, running and replacement costs. With respect to repainting Baker said that if the plaintiff was able bodied "it is likely that [she] would have carried out much of the repainting work utilising his [sic] own labour. It is therefore reasonable to include an allowance for the typical labour cost in this regard", see 4 Blue 793. Baker estimated an annual cost of $250 based on an eight year cycle with an 80% labour component. 121 As to plumbing and drainage, Baker's report stated that apart from handyman tasks (taps) the plaintiff, if able bodied, would not be able to do them herself. He estimated an additional cost of $150 per annum. Electrical was similar to plumbing and Baker identified an additional cost of $300 per annum. His report did not address appliance repair except to say that the plaintiff's disabilities did not generate a greater need for repairs than for an able bodied person. 122 Baker gave evidence (3 Black 529). In cross examination the only question put to him on additional maintenance costs was to the effect that there was room for debate about the amount of such costs, to which he readily acquiesced. (AB 3 Black 547). 123 The first respondent had proposed two alternatives for independent living. Modification of an existing home or the construction of a purpose-built home. 124 His Honour examined the evidence relating to modification, including Hardiman's evidence about the need for additional rooms and facilities (AB 2 Red 296 - 298). The Judge noted that Baker's report suggested less extensive modifications than Hardiman's. Whealy J was critical of some of Baker's evidence as to what was required for the plaintiff and of his costings (see AB 2 Red 301 - 302). His Honour's conclusion as to the reasonable cost of independent living for the plaintiff was to allow the sum of $300,000. This was based on a broad acceptance of Hardiman's evidence (AB 2 Red 303). As mentioned above, this particular head of damage is not contested on the appeal. 125 His Honour then turned to the claim made by the plaintiff for the "additional cost of home maintenance and running costs" (our emphasis) (AB 2 Red 306). He noted that there was a "wide disparity between costing estimates", AB 2 Red 307. Whealy J summarised Hardiman's report on the costs of additional home maintenance (AB 2 Red 307 - 308). He then noted that the appellant submitted that Baker's costs should be accepted instead (AB 2 Red 308 - 309). 126 The Judge summarised the components in Baker's report. He then referred to the submission of the appellant that sought to explain the difference in costing estimates between the parties. Of this submission his Honour said [at 591]: "… The defendant submits that Mr Hardiman's allowances for the fact that the plaintiff must rely on assistance arranged commercially for the performance of chores normally undertaken by able-bodied adults, such as changing lights, washers and the like, are inappropriate. This is because there is no reason why carers cannot perform those minor tasks. Certainly, this is an acceptable proposition, at least, in part. There will be opportunity for the carers to tend to minor tasks when the plaintiff is not present in her home, when she is at school for example. However, the extent of the involvement of carers in this way should not be overestimated. I find that it is reasonable to allow for the assistance of carers in minor tasks such as the changing of light bulbs, the replacement of tap washers and minor repairs of this kind. I do not believe however, that the contribution that can be expected from the carers will impact upon the work to be performed to the extent that the level of commercial help needed, and the cost consequent, will be significantly reduced. Mr Hardiman's allowance for two visits per year for plumbing allowance, and for two repairs a year for electrical servicing, are, for example, reasonable, and the costings for these items do not need to be adjusted downwards to account for the involvement of carers in these areas". 127 Whealy J then turned "to assess each of the components of additional maintenance in turn" (our emphasis) (AB 2 Red 310). 128 His Honour said that although the painting was "on the high side", it should be preferred to the defendant's estimate, which was "not tenable". He added that "the additional maintenance cost of painting translated to $46.58 per week", (our emphasis). His Honour accepted Hardiman's costing as to the additional costs for plumbing and drainage at $9.90 per week. As to the additional claim for electrical repairs, his Honour said that he had difficulty with Hardiman's opinion that the damage to electrical points would be greater in the plaintiff's home than in an able bodied person's home. However, he did not think that this warranted a deduction in the allowance which came down to $8.91 per week. His Honour made a similar finding with regard to appliance damage but considered that one repair visit per year was reasonable. This translated into $4.95 per week. 129 On behalf of the appellant Mr Brereton submitted that his Honour erred in allowing for the costs of painting etc. which any able bodied home owner would incur ordinarily. He submitted that they were not in fact additional maintenance costs and that his Honour was in error. 130 As sometimes occurs with a complex and lengthy case involving a large number of issues of damage as well as a contest on liability, the relatively minor issues receive less attention than they otherwise might. Notwithstanding that this appears to have been the case, it is clear that Hardiman contended that additional rooms and facilities would be required to enable the plaintiff to live independently. These facilities are in addition to those ordinarily required by an able bodied person. Baker contended that fewer modifications were necessary to enable the plaintiff to live independently. In so far as his Honour addressed the dispute, he seems to have preferred Hardiman's evidence to Baker's. 131 Hardiman's estimate of the additional maintenance costs to be incurred by the plaintiff as a result of her injury assumes that the need for additional rooms and facilities is accepted. He was not cross examined on any aspect of his estimates for the additional costs of painting, plumbing and electrical, which will arise because of the plaintiff's injuries. Baker also submitted estimates of additional maintenance costs in reply to those of Hardiman. While his estimation of such costs was a good deal lower he conceded that the plaintiff would incur some additional maintenance costs. The only cross examination of Baker on the issue resulted in his agreement that the extent of such costs was debatable. 132 It is apparent that, in general terms, his Honour accepted Hardiman's evidence of the need for additional rooms and facilities. Once this was accepted, additional maintenance expenses obviously arise for the plaintiff. The issue before the trial court was to determine the extent of these expenses. Although his Honour was critical of some of the details of Hardiman's report, for example he considered that it was reasonable to expect that carers might perform minor tasks rather than tradespeople, he accepted that the plaintiff's suggestion as to the number of repair visits was reasonable with regards to both cost and frequency. 133 When one appreciates this it is understandable why the first respondent submitted that the appellant was raising a new argument on appeal, which was not raised below. 134 While one cannot be certain, it is likely that the particular point, if it existed at all, got lost and was not specifically raised or addressed below. Mr Brereton has not referred the Court to any particular submission made to Whealy J which dealt with the issue. 135 Given that there was only limited dispute as to the additional rooms and facilities needed for the plaintiff's independent living, it seems likely that there was a limited contest as to the extent to which these would translate into additional maintenance costs and expenses. 136 The principal issue, if not the only one put to his Honour under this head of damage, was the reasonable quantum of the additional maintenance costs. His Honour determined this in favour of the plaintiff. It is not apparent that he erroneously allowed as additional maintenance costs, matters which were not claimed to be additional in the evidence. Accordingly, this ground of appeal should be rejected.

Therapeutic aids, appliances and equipment - Item 16 137 The sole dispute under this ground of appeal involves the cost of a communication device for Calandre. There is no dispute that such a device is absolutely necessary for her needs since she can neither speak nor write. Rather the issue is about the cost of the available alternatives. 138 His Honour allowed $427,980 for various therapeutic aids under this head of damage. Only the Pathfinder and Zygo head pointer is in issue. Its cost translated into a weekly expense of $61.54. The appellant submitted that the Mardis Eclipse communication device and head pointer was adequate and cheaper ($28.07 per week) and it was unreasonable for his Honour to have chosen the more expensive product. If the appellant is successful, the sum of $84,340 is to be deducted to reduce the award made under this head to $343,640. 139 His Honour noted the "significant price disparity" between the respective products. He stated [at 612]: "I agree that only one of these combinations should be allowed, and propose to accept the recommendations of Ms French. Having considered the features of this device, as presented in the annexure to her report (Exhibit "EE", plaintiff's bundle p 773) I am satisfied that this device appropriately caters to the communication needs of the plaintiff. It not only prepares synthesised speech, but also icon and word prediction, and infared heard pointing. It can be interfaced with computers and environmental communication units. I am not left in any certainty concerning the exact features of the Mardis Eclipse model suggested by Mr Smith, as his report does not point to any detail concerning this type of communication device. Moreover, Mr Smith conceded in his report that the Mardis Eclipse model is one likely option, but that the exact model for Calandre should be selected by an expert in this type of device (Exhibit "NN"(2), plaintiff's bundle p 916)". 140 Both Ms French and Mr Smith gave evidence in the plaintiff's case. The appellant called no evidence on an appropriate communication device, nor was there any relevant cross examination of French or Smith. 141 French is an occupational therapist having special expertise with cerebral palsy. The Pathfinder/Zygo was selected by her after she had made a full functional assessment of the plaintiff's needs. The device has a notebook journal function, calculator, clock, icon and word prediction (which significantly speeds up communication) an anti-glare screen for use outdoors, a large font screen display and 20 megabytes of memory. As his Honour noted, it can be interfaced with computers and environmental control units. 142 The evidence was that the Pathfinder/Zygo was a most suitable communication device for the plaintiff. 143 As against the Pathfinder/Zygo, Smith recommended the Mardis Eclipse. His expertise is with computer technology. He accepted that Calandre required a communication device but said that the "final decision regarding such a device should be prescribed by experts in this field" (see AB 3 Blue 576 and repeated at 580). Such a device needed to have certain characteristics which he specified. A suitable device which met these criteria was the Mardis Eclipse. 144 His Honour observed that he was uncertain as to the exact features of the Mardis Eclipse suggested by Smith. This was because of the state of the evidence. It appears to the Court that if it did no more than meet Smith's basic criteria, then the Pathfinder/Zygo was the better alternative as it was a superior product with more functions and features. 145 Given the evidence before his Honour we are quite unable to see why he was not entitled to accept French's recommendation. Smith was at pains to say that the exact device should be prescribed by experts in the field. French seems to have the necessary expertise. His Honour was entitled to accept French's recommendation notwithstanding the disparity in cost. This ground of appeal fails.

Computer equipment and traineeship - Item 18 146 This ground of appeal involves two points. His Honour awarded $292,679 for the provision of computer equipment and a traineeship. The appellant contends that some of the costs of computer equipment ($51,951) should not have been allowed because they were not additional costs arising from the plaintiff's injuries. Her need for much of the computer hardware and software included under this head of damage was not created by her injuries. Her peers without disabilities, eg HSC students, would have the same requirements. 147 The second aspect concerns a six month traineeship offered to Calandre by Mr Smith at a cost of $8,800. The appellant submitted that the evidence of the traineeship was too speculative and, if anything, no more than a chance. Attention was drawn to the fact that it was the first such traineeship offered by Smith. 148 The first respondent submitted that the appellant did not call evidence that Smith's recommended provision of computer equipment did not respond to Calandre's needs, was excessive or that there were cheaper alternatives. 149 Mr Jackson stressed that for Calandre, computers were not optional (as they are for most people) but an essential lifeline without which she cannot communicate. 150 His Honour was well aware of Calandre's needs in this area. He said [at 628] that: "Calandre's dependence upon computer technology and communication devices is profound. She relies upon technology in order to communicate in a variety of circumstances. Apart from primitive methods, this is her only real method of communicating effectively with the world outside of her "locked-in" body". 151 Whealy J squarely addressed the submission of the appellant. He said that he was satisfied that provision should be made for the plaintiff's future computer needs and he did not accept that it was only the additional costs which should be allowed. This was because the total equipment was required "as a medical necessity" by the plaintiff, as a number of experts had attested [64]. His Honour considered the various computer related items and concluded that [at 642]: "… computer access and associated communication devices are a life line for the plaintiff in an intellectual sense. They are a life line, in my opinion, in a very real and practical sense as well". 152 As to the traineeship offered by Smith with his "not-for-profit" company, his Honour said [at 644]: "I have decided to allow the cost of the traineeship of $8,800. It provides an opportunity for Calandre to develop her computer skills, and for people working in the area to foster her learning in this area and monitor the development of her interests. In light of the importance of computer technology in Calandre's everyday life, this occasion for Calandre to familiarise herself and enhance her understanding of this equipment will be of considerable benefit to her. The cost is proportional to the benefit received". 153 We accept that for Calandre the assistance which computer technology can provide is not an option but a medical necessity. For her computer access and associated communication devices are, as his Honour observed, a lifeline in a very real sense. Indeed, they provide her only means of communication. 154 The need has plainly been created by her injuries. The computer package comprises additional costs which were caused by the appellant's negligence. Mr Jackson, appropriately in our view, drew attention to the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) 175 CLR 327 at 338. Their Honours said: "If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her". 155 In our opinion, there is no error in his Honour's conclusion or reasoning. 156 We turn to the claim for the traineeship with Mr Smith. Evidence of the proposal was given by Smith. The plaintiff was enthusiastic about the idea. Just because it was the first time Smith had offered such an opportunity, does not make it too speculative. It was consistent with Smith's organisation and a logical extension for it. There was no reason to suppose that the traineeship would be widely advertised and attract large numbers of applicants or that the plaintiff would miss out. There is no reason to conclude on the evidence that it was only a chance. It was a two day per week traineeship for six months which, so his Honour found, would provide tangible benefits for Calandre, including developing her computer skills so essential for her well being. Bearing in mind the relatively small cost, it cannot be said to be disproportionate to the benefits. 157 We would reject this ground of appeal.

Educational tutoring - Item 19 158 The trial judge allowed $171,628 for a special education teacher to assist Calandre for five years, the first year with completion of her HSC and the next four years with tertiary study. The appellant submitted that no allowance should have been made. 159 In support of its submission the appellant raised four arguments:

(a) Calandre never had the ability to undertake tertiary studies in any event.

(b) Calandre's current educational achievements make it highly unlikely that she would obtain entry to any tertiary studies or, if she did, complete them.

(c) Alternatively, the discount of 25% applied by his Honour was far too low.

(d) The award for past economic loss was made on the basis of full-time employment during the same years that Calandre claims under this head that she would be attending a tertiary institution. Accordingly, there is an inconsistency which can only be resolved by an adjustment downwards of the past loss of earnings allowed or alternatively under this head of damage. Otherwise, there will be double compensation. 160 With reference to the last point, it should be noted that no ground of appeal was framed that made any such claim. Moreover, the issue was not squarely raised in relation to the disputed issue of past loss of earnings. Rather, the question was addressed by Mr Brereton under the head of damage relating to educational tutoring. 161 We will consider the issues raised in the above order.

(a) Calandre never had the ability to undertake tertiary study 162 The appellant's submission places heavy reliance upon the educational achievements of the plaintiff's sisters. The appellant submitted that the experience of the sisters would not be indicative that the plaintiff would have pursued tertiary education. Moreover, the plaintiff's current level of educational achievement, given she is not impaired intellectually, and is performing towards the bottom of her class, does not suggest that she would have been a candidate for education at a tertiary level. 163 In our opinion, his Honour was entitled to reject this submission. While the educational progress of the plaintiff's sisters was a relevant factor, it was not a determinative one. We have already referred to his Honour's reasoning concerning the development and experience of the sisters as relevant to the plaintiff's loss of earning capacity, see paras 40-43. We will not repeat them except to affirm that his Honour's conclusions on this issue were reasonable and open on the evidence. 164 As to the plaintiff's ability to undertake tertiary study, his Honour emphasised the significant gap in her schooling. Calandre's education virtually ceased between the ages of 9 and 15. The Judge noted that Calandre had the drive and determination to pursue some type of tertiary course. Professor Reid's opinion was that her abilities had improved significantly and she was within the normal range in a number of areas of cognitive ability. Her IQ was around normal. His Honour was, on the evidence before him, entitled to conclude that the plaintiff had the intellectual capacity to achieve her objective of completing some form of tertiary education. 165 It is not always easy to distinguish between the questions of whether the plaintiff would, but for the appellant's negligence, have had the ability to pursue tertiary study and whether the plaintiff is now (with her disabilities) able to pursue such study. The evidence before his Honour and the submissions made below, and even before us, blur the distinction between the questions. Indeed, his Honour may have conflated the issues. If he did so, it was in all probability because much of the evidence relating to the second question could be seen to be relevant to the first. The distinction between the two questions needs to be kept in mind. (b) Calandre's current educational achievement makes it unlikely that she would undertake or complete tertiary study 166 His Honour found, when dealing with the plaintiff's case on loss of earning capacity, that he was not satisfied that there was any real possibility of her succeeding in a legal career based on tertiary education [354]. Nonetheless, his Honour recognised the possibility that she "may have undertaken tertiary education" [359]. 167 Whealy J gave detailed reasons [paras 671 - 676] as to why he concluded, albeit with a significant discount of 25% for vicissitudes, that the plaintiff possessed the ability to undertake and complete some form of tertiary education. On the evidence before him, his Honour was, in our opinion, entitled to conclude that there was a realistic probability that the plaintiff would be able to finish her HSC and pursue some form of tertiary education in the area she nominated. His Honour referred to non-award courses at TAFE institutions and Professor Reid's evidence about the diploma in welfare offered by some institutions. 168 We are unable to detect any error in principle in either his Honour's approach or conclusion on this question. (c) Was the discount inadequate? 169 The plaintiff had argued before his Honour that a 15% discount was sufficient to balance the possibility that she may not fully pursue the tertiary course. The Judge concluded that a higher percentage should be allowed for vicissitudes and determined this at 25%. The appellant submitted that a far greater percentage discount should have been applied because it was very likely that the plaintiff would not complete her studies. 170 This is a typical discretionary decision. Minds may well differ as to the appropriate discount rate to apply but we are unable to conclude that his Honour made any error of principle in arriving at a 25% discount, or that his discretion miscarried. Having regard to the evidence the result cannot be said to be a wholly erroneous figure. (d) Did the award overlap with the award for past economic loss? 171 In approaching this issue we again note the apparent confusion of the parties in their approach and the absence of any ground of appeal. When dealing with loss of past earning capacity it was never submitted, so far as we understand, that the plaintiff should be compensated only on the basis of part-time and casual work while undertaking tertiary study. The sole challenge to the award for loss of earning capacity (past and future) related to his Honour's use of the AWE all adult category as opposed to the adult female category. 172 It was really under the head of damage regarding educational tutoring, now under consideration, that counsel for the appellant drew attention to what he submitted was an inconsistency that involved double counting or over compensation. 173 In addressing the submission made on behalf of the appellant below his Honour said [at 672]: "The first submission which I will address is that made on behalf of the defendant namely that the first question is whether Calandre would have pursued education at a tertiary level but for her injuries. In assessing the lost chance as to whether the plaintiff would have had an earning capacity reflected by professional employment following tertiary education, it was my view, expressed earlier in these reasons, that I could not be satisfied, that the plaintiff would have undertaken a successful career as a lawyer had she not been injured. The present question seems to me to be quite a different one . The question to be addressed is whether the plaintiff had and has retained the ability to pursue some type of tertiary education rather than whether, uninjured, she would have chosen that particular lifestyle". [Emphasis added] 174 Mr Jackson submitted that his Honour was correct in that there are two different questions involved. One is what is the value of the plaintiff's lost capacity to earn and the second is, what is necessary to deal with the plaintiff's current situation regarding the pursuit of education. He submitted that there is in fact no overlapping or over compensation. Reliance is placed upon the fact that his Honour only allowed the plaintiff one-third of the economic loss with respect to the period between 18½ years and 22 years. 175 This is correct but the reason that his Honour did this was not related to her likely pursuit of tertiary studies during the time. Indeed, the scenario with which he was dealing (and proposed by the plaintiff) was on the basis of full time employment as an adult. Compare this with his Honour's allowance of $10,000 for the lost potential of working part time for her final two years at school. 176 While Mr Jackson may be right that different questions are involved, it seems to us that the plaintiff cannot have it both ways. That is, to be compensated for past wage loss on the basis of full time employment but at the same time also receive compensation for educational tutoring on the basis that she would be pursuing a full time tertiary course during those same years. 177 The problem is what adjustment to make? It seems that his Honour allowed the plaintiff net earnings of $5,000 per year for two years whilst at school. His Honour then awarded the plaintiff the sum of $40,880 for the period between December 1997 and 5 November 2001 at one third of AWE rates [335]. As we have said, this was based on full time adult total earnings as per option B put forward by the plaintiff [326]. 178 The fact that his Honour only allowed one third of the amount (rather than the one half urged upon him by the plaintiff) does not mean that his Honour considered that the plaintiff would work only part time during this period while she was undertaking tertiary study. Indeed, there is nothing to suggest that this was his Honour's approach. 179 Accepting as we do, that his Honour was entitled to conclude that the plaintiff had and has the ability to undertake tertiary study, it is reasonable to assume that she would have worked part time during that four year period as a student. Doing the best we can, we would assess a net loss of earnings of $7,000 per annum - a total of $28,000. This would mean that his Honour overestimated the loss of earnings for that period by approximately $13,000. 180 In our view, given the circumstances, the best way to deal with this situation is to adjust the sum awarded for educational tutoring by reducing it by $13,000. As an aside, it may be that the "problem" was caused by an over compartmentalisation of heads of damage at the trial.

Additional vacation costs - Item 24 181 His Honour allowed the sum of $330,000 for additional vacation costs for the plaintiff and two carers. The claim before the trial court was for $430,000. It was based on a life expectancy of a further 51 years from the trial and provided for a two week annual holiday somewhere in Australia and a three week overseas trip every four years. 182 At the trial the plaintiff tendered a series of reports by a Mr Cook of Travelaw. The defendant did not call any contrary evidence and did not seek to cross examine Cook. The appellant however submitted that a typical Australian vacation on the Gold Coast with one carer was appropriate and reasonable. He contended that $50,000 was adequate to compensate the plaintiff for additional vacation costs. 183 His Honour rejected both the plaintiff's claim and the defendant's offer. He accepted the evidence of Dr Yeo that the plaintiff needed to take two carers with her on holidays for reasons of her own safety and well being when travelling [760]. While at the trial it appears that the defendant suggested that one carer was sufficient, before this court counsel accepted the need for a second carer and proposed a regime of Australian holidays which included two carers at an additional cost of $80,338. 184 His Honour seemed sceptical of the ambit of the plaintiff's claim. He described her claim as a "rather generous travel plan". In some ways it is clear that he considered it unreasonable. He said at [468]: "I am satisfied that provision should be made in the plaintiff's award for increased costs that will be incurred when the plaintiff takes holidays. I accept that there will be a need for holidays. Indeed, this is not in issue. I consider that the amount claimed, however, is too high to be regarded as reasonable. I consider that the claim should be reduced to reflect a number of general considerations. First, it might be thought that the desire to travel overseas every four years is capable of being regarded as excessive. If the plaintiff were likely to have married and had children, as I think she would have if uninjured, and if she had pursued a successful business career, the amount of likely overseas travel would have been at a lower level. With all the hurdles which the plaintiff must face in relation to her studies, her health and her future treatment, I doubt whether her overseas travel pattern is likely to be at the suggested level. Secondly, the advent of more comfortable seating and provisions in business class on some overseas airlines may mean that a full first class facility would not always be necessary for the plaintiff. Thirdly, depending on the relevant seating configuration, it may be possible for the principal attendant carer to travel in business class rather than first class. This would also depend on the length of the trip and the destination". 185 While his Honour was not more specific as to what additional vacation costs he regarded as reasonable, he nonetheless rejected the appellant's suggestion that holidays be confined to the Gold Coast. 186 Not surprisingly, his Honour said that it was best to approach the issue in a broad and generalised manner. 187 The Judge noted that he had disallowed the plaintiff's claim regarding improvements to the family's Thredbo home. In considering a broad response to the claim his Honour identified an amount of $330,000 as appropriate. This represented $100,000 less than the plaintiff's claim and was a reduction of around one-quarter. 188 We do not criticise his Honour's broad-brush approach. Indeed, it seems to be an eminently sensible way to approach the claim. Notwithstanding, the guiding principle must be one of proportion and reasonableness. The additional sum of $330,000, representing local and overseas holidays with two carers for more than 50 years, seems to us to have an air of unreality about it. 189 One might argue for all sorts of reasons that the plaintiff would be unlikely to have overseas holidays every four years. Indeed, it may be more reasonable to assume that the plaintiff might make around six trips overseas during the balance of her life expectancy. 190 Also, we question whether it is reasonable to assume that the plaintiff will holiday somewhere in Australia every year. 191 In terms of proportion and reasonableness we see a sum of $200,000 as an appropriate sum to award for the additional costs of vacation for the plaintiff. In so concluding, we are conscious that we have deleted the award to make the Palm Beach house more accessible to the plaintiff. Nonetheless, as we have pointed out, it is still available for the plaintiff's use. 192 Accordingly, we would reduce his Honour's award under this head from $330,000 to $200,000.

Case Manager - Item 27 193 For the reasons given in our discussion on Item 12, this item should be increased by 50%. Thus the increase in this item of $180,906 will partially offset the reduction made to Item 12.

The costs of services provided by the Spastic Centre and interest thereon - Items 29 and 30 194 The Spastic Centre of New South Wales provided medical and allied professional services to the first respondent from 1981 to the date of the trial in June 2001. There was no dispute as to the market value of the services so provided, and the appellant accepted that the amounts claimed by the Spastic Centre fairly represented the value of the services provided by it. In total, the Spastic Centre claimed $655,995.30. Whealy J allowed a slightly adjusted figure of $614,752. 195 The services in question included speech therapy, occupational therapy, physiotherapy, medical and psychology therapy. Whealy J found: "There is no doubt that these services were provided by the Spastic Centre as a consequence of a need created by the [appellant's] negligence".

This finding was not challenged. 196 Accordingly, the only dispute between the parties under this head was whether the appellant was, in law, obliged to pay the first respondent the costs of the services provided by the Spastic Centre. 197 The Spastic Centre's by-laws contained a clause which read: "All disabled children and adults who are admitted for treatment and training and have a reasonable expectation of compensation by way of damages may be required to give an undertaking to reimburse the Centre for all expenses incurred in treatment, training, transport etc but any reimbursement shall not exceed the amount of compensation received". 198 On 8 August 1994 the Spastic Centre advised the first respondent that she would fall into the category covered by the clause in the by-laws and stated that it would be forwarding to her an invoice for the professional services it provided. The letter stated: "It is expected that this invoice will be added to Calandre's claim for compensation and if she successfully receives damages that our invoice would be paid out of that amount". 199 On 27 October 1994 the manager of the Spastic Centre sent the first respondent's solicitors invoices for professional services rendered between 1991 and October 1994. The letter concluded: "It would be appreciated if the amount of our invoice could be added to Calandre's claim for compensation and if she successfully receives damages that our invoice is paid out of that amount". 200 Similar letters were subsequently sent by the Spastic Centre to the first respondent's solicitors enclosing invoices for the period from September 1981 to about mid 2001. 201 The first respondent's solicitors had requested the Spastic Centre to send invoices to them. Prior to that request there had been no correspondence or discussion between the first respondent (or members of her family) and the Spastic Centre about costs for the services to be provided by the Centre. There was simply no discussion about the financial basis upon which the services were to be provided and were being provided. The first respondent's mother agreed in cross examination that from the time she first arranged for the first respondent to attend at the Spastic Centre until her solicitors asked the Spastic Centre for an invoice, she did not consider that she would have to pay the Spastic Centre. 202 Despite this evidence, the first respondent first claimed the amount of the Spastic Centre's charges on the basis that she was contractually liable to pay the Centre for those charges. Whealy J found, however, that no contract existed between the first respondent (or any member of her family) and the Spastic Centre in relation to the Centre's provision of services to her. His Honour held: "At most, there was a charitable provision of voluntary services by a community-based charitable organisation".

There is no challenge to this finding. 203 Whealy J observed, further: "Persons who are admitted to membership may be a category (a) member ('member with a disability') or category (b) ('support member'). This category typically would include the parents, legal guardians or relatives or friends who have assumed the role of primary carer or guardian of any person who has been registered as receiving or having received services from the company. There is also a provision for honorary life members invited members and associate members. (Exhibit 153). It is a matter of undisputed public knowledge that the Spastic Centre, as a community based organisation, provides services for the sufferers of cerebral palsy. It is dependant upon philanthropic and charitable donations, community fund raising and, to a degree, it is reliant upon government assistance. The evidence suggests there is a general pattern of diminishing resources from Government assistance. The organisation's by-laws include provisions that a person receiving services who has a claim for damages may be asked to give an undertaking to reimburse payment for those services, if successful, out of the compensation funds. As I have said, it appears to be common ground that no such undertaking was given by the Simpson family in the present case." 204 Accordingly, on the basis of the findings of Whealy J, the first respondent could not succeed under this head on the ground that she had incurred an absolute contractual liability to pay the Spastic Centre for the services it had provided. 205 A further effect of his Honour's findings J was that the case could not be compared to Blundell v Musgrave (1956) 96 CLR 73, where liability to pay for medical expenses was conditional on the recovery of damages. The findings preclude such an argument being raised and, indeed, no such argument was raised. 206 In the alternative, the first respondent claimed the amounts of the invoices submitted by the Spastic Centre on the basis of the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161. 207 Whealy J said that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. 208 Accordingly, said the learned Judge, the sole question was whether despite the fact that the services were provided by the Spastic Centre, and not by a family member or friend, the first respondent was entitled to recover damages on a Griffiths v Kerkemeyer basis. 209 In accepting that the appellant was required to pay damages to the first respondent based on the Spastic Centre's charges (albeit that the first respondent had no legal obligation to pay the Spastic Centre) his Honour concluded as follows:

(a) The Spastic Centre did not intend the market costs of the services provided by it to reduce the first respondent's ordinary entitlement to damages.

(b) As a matter of policy the Spastic Centre was not an appropriate institution "to be saddled with the ultimate loss".

(c) The provision of services by the Spastic Centre relieved the State of a significant burden in relation to the care or persons suffering from cerebral palsy; moreover, "the distribution of loss between State and charitable provider has already taken place. It should not be 'doubled up' in the contest between plaintiff and defendant".

(d) The "gratuitous subventions" provided by the Spastic Centre were not intended by it to be "diverted from victim to wrongdoer".

(e) Those subventions had served to mitigate the appellant's liability for paid treatment. 210 His Honour concluded that, for the above reasons: "The Spastic Centre's unpaid invoices are recoverable as gratuitous services … [they] fall on the side of the line more closely proximate to services provided by friends, relatives and members of the community generally". 211 The appellant submitted that Whealy J erred in extending the Griffiths v Kerkemeyer doctrine to therapeutic services provided free of charge by a charitable organisation. The first respondent supported his Honour's judgment, contending that once the first respondent had established her need for the services from the Spastic Centre, she was entitled to recover damages representing the market cost of its services (irrespective of the fact that the Spastic Centre had provided its services to her free of charge). 212 Until now, Griffiths v Kerkemeyer has been applied only to services rendered gratuitously to injured plaintiffs by family members or friends. The Spastic Centre, however, falls into a different category. It is a community-based charitable institution that provides services to a segment of the general public. Therefore, the question raised by this ground of appeal is whether Griffiths v Kerkemeyer is to be regarded as an anomalous doctrine confined to claims by family or friends, alone. 213 The answer to the question so posed requires an examination of the development of the Griffiths v Kerkemeyer rule. 214 Prior to Griffiths v Kerkemeyer, Blundell v Musgrave held sway and no claim could be made for nursing and like services that were not productive of financial loss. 215 In Griffiths v Kerkemeyer, Gibbs J stated that if a plaintiff had a need for nursing services (brought about by the negligence of the defendant) he or she should only recover damages for that need if the need was likely to be productive of financial loss. His Honour referred to Blundell v Musgrave and said at 168-169: "[T]his Court should not abandon the principle that a plaintiff whose injuries have created a need for hospital or nursing services cannot recover damages in respect of that need (except of course for loss of amenities or pain and suffering) unless the satisfaction of the need is or may be productive of financial loss. However it should no longer be held that the fact that the services have been and will be provided gratuitously is conclusive of this question. The matter should as it were be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account to relief of the wrongdoer? If not, the damages are recoverable". 216 The views so expressed by Gibbs J were later described in Van Gervan v Fenton at 333 by Mason CJ, Toohey and McHugh JJ (with whom Brennan and Gaudron JJ were in general agreement) as "a dissenting judgment on the point of principle." 217 In Griffiths v Kerkemeyer, Gibbs J went on to say (at 169): "I consider that if the hospital, medical and nursing services provided by the State are such that the plaintiff has been and will be supplied with all the services that he reasonably requires at no charge to himself, the case will, as a general rule, be one in which the wrongdoer should have the benefit of that circumstance. There appear to me to be strong grounds of policy which distinguish services which the State makes available for all persons, or for all in the certain category on the one hand, from services provided as a result of a sacrifice made by a relative or friend of the plaintiff, on the other hand".

These remarks have relevance to the question now under consideration as Gibbs J accepted that policy required gratuitous public hospital and nursing services to be for the benefit of the wrongdoer, and imposed a different rule for services provided by a relative or friend of the injured person. His Honour thereby drew a distinction between services made available to a general body of persons and those provided (by reason of personal relationships) to the injured person alone. 218 Stephen J, unlike Gibbs J, approved Donnelly v Joyce [1974] QB 454. His Honour said at 175: "The principle in Donnelly v Joyce readily enables an injured plaintiff to recover damages for his accident-caused needs met by third party subventions in those very cases most calling for it. I refer to those deserving cases concerned with charitable subventions by friends or relatives who, to benefit the plaintiff, and with no thought of relieving the wrongdoer, gratuitously provide him with funds, services or goods. In such cases the courts will clearly not treat the gratuitous subventions as properly to be debited against the plaintiff … No hard and fast rule can or should be laid down as applicable to all of that great variety of other types of subventions which may come before the courts. For many of them what was said in Parry v Cleaver [1970] AC 1 and, in Australia, by Windeyer J in Paff v Speed (1961) 105 CLR 549 at 567 and in greater detail in National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 per Dixon CJ at 573 and per Windeyer J at pages 598 to 600 will provide the answer. As Windeyer J, pointed out, in appropriate cases the intent of the provider will be determinative, so that, where the intent that the injured person shall enjoy the benefits of the subvention in addition to whatever rights he may have against the wrongdoer, the value of the subvention will not go in diminution of damages to be awarded to the injured person."

His Honour regarded this as a "two stage approach. First, the loss had to be identified as the plaintiff's accident-cause need. Secondly, the deductibility or otherwise of the third party subvention had to be examined. 219 It appears from the quoted remarks that Stephen J regarded charitable subventions by friends or relatives who, to benefit the plaintiff, and with no thought of relieving the wrongdoer, gratuitously provide him or her with funds, services or goods, as if they fell into an independent category of claims to which, without question, Donnelly v Joyce applied. Stephen J contrasted this category with "other types of subventions which may come before the courts". He was of the view that, for many of these "other types", the approach in National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 "will provide the answer". Hence, according to Stephen J, in many other types of subventions, "need" may not be the sole criterion of the plaintiff's entitlement to claim. These views are plainly of considerable relevance to the question now being considered. 220 Before discussing the Espagne approach, for the sake of completeness we would note that, in Griffiths v Kerkemeyer, Mason J also approved the approach in Donnelly v Joyce, saying (at 192): "The respondent's relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is, or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided". 221 Turning now to Espagne, the approach to which Stephen J referred in Griffiths v Kerkemeyer is manifest from the following remarks of Dixon CJ and Windeyer J. Dixon CJ said at 573: "There are certain special services, aid, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of regress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him".

Windeyer J said at 599 to 600: "In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be paid after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause". 222 In Redding v Lee; Evans v Muller (1983) 151 CLR 117 Mason and Dawson JJ (with whom Wilson and Deane JJ, in substance, agreed) explained (at 137) the Espagne approach as follows: "The subsequent decisions in this Court apply the principles expressed by Dixon CJ and Windeyer J in Espagne . They make it clear that the issue turns on the character and purpose of the particular financial benefit which the plaintiff receives: was the benefit conferred on him independently of any right or redress against others and so that he might enjoy the benefit even if he enforced the right?" 223 Redding v Lee concerned the question whether courts, in assessing damages payable for personal injuries which have caused a plaintiff to suffer a loss of earning capacity, should take into account social security benefits which the plaintiff would not have received had it not been for his injuries. All the members of the High Court applied the principles expressed in Espagne in concluding, by a majority, first, that payments of invalid pensions granted for permanent incapacity to an injured plaintiff should be disregarded in the assessment of damages and, secondly, payments of unemployment benefits should be deducted. 224 Gibbs CJ, with whom Brennan J agreed, said (at 122): "If a plaintiff is unable to work but nevertheless receives wages or sick pay, he cannot claim that he has suffered a loss of wages; if he needs medical attention, but it is provided free, he cannot claim that he should be credited with an amount for expenditure on medical attention which it has not been necessary to make: see Paff v Speed (1961) 105 CLR 549 at 567; Graham v Baker (1961) 106 CLR 340".

It is apparent from this observation that the Chief Justice did not regard a claim for medical attention that is provided free of charge as falling into the Griffith v Kerkemeyer category. His Honour was in dissent in regard to the deductibility of unemployment benefits but the quoted remarks were part of his general discussion relating to the applicability of the Espagne approach. 225 Mason and Dawson JJ (at 137) said that it was imperative to "continue to pursue and apply the principles expressed in Espagne". 226 In Van Gervan v Fenton Mason CJ, Toohey and McHugh JJ (with whom Brennan and Gaudron JJ were in general agreement) emphasised the difference between the approach of Gibbs J in Griffiths v Kerkemeyer and that of Stephen and Mason JJ in that case. Their Honours said (at 332): "Thus the important difference between the judgment of Gibbs J and the judgments of Stephen and Mason JJ in Griffiths is that, whilst Stephen and Mason JJ were of the opinion that the plaintiff's damages are to be calculated by the need for the services, Gibbs J thought that that was a necessary but not a sufficient condition of liability. In the opinion of Gibbs J satisfaction of the need is not sufficient unless the need 'is or may be productive of financial loss'".

And (at 333): "Consequently, it should now be accepted that the true basis of a Griffiths v Kerkemeyer 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'". 227 It must be observed, however, that these remarks were addressed to the category of gratuitous services provided by a family member or friend. The question now to be determined has not been in issue in Griffiths v Kerkemeyer and the cases that have followed it. Although, as we have mentioned, Stephen J in Griffiths v Kerkemeyer recognised that there could be a difference between this category of gratuitous services claims and other subventions. 228 In Kars v Kars (1996) 187 CLR 354 Dawson J accepted (at 360) that damages for services provided gratuitously are recoverable to compensate the plaintiff for the loss evidenced by the need for the services. Nevertheless, he said (at 361): "[The provision of voluntary services is] to be regarded as a benevolence which is prompted by the ties of friendship, or familial concern or duty".

Dawson J observed (at 362) that the provision of gratuitous services to an injured plaintiff by a friend or relative is to be characterised as an act of benevolence where there is no intention that it should result in the reduction of damages recoverable by the injured person. This, indeed, is the application of the Espagne approach. His Honour referred to the remarks he and Mason J had made in Redding v Lee (referred to in paragraph 222 above) and pointed out (at 363) that in Espagne Windeyer J had said (at 599 to 600): "Where personal injury was productive of private benevolence (and also some other forms of bounty), it is the intent of the donor which is crucial in deciding whether the benefit should be enjoyed in addition to and not in diminution of any claim for damages. If that is the purpose of the benevolence then the law will give effect to it".

Thus, Dawson J regarded claims for gratuitous services rendered by a friend or relative as falling into an identifiable category of claims to which, applying Espagne , the provider intended that "the benefit should be enjoyed in addition to and not in diminution of any claim for damages". It is implicit, on his Honour's reasoning, that claims for gratuitous services rendered by a different category of persons also have to be considered in accordance with Espagne , and - depending on the circumstances - may lead to a different result. 229 In Kars, Toohey, McHugh, Gummow and Kirby JJ (at 371) referred to Griffiths v Kerkemeyer as "an exceptional development which departed from the compensatory principle in its pure form". Their Honours discussed damages for gratuitous services on the basis that it was "an anomaly". The inference from these observations is that the Griffiths v Kerkemeyer rule will not readily be extended and courts should be reluctant to apply it to a new category of claims. 230 In Grincelis v House (2000) 201 CLR 321 Kirby J (who dissented in the result) expressed serious doubts as to the Griffiths v Kerkemeyer doctrine. His Honour said: "Having, in Griffiths v Kerkemeyer , embraced the principle that an injured plaintiff is entitled to recover damages for his or her needs met by the provision of gratuitous services by family or friends, this Court was set upon a path that has repeatedly demonstrated the 'anomalies', 'artificiality' and even 'absurdities' of the 'novel legal doctrine' which it adopted in substitution for its own earlier stated opinion".

The reference to "its own earlier stated opinion" was to that expressed in Blundell v Musgrave .

Callinan J (who also dissented in the result) also expressed criticisms of Griffiths v Kerkemeyer and indicated a clear preference for Blundell v Musgrave . 231 These remarks reinforce the observations made in Kars which, we have noted, lead to the inference that Griffiths v Kerkemeyer should be strictly confined in its application. 232 Drawing the foregoing together, we conclude:

(a) Griffiths v Kerkemeyer claims are anomalous and exceptional and courts should be reluctant to extend the Griffiths v Kerkemeyer approach to new categories of claims. (b) Claims for gratuitous services rendered by a friend or relative fall into a separate, identifiable, category of claims. It is only claims of this kind that can properly be described as Griffiths v Kerkemeyer claims.

(c) Claims for gratuitous services rendered by a publicly or privately funded charitable institution will not be payable by the wrongdoer merely on the ground that the injured person has established a need for the services in question. The injured person's entitlement to such claims will depend upon an application of the principles expressed in Espagne . 233 The conclusions so expressed are consistent with the following remarks of Professor Luntz in his work Assessment of Damages for Person Injury and Death (4th ed) at para 4.24: "On the principle adopted in Griffiths v Kerkemeyer the plaintiff is prima facie entitled to damages for the reasonable cost of medical and hospital treatment once the need for such treatment is shown; it then becomes a question of whether the defendant is entitled to credit if the actual cost is not met by the plaintiff personally, but by public funds. However, the courts have never looked at the question in this way and have generally proceeded on the basis that Griffiths v Kerkemeyer is not relevant to the issue of recovery of damages for hospital expenses". 234 It is now necessary to examine the character and purpose of the financial benefit that the first respondent received from the Spastic Centre. 235 In our opinion, the benefit of the services was conferred on the first respondent independently of any right of redress she might have against others. The benefit was conferred on her irrespective of whether she intended to or did enforce any such right. In the light of the factual findings made by Whealy J, the conduct of the Spastic Centre in sending letters to the first respondent and her family claming various sums for services rendered does not lead to an inference to the contrary. While it was open to the Spastic Centre to require the first respondent to agree to pay its charges, it simply did not do so. It provided its services entirely free of charge without imposing even a contingent obligation on the part of the first respondent to pay for them. 236 Accordingly, on the Espagne approach, the services provided by the Spastic Centre constitute subventions given out of benevolence with the intention that no payment was to be made for them by the first respondent. 237 On the basis of the intention found in the preceding paragraph we do not think it possible to say (as Whealy J found) that the Spastic Centre did not intend the market costs of its services to reduce the first respondent's ordinary entitlement to damages. The reality is that the Spastic Centre intended to provide the services free of charge, irrespective of any action that the first respondent might bring against the appellant. The Spastic Centre did not apply its mind to the question whether the costs of its services would reduce the first respondent's ordinary entitlement to damages. It intended to assist the first respondent by a free provision of services. Its motives were solely charitable and benevolent. It is to be inferred that it did not intend, therefore, that its services were to be in addition to and not in diminution of any claim for damages that the first respondent might have. 238 There are other matters of which account must be taken. 239 In our opinion, the Spastic Centre stands in a position, as regards the community at large, akin to that of a public hospital (see Gibbs J in Griffiths v Kerkemeyer at 169). We therefore do not agree, with respect, with Whealy J that the Spastic Centre was not an appropriate institution to be saddled with the ultimate loss. The fact is that it was content to provide the services free of charge without giving any thought to "the ultimate loss". The Centre was merely fulfilling its charitable objective. 240 By inference, the Spastic Centre derives its resources from donations or other subventions or grants (whether public or private). As such, it forms part of the community's loss distribution mechanisms. Again, in this sense, it is an institution bearing some similarity to a public hospital. We are unable to conclude that it would be inappropriate for the Spastic Centre to bear the ultimate loss. 241 We differ from Whealy J in that we see no doubling up should the loss be borne by the Spastic Centre. As the services were provided free of charge, the first respondent did not bear that loss. 242 There are plainly differences between free or cheaper hospital, medical, nursing and related services provided by the State (through the public hospital system) and free or cheaper services of a like kind provided by a public or private charity. Nevertheless, those differences are far narrower than the differences between charitable hospital, medical, nursing and related services provided by a charitable institution set up for that purpose and services of a like kind provided by the family or friends of an injured person. 243 The Spastic Centre, for instance, was set up with the specific object of providing certain medical, nursing and ancillary services. In providing those services to the first respondent it fulfilled its raison d'etre. Thus, the position of the Spastic Centre differed in principle from that of family or friends who provide private gratuitous services to an injured person. Firstly, the Spastic Centre provided services as part of its primary object. In contrast, nursing and related services provided by family or friends usually involve a sacrifice on their part. Secondly, the Spastic Centre provided services to the first respondent as part of its object of providing services to a wide category of injured persons who form part of the general public. In contrast, nursing and related services provided by family or friends are directed solely to the injured person and not part of a function of providing assistance to a segment of the public. 244 Accordingly, we would uphold the appellant's appeal insofar as it relates to the claim for the costs of the Spastic Centre. We would set aside the award made in this respect. 245 It follows, that the appellant's appeal against the award in respect of interest on the head of damage relating to the charges made by the Spastic Centre should also be upheld and the award made in that respect should be set aside. 246 The adjustment that is thus necessary is to reduce Item 29 by $614,752 and Item 30 by what we calculate using the formula adopted by his Honour to be $824,884.

Funds Management Charges and Cross Appeal - Item 31 247 His Honour applied Nominal Defendant v Gardikiotis (1996) 186 CLR 49, 54-55. If the defendant's negligence results in the plaintiff being so physically incapacitated that she is unable to manage day to day tasks, she is entitled to the cost of someone doing that for her, that expense being just as much a product of the defendant's negligence as is the disability. However, where funds management is needed merely from the size of the award of damages and the exercise of a choice as to how to invest those damages, this is not a recoverable expense. 248 At [856], his Honour concluded that the plaintiff's "disabilities are not such as to prevent her from managing and making decisions regarding her own financial affairs". He continued: "I regret to say that I am unable to accede to the plaintiff's argument that the possibility of 'exploitation' by carers is an adequate basis for allowing funds management. The carers are there to attend to the plaintiff's needs arising out of her disabilities. The case manager is there to supervise the carers and to otherwise address the plaintiff's needs." 249 However, his Honour did allow $55,000 to cover the need of tuition and training for the plaintiff in relation to financial management, and in compensating her for the expenses in carrying out a number of financial functions that she might otherwise have been able to do but for the injury. 250 His Honour said that it was plainly sensible for the first respondent to engage a fund manager, but that should not be at the defendant's expense. 251 The appellant considers that that is an appropriate method of disposing of this head of claim. 252 The cross appellant, on the other hand, says that her need for funds management is founded upon a combination of her functional physical disabilities and her vulnerability to error and exploitation. She cannot speak, she cannot write without electro-mechanical aids. Her communication difficulties are significant, she tires easily. These are gross afflictions, which, combined with her arithmetical deficits, her lack of exposure to the general world and vulnerability to exploitation, effectively prevent her from handling and managing her financial affairs. 253 It was a fine matter for judgment as to which side of the line the expense of a fund manager fell. His Honour decided that it fell on the defendant's side of the line and when one remembers that it was common ground that Calandre is not intellectually incapacitated, it was well within his Honour's mandate to make the decision. It is largely, as Wood CJ at CL pointed out in RTA v Palmer [2001] NSWSC 846 [542], a matter of common sense. Here, unlike the plaintiff in Palmer, there are no intellectual disabilities. Vulnerability to exploitation is always a risk for people with a lot of money, but this risk is to a large extent covered in the instant case by the case manager. Although there is a real distinction between the function of a case manager and a funds manager, a case manager is in as good a position as any to guard against exploitation. 254 Accordingly, in our view the cross appeal should be dismissed. 255 Thus in summary, the following adjustments should be made to the amount found by his Honour:

Item 31. No change. 256 As to the costs of the appeal, we indicated to counsel when giving notice of the time of handing down of these reasons that we would consider the question of costs of the appeal at 9.15 on Wednesday 9 April 2003. The question as to whether a certificate should be granted under the Suitors Fund Act should be considered at the same time. 257 If there is any adjustment to be made in the verdict because of alleged mathematical error such adjustment should be considered at the same time. 258 We remind counsel that we have requested that the parties file and provide each of the Judges with a copy of an outline of submissions as to costs in not more than one page by 4 pm on 8 April. If there is any argument as to the mathematical accuracy of the figures in paragraph 255, a note of the adjustments that it is alleged should be made should accompany that outline. 259 Accordingly the orders are as follows:

3. In lieu, verdict for the first respondent for $10,998,692.

4. Order that the first respondent repay to the appellant any sum already received over and above the amount referred to in order 3 plus interest at the court rate from date of payment.

5. Order that cross appeal be dismissed with costs.

6. Stand over the question of costs of the appeal to 9.15 am on 9 April 2003. ************************

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